Assistants to ministers, (not associate ministers), of the Church of Scotland are not employed by the Church under contracts of employment. The ‘control’ test was to be used in identifying a contract of employment. An assistant to a minister was not subject to the control and direction of any particular master. An assistant holds an ecclesiastical office and performs his duties subject to the laws of the church. In any event there was difficulty in identifying exactly who was the assistant’s employer. Lord Johnstone said that employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty of service to the employer in the servant. There was no one who occupied that position. The contract in which the assistant was engaged was more a contract for services than a contract of service.
Lord Kinnear: ‘I think that the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’ He contrasted this position with that of lay missionaries: ‘The probationers who are appointed to the position of assistant ministers are students of divinity who have obtained a licence to preach from the presbytery . . Now, we are told in this case what the terms of the licence are. The licence bears that the presbytery licences the person named to preach the Gospel of Christ and to exercise his gifts as a probationer for the holy ministry. When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is no sense performing duties fixed and defined by a contract of service.’
Lord Mackenzie: An assistant minister was:- ‘really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service.’
Lord Kinnear, Lord Johnstone, Lord Mackenzie
1914 SC 16
Scotland
Cited by:
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.
Employment, Ecclesiastical
Updated: 18 December 2021; Ref: scu.236415