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 employment. However the jurisdiction in sex discrimination cases was wider, extending to those who ‘contract personally to execute any work or labour.’
Held: Her claim should proceed. The central test was the intention to create legal relations. ‘Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship.’ but ‘The offer and acceptance of a church post for a specific period, with specific provision for the appointee’s duties and remuneration and travelling expenses and holidays and accommodation, ‘ pointed to a contract.
In matters purely spiritual, the Church is to have exclusive jurisdiction, but ‘A sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction. The reason why a sex discrimination claim would not be so regarded is that the foundation of the claim is a contract which, viewed objectively, the parties intended should create a legally-binding relationship. The rights and obligations created by such a contract are, of their nature, not spiritual matters. They are matters of a civil nature as envisaged by section 3. In respect of such matters the jurisdiction of the civil courts remains untouched. ‘
‘It is a fundamental rule of sex discrimination law that it is not possible to contract out of it.’
‘It is a fundamental rule of sex discrimination law that it is not possible to contract out of it. ‘
Lady Hale refered to Perceval-Price and said: ‘I have quoted those words . . because they illustrate how the essential distinction is, as Harvey says, between the employed and the self-employed. The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God’s word, as interpreted in the doctrine of their faith, governs all that they practise, preach and teach. This does not mean that they cannot be ‘workers’ or in the ’employment’ of those who decide how their ministry should be put to the service of the Church.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond
[2005] UKHL 73, Times 16-Dec-2005, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354
Bailii, House of Lords
Sex Discrimination Act 1975 82(1), Church of Scotland Act 1921, Equal Treatment Directive (Council Directive 76/207/EEC
Scotland
Citing:
CitedRe National Insurance Act 1911: Re Employment of Church of England Curates 1912
A curate in the Church of England was not employed under a ‘contract of service’ within Part I(a): ‘The position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are . .
CitedScottish Insurance Commissioners v Church of Scotland SCS 1914
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 . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
CitedDavies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Appeal fromHelen Percy v An Order and Judgment of the Employment Appeal Tribunal Dated 22 March 1999 SCS 20-Mar-2001
Mrs Percy was a minister in the church. She appealed rejection of her claim for unfair dismissal and sex discrimination.
Held: the court considered whether Ms Percy was employed by the Board of National Mission in terms of a ‘contract . .
CitedMcMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
Cited102 Social Club and Institute Ltd v Bickerton 1977
Philips J set out the consequences of the 1971 Act: ‘Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from ‘the . .
CitedBarthope v Exeter Diocesan Board of Finance EAT 1979
A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service.
Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed . .
CitedMiles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
CitedReverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
CitedJohnson v Ryan and others EAT 29-Nov-1999
A rent officer claimed unfair dismissal. The respondent said that being appointed under a statutory authority she was not an employee entitled to protection.
Held: The defence failed: ‘The question that the [employment] tribunal should have . .
CitedLogan v Presbytery of Dumbarton (Scotland) OHCS 23-May-1995
Civil courts have no power to review acts of Church of Scotland in the exercise of its disciplinary powers in spriitual matters. . .
CitedHastie v McMurtrie 1889
The pursuer had been appointed a foreign missionary of the Church of Scotland in India.
Held: He had not been appointed to an office in the church but had an ordinary contract of service which was terminable by notice in the usual way. . .
CitedDepartment of the Environment v Fox 1980
A rent officer, although holding a statutory office and not in employment, came within section 85(2)(b) because she performed services on behalf of the Crown for the purposes of a statutory body, namely a rent assessment committee. . .
CitedDale v Inland Revenue Commissioners HL 1954
Payments to trustees, which a testator had directed should be paid from a charitable trust for their work as trustees, were held to be earned income. The Revenue had contended that they were investment income because it was repugnant to the nature . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedForbes v Eden 1865
A clergyman complained of a change in the doctrinal standards of the church.
Held: Since the matter concerned an eccliastical issue and not that he had been deprived of his status as a minister, the court could not intervene. Lord . .
CitedMcMillan v Free Church of Scotland 1861
A clergyman complained of the loss of his benefice.
Held: A patrimonial interest was involved and that the court would protect it. While the court might not have the power to restore the pursuer to the ministry, it did not follow that he was . .
CitedStewart v Kennedy HL 10-Mar-1890
As a general rule of Scottish law, extrinsic evidence of the parties’ intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible. There may however be exceptional cases.
For . .
MentionedForbes v Eden HL 1867
Decision affirmed . .
CitedSkerret v Oliver 1896
The pursuer had been suspended from his office as a licentiate of the United Presbyterian Church for having met and walked privately with a young female member of the congregation.
Held: Lord McLaren said that the governing bodies of voluntary . .
CitedMirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
CitedLegal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
CitedMingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
CitedAlabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
CitedM H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
CitedFletcher, Parkes, Wilkinson v NHS Pensions Agency/Student Grants Unit the Secretary of State for Health EAT 3-Jun-2005
EAT An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedCoote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
CitedWippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
CitedKalanke v Freie Hansestadt Bremen ECJ 17-Oct-1995
An automatic preference of women ceteris paribus was discriminatory and unlawful. Any derogation from article 2.4 must be interpreted strictly. . .
CitedHugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
CitedWebb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
CitedTrussed Steel Concrete Ltd v Green 1946
A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a . .
AppliedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedMalloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
CitedGreat Western Railway Co v Bater 1920
At common law, and office is ‘a subsisting, permanent, substantive position, which had an existence independently of the person who filled it, and which went on and was filled in succession by successive holders.’ . .

Cited by:
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedMoore v The President of The Methodist Conference EAT 15-Mar-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Claimant, a Methodist minister, brought proceedings for unfair dismissal – Tribunal held that it was bound by President of Methodist Church Conference . .
CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
CitedThe New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
CitedSingh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
AppliedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
CitedSharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
CitedPimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Ecclesiastical

Leading Case

Updated: 10 November 2021; Ref: scu.236382