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 employee. ‘The religious beliefs of a community may be such that their manifestation does not involve the creation of a relationship enforceable at law between members of the religious community and one of their number appointed to minister to the others, whether the appointment is by the local congregation or under an episcopal form of government. The law should not readily impose a legal relationship on members of a religious community which would be contrary to their religious beliefs. These beliefs and practices may be such, in the context of a particular church, that no intention to create legal relations is present. To take them into account does not involve any departure from ordinary contractual principles, especially in the light of Article 9.’
Pill LJ discussed the case of Percy: ‘What Percy’s case does, however, is establish that the fact-finding tribunal is no longer required to approach its consideration of the nature of the relationship between a Minister and his Church with the presumption that there was no intention to create legal relations. The earlier cases, as explained, do not exclude that possibility; strong statements in Percy’s case leave it open to employment tribunals to find, provided of course a careful and conscientious scrutiny of the evidence justifies such a finding, that there is an intention to create legal relations between a Church and one of its Ministers . . The Chairman was not bound by authority to reach a different conclusion. It is recognised that a spiritual motivation in working for a Church does not necessarily preclude an intention to create legal relations.
The guidance to be followed is, in my view, that stated by Lord Nicholls, at paragraphs 23 to 26 of his speech . . It was found that there was in Percy’s case an intention to create a legally binding relationship but the earlier authorities were not overruled. As Dillon LJ stated in Parfitt’s case . . ‘The spiritual nature of the work and the spiritual discipline under which it is performed must be very relevant considerations when it has to be decided whether or not there is a contractual relationship’. That remains, in my view, a principle of the law of England and Wales.’
Judges:
Pill, Arden, Lawrence Collins LJJ
Citations:
[2007] EWCA Civ 1004, Times 20-Nov-2007, [2008] ICR 282, [2008] IRLR 134, [2008] HRLR 2
Links:
Statutes:
Employment Rights Act 1996, European Convention on Human Rights 9
Jurisdiction:
England and Wales
Citing:
Cited – President 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 . .
Cited – Reverend 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 . .
Cited – Davies 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 . .
Cited – Santokh Singh v Guru Nanak Gurdwara CA 1990
A Granthi, a priest, at a Sikh temple was not employed under a contract of service. . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Rogers v Booth CA 1937
The plaintiff, a Salvation Army Officer claimed under the Workmen’s Compensation Act.
Held: The claim failed. Sir Wilfred Green MR said that membership of the Salvation Army gave rise to a relationship ‘pre-eminently of a spiritual character’ . .
Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Appeal from – New Testament Church of God v Stewart EAT 27-Oct-2006
EAT The tribunal had been correct in finding that as between the church and a pastor there had been an intention to enter into legal relations with sufficient characteristics of a contract of service. . .
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 . .
Cited by:
Cited – Singh 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. . .
Lists of cited by and citing cases may be incomplete.
Employment, Ecclesiastical, Human Rights
Updated: 12 July 2022; Ref: scu.259917
