Percy (AP) (Appellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland), (2005)

Extract

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Percy (AP) (Appellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland), (2005)

HOUSE

OF LORDS

SESSION 2005-06

[2005] UKHL 73

on appeal from: 2001 SC 757

OPINIONS

OF

THE LORDS OF APPEAL

for

judgment IN THE CAUSE

Percy (AP) (Appellant)

v.

Church of Scotland Board of National Mission (Respondent) (Scotland)

Appellate Committee

Lord Nicholls of

Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Counsel

Appellants:

Susan O'Brien QC

Brian Napier QC

(Instructed by Drummond

Miller WS)

Respondents:

Laura Dunlop QC

Simon Collins

(Instructed by Bircham

Dyson Bell, London agents for Church of Scotland Law Department)

Hearing

dates:

24, 25 and 26 October 2005

on

Thursday

15 DECEMBER 2005

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Percy (AP) (Appellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland)

[2005] UKHL 73

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1.  These proceedings concern a sex discrimination claim brought against the Church of Scotland by a former minister of the church, Ms Helen Percy. The question is whether, as a matter of law, such a claim lies on the facts of this case. This raises two main issues. The first is whether Ms Percy's relationship with the church constitutes 'employment' as defined in section 82(1) of the Sex Discrimination Act 1975. The second issue is whether Ms Percy's discrimination claim constitutes a spiritual matter within section 3 of the Church of Scotland Act 1921 and, as such, it is within the exclusive cognisance of the Church of Scotland and its own courts.

2.  Ms Percy, a single woman, was ordained a minister of the Church of Scotland on 12 December 1991. In June 1994 she was appointed to the position of associate minister in a Church of Scotland parish in Angus. In June 1997 an allegation of misconduct was made against her. She was said to have had an affair with a married elder in the parish. The presbytery of Angus set up a committee of enquiry to investigate the allegation. Ms Percy was suspended from her duties. The committee found there was a case to answer, and the presbytery began making preparations for holding a trial by libel, that is, trying a formal disciplinary charge against Ms Percy. At a mediation meeting arranged by the church Ms Percy was counselled to resign and demit status as a minister. In December 1997 she demitted status, that is, she resigned as an ordained minister of the church. The presbytery accepted this. Necessarily that brought to an end her appointment as associate minister.

The proceedings

3.  Ms Percy initiated these proceedings in an employment tribunal, then known as an industrial tribunal, in February 1998. She named as respondent the Church of Scotland. She alleged unfair dismissal and unlawful sex discrimination. The essence of her discrimination claim was that in similar circumstances the church had not taken similar action against male ministers known to have had extra-marital sexual relationships. Notice of appearance was given by the 'Church of Scotland Board of National Mission'.

4.  In December 1998 the employment tribunal dismissed Ms Percy's application for want of jurisdiction. Both complaints comprised 'matters spiritual' and fell within the exclusive jurisdiction of the courts of the Church of Scotland as provided by the Church of Scotland Act 1921. The employment tribunal added that, although there was a contract in existence, having regard to the essentially religious nature of Ms Percy's duties it was not a contract of employment as defined in the unfair dismissal legislation or as defined in section 82(1) of the Sex Discrimination Act 1975.

5.  Ms Percy appealed against that decision so far as it related to her claim for sex discrimination. The Employment Appeal Tribunal, presided over by Lord Johnston, dismissed the appeal in March 1999. The appeal tribunal held that the case concerned the disciplining of a minister with regard to her living and that was a matter spiritual governed by article IV in the Schedule to the 1921 Act. On matters spiritual Parliament has allowed the Church of Scotland an exclusive jurisdiction. The appeal tribunal added that 'with some hesitation' it had concluded that the arrangement between Ms Percy and the National Board of Mission was not a contract for work and labour within section 82(1) of the 1975 Act.

6.  Ms Percy appealed again. In March 2001 the First Division of the Court of Session, comprising the Lord President, Lord Cameron of Lochbroom and Lord Caplan, dismissed the appeal: 2001 SC 757. The leading judgment was given by the Lord President, Lord Rodger of Earlsferry. He c...

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