Sharpe v The Worcester Diocesan Board Of Finance Ltd & Anor (Jurisdictional Points : Worker, employee or neither), Court of Appeal - United Kingdom Employment Appeal Tribunal, November 28, 2013, [2013] UKEAT 0243_12_2811

Resolution Date:November 28, 2013
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Sharpe v The Worcester Diocesan Board Of Finance Ltd & Anor (Jurisdictional Points : Worker, employee or neither)
 
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Copyright 2013Appeal No. UKEAT/0243/12/DMEMPLOYMENT APPEAL TRIBUNALFLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE At the Tribunal On 1 and 2 November 2012 Judgment handed down on 28 November 2013BeforeTHE HONOURABLE MRS JUSTICE COX DBE(SITTING ALONE)THE REVEREND ANTHONY MARK SHARPE APPELLANT(1) THE WORCESTER DIOCESAN BOARD OF FINANCE LTD(2) THE BISHOP OF WORCESTER (IN HIS CORPORATE CAPACITY) RESPONDENTSTranscript of ProceedingsJUDGMENTUKEAT/0243/12/DM APPEARANCESUKEAT/0243/12/DMSUMMARYJURISDICTIONAL POINTS - Worker, employee or neitherThis appeal raises the question whether the Claimant, an ordained Minister in the Church of England, was working under a contract of employment, or was alternatively a ``worker'' within the meaning of s.43K ERA after he was appointed as Rector in the Teme Valley South Benefice, in the Diocese of Worcester. He presented two claims to the ET, complaining that he had suffered detrimental treatment, as a result of making protected disclosures, and that he was then constructively and unfairly dismissed. After a pre-hearing review the ET held that there was no jurisdiction to determine his claims because there was no contract in existence between the parties and, further, the Claimant did not fall within the statutory definition of ``worker''.After oral argument, the appeal was stayed pending the decision of the Supreme Court in Preston/Moore v President of the Methodist Conference. The parties subsequently filed further written submissions on the effect of that decision.The EAT considered the present state of the law in this area, following Preston, and allowed the appeal, directing that the matter should be remitted for a hearing before a fresh Tribunal in accordance with the legal principles set out in this judgment.UKEAT/0243/12/DM-74-THE HONOURABLE MRS JUSTICE COX DBEIntroduction1. Anthony Sharpe is an ordained minister in the Church of England. From 2005-2009 he was working as Rector in the Benefice of Teme Valley South in the Diocese of Worcester.2. In two claims presented to the Birmingham Employment Tribunal he complained that he had suffered detriment, as a result of having made public interest disclosures, and that subsequently he was constructively and unfairly dismissed.3. By a judgment dated 15 February 2012, following a pre-hearing review of both claims, the Employment Judge held that Reverend Sharpe (the Claimant) was neither an employee of the Respondents nor a ``worker'' within the meaning of s.43K and s.230 of the Employment Rights Act 1996, as amended. The Employment Tribunal therefore had no jurisdiction to determine his claims.4. The Claimant appealed against that decision to the Employment Appeal Tribunal. Meanwhile, the law relating to the employment status of ministers of religion has continued to receive the attention of the Supreme Court. After the full hearing of this Claimant's appeal, further written submissions from the parties were filed following the judgment of the Supreme Court in The Catholic Child Welfare Society and Others v Various Claimants and the Institute of the Brothers of the Christian Schools and Others [2012] UKSC 56. Subsequently, the Claimant's appeal was stayed pending the judgment of the Supreme Court in The President of the Methodist Conference v Preston [2013] UKSC 29. After that judgment was handed down the parties in this appeal presented further written submissions on its significance in relation to this appeal.5. This is therefore the judgment of the Employment Appeal Tribunal in the Claimant's appeal, having regard to the Supreme Court decisions in these cases, in particular in the case of Preston, and to the additional submissions of the parties.The issues6. The issues to be determined at the pre-hearing review were these:1. Did the Claimant enter into a contract with the Respondents or either of them?2. If so, was it a contract of service?3. If not, should the Respondents be permitted to withdraw the concession they had previously made, in relation to the first claim, that the Claimant was a worker?4. If so, was the Claimant a worker for the purpose of s.43K and s.230 of the Employment Rights Act, enabling him to pursue his public interest disclosure claim?7. In addition to extensive documentary evidence, the Employment Judge heard oral evidence from the Claimant, and the Respondents called Mr Robert Higham, Diocesan Secretary, and Archdeacon Trethewey, the Archdeacon of Dudley. The Respondents also called Professor McClean, a professor of law at the University of Sheffield, described by the Employment Judge as ``an acknowledged expert in the field of ecclesiastical law''. In one of his grounds of appeal the Claimant challenges the admissibility of Professor McClean's evidence, which included his opinion evidence as to whether the Claimant worked under a legally binding contract. On behalf of the Claimant Mr Bowers QC, who did not appear below, submits that the Employment Judge erred in admitting this evidence, and in allowing himself to be influenced by expert opinion on matters of law, which were solely for him to determine, and which led to the errors of law which are apparent in his judgment.8. That criticism aside, the Claimant's principal complaint is that the Employment Judge failed correctly to apply binding authority, failed properly to analyse whether there was in this case the offer and acceptance of a contract, and failed to identify the Bishop as the appropriate contracting party. These failures, Mr Bowers submits, led to erroneous conclusions that no contract of employment existed and that the Claimant was not a worker within the meaning of the legislation.9. On behalf of the Respondents Mr Tattersall QC submits, essentially, that none of the grounds of appeal has any merit; that the factual findings of the Employment Judge are clear; that the Judge directed himself correctly to the relevant law; and that his reasoning and conclusions are unimpeachable.The facts10. On the evidence before him the Employment Judge made detailed findings of fact on the structure of the Church, on ordination and appointment to the benefice, on the nature and duties of the rector's office; on the benefits, terms and conditions associated with the tenure of the office of rector; on the rector's relationships with others in the diocese; and on termination of the rector's office.11. He noted that there was, in the event, relatively little difference between the evidence of the Claimant and the evidence of the Respondents' witnesses as to the material facts, save, notably, on the question of his relationship with the two Respondents and the extent of their control over him.12. The key findings of fact, for the purposes of this appeal, are as follows.Structure13. Despite its central position in society as the established Church, the Church of England has no legal personality. It can neither sue nor be sued. The piecemeal approach of legislation over the years has resulted in the title ``Church of England'', denoting an amalgam of an infinite number of bodies with no clear picture as to how the various parts interact with each other. Ultimate authority lies with the Church's Parliament, the General Synod, subject to the approval of the Westminster Parliament.14. The Church and its offices are governed by canon law, also referred to as ecclesiastical law, which is derived from a number of sources. The written Canons of the Church of England are periodically reviewed and, since 1920, a major source of canon law has been the Measures passed by the General Synod and its predecessor the Church Assembly. Canon law is part of the law of the land and Measures receive the Royal Assent after approval by the Westminster Parliament. 15. The Church consists of a number of geographical dioceses, each headed by a bishop. The Bishop of Worcester (the second Respondent) is therefore the most senior member of the clergy in the Worcester Diocese. His role is described at Canon C18(1) in the following terms:``The chief pastor of all that are within his diocese, as well laity as clergy, and their father in God; it appertains to his office to teach and to uphold sound and wholesome doctrine, and to banish and drive away all erroneous and strange opinions; and, himself an example of righteous and godly living, it is his duty to set forward and maintain quietness, love, and peace among all men.''16. The Bishop of Worcester is supported by a suffragan or assistant bishop, the Bishop of Dudley. No point was taken below that some of the Claimant's dealings were with the second Respondent and others with the Bishop of Dudley. References to ``the Bishop'' in the judgment therefore include both.17. The Worcester Diocese has two Archdeacons, also of Worcester and Dudley respectively. Within the Dudley Archdeaconry there are seven Deaneries, each with a rural Dean. The Deanery within which the Claimant's benefice fell contained six benefices. Within the Claimant's benefice, Teme Valley South, there were three separate Parishes and therefore three Parochial Church Councils (PCCs).18. The Claimant was Rector of the Benefice of Teme Valley South from his appointment in January 2005 until his resignation on 7 September 2009. 19. This structure distinguishes the Church of England from other major churches in England which, save for the Roman Catholic Church, have no bishops. Authority in those other churches lies with a national body (for example the Methodist Conference), or with a local Presbytery (the traditional feature of Presbyterian Churches), or with the individual, local congregations (as in the Baptist and Congregational traditions). No other church operates within the context of canon law. The rector's relationships within the Church of England were found to be confined entirely to his diocese, those relationships being between the rector and the...

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