Passing judgment in Sharpe v The Bishop of Worcester, the Court of Appeal has ruled that Reverend Sharpe, a rector, held his position under terms defined by statute, and that there was therefore no need to imply a contract into the relationship between the Reverend and the Bishop. Accordingly he could be neither a worker nor an employee, so he has no statutory protection from dismissal or detriment in relation to whistleblowing.

In taking up his post as rector, Mr Sharpe was required to make a declaration of assent to the faith of the Church, take an oath of allegiance to the monarch and make an oath of canonical obedience to the Bishop. He was then instituted as rector, an office from which he could not be dismissed except in exceptional circumstances under canon law. He was paid a stipend, and had set duties to perform.

The Court of Appeal found that rectors had a high degree of freedom to act as they saw fit, even to go against the express wishes of their Bishop, so long as they remained within the confines of church doctrine and did not engage in personal misconduct. As the original Employment Tribunal judge put it: “the freedom of rectors to go about their cure of souls in the way they see fit accordingly to their own judgment and conscience is a very real one.”

Accordingly, and despite other indications to the contrary it was held that there was no contract between the rector and the Bishop, and that even if there was, it would not be an employment contract. The court also considered it relevant that the office was not confirmed until “due ceremony” had taken place, and that the relationship did not therefore depend upon the will of the parties alone. It was held that while there is no presumption against an intention to form a contract as between ministers and the Church, this does not mean that a contract will be implied where it is unnecessary to do so.

The court further confirmed that there is no protection from detriment or dismissal for whistleblowing where there is no contract between an organisation and an individual.

Impact

While this is a helpful judgment for those considering the employment status of the clergy, it is not a wholly unequivocal one. The court explicitly does not rule out the possibility that a clergyman in the right circumstances may have a contract, express or implied, and that that contract may be an employment contract. This is very much a judgment on its individual facts.

Whilst Arden LJ cites the first clause of Magna Carta, which states that the English Church should be free, she places no reliance on it, and it is clear that there is no general presumption of any special status for the clergy. We have previously examined the willingness of the courts to find an employment relationship between minister and church (see for example, our analysis of the recent cases on vicarious liability), and there is nothing in the Sharpe judgment to suggest that that tide is turning.

For more information about the judgment, or for advice on employment law in a faith-based context, contact Lucy McLynn on 020 7551 7774 or by email to l.mclynn@bwbllp.com


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Posted on 01/05/2015 in Legal Updates

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