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Clergy can be employees – depending on the facts

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Last week, Rev Mark Sharpe, a vicar who claimed he was subjected to a ‘campaign of hate’ in a rural parish, lost an appeal over his right to bring an action for unfair dismissal against the Church of England before an employment tribunal. The Court of Appeal found that he was “neither a party to a contract of employment, nor a worker”, instead being a “religious office holder”, and was therefore not able to bring a case under the Employment Rights Act 1996.

In doing so, the Court relied heavily on an earlier Supreme Court decision – Percy v Church of Scotland Board of National Mission (2005). The Court of Appeal noted that it all depends whether, on the facts, there is a contract of employment. There was “no presumption against ordained ministers being engaged under contracts” and “there is now no rule which applied only to ministers which does not also apply to other persons who claim to be employees… it is the same principles which have to be applied”.

It is important to note this point, as many media outlets reported on the case as though the blanket ‘employed by God’ justification still held true.

The Court of Appeal looked at the general criteria for employment status and decided on the facts that the vicar was not an employee. The Court considered the lack of any employment contract, high level of independence, security of tenure, the history of ecclesiastical independence, the appointment process being ‘far removed’ from an ordinary job application, and a lack of an effective framework of accountability to all point to there being no employee relationship.

The Church of England has already headed off potential criticism of the lack of rights granted to clergy through a series of measures including the Ecclesiastical Offices (Terms of Service) Regulations 2009 which gives clerics rights (which can be pled before employment tribunals) akin to employment rights – although it is explicitly stated they do not flow from an employment relationship. In light of Sharpe, one blogger has already questioned whether the church needed to go that far, but the issue has – for future clergy at least – been put beyond doubt.

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