Percy (AP) (Apellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland)
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)
 UKHL 73LORD NICHOLLS OF BIRKENHEAD
Contracts of service and the clergy
A contract for services
Office holders and employees
I agree. Slynn J added, at page 906:
Intention to create legal relations
The parties to the contract
Ms Percy's appointment
The Church of Scotland Act 1921
This obiter opinion that there was a contract of some unspecified nature is heavily relied upon by counsel for Miss Percy.
LORD HOPE OF CRAIGHEAD
The second part contains an assertion that the civil authority has no right of interference in the proceedings and judgments of the Church within the sphere of its spiritual government and jurisdiction. It provides:
This is a 9 hour commitment per week to chaplaincy responsibilities within the prison.
On 2 December 1997 the Presbytery of Angus accepted an offer by the appellant to demit her status to seek appropriate counselling. It decided to conclude its investigation into the allegations that had been made against her.
On 16 March 1998 the respondents entered a notice of appearance in response to her complaint in which they submitted that the matters raised by the applicant fell outside the jurisdiction of the civil courts and that the application was incompetent. They also denied that the applicant was an employee of theirs or that there was any intention to enter into such a contract, as her appointment was as the holder of an office and it had been made by the Parish Re-appraisal Committee in pursuance of the Church's exclusive jurisdiction in terms of article IV of the Declaratory Articles.
The starting point
The contract issue
The jurisdiction issue
Article 6 provides:
The Church's position could not have been more bluntly. There is, as one would expect, an unequivocal commitment to the principle of equal treatment. But there is an assertion that the 1975 Act does not form part of the law of the Church, as it claims exclusive jurisdiction in all matters of doctrine, worship, government and - as is especially important in this case - discipline. It is not difficult to see the potential for conflict between this position and article 6 of the Directive which provides that the Member States shall introduce into their national legal systems such measures as are necessary to enable persons who consider themselves wronged by a failure to comply with the principle to pursue their claims by judicial process.
Article 234 EC
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
I am in no doubt that those arrangements do fall within that definition.
Hence careful attention has to be paid to the definition section of the relevant statute, because these draw some quite deliberate distinctions. The definition of "employment" with which we are concerned is, of course, wider than that covered by a contract of service between master and servant, because it encompasses "any contract personally to execute any work or labour." So the authorities on what did or did not fall within the common law's understanding of a master-servant relationship will not give us much help. In Harvey, the view is taken, at para A.1.4, that "the distinction is between those who work for themselves and those who work for others, regardless of the nature of the contract under which they are employed."
The identical provision appears in section 1(8) of the Equal Pay Act 1970 and in section 85(2) of the Sex Discrimination Act 1975 dealing with the application of that Act to the Crown. Thus while civil servants were included, statutory office-holders were expressly excluded. However, the Northern Ireland Court of Appeal held that that express exclusion had to be disregarded, because it was inconsistent with the terms of the 1976 Equal Treatment Directive (Directive 76/207/EC). It was also common ground that the Directive had direct effect and that the Departments responsible were emanations of the State. Hence the women concerned had directly enforceable claims if the Directive had been infringed.
This, of course, is the equivalent of the definition of "employment" in the 1975 Act. Thus the Court regarded these judicial officer-holders as employed under a "contract personally to execute any work or labour".
The Lord Chief Justice, Sir Robert Carswell, giving the judgment of the Court, pointed out that the object of Article 119 of the Treaty of Rome and the Equal Pay and Equal Treatment Directives was to give protection against inequality and discrimination to those who might be vulnerable to exploitation. The concept of a worker should be construed purposively by reference to this objective. The Court went on:
Nor, as Harvey puts it at para A.1.168, was she a person whose "rights and duties are defined by the office she holds" rather than by any contract. Her rights and duties were defined by the terms she had agreed with the Parish Reappraisal Committee of the Board of National Mission. As Lord Nicholls and Lord Hope have demonstrated, these bore all the hallmarks of a contract. For the reasons they have given, I too find it impossible to conclude that there was no intent to enter into legal relations. With the greatest respect to the Court of Appeal in Diocese of Southwark v Coker  ICR 140 and to the Lord President in this case, I have difficulty in understanding why there should be any presumption against such an intention. Staughton LJ accepted in Coker, at p 150, that there might a "subsidiary contract, as to a pension, or the occupation of a house". Miss Percy would clearly have been able to bring legal proceedings had her salary not been duly paid or had she been wrongly deprived of the occupation of her manse. The consideration for these benefits must have been the performance of the duties she had undertaken. In this day and age, the notion that her "salary", modest though it was, was simply to meet her basic subsistence needs while she devoted herself to her religious and pastoral duties is unrealistic. As the Perceval-Price case demonstrates, the fact that she had considerable discretion and independence in the way in which she carried out those duties did not mean that she was not a "worker" or a person who had contracted "personally to execute work or labour". That was exactly what she was.