Scottish Court of Session Decisions

Lord Kinnear.—This petition raises a question between the Scottish

Insurance Commissioners and the Church of Scotland and the United Free Church as to the position of certain classes of persons under the provisions of the Insurance Act. The petition is presented by the Insurance Commissioners, who must, of course, maintain that the persons whom they have specified in their application do fall within the provisions of the statute; but it has been explained to us that the position which the Commissioners desire to assume in this case is not by any means that of litigants pressing a claim against recalcitrant debtors, but is merely that of persons who, having a public duty to discharge, come to this Court for advice, as they are entitled to do under the provisions of the Act of Parliament. That being the professed intention of the Commissioners, I only add that I think the case they have raised was one which they were clearly entitled to raise, and that it was argued with great fairness and moderation on both sides. Although I think the question was quite a right one to raise, I cannot say that, as regards the most important of the three classes to which it relates, I myself have seen any sufficient reason to suppose that they are within the Act.

The statement is that a question has arisen as to the employment of assistant ministers of the Church of Scotland and of the United Free Church of Scotland, of lay missionaries of these two Churches, and of student missionaries of these two Churches—the question whether the employments of these ecclesiastical persons respectively are or are not within the Insurance Act.

I begin by saying that I see no difference in relation to this question between the position of the Established Church and that of the United Free Church. The status of the classes of persons in question seems to me to depend upon the same considerations in both Churches, and I do not think that from either side of the bar it was suggested that any sound distinction could be taken between them.

The question, therefore, is,—to begin with the first of the three classes of persons,—whether assistants to ministers of these two Churches are within the Act or not; and that depends upon whether they satisfy the conditions of Part I. of the First Schedule to the Act, by which it is provided that employment in the United Kingdom, under any contract of service or apprenticeship, whether the employed person is paid by the employer or someone else, and whether under one or more employers, shall be one of the cases included in the operative part of the Act, which refers to all persons who are to be brought within its operations as persons who are engaged in any of the employments specified in the Schedule, and in particular in the part of the Schedule I have read.

Now that raises the question whether assistants to ministers of these two Churches are employed under a contract of service or not. That, I think, must be determined with reference to the ordinary and popular use of the term “servant.” As that word is used in the ordinary affairs of life it means the kind of relationship which subsists between a master and a domestic servant. It is certainly not to be read in the metaphorical sense in which it may be said that public officers and Ministers of State are servants of the Crown or servants of the country. Now, what constitutes a contract of service, if the word is used in the ordinary and popular sense, is a question which has been frequently discussed in the Courts both of this country and of England, and I apprehend that the general rule is quite clearly established. It has been chiefly discussed in cases where it was indispensable to determine whether particular persons were servants of those by whom they were employed or not, in order to decide whether an employer was liable for the acts or defaults of a person in his employment or not; and the general rule is stated very clearly by a distinguished writer, Sir Frederick Pollock, when he says:—“The relation of master and servant exists only between persons of whom one has the order and control of the work done by the other.” In the series of cases to which the learned author refers in support of that definition I think it will be found that the true force and meaning of the words “order and control of the work” is just what is said by Bramwell, L.J., in one of the cases (Yewens v. Noakes ):—“A servant is a person subject to the command of his master as to the manner in which he shall do his work.” In a contract by which one undertakes to produce a given result, but so that in the actual execution of the work he is not under the direction of the person for whom it is done, but may use his own discretion in things which are not specifically fixed by the contract itself, the relation of master and servant does not exist. The employer, in cases of that kind, is not liable for the acts and defaults of the person employed, just because, although he may take benefit from the work and pay for it, he is not in the position of an employer of a servant, entitled to interfere in the direction and control of his work.

If that is the meaning of a contract of service, we have to see whether there is any such contract between the assistant ministers in question and the kirk-session or anybody else, and I confess to thinking very clearly that there is not. I think the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master. We are told that these gentlemen are probationers, and we know that a probationer, in the ordinary sense of the word, is a person so placed that he may give proof of his qualifications for a certain status or place. The probationers who are appointed to the position of assistant ministers are students of divinity who have obtained a licence to preach from the presbytery, and that is a licence which is only given to them on the production of certificates from professors of theology in the universities of their good morals and qualifications, and upon their showing that they have gone through a certain course of theological study, and thereafter upon their passing certain trials to the satisfaction of the presbytery. When these things are done, then the presbytery issues its licence. Now, we are told in this case what the terms of the licence are. The licence bears that the presbytery licenses the person named to preach the Gospel of Christ and to exercise his gifts as a probationer for the holy ministry. When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is in no sense performing duties fixed and defined by a contract of service.

I should have come to that conclusion, I confess, without much hesitation apart altogether from authority. But it is very satisfactory to find that a question which, if not exactly the same as the present, is at all events substantially the same, has been decided in the Chancery Division of the Court in England by a very eminent Judge. I refer to the case of the Church of England curates—In re National Insurance Act. The question that was raised there was whether curates of the Church of England were or were not within the terms of the Act as being persons employed in the sense of the statute. The learned Judge, who was Mr Justice Parker (now Lord Parker), says:—“It appears quite clear on the construction of the Act that, in order to make insurance obligatory under Part I., there must be something in the nature of a contract of service, and in the particular case before me, unless I can say that there exists between a curate and someone else some contract which can properly be called a contract of service, the curate can in no sense be a person on whom insurance is obligatory, though he may possibly come in as a voluntary contributor. I have come to the conclusion that the position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose duties and rights are defined by contract at all.” And then he goes on to say that there is no pretence in reality, in his opinion, for arguing that the relation between a curate and his vicar, or between a curate and the bishop, is the relation of employer and servant. I do not think it necessary to read or follow out the argument in all its details upon that particular question. Although the relation between an assistant minister and the parish minister more or less resembles that between a vicar and his curate, there are many points of detail in which they differ. But I think that in substance the reasoning of the learned Judge in that case applies directly to the case we have to consider. And so far as these gentlemen are concerned, therefore, I have come to the opinion that they are not within the obligatory provisions of the statute.

I only add that I think the learned counsel who maintained the contrary had some difficulty in explaining exactly who was to be held to be the employer if assistant ministers were servants employed in terms of the Act at all. Whether it was the minister or whether it was the kirk-session, I think, seemed to him to be a question of considerable difficulty; but ultimately, as I understood the argument, the position assumed was that the kirk-session was the master and the assistant minister the employee. I think that position is completely excluded by the statement of facts contained in the admissions before us, from which I infer that the kirk-session has no power at all to control or direct the assistant minister either in his preaching of the Gospel or in his visitation of the sick and poor or in his general parochial work. These are duties which he has undertaken in accepting the charge, and his authority for performing them is that of a licentiate of the Church, derived from the presbytery and not derived from a contract either with the kirk-session or with the minister. It is manifest that the kirk-session can have no pretention to control a minister in the exercise of his religious office, and if he is, in some sense, subject to the control or superintendence of the minister of the parish, it is by reason of the duty which a junior owes to a superior clergyman, and not by force of the contractual obligations of a servant to a master.

The other classes of persons with regard to whom the question has arisen are in a somewhat different position, and I think it may be convenient to deal with the third class first, because that resembles the first more nearly than the second. The third class is described as being that of student missionaries who are employed between the months of May and September—that is, of course, during the university summer vacation. The appointments are desired by young men who are studying for the Church, because they get opportunity for study and preparation, and also for gaining experience in the practical work of the ministry. It is said in the statement with reference to the United Free Church student missionaries that the special object in view is that students may obtain experience in the conduct of public service, pastoral visitation, and, generally, in the practical work of the ministry. They maintain their regular studies during the months in which they are acting as student missionaries, and must return to the ordinary course of theological study when the university opens again, which they can do under the supervision of the presbytery. Now, I think there is a distinction between students and persons who are licensed to preach. There is a very obvious ecclesiastical distinction, but I do not think it is enough to differentiate the one class from the other with reference to this particular question. As I understand the statement, the student missionaries are really engaged in this work as work incidental to their studies and probation for the office of the ministry, and I think they are no more subjects of a contract of service between them and any other person than the assistant ministers are.

The remaining class is that of lay missionaries, and I have come to a different conclusion so far as regards these persons. Lay missionaries, we are told, are appointed by the minister or by the kirk-session. Not being licentiates, they have no authority to discharge the spiritual duties of the ministry. Their work includes assistance in regular services or in services in mission halls, the superintendence of Sunday schools, the teaching of Bible classes, and general parochial work. It is added that they receive their instructions from the minister, who is entitled to control them in the exercise of their duties with reference to the time, place, and mode of performing these duties. Their appointments do not come before the presbytery as those of licentiates must do, and they hold their appointments at the will either of the minister or the kirk-session. Now, that appears to me to describe not the status of an ecclesiastical person but the position of a person who, under a contract, undertakes to do certain work for remuneration, and who is under the control and direction of the person by whom he is employed. It appears to me, therefore, that these gentlemen do fall within the definition of the statute. Whether in any particular case they are to be held as in the employment of the minister or in the employment of the kirk-session is a question which we, I think, are not in a position to answer. If they are employed under contract, then every contract must depend upon its own terms; but whether the kirk-session or the minister is to be regarded as employer, I think there is enough before us to show that there is a contract of employment, and that is sufficient for the disposal of the only qnestion which it is possible for this Court to determine. The application of the general doctrine to particular cases will remain for the consideration of the Insurance Commissioners.

Lord Johnston,—The question submitted to the Court by the Scottish Insurance Commissioners is whether the employment as (a) assistant minister, (b) lay missionary, and (c) student missionary in the Established and United Free Churches of Scotland respectively is employment in the sense of Part I. of the National Insurance Act.

There are distinctions between those classes, but none between the Churches. I take therefore the case of the assistant ministers first. The statute (First Schedule, I. (a)) says merely that the employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty or obligation of service to the employer in the servant. I state it thus generally, because the fact that the employer's powers of appointment and dismissal and his right of control may be exercised by delegation does not affect the question.

So regarding the contract of service, the employment of an assistant minister does not appear to me to fall under the category of employment under such contract in the sense of the Act. In the first place, the assistant must be a probationer for the ministry, and a probationer for the ministry must be a licentiate. Shortly, a probationer is a candidate for the ministry, licensed to preach and exercise his gifts but not yet ordained to a charge. He receives his licence from the presbytery. So far back as 1694 the General Assembly enacted “That when such persons are first licensed to be probationers, they shall oblige themselves to preach only within the bounds, or by the directions of that presbytery which did licence them.” Subject to provision for transfer from presbytery to presbytery, this still holds, and to the jurisdiction of the presbytery of the bounds the probationer is subject as much as the minister, and therefore the presbytery have general control over him in the discharge of his duties and may withdraw his licence. If his licence is withdrawn by the presbytery, his appointment as assistant necessarily falls. Accordingly, it is admitted that “he holds a status recognised by the Church.” Allowing for the difference between the ecclesiastical system of the Established Church of England and that of both branches of the Presbyterian Church in Scotland, there is very substantial similarity between the assistant minister in Scotland and the curate in England, and the judgment of Parker, J., in In re Employment of Church of England Curates appears to apply, mutatis mutandis, to the case under consideration. In the case of the assistant minister there is no one who occupies the position of employer in the sense of a contract of service. The presbytery does not appoint; even though its licence is necessary, it is a general licence and not a licence ad hoc. The kirk-session generally appoints; sometimes the minister. The kirk-session has no control over the discharge of duties. That control is divided between the presbytery and the minister. The power of terminating the appointment is with the minister or kirk-session according as the appointment has been made by the minister or kirk-session, yet the appointment may be terminated by the act of the presbytery in withdrawing the licence. In fact, the contract in which the assistant minister is engaged is, as in the Royal Infirmary case, more a contract for services than a contract of service. Accordingly, I agree with your Lordship that assistant ministers are not employed persons in the sense of Part I. of the Act.

The lay missionaries are in a different position. They enjoy no ecclesiastical status. They are not licentiates, and have no relation to the presbytery. They are entirely under the control of the minister of the parish, and accordingly they must, I think, be held to be employed persons in the sense of the Act.

The student missionaries, on the other hand, who merely receive vacation appointments, cannot properly be said to be employed at all. They are appointed, in the course of their university career, for their own benefit rather than for that of the parish, that they may have some practical experience of parish work as part of their education. They are, as it were, given the opportunity of seeing what I may call clinical parochial work. And their position is therefore clearly distinguished from that of the lay missionaries, whose employment is regular and permanent and a means of livelihood. They are therefore not employed persons in the sense of Part I. of the Act.

Lord Mackenzie.—I am of the same opinion, and for the reasons which have been already explained. As regards the assistants, I think insurance is not obligatory because they are under no contract of service. The joint minute which has been adjusted by the parties defines, so far as possible, the relation of the assistant to the minister and kirk-session. I think that the fact that the definition is left in very general terms shows how much liberty there must necessarily be to the assistant in the execution of his duties. To a certain extent there may be control as regards the objects of the work; but, as it appears to me, there is no definite control as regards the method in which the work is to be done. The case of the assistant is really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service. That, I think, is sufficient to show that the case of the assistants is outside the scope of the Act.

As regards the student missionaries, there, I think, the contract may be described as one for services. The students take up this work for the purpose of better fitting them, when their education is completed, for discharging the duties appertaining to an office in the Church.

As regards lay missionaries, I agree that their position is different, but I desire distinctly for myself to say that my opinion in regard to lay missionaries is confined to those to whom the adjusted statement of facts is applicable, because it is impossible to shut one's eyes to the fact that there may be lay missionaries to whom these statements are not applicable, and who, therefore, would not come within the scope of the Act.

Lord Kinnear.—I should like to add that I quite agree with what Lord Mackenzie has last said; but I conceive that our answer, which may be framed simply in terms of the concluding question, must necessarily, in all cases, be applicable to the persons who are described in the minute of admissions. What we answer is that the classes of employment specified under the letters (a) (b) (d) and (f) are not employments within the meaning of the Act, but that the classes of employment described under the letters (c) and (e) are within the Act.