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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Diocese Of Southwark v Coker [1995] UKEAT 374_95_0811 (8 November 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/374_95_0811.html
Cite as: [1995] UKEAT 374_95_0811, [1995] UKEAT 374_95_811
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At the Tribunal
HIS HONOUR JUDGE HULL Q.C.
MR K M HACK JP
MR N D WILLIS
JUDGMENT
Revised
APPEARANCES
For the Appellants MR P GOULDING
(of Counsel)
Winckworth & Pemberton
Solicitors
35 Great Peter Street
Westminster
London SW1P 3LR
For the Respondent MR J HAGE
(of Counsel)
Free Representation Unit
C/o One Essex Court
Temple
London EC4Y 9AR
JUDGE HULL: This is an appeal to us against a decision of a Chairman of Industrial Tribunals, Professor R W Rideout sitting alone, after a preliminary hearing held by him at London (South) on 22nd December 1994. In that decision, for which the extended reasons were given on 24th February 1995, the Chairman held that Dr Coker, a priest of the Church of England, was employed under a contract of service during his curacy at St Luke's, Woodside from December 1990 to December 1993 and at St Philip's, Cheam Common, from December 1993 to May 1994; and that accordingly the Industrial Tribunal had jurisdiction to entertain his claim for re-engagement following alleged unfair dismissal.
The respondent to the application was named as "Diocese of Southwark", within which both St Luke's and St Philip's parishes are situated. The diocese, which is the district under the jurisdiction of the Bishop of Southwark, was created and defined by an order in council in 1905; it is not a body corporate or an unincorporated association, it has no capacity to sue or be sued, and it did not pay Dr Coker's stipend. Mr Goulding of Counsel appeared to prosecute the appeal, instructed by the Bishop and the Diocesan Board of Finance (a limited company which paid Dr Coker's stipend) and we ordered that both the Bishop and the Board should be added as respondents. There was no application to us to add the vicars of St Luke's and St Philip's.
The Church of England is of course the established church in England and its formularies and constitution are part of the law of this country.
"The law of the Church consists of:
(a) Statute Law, i.e. Acts of Parliament and, since 1921, measures of the National Assembly,
(b) Such canons and ancient customs as were in force in England before the Reformation and have been continuously acted upon since, and are not in conflict with the laws of the land,
(c) Post-Reformation canons which have received the Royal Assent.
As regards Statute Law, from the time of Elizabeth to the creation of the National Assembly numerous statutes have regulated Church affairs ... "
See Wade and Philips' Constitutional Law, 5th Edition at page 489.
"So long as the Church of England is established, the law of the Church is part of the law of the land. Jurisdiction to enforce ecclesiastical law is divided between the Ecclesiastical Courts and the Temporal Courts ..."(ibid.)
The Book of Common Prayer was given statutory force by the Act of Uniformity, 1558, and subsequent changes were authorised by Parliament in 1662 and again in 1872. (ibid.) The Book of Common Prayer contains the Ordinal for the making, ordaining and consecrating of Bishops, Priests and Deacons (the three orders of ministers). The Canons of the Church of England are part of the Common Law. We were referred to these and other provisions regulating the constitution, ministry and discipline of the Church, and to Halsbury's Laws of England, Volume 14, dealing with Ecclesiastical law. We do not consider it necessary for present purposes to recite many of these provisions: but we note that on his ordination a Priest is required to declare to the Bishop that he will be diligent in prayers, reading of the Scriptures, and study, and to frame and fashion himself and his family according to the doctrine of Christ; he is given the power to forgive or retain the sins of others. Under Canon 26 he is obliged inter alia to say, daily, Morning and Evening Prayer, to celebrate or be present at Holy Communion every Sunday and to be diligent in prayer and intercession, in examination of his conscience, and in the study of the Scriptures. On his ordination, or when (inter alia) he is licensed to any stipendiary curacy, he is first to take the oath of canonical obedience to the Bishop in all things lawful and honest. By virtue of his Holy Orders and any preferment he may gain, the priest is of course subject to the jurisdiction of the ecclesiastical courts and to certain judicial powers of the Bishop himself. The High Court will if necessary intervene to ensure that the law of the Church of England is observed.
It will be seen that these provisions constitute a legal framework for the work of a Church of England priest which is unlike that of any secular employee. In addition to the matters to which we have referred, an assistant curate is admitted to his office in a parish by the Bishop's licence on the nomination of the incumbent and must act in accordance with the incumbent's directions, and the incumbent is responsible for the assistant curate's conduct. With the Bishop's previous written consent an incumbent can determine the curacy by six months' notice . For any cause which appears to him good and reasonable, a Bishop may at any time summarily revoke a curate's licence and remove him after having given him an opportunity of showing reason to the contrary, subject to the curate's right to appeal to the Archbishop.
The matters to which we have referred are not rules of practice or convention, but principles of law, established by statute.
The law relating to the employment of Ministers of Religion, as concerns the principal protestant churches, appears to us to be well settled.
In Re National Insurance Act, 1911: Re Employment of Church of England Curates [1912] 2 Ch 563 the Insurance Commissioners raised the question (inter alia) whether the status of assistant curates was "employment" within the meaning of the Act. Parker J said:
"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 case 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. It appears to me that there can be no pretence in reality for arguing that the relation between him and his vicar, or between him and his bishop, or between him and any one else, is the relation of employer and servant. As I understand, nobody can assume the office of curate, or can fulfil the duties ordinarily exercised by curates in a parish, without the consent or licence of the bishop. If a stipendiary curate is to be appointed, this may in some cases be done, as in the absence of the vicar or if the vicar is not carrying out his duties properly, by the bishop on his own initiative. If, on the other hand, the vicar requires assistance, it is open to him to ask the bishop to license his nominee for the purpose of assisting him. But in neither the one case nor the other do I think it can properly be said that the vicar appoints the curate. He nominates him, and, if the appointment is made at all, it is made by the bishop and is contained in the bishop's licence.
...
Further, when I come to consider the duties of the curate, it appears to me that those duties are in no way defined by any contract of employment between him and any one else. He owes, no doubt, a certain amount of obedience to the vicar, as to the precise extent of which there may be some question - at any rate into that part of the case I do not intend to enter at any length - but the duty which he owes to the vicar is not a duty which he owes because of contract, but a duty which he owes to an ecclesiastical superior. He may owe one kind of duty to the bishop and another kind of duty to the vicar, and one may have greater control over his actions than the other, but whatever authority either exercises over him is an authority which can be exercised by virtue of the ecclesiastical jurisdiction, and not an authority which depends in any case upon contract. If I were to hold that the vicar and his curate were in the position of master and servant, I might be imposing on the vicar at common law very serious liabilities, from which I think, in all common sense, he ought to be exempt.
It appears to me, therefore, that if I test the question, as to whether there is a contract of service, by any of the three methods suggested - the appointment, the power of dismissal, and the duty owed by curate to vicar - there is no such contract of service as the Act seems to contemplate.
..."
It seems to us, with all respect to the learned Chairman, that nothing could be much plainer than that.
In Scottish Insurance Commissioners v Church of Scotland & another [1914] SC 16, a similar question arose with regard to assistant ministers and student missionaries of the Church of Scotland and the United Free Church. The 1st Division of the Court of Session held that these ministers and missionaries were not employed. At page 23 of the report Lord Kinnear, having referred to authorities defining the meaning of a contract of service said:
" ... 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.
...
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. ... 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."
Lord Johnston, concurring, also expressly applied the decision of Parker J.
Lord Mackenzie, also concurring, said:
"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."
In President of the Methodist Conference v Parfitt [1984] ICR 176 (also reported at [1984] QB 368) the applicant, Mr Parfitt, was a minister in full connection of the Methodist Church and served on one of the circuits of the Church. In due course he was relieved of his clerical duties and complained to an Industrial Tribunal that he had been unfairly dismissed. The Court of Appeal held that he was not employed under a contract of service and that, accordingly, the Industrial Tribunal was without jurisdiction. Dillon LJ observed at page 179F that the standing orders, the Deed of Union and other seminal documents of the Methodist Church were conveniently assembled in a loose leaf book, The Constitutional Practice and Discipline of the Methodist Church ("the C.P.D."). He also referred to the Act of Parliament which constituted the Methodist Church. At page 180H be considered the position of a Methodist minister under the CPD.
"Spiritual matters are at the heart of this and it is particularly important to have in mind the doctrinal standards of the Methodist Church as set out in clause 30 of the Deed of Union in the C.P.D."
The learned Lord Justice then referred to the relevant passages from the Deed, which showed a noteworthy similarity to the Doctrine of the Church of England as shown by the Ordinal and canons to which we have referred. At page 182G he said:
"... in my judgment, the spiritual nature of the functions of the minister, the spiritual nature of the act of ordination by the imposition of hands and the doctrinal standards of the Methodist Church which are so fundamental to that church and to the position of every minister in it make it impossible to conclude that any contract, let alone a contract of service, came into being between the newly ordained minister and the Methodist Church when the minister was received into full connection. The nature of the stipend supports this view. In the spiritual sense, the minister sets out to serve God as his master; I do not think that it is right to say that in the legal sense he is at the point of ordination undertaking by contract to serve the church or the conference as his master throughout the years of his ministry.
...
It is not in dispute that there are persons such as secretaries or caretakers who are employed by the Methodist Church or by its local circuits under contracts of service. But because of his spiritual position and functions a minister is in a very different position from such persons.
I would agree with Mr Parfitt's submissions to this extent that the spiritual nature of the work to be done by a person and the spiritual discipline to which that person is subject may not necessarily, in an appropriate context, exclude a contractual relationship under which work is of a spiritual nature is to be done for others by a person who is subject to spiritual discipline. On any view the spiritual nature of the work and the spiritual discipline under which it is performed must be very relevant considerations when it has to be decided whether or not there is a contractual relationship.
A contract of service between a newly ordained minister and the church could perhaps be drafted (despite the practical difficulties of having a binding contract of service for life which is not repugnant to the law as a contract of servitude), but the arrangements under such a contract would not be the same as the arrangements for ministers under the C.P.D.
...
The courts have recognised that it is not practicable to lay down a hard and fast list of what is required to constitute a contract of service. There are too many variants. None the less the courts have repeatedly recognised what is and what is not a contract of service and I have no hesitation in concluding that the relationship between a church and a minister of religion is not apt, in the absence of clear indications of a contrary intention in the document, to be regulated by a contract of service.
...
In re Employment of Church of England Curates [1912] 2 Ch 563 was a decision that a curate of the Church of England holds an ecclesiastical office and so is not an employee under a contract. This is not relevant here since it is not suggested that a Methodist minister holds an office. The judgment of Parker J. is useful however in recognising a distinction between the duties owed by a minister of religion to his ecclesiastical superiors and the duties owed by a servant to his master under a contract of service.
..."
Eventually, referring to this and other authorities, Dillon LJ said:
" The most that perhaps can be said from these authorities is that the courts have shown themselves ready to conclude that the relationship between a minister of religion and his church is not founded on contract and he is not an employee of the church. I do not for my part see any good reason why modern economic conditions or the development of social security and employment protection should lead to a different conclusion now."
May LJ, concurring, said at page 186E:
" When this case came before the Employment Appeal Tribunal, in the first place the majority of that tribunal upheld the majority view in the industrial tribunal that a contractual arrangement had existed between Mr Parfitt and the church. In their opinion the spiritual nature of a minister's work was not incompatible with such a legal relationship. Waterhouse J took the opposite view and it is one with which respectfully I agree. I do not think that it is a point which permits of elaborate analysis and I gratefully adopt the relevant passage from the judgment of the Employment Appeal Tribunal in which the judge gave his reasons for disagreeing with the majority of the tribunal:
"I consider that the starting point of any consideration of the relationship between the Methodist Church and its ministers must be an examination of the faith and doctrine to which they subscribe and they seek to further. The concept of a minister as a person called by God, a servant of God and the pastor of His local church members seems to me to be central to the relationship. In my judgment the reasoning of the Court of Appeal in Rogers v. Booth [1937] 2 All E.R. 751 and of Joyce J. in re Employment of Ministers of the United Methodist Church (1912) 107 L.T. 143 affords persuasive authority for rejecting the assertion that there was a contract between Mr Parfitt and the Methodist Church, and I do not consider that the concept of a Methodist minister's role or the interpretation of the words `a contract of service' has changed significantly since the enactment of the National Insurance Act 1911. I am unable to accept that either party to the present proceedings intended to create a contractual relationship. Moreover the elaborate code of practice and discipline of the Methodist Church, containing a wide spectrum of rules, recommendations and exhortations addressed to a variety of subsidiary organisations and persons, does not seem to me to be capable of formulation in terms of a contract between identifiable parties. The submission by the Methodist Church that a minister is, in effect, a person licensed by the Methodist Conference to perform the work of a minister in accordance with the doctrine of the church and subject to its discipline is, in my judgment, the most persuasive description of his status and role.""
Sir John Donaldson MR concurred in the judgments of both Dillon LJ and May LJ.
In Davies v Presbyterian Church of Wales [1986] ICR 280 the applicant was an ordained minister of the Presbyterian Church of Wales, and was inducted into a full-time paid pastorate. In due course he was dismissed from his pastorate. On his complaint of unfair dismissal, the Industrial Tribunal held that he was an employee of the Church. The Employment Appeal Tribunal and the Court of Appeal applied the decision in President of the Methodist Conference v Parfitt. The House of Lords dismissed Mr Davies's further appeal. Lord Templeman, with whom Lords Keith, Brandon, Brightman and Mackay all agreed, said at page 288G-H:
"The question to be determined is a question of law, namely, whether upon the true construction of the book of rules a pastor of the church is employed and is under a contract of service. If the industrial tribunal erred in deciding that question, the decision must be reversed and it matters not that other industrial tribunals might have reached a similar erroneous conclusion in the absence of an authoritative decision by a higher court.
On behalf of the applicant it was then submitted that when he was appointed pastor he entered into a contract with the church on the terms and conditions specified in the book of rules. He agreed to preach, conduct religious services and give religious instruction, to comfort the sick and bereaved, and to propagate the faith in his pastorate for the benefit of the church and its members. He became subject to dismissal for disciplinary reasons. He was employed by the church full-time and in consideration for his services he became entitled to a stipend and to occupy a manse. He was a servant employed under a contract of service and not an independent contractor performing services because he was engaged full-time under the general supervision of the church authority and subject to the control of the rota committee with regard to his activities.
My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church. The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.
The duties owed by the church to the pastor are not contractual. ..."
At page 290C Lord Templeman said:
"There was no contract of service between the applicant and the church, only obligations on the part of the church to administer church property in accordance with the trusts contained in the book of rules, and an obligation to ensure that no member of the church was unlawfully deprived of a benefit from church property to which that member was entitled under the rules. There is indeed an agreement between all members of the church to perform and observe the provisions of the book of rules, but that agreement will only be enforceable at law in respect of any property rights to which a member is entitled under the terms of the agreement. By no stretch of imagination can such an agreement constitute a contract of service. Similar conclusions were reached Joyce J. in In re Employment of Ministers of the United Methodist Church ..., by Parker J. in In re Employment of Church of England Curates ... and by the Court of Appeal in President of the Methodist Conference v. Parfitt ... . I would dismiss this appeal."
It is thus apparent that the decision of Parker J in In re Employment of Church of England Curates has been approved in the 1st division of the Court of Session in Scotland and by the Court of Appeal and the House of Lords in England. We do not think it necessary to refer to the decisions of Industrial Tribunals and of our own tribunal in which it has been followed and applied; certain of those decisions have raised questions, in particular about the status of priests and clerics of other faiths, or the position of clergy employed (for example) as prison chaplains or schoolmasters, which we do not propose to consider.
We understand the law to be plainly established by the highest authority; a priest of the Church of England appointed to an assistant curacy is not as a result of that appointment employed under a contract of service, but is the holder of an ecclesiastical office - although it is conceivable (but by no means clear) that circumstances might exist in a particular case which showed that such a curate was indeed employed by some person or other. Whether such a contract of service would be lawful, particularly regarding the possibility of a conflict with ecclesiastical law or the rules regarding pluralities, is another matter which we need not consider.
We also have no doubt that it is well-established that a priest who is not appointed to an ecclesiastical office may work under a contract of service which includes the carrying out of spiritual duties. Thus a school chaplain may well serve under a contract of service which provides that he is to teach (say) physics and religious knowledge to the pupils and also to say the holy offices and administer the sacraments in the school chapel at times to be fixed by the headmaster. The Bishop's licence would no doubt be required for the exercise of these strictly ecclesiastical duties, and the extent to which the headmaster could control the chaplains priestly duties might well be a matter of doubt and difficulty, but we are not concerned with those questions.
We have therefore sought to understand the reasons which led the Chairman in the present case to depart from the authorities to which we have referred and to hold that Dr Coker was employed under a contract of service. The extended reasons are lengthy and we must refer to substantial parts of them.
The material part of the Chairman's reasons begins at paragraph 15, where he cites Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900, a decision of the Employment Appeal Tribunal chaired by Slynn J, as authority for the proposition that being an office holder does not preclude an individual from being an employee as well. The Chairman said:
"I have always been inclined to regard that as self evident in practice. In any event, I accept the argument of counsel for the Applicant that the Applicant was not an office holder in respect of the Assistant Curacy either at St Lukes or St Philips."
It appears to us that that preliminary finding is directly contrary to the decision in Re Employment of Church of England Curates. As his reason for this conclusion the Chairman said:
"The Bishop of Croydon stated, in evidence, that if a curate moved on from a parish and was not immediately replaced the curacy would not continue to exist. Barthorpe defines an office as having the characteristic of continuity. I know of no authority contrary to that proposition. In my view the post of curate in the Anglican Church is personal to the holder thereof. On either of the above grounds I consider that I am free to decide whether the Applicant has a contract of service."
Referring to Re Employment of Church of England Curates, the Chairman went on:
"Parker J was of the opinion that no contract existed between a curate in the Church of England and his vicar. In his view, the duty of obedience to the vicar stemmed from the latter's position as an ecclesiastical superior and was exercised by virtue of ecclesiastical jurisdiction and not of contractual obligation. In other words the hierarchy of authority could be explained as depending upon an extra-legal source of authority. It could, of course, also have been explained on the basis of contract and it is fair to say that the expression of policy by Parker J is not convincing. He said, "If I were to hold that the vicar and his curate were in the position of master and servant, I might be imposing on the vicar at common law very serious liabilities, from which I think in all common sense, he ought to be exempt". I am not at all sure why common sense does dictate such an exemption but, in any event, there is no need to impose liability on the vicar and indeed that would not seem to be the obvious source of the other party to an employment relationship. A vicar cannot make an appointment of a curate nor dismiss a curate without the ultimate authority of the Bishop. A stipendiary curate is paid by the Diocese. It does not seem to me to follow that someone in something of the position of a supervisor should be regarded necessarily as the obvious candidate for employer."
Here, and elsewhere in his reasons, the Chairman seems to be treating established authority as merely the starting point, allowing him to decide as seems fit to him. To say:
"In other words the hierarchy of authority could be explained as depending upon an extra-legal source of authority"
is simply incorrect. The hierarchy of authority depends on the Common Law of England as expressed in the Ordinal and canons of the Church. If the decision of Parker J is binding on the Chairman, as it most certainly is, then it does not matter whether he finds that learned judge's expression of policy convincing or not convincing, or whether he agrees with the judge's views about what is "common sense".
The Chairman, having referred to the decision of the Court of Appeal in President of the Methodist Conference v Parfitt, considered whether his decision should be affected by Dr Coker's evidence that much of his work was of a social kind, such as anyone clerical or lay could carry out. The Chairman agreed with the view of the Bishop of Croydon that such a distinction was nonsense, and that all the work of an ordained minister of religion would be of a spiritual character in the sense that it would be coloured by his vocation. Accordingly, there was nothing exceptional about Dr Coker's appointment so far as the work went. In paragraph 21 the Chairman said:
"21 On the other hand, I have great difficulty in seeing why the spiritual nature of his work should preclude the existence of a contract of employment. One might just as well say that the organisational characteristics of a church are contrary to the individual spiritual relationship of its members with their God. ..."
"22 The Church of England, on the other hand, exercises a very high degree of organisational control. I have no doubt that the Applicant was correct when he said that, if he had proposed to disobey an instruction of his vicar on the ground that he had received other instructions from his God, the vicar would regard that disobedience as a disciplinary matter. Parker J may chose to consider this as an example of ecclesiastical authority. I can see no reason, however, why it should be said that that a church which chooses to organise itself along what are often secular forms should be precluded from the secular regulation afforded by contract. Nor can I see why a church which chooses such forms should be entitled to deny that an agreement it had made will operate as a contract. If one views this in reverse it may be said that a church may quite properly enforce its rules and doctrines through a contract without any destruction of the spiritual quality of that doctrine or of those carrying it out."
Here again, it appears to us that the Chairman was regarding this as a question essentially free from authority.
The Chairman continued by referring again to the Parfitt decision and he also referred to what fell from Lord Templeman in Davies v Presbyterian Church. He also referred to two other cases dealing with other faiths.
"It seems to me that the weight of modern authority favours the view that spiritual duties can be the subject of a contract of service."
The Chairman continued:
"24. Turning to an enquiry into the present claim, I have already indicated that that must be based on the two questions, was there a contract, and, if so, was it a contract of service. I have already indicated that I do not consider that a curate in the Church of England can be regarded as an office holder. The distinction I shall be drawing, therefore, is the simple one between an employee and a self-employed professional worker. At the outset I would wish to make it clear that I do think that the Applicant, in this case, can claim to have been in a special position for more than the final six months of his stipendiary appointment in the Diocese of Southwark. There is little doubt in my mind that, during that final six months, he was in a special position. It will be recollected that he was moved from his appointment at St Lukes to an appointment St Philips and that he was given a specific job description which he signed."
It is clear that the Chairman is founding his decision on the view, contrary to authority, that a curate in the Church of England cannot be regarded as an office holder. It is also fairly clear from what follows that he meant to say:
"At the outset I would wish to make it clear that I do not think that the Applicant ... can claim to have been in a special position for more than the final six months of his stipendiary appointment ..."
The Chairman continued:
"25. Non-stipendiaries would be given such a job description so as to make clear the scope of the work that could be expected of them. As I understand it a written job description, let alone a signed document, would be unusual in the case of a stipendiary curate. It seems to me that the only reasonable explanation for this unusual step was that a document should be produced which could be relied upon by either party, and particularly by the vicar, as a point of reference to define the Applicant's duties. It would be possible to regard that exercise as intended only to operate within what has been referred to in earlier cases as ecclesiastical authority. The only reason I can see, however, for the particular requirement that the Applicant signed to indicate his agreement is an attempt to give to the document some extra, and presumably legal, significance."
Here it seems to us that the Chairman was reverting to the view, which he had earlier repudiated, that the parties to the contract which he was endeavouring to discover were the Reverend Coker and the vicar. It appears from the last sentence which we have quoted that the Chairman is of opinion that a contract is of legal significance whereas the authority of the vicar over the curate in the general case, being derived from ecclesiastical authority, is not of legal significance. If this was indeed the opinion of the Chairman it may be accounted for by the fact that nowhere, throughout this long statement of his reasons, is there any reference to the formularies of the Church of England, as constituting a vital part of the material for his consideration; notwithstanding what was cited with approval by May LJ in the Parfitt case, namely that the starting point of any consideration of the relationship between the Methodist church and its ministers must be an examination of the faith and doctrine to which they subscribe and which they seek to further.
The Chairman continued in paragraph 26:
"26. The job description contains nothing that is unusual in respect of any stipendiary curate, save for one paragraph defining the period of the appointment. For the purposes of ecclesiastical authority it would have been quite sufficient to have set out these normal duties regardless of the Applicants agreement. Such a degree of formality seems to me at variance with the supposition that an unenforceable understanding was intended."
Here again, it seems to us that the Chairman's reference to "an unenforceable understanding" misses the point. The obligations of an assistant curate are enforceable whether they lie in contract or in the duty of obedience which he owes to the vicar. The Chairman continues:
"Nor do I think that the job description can be regarded as a contract purely ancillary to the relationship between the Applicant and the Diocese. The document defines, in some detail, all the work obligations of the Applicant. This would seem to be the core of the relationship. If this document is indeed a definition of the core obligations of the relationship, and is itself a contract, then I believe that it would be normal practice for the courts to imply such other, unstated, terms as were necessary to give business efficacy to that contract. In other words, by entering into a written contract expressly stating the job obligations the parties entered into a contract composed of express and implied terms for the carrying out of that job."
The Chairman then concluded that his analysis up to this point was of no assistance to the decision which he had to make. He said:
"I will not dwell further upon this line of reasoning because it is of no immediate assistance to the Applicant. Were this document to be considered his contract of employment he would only have been in employment for six months at the time of ultimate termination of the relationship, which he claims to be unfair dismissal."
"27. On the other hand, I find nothing unusual, or peculiar to the Applicant, in the nature of this relationship with the Diocese during the preceding three years when he was at St Lukes. His duties were the same as those of any other Stipendiary curate. They were not specifically documented. As a matter of fact, they were probably identical with those specified in the document to which I have just referred, but that is of no significance."
In other words, after a considerable weight of analysis, it appears to us that the Chairman was of opinion that this was simply the ordinary case of an assistant curate appointed to a parish in the Church of England, with no contractual obligations, or at any rate no express contractual obligations, spelled out by any party. After considering letters of a routine sort from the vicar and the Diocese, the Chairman went on:
"There is no other evidence to support an intention to enter into a contract with the Applicant and it follows, therefore, that I must consider the existence of that intention in relation to any normal appointment of an assistant curate. I am bound to say that neither of the documents to which I have just referred is of much assistance in this respect."
In his paragraph 29, the Chairman continued:
"29. Counsel for the Applicant sought to make something of the language of offer and acceptance in the third paragraph of the letter of 12 November 1990. I cannot imagine what other terms would be applied to an offer, whether it was contractual or not. I have, accordingly, to consider the question of contractual intention without any specific evidence referable to the circumstances of this case. As I have pointed out, earlier cases specifically denied the existence of any such intention and founded that conclusion of the spiritual nature of the relationship. In effect, I believe, they sought to establish a presumption of absence of contractual intention similar to that which applies to domestic arrangements. But there is much of policy in the latter presumption. The only element of policy, which I can see in applications of a similar presumption to the relationships within a religious organisation is an understandable desire of the courts not to be seen to interfere in such arrangements. There is no specific indication of such policy considerations in the earlier cases, nor can I see any good reason, at least at the present day, for such a reluctance to regulate the working relationships of those within a particular church. It may be that courts, in these earlier cases, considered that the spiritual quality of the relationship could not be regulated by contract."
We do not think there is any basis for saying that the underlying policy of the courts in any of the cases to which we have referred is related to the reluctance of courts to interfere in domestic arrangements. Nor do we think that it was a ground of those decisions that the spiritual quality of the relationship between the minister and his church could not be regulated by contract. This entire paragraph appears to us to suggest that the Chairman considered it was for him to decide the question before him de novo on the basis of modern policy as he saw it. In paragraph 30 the Chairman continued:
"30. As we have seen, later decisions, and particularly that of House of Lords in Davies v Presbyterian Church of Wales, have expressed the opinion that a spiritual relationship can be the subject of contract. Speaking for myself, I can see no reason why this should not be so. Contract can produce the organisational situation in which the spiritual duties are performed. It cannot, of course, produce the necessary state of mind for those duties to be carried out effectively. No more, however, can any contract of service produce the necessary trust and confidence between the parties. The same disability would apply to the organisational roles of a church which have been said to provide regulation in place of contract."
It seems to us, with respect to the Chairman, that this is a complete misrepresentation of what fell from Lord Templeman in the Davies case.
In paragraph 32 the Chairman said:
"... there is no necessary barrier precluding a contractual relationship between a minister of religion and his church. If there is no particular policy dictating the denial of contractual relationships, and there is no necessary barrier to contractual relationships, I fail to understand the source of any legal presumption that no contractual relationship is intended. To say that it is intended that the relationship should be controlled by ecclesiastical authority is effectively to deny rights to the individual. Of course the church is able to enforce its authority. So is almost ... any employer. But this authority does not protect the party who does not possess it. The employer's own a property right in the premises upon which the industrial activity is conducted and that property right would give an employer considerable authority over his employees. He could effectively terminate their engagements by refusing them access to the premises. The employee has no authority and, consequently, no protection under such a system. The assumption that an agreement to work gives rise to a contract is nothing more than a device by which the courts assumed jurisdiction over that agreement."
We are sure that the Chairman is sincere when he says that he does not understand the source of any legal presumption that no contractual relationship is intended. We do not think that this statement could have been made had the formularies of the Church of England been examined or the decisions of the Courts on those formularies properly understood. The rights of the assistant curate are, on authority, not conferred by contract but by ecclesiastical law.
The Chairman then returns to a letter of 12th November 1990 which, it had appeared to us, he had earlier concluded was of no contractual significance and which did not distinguish the case from that of any other assistant curate in the Church of England. That letter is at page 43 of our bundle and in it Mr Evans, the vicar of St Lukes, wrote to Dr Coker and in paragraph 3 said:
"This letter is our official offer to you of the appointment as Assistant Curate to this parish with effect from 1st December 1990. I would be glad to receive your reply as soon as possible, as it is necessary to have it in writing for record purposes. Also I would like to hold it before I announce your coming on Sunday next."
In paragraph 34 the Chairman observed:
"34. It is argued by the Respondent, in the present case, that the letter of 12 November 1990 referring to an offer provides extremely flimsy evidence of a contract. But if such a letter had been written by any industrial organisation to one whose services it was seeking to acquire, the acceptance of the offer would unquestionably have constituted a contract. If a religious society wishes to make clear its intention not to enter into a contract, let it do so. But there is no reason for the courts to assume such an intention and, in the present case, there is no evidence to support such an intention. Indeed, rather the reverse is true. A curate is expected to serve for a minimum of four years (or, now, more probably three years). He is expected to obey the instructions of his vicar within the scope of his duties.
35. I have no doubt that the Applicant was speaking the truth when he said that if a curate were to assert his own divine guidance against the instructions of the vicar this would be regarded as a disciplinary matter. In my view, therefore, a contractually enforceable agreement should be assumed, in the absence of evidence to the contrary, in the case of curate [sic] of the Church of England. Although, it may well be that circumstance, in other churches support a degree of autonomy which would imply an absence of legally enforceable agreements."
There being an absence of any such evidence, and this case being simply the same as that of any other assistant curate in the Church of England, the Chairman was here asserting that it should be assumed that there was a contractually enforceable agreement. This appears to us not merely to depart from the authority of Re Employment of Church of England Curates but to ignore ecclesiastical law and the entire weight of authority to which we have referred.
After further comparisons of the position of Dr Coker (and any other assistant curate) with that of persons in secular employment, the Chairman said in paragraph 38:
"38. No doubt, spirituality is of a somewhat different character involving, as it does, a personal relationship with a higher authority. But if that relationship leads to a conflict with the tenets of a particular religious organisation then the relationship between the person and that organisation will almost certainly be terminated. In other words, the relationship between a curate and his God is a matter separate from his relationship with his Church. Hopefully the demands of both coincide but they need not necessarily do so and the Church is concerned that the curate's conduct complies with its own requirements. No doubt those requirements are seen to emanate from God, but few would suggest that there is only one interpretation of the will of the Almighty. I accept that personal spirituality is in conflict with the idea of service but I regard the Church as intending to dictate the essential results of that spirituality. In my view, therefore, the element of spirituality is not sufficient to outweigh the elements of personal service and there does arise, in this case, from the letter of 12 November 1990 a contract of service."
"39. I reach this conclusion assuming that I am not absolutely bound by the early decision in Re National Insurance Act 1911 [the Employment of Church of England Curates case] which plainly contradicts my view. In my view, the more recent decisions and particularly that in Davies v Presbyterian Church of Wales overrule the conclusion in the earlier case that there can, in no circumstances, arise a contract of employment from the relationship between a stipendiary curate and a Diocese of the Church of England."
As we have said above, these are evidently the comments of a Chairman who has not referred to the formularies of the Church of England and has not understood the rationes decidendi of the authorities to which we have referred above. We are also of opinion that paragraph 36 encapsulates the error that "the more recent decisions" and in particular Davies v Presbyterian Church of Wales overrule the decision in Re Employment of Church of England Curates. On the contrary, that case was referred to and approved in the authorities to which we have referred. It is true that in the Davies case Lord Templeman said:
"... It is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual."
But he expressly concludes that the duties owed by the pastor to the church and by the church to the pastor are not contractual and states that:
"Similar conclusions were reached by ... Parker J in In re Employment of Church of England Curates."
In our view the situation of a Church of England curate is not res integra, as the Chairman appears to have thought, and he was not at liberty to apply a personal analysis to a matter which is well settled by authority.
We sympathise with the Chairman in that he was evidently not referred to the relevant parts of the Book of Common Prayer or to the general provisions of the law with regard to the Church of England, being part of course of the ordinary law of this country. It may be that this omission entirely accounts for those parts of the decision which we find to be insupportable. However that may be, it is clear to us all that this appeal must be allowed. We entirely accept those parts of the conclusion of the Chairman in which he finds, on the facts, that there is nothing to distinguish this case from ordinary case of any other assistant curate in the Church of England, and there is therefore no point in sending it back, either to the Chairman or to a differently constituted tribunal, for the facts to be reconsidered in the light of our decision. We are unanimously of opinion that the Industrial Tribunal had no jurisdiction to entertain this case since Dr Coker was not employed, whether by the Bishop or either of the vicars to whom we have referred, or by anyone else, under a contract of service.