United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE PETER CLARK

1. This is an appeal by Mr Pathak, the Applicant before the Stratford Employment Tribunal, against that Tribunal's decision, promulgated with Extended Reasons on 8^th May 2001, dismissing his complaint of unfair dismissal brought against the Respondent, the Hindu Centre, on the grounds that he was not an employee of the Respondent and, therefore, they have no jurisdiction to consider that complaint.
2. The facts as found by the Tribunal were in essence these. The Appellant, after first visiting the United Kingdom in 1997, was finally granted a visa on 22^nd September 1998 to remain in the UK for one year, based on the Respondent's declaration that they were willing and able to maintain and accommodate him without recourse to public funds. It had earlier been agreed by the Respondent that they would pay the Appellant £320 per month as a priest and provide his accommodation.
3. In fact when the Appellant arrived here in October 1998 Mr Mehta, President of the Executive Committee of the Respondent, told him that the trustees of the temple would not pay him as a priest but he would do a mixture of priestly duties and caretaking. That is what happened until his dismissal on the 19^th July 2000. During that time he received the payment to which we have referred.
4. On those facts the Tribunal had to determine whether or not the Appellant was employed by the Respondent within the meaning of Section 230(1) Employment Rights Act 1996. They were referred to the relevant cases on the position of ministers of religion. Not mentioned in the list of authorities cited by the Tribunal is Santok Singh v Gurdwara [1990] ICR 309 (CA). However, that case was cited in the later cases of Coker [1996] ICR 896 and Alavi [1992] ICR 435 to which the Tribunal were referred.
5. Based on that learning the Tribunal, recognising that whilst not employed as a priest the Appellant might be properly regarded as being separately engaged under a contract of employment on caretaking duties (see Davis v Presbyterian Church [1986] 1All ER 705 at 709(8) per Lord Templeman), nevertheless concluded, on the facts, that no such separate contract of employment was entered into. Accordingly they had no jurisdiction to consider his complaint of unfair dismissal.
6. In this appeal Mr Pathak takes the following points. First, he draws attention to the fact that in the Respondent's original Notice of Appearance this jurisdictional point was not taken. Their case then proceeded on the basis that he was an employee within the meaning of the Act. It was only after a new representative was appointed that the Notice of Appearance was amended to take this point. Further, he contended that the Tribunal's reasoning is confused. Although they concluded that he was not an employee of the Respondent, at paragraph 9 of the Reasons the Tribunal say

"The temple did still wish to employ the Applicant"

He also states that it is relevant that on the question of his entry into this country he was described as an employee.

7. It not infrequently happens that the same relationship is properly to be regarded as that of an employee for one purpose but not for another, for example, from time to time, the Inland Revenue for tax purposes and the National Insurance authorities take a different view of the employment status of an individual. The question in this case was whether or not it could be said that the Appellant was an employee within the meaning of the 1996 Act.
8. Mr Pathak points out that none of the earlier cases deal with the Hindu religion. So far as we are aware that is correct but in our view not a material distinction. The position of ministers of religion whether under the Sikh, Muslim, Hindu, Anglican, Presbyterian or Catholic churches is the same for employment law purposes. Indeed, Mr Pathak has been at pains to point out that he is of the Brahmin cast and, therefore, a priest per se so that there is no doubt that he was a priest.
9. The real question is whether the Tribunal can be said to have reached a perverse conclusion on the primary facts as found in concluding that he was not also engaged under a contract of service as a caretaker. In our judgment it cannot be said that such an error of law has been made out in this case. It is essentially a matter of fact for the Tribunal to determine whether or not he was employed as caretaker. We have paid particular attention to the approach of the Court of Appeal in Gurdwara which, it seems to us, is close to the facts of the present case and having done so we have concluded that no arguable error of law was made out in this appeal and consequently it must be dismissed.