 |
[Home]
[Databases]
[World Law]
[Multidatabase Search]
[Help]
[Feedback]
[DONATE]
|
England and Wales Court of Appeal (Civil Division) Decisions
|
PLEASE
SUPPORT BAILII & FREE ACCESS TO LAW
To
maintain its current level of service, BAILII urgently needs the
support of its users.
Since you use the
site, please consider making a donation to celebrate BAILII's 25
years of providing free access to law. No contribution is too small.
If every visitor this month gives just £5, it will have a
significant impact on BAILII's ability to continue providing this
vital service.
Thank
you for your support!
|
You are here:
BAILII >>
Databases >>
England and Wales Court of Appeal (Civil Division) Decisions >>
Coker v Diocese Of Southwark & Ors [1997] EWCA Civ 2090 (11th July, 1997)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/1997/2090.html
Cite as:
[1997] EWCA Civ 2090,
[1998] ICR 140
|
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Help]
REVEREND DOCTOR A B
COKER v
.
DIOCESE OF SOUTHWARK
; BISHOP
OF SOUTHWARK
and DIOCESAN BOARD
OF
FINANCE [1997] EWCA Civ 2090 (11th July, 1997)
IN
THE SUPREME COURT
OF
JUDICATURE
EATRF
96/0921/B
IN
THE COURT
OF
APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal
Courts
of
Justice
Strand
London
WC2
Friday
11 July 1997
B
e f o r e:
LORD
JUSTICE STAUGHTON
LORD
JUSTICE WARD
LORD
JUSTICE MUMMERY
-
- - - - -
THE
REVEREND DOCTOR A B
COKER
Appellant
3.
DIOCESAN
BOARD
OF
FINANCE
Respondents
-
- - - - -
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
J HAGE
(Mr M Rollason 11.7.97) (Instructed by Lawford & Co, Richmond, Surrey TW9
1UF) appeared on behalf
of
the Appellant
MR
P GOULDING
and
MISS
E DIXON
(Instructed by Winckworth & Pemberton, London SW1P 3LR) appeared on behalf
of
the Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court)
-
- - - - -
©Crown
Copyright
JUDGMENT
LORD
JUSTICE STAUGHTON: I will ask Lord Justice Mummery to give
the
first judgment.
LORD
JUSTICE MUMMERY: The question on this appeal is whether the Reverend
Dr A B
Coker
, a priest in the Church
of
England, was, whilst an
assistant curate, first at St Luke's, Woodside and then at St Philip's, Cheam
Common, during 1 September 1990 and 31 May 1994, an "employee" within the
Employment Protection (Consolidation) Act 1978, now re-enacted in the
Employment Rights Act 1976. If he was, he had a right not to be unfairly
dismissed by his employer (Section 54(1)), and the Industrial Tribunal had
jurisdiction to hear his claim
of
unfair dismissal. If he was not, the
Industrial Tribunal had no jurisdiction to hear his claim for unfair dismissal,
and the claim for re-engagement made by Dr
Coker
in his originating application
presented to the Central Office
of
the Industrial Tribunals on 15 September
1994.
On
25 March 1996 the Employment Appeal Tribunal, His Honour Judge Hull QC
presiding, with jurisdiction to hear an appeal only on a question
of
law,
handed down a 20-page judgment in support
of
its unanimous 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."
The
Diocese of Southwark
, initially named as sole respondent, is the relevant
district under the jurisdiction
of
the Bishop, but it has no legal personality
and it is unable to sue or be sued. No application was made to the Employment
Appeal Tribunal or to this court to add either
of
the two vicars, or anyone
else, as a respondent.
The
Appeal
Their
submissions focused on three questions:
1.
Did Dr
Coker
have a contract at all in respect
of
his post as assistant curate?
2.
If so, was it a contract
of
service?
3.
If so, who was Dr
Coker
's employer?
The
relevant provisions
of
the l978 Act conferred a right on an employee not to be
unfairly dismissed "by his employer" (Section 54(1)). Employee is defined in
Section 153(1) as:
"an
individual who has entered into or works under.... a contract
of
employment"
which
is defined in the same subsection as:
"a
contract
of
service or apprenticeship, whether express or implied, and (if it
is express) whether it is oral or in writing."
The
Factual Background
.
By
letter dated 12 November 1989, the Vicar
of
St Luke's wrote to Dr
Coker
as
follows:
"I
have been in touch with our Archdeacon, Ven F Hazell, today and am glad to say
he has told me to go ahead with your appointment as curate here to commence on
Advent Sunday 2nd December 1990.
I
also rang Simon Parton at the Diocesan Office to tell him and he is waiting for
you to get in touch. You will be put on the Diocesan payroll with effect from
1st December 1990.
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.
You
have already intimated that you would like to come and I look forward to a good
ministry together."
"We
direct that you shall reside in the said Parish unless otherwise agreed by us."
On
24 February 1994, the Bishop
of Southwark
licensed Dr
Coker
as an assistant
curate at St Philip's, where the Reverend Martin Goodlad was vicar. Dr
Coker
had been assisting there for some time after his departure from St Luke's. In
October 1993 Dr
Coker
and the Reverend Martin Goodlad had agreed a written
job description for Dr
Coker
. It is not suggested, however, that that document
either was, or created, a contract. It was accepted by Mr Hage that, even if
there was a contract
of
employment created in St Philip's when Dr
Coker
became
assistant curate there, it does not assist him in this case, as he ceased to be
assistant curate at the end
of
May 1994. In order to qualify for employment
protection under the l978 Act, he needed to establish continuing service for a
period
of
not less than two years. It was, therefore, necessary for him to
identify a contract dating from the earlier period when Dr
Coker
became
assistant curate at St Luke's.
The
Decision
of
the Industrial Tribunal
The
reasons for the decision
of
the Industrial Tribunal may be summarised as follows:
2.
A contract was created by the acceptance
of
the offer in letter dated 12
November l990. After reviewing the authorities and the rival contentions, the
Chairman
of
the Tribunal concluded at paragraph 35
of
his extended reasons:
He
did not find, in the evidence that he heard from the Bishop, and from Dr
Coker
,
facts to contradict the assumption stated by him.
In
his submissions on behalf
of
Dr
Coker
, Mr Hage made four important general
points in support
of
a fundamentalist appeal to principle and policy:
1.
If, as the Employment Appeal Tribunal held, in reversing the Industrial
Tribunal's decision, Dr
Coker
was not an employee, then he was without
statutory rights under the 1978 Act in relation to unfair dismissal, and also
without certain rights under other statutes enacted for the protection
of
employees: the Sex Discrimination Act 1975; the Race Relations Act 1976; the
Wages Act 1986; the
Disability Discrimination Act 1995; and all the rights now
consolidated in the
Employment Rights Act 1996, as well as the rights contained
in the Health and Safety legislation.
Mr
Hage asks, rhetorically, why should this be so? He submitted that there was no
satisfactory answer to this question either in precedent or principle.
"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."
3.
The respondents' position was indefensible in principle and on policy grounds.
It was conceded that the church authorities do have employees; for example,
administrators, accountants, secretaries, cleaners. It was accepted that it is
possible for a priest to be employed; for example, as a teacher or as a
chaplain. Why not here? All the elements
of
a contract were present: offer
and acceptance, coupled with personal service, for which payment was made,
coupled with the exercise
of
control by an employer.
4.
Mr Hage invited this court to distinguish the earlier cases, as most
of
them
were concerned with Ministers claiming to be employees
of
non-conformist
churches in their capacity as Minister. He also said that we should not follow
them, because the reasoning on which they were based was unsatisfactory.
The
following authorities were cited and discussed by counsel in the skeleton
arguments and in the oral submissions before us:
Conclusion
Earlier
in his judgment at page 183A Dillon LJ stated that in some circumstances it was
not right to say that any contract, let alone a contract
of
service, comes into
being between the church and the minister. At page 183G he 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."
I
agree with the Employment Appeal Tribunal that the Chairman
of
the Industrial
Tribunal misinterpreted the law, which has been settled by a long line
of
authority. In my judgment, the legal position is as follows:
1.
Not every agreement constitutes a binding contract. Offer, acceptance and
consideration must be accompanied by an intention to create a contractual
relationship giving rise to legally enforceable obligations.
2.
That intention is to be to be objectively ascertained. In the case
of
an
ordinary commercial transaction, it will be for the person who contends that
there was no contract to establish that the intention to create a binding
contract has been negatived.
The
legal implications
of
the appointment
of
an assistant curate must be considered
in the context
of
that historic and special pre-existing legal framework
of
a
church, and an ecclesiastical hierarchy established by law,
of
spiritual duties
defined by public law rather than by private contract, and
of
ecclesiastical
courts with jurisdiction over the discipline
of
clergy. In that context, the
law requires clear evidence
of
an intention to create a contractual
relationship in addition to the pre-existing legal framework. That intention
is not present, either generally on the appointment
of
an assistant curate, or
in the particular case
of
Dr
Coker
. I would add that it has never been held,
and it is not suggested by Mr Hage in this case, that the incumbent
of
the
parish, holding its church and its benefice, is under a contract with the
Bishop or with anyone else in respect
of
his cure
of
souls in the parish.
It
is difficult to see why an ordained priest, licensed by his Bishop to assist
the incumbent in his cure
of
souls, is under contract with the Bishop, by whom
he is licensed, or with the incumbent he is assisting, or with anyone else, in
the absence
of
a clear expression to create a contract.
I
respectfully agree with Parker J in
Re
National Insurance Act 1911
(supra) at pages 568 and 569, that the position
of
an assistant curate is:
"....not
the position
of
a person whose duties and rights are defined by contract. 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 anyone else, is the relation
of
employer and servant."
The
Diocese of Southwark
was not his employer; it is the district under the
supervision
of
the Bishop and is not a legal person with whom a contract can be
concluded. The Church Commissioners paid Dr
Coker
's stipend and the Diocesan
Board
of
Finance made the necessary arrangements for that payment. Neither
of
them appointed him, removed him, controlled the performance
of
his functions,
or had any contract with him. It was not contended that either
of
the vicars
had a contract with Dr
Coker
. That leaves only the Bishop, chief pastor
of
the
diocese
, who has legal responsibility for licensing the appointment
of
assistant curates, on the nomination
of
the incumbent, and the termination
of
such appointment, or revocation
of
it. But that relationship, cemented by the
Oath
of
Canonical Obedience, is governed by the law
of
the established church,
which is part
of
the public law
of
England, and not by a negotiated,
contractual arrangement. Vis a vis the Bishop, Dr
Coker
had a legal status
stemming from his priestly office, but he had no private law contract
transforming him into an "employee" for the purposes
of
the 1978 Act. For all
those reasons, I would dismiss Dr
Coker
's appeal.
The
basic facts, as I understand them, are that the curate is normally appointed by
the rector or vicar
of
a parish, but this can be done only with the Bishop's
licence. Likewise the incumbent has power to dismiss, but again the Bishop's
consent is required. The stipend is paid by the Church Commissioners. It is
said that the stipend is not wages or a salary, but simply a payment for the
expenses which the curate will incur in housing and providing sustenance and
clothing for himself. Whilst I readily acknowledge that the amount is small
enough in all conscience, and will not cover much else, I would reject the
notion that it is thereby disqualified from being considered a salary or wages.
But the point is not
of
critical importance.
Orders
as to what the curate shall do, and how he must do it, are, I suspect, given,
if at all, by the incumbent. Some activities, I would have thought, are such
as an incumbent will be regarded as entitled to direct. Others the curate must
regulate for himself with divine guidance.
In
the case
of
In
Re National Insurance Act 1911
[1912] 2 Ch 563 at 568, Parker J held 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."
The
duty owed to the vicar was not owed because
of
contract, but was one which the
curate owed to an ecclesiastical superior. The liabilities
of
a master to his
servant were very serious, from which in all common sense the vicar ought to be
exempt.
So
the spiritual nature
of
the minister's position shows that the arrangements
remain non contractual. Dillon LJ said further, at page 184:
May
LJ said at page 185:
"On
the question whether there ever was any contract between Mr Parfitt and the
Methodist Church, I think that in the particular circumstances
of
this case,
the important consideration is whether the parties intended to create legal
relations between them so as to make the agreement between Mr Parfitt and his
church enforceable in the courts."
One
can say that a minister
of
religion serves God and serves his congregation, but
does not serve an employer. That seems to me accurate in general terms. But
it is accepted that an ordained priest may take employment, for example (to
quote from Mr Hage's outline argument) with a school, or a Duke, or an airport
authority. Yet he will perform spiritual duties in that employment for a
congregation, selected or self-selecting.
I
agree with the analysis
of
Lord Justice Mummery and his conclusion, that in
general the duties
of
a minister
of
religion are inconsistent with an intention
to create contractual relations. There may be some subsidiary contract as to a
pension, or the occupation
of
a house; but there is not a contract that he will
serve a terrestrial employer in the performance
of
his duties. The absence
of
contractual intention is regarded by
Chitty
on Contracts
,
27th Ed para 2.117 as the basis
of
the
Methodist
Conference
case. It seems to me to be the most appropriate explanation.
I
can see nothing in that conclusion inconsistent with Section 140(1)
of
the
Employment Protection Consolidation Act 1978 which states:
"Except
as provided by the following provisions
of
this section, any provision in an
agreement (whether a contract
of
employment or not) shall be void in so far as
it purports-
(a)
to exclude or limit the operation
of
any provision
of
this Act or;
(b)
to preclude any person from presenting a complaint to, or bringing any
proceedings under this Act before, an industrial tribunal."
If
a curate and his bishop, or incumbent, intend to create legal relations, then
there will be a contract between them. If it is a contract
of
service, the Act
will apply. But if, as I would hold in the ordinary way, no intention to
create legal relations is to be inferred, there is no contract
of
employment
between them within Section 153(1) and nothing in this Act to be excluded. I
would dismiss the appeal.
Order:
Appeal dismissed. Section 18 costs to be paid by Legal Aid Board. Nil
liability. Legal aid taxation
of appellant's costs.
© 1997 Crown Copyright
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWCA/Civ/1997/2090.html