The Supreme Court today handed down its judgment in President of the Methodist Conference v Preston  UKSC 29. By four votes to one (Lord Hope DPSC, Lords Wilson, Sumption and Carnwath JJSC: Lady Hale JSC dissenting) the Court reversed the decision of the Court of Appeal and restored the original order of the Employment Tribunal dismissing Ms Preston’s claim.
In 2005 Ms Preston accepted an invitation to become the Superintendent Minister in the Redruth Circuit. Over the course of the first half of 2009 she felt under unfair pressure to resign; and in early June she was told that the procedure was beginning to ‘curtail’ her appointment. In June 2009 she submitted her resignation and in September started Employment Tribunal proceedings for unfair constructive dismissal – which raised the preliminary issue of whether or not she was an “employee” with a contract of employment for the purposes of s 230 Employment Rights Act 1996. The Employment Tribunal dismissed her claim but, on appeal, the Employment Appeal Tribunal reversed the ET. On a further appeal, in President of the Methodist Conference v Preston  EWCA Civ 1581 the Court of Appeal (Maurice Kay and Longmore LJJ and Sir David Keene) upheld the EAT’s conclusion and found for Mrs Preston.
The question before the Supreme Court was whether or not Ms Preston was an employee; and the majority of the Court held that she was not. Whether or not a minister served under a contract of employment could not be decided by classifying the minister’s occupation by type: office or employment, spiritual or secular. Nor was there any presumption against the contractual character of the service of ministers. The primary considerations were the manner in which a minister was engaged and the rules governing his or her service. The details depended on the intentions of the parties – and the assessment of those intentions was fact-sensitive.
Under the Constitution and Standing Orders of the Methodist Church:
- a minister’s engagement was incapable of being analysed in terms of contractual formation – and neither admission to full connexion nor ordination were themselves contractual;
- a minister’s duties were not consensual but depended on the unilateral decisions of the Conference;
- stipend was paid and a manse provided by virtue only of admission into full connexion or ordination;
- stipend and manse were not pay for an employed post but “a method of providing the material support to the minister without which he or she could not serve God”;
- disciplinary rights under the Church’s Deed of Union were the same for ordinary members as for ministers; and
- the relationship between the Church and the minister was terminable only by Conference, its Stationing Committee or by a disciplinary committee and there was no unilateral right to resign, even on notice.
Therefore, unless there was some special arrangement with a minister, that minister’s rights and duties arose from his or her status under the Church’s Constitution rather than from any contract.
Both the EAT and the Court of Appeal had considered that a previous Court of Appeal authority on the issue, President of the Methodist Conference v Parfitt  ICR 176, was no longer good law in light of the subsequent decision of the House of Lords in Percy v Board of National Mission of the Church of Scotland  UKHL 73, in which the appellant, an associate minister in a Church of Scotland parish had wished to bring a sex discrimination claim against the Church. However, the majority of the Court distinguished Percy: while it was accepted in that case that Ms Percy did not have a contract of service, the statutory test of “employment” for the purposes of sex discrimination claims was broader than the test for unfair dismissal claims.
Comment: We may well post a longer analysis when we have had time fully to digest the judgment. For the moment, however, suffice it to say that the Supreme Court’s decision has put something of a brake on the gradual evolution of employment rights for clergy under the common law.
The fact that the majority paid such careful attention to the Constitution and Standing Orders indicates the degree to which these issues are fact-sensitive. A similar approach was taken by Lady Smith in Macdonald v Free Presbyterian Church of Scotland  UKEAT 0034 09 1002 when she upheld the conclusion of the Employment Judge that
“… Deacons, Elders and Ministers are ordained to their respective offices within the Free Presbyterian Church and each is an office holder and that therefore the Claimant is an office-holder by virtue of his ordination … [and] is not an employee of the Respondents”.
In reality, that claim was settled as a result of parallel proceedings in the Court of Session – see Macdonald, Re Application for Judicial Review  ScotCS CSOH 55 – but that does not affect the point of principle.
According to 1 Corinthians 9 this is entirely right. Ministers are not employed by the church and no right thinking church ought to want to employ a Minister. According to Ephesians 4 it is the role of the Pastor/Teacher to train the church for ministry. How could any church justify to God its not being involved in ministry by saying, “We paid someone to do it for us!”? Good judgment.
I do sympathise with the Methodist Church; but it’s hard luck on the minister who is sacked by his or her denomination because of a disagreement and who finds himself or herself both jobless and homeless without any redress. It’s not an easy matter at all – as evidenced by the fact that all three judges in the Court of Appeal and Bs Hale took the opposite view from the majority in the Supreme Court.
Anyway, I’m not sure that 1 Cor 9 is necessarily conclusive of the matter. In translation, 1 Cor 9:14-15 reads something like: “In the same way the Lord commanded those who proclaim the gospel to live by the gospel [ἐκ τοῦ εὐαγγελίου ζῆν]. But I have not used any of these things”. If, in fact, the Lord did command “those who proclaim the gospel to live by the gospel” in the sense of relying on the faithful for their livelihood, that looks not unlike the beginnings of some kind of employment relationship.
But in any case, these issues are highly fact-sensitive and one denomination may have entirely different views from another about the precise relationship between it and its ministers. (And I might add that, coming as I do from a Society without a separate class of “clergy”, all Quakers are ministers – but we do employ people and I cannot see on what conceivable grounds they should not have employment rights.)
I think we’re looking at this issue from opposite sides. As a member of the clergy I have met with the “we pay your wages so you do what we tell you” approach. That denies the Biblical mandate of a church supporting a Minister to lead the work of God without needing to devote time to earning a wage to support him/herself and his/her family, 1Cor.9. It also limits any encouragement towards creativity in leadership since it takes a Minister from leading to being pushed – unless he or she fights her corner and so wastes (creative) energy. On the other hand, no member of the clergy ought to have to rely on employment law to be treated rightly, fairly and well. A church ought to treat their Minister better than employment law allows for. And, by the way, Christians ought to be the best employers in the country. If a Minister is an employee then they have the worst employment contract in the country: a 6 day week, 12 hour day, on call 24/7/365 etc. as standard! But Christian ministry remains a priceless privilege regardless.
I think we probably are looking at this from opposite sides – and with very good reason in both our cases.
Your point that “Christians ought to be the best employers in the country” is exactly right and I’d agree with it wholeheartedly (though I would apply it equally to any other religious group). But the problem, it seems to me, is that in the absence of employment rights there’s always a danger that a “minister of religion” (of whatever faith-group) runs the risk of simply getting dumped without due process. And, incidentally, if the minister concerned is married it’s hard luck on his or her spouse and children (if any). And even if the spouse is assumed to “share” his or her partner’s ministry in some sense, it’s a reasonable assumption that no-one will have asked the kids.
I agree with what you’ve said above and I think we’re essentially both on the same side in this debate (even though we’re looking at it from opposite ends). I agree that there are occasions when those in leadership are not treated in any way that squares with the responsibilities faith groups ought to adhere to, sadly.
Having just read the case, my first impressions are that the decision of the Supreme Court is mainly a critique of the lower courts’ failure to look properly at the Methodist Church’s own governing documents but the decision does not appear to alter the legal principles set out by the lower courts and previous cases. Denominations and independent churches still need to remember that there is no longer any presumption that ministers will not be employees and need to ensure that their governing documents properly reflect the church’s position on this issue.
That’s my view as well.
Pingback: Forthcoming events in religion and law – Update: June 2013 | Law & Religion UK
Pingback: The Case for Ministerial Celibacy | Defunct Creakings of a Cog
Pingback: Methodist ministers and “retirement” – sort of | Law & Religion UK
Pingback: Law and religion round-up – 17th September | Law & Religion UK