Nabila Mallick of No 5 Chambers, Birmingham, has posted an interesting discussion about the employment status of imams in light of a recent decision of the East London Employment Tribunal in Hasan v Redcoat Community Centre in which the ET decided that the imam was an employee. An imam, like a Christian minister of religion, is expected to make himself available to his congregation when needed; but Ms Mallick points out that, unlike Churches with designated clergy, mosques may have either one imam or a number of them in its service and there is no hierarchy: instead, each mosque committee determines how its mosque is to be run.

The finding in Hasan is reminiscent of that in Singh v Management Committee of the Bristol Sikh Temple & Ors [2012] UKEAT 0429 11 1402), in which the issue was whether or not a granthi (temple priest) was “employed” for the purposes of s 54(3)(b) National Minimum Wage Act 1998. Singh is a complex case – not least because any baptised Sikh in good standing can act as granthi and the relationship between the parties appeared to be based on voluntarism: Mr Singh did not have a formal written contract with the Management Committee and he and his wife were supported by the congregation’s voluntary contributions and lived rent-free at the gurdwara. In that case the EAT concluded that the lower Tribunal had erred on the questions of mutuality and personal performance of services. Though the relationship was indeed based on “voluntarism and a traditional interpretation and application of the Sikh scriptures” [para 39] there had been no finding that a contractual relationship would be inconsistent with the practice and beliefs of the Bristol Gurdwara. The appeal was allowed and the case remitted to the original Tribunal for reconsideration.

Ms Mallick reports that in coming to its decision in Hasan the ET had particular regard the Supreme Court’s decision in President of the Methodist Conference v Preston [2013] UKSC 29, in which the majority drew a distinction between “office-holders” defined by rules of the institution and “employees” defined by contract. The ET applied the test at para 10 of Lord Sumption JSC’s judgment in Preston:

“The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service”.

The ET was further informed by the case of Autoclenz Ltd v Belcher & Ors [2011] UKSC 41 and the approval by Lord Clarke at para 18 of his judgment in Autoclenz of Mackenna J‘s dictum in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515C:

“A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service. … Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be”.

The ET also noted the judgment in Ur-Rehman v Doncaster Jahia Mosque (Unfair Dismissal: Compensation) [2012] UKEAT 0117 12 1008 – handed down before the SC judgment in Preston – in which the claimant was an imam who had worked at the Doncaster Mosque from 2006 until April 2009. The trustees had assumed that he was not their employee; and when the mosque dispensed with his services there was no prior grievance or capability procedure nor was any reason advanced for his dismissal which would satisfy s 98 Employment Rights Act 1996 – as there would have been had he been regarded as an employee.  However, when Mr Ur-Rehman complained to the Sheffield Employment Tribunal it held on a preliminary hearing that despite this he was indeed an employee. That finding was not challenged at the Employment Appeal Tribunal (and the further details of its judgment need not concern us).

In Preston, Lord Sumption observed that

“[p]art of the vice of the earlier authorities was that many of them proceeded by way of abstract categorisation of ministers of religion generally. The correct approach is to examine the rules and practices of the particular church and any special arrangements made with the particular minister” [para 26].

Both the EAT in Ur-Rehman  (which was handed down before the SC judgment in Preston) and the ET in Hasan (handed down after it) seem to have done just that, holding on the facts of the cases before them that an imam was an employee rather than an office-holder. Which would suggest:

• that employment tribunals are following the judgment in Preston; but
• that outcomes remain fact-sensitive.

Mark Hill QC suggests in the New Law Journal that Preston will mean that, in future,

“… every case will turn on its own facts. This will mean a proliferation of claims in the employment tribunal in which there will have to be a microscopic examination of the constitutional documents of religious communities, to the extent that these express their doctrine and ecclesiology. In adopting this highly fact-specific approach, different churches may be treated differently in employment terms, as may ministerial posts within the same church. The future trend will substitute an over-analysis of the law (roundly condemned by Lord Sumption) with an over-analysis of the facts instead”.

Perhaps the result will not be quite so horrendous as he predicts – but it is undoubtedly the case that decisions on individual claims will be no less fact-specific after Preston than they were before it – as the outcome in Hasan would indicate.