Is a diocesan bishop a “qualifications body”?: Ganga v Chelmsford DBF

In the course of its judgment in Pemberton v Inwood [2015] ET 2600962/2014 the Employment Tribunal referred to another recent case, Ganga v Chelmsford Diocesan Board of Finance & Anor [2015] ET 3200933/2013, in relation to the status of a diocesan bishop as a “qualifications body” for the purposes of a Permission to Officiate or of a licence/authorisation under the Extra-Parochial Ministry Measure 1967.

The ET in Pemberton agreed that, constitutionally, it was the bishop of the diocese in which a priest worked or wished to work who, under Canon C 8, was the person who, inter alia, licensed or refused to license “and no other” [99]; it also observed that Ganga was the first case to address the issue of whether or not the Church was a “qualifying body” [119]. In the circumstances, therefore, we thought that a note on Ganga would be helpful. 

Background

The facts were as follows. Mr Jeremy Ganga is a black Briton of African origin. He was ordained priest in the Church of England in 1996. In January 2006 he was appointed full-time admissions and personal tutor of North Thames Ministerial Training Course (“NTMTC”) [41]. Previously he had been Priest in Charge of St Peter, Fulham, during which time he had obtained a car loan from the Church Commissioners’ Car Loan Scheme; but when he left St Peter’s the loan fell to be repaid and he did not answer letters asking for repayment [43]. In July 2006 he moved out of St Peter’s Vicarage and was provided with housing by the Diocese of Chelmsford at St John’s Vicarage, Romford [55]. In November 2006 the Bishop of Chelmsford granted him a general licence within the Diocese [56]: the licence was open-ended and it did not say that it was coterminous with his post at NTMTC [60].

In April 2009 Chelmsford Diocese wrote to Mr Ganga explaining that it was closing St John’s and proposing to sell the buildings, including the vicarage in which he was housed. He replied that he wanted to be rehoused as soon as possible [66] and later proposed that the Diocese buy him a replacement property in Romford [68]. He later complained to the Archdeacons and asked that, if his family was being required to move, the move should be at the end of the academic year [70]. The Archdeacon of West Ham replied that there were no funds to buy a house but that he was willing to look at other options [71]. The Tribunal noted that, under the terms of his contract of employment, Mr Ganga was not entitled to be provided with accommodation at any particular address in the Diocese of Chelmsford and suggested that it had been unreasonable for him to refuse the two alternative properties offered him [72].

In the summer of 2009, Mr Ganga began developing a proposal for an MA in Anglican School Leadership which seemed to attract a good deal of support [75-85] (though not all reactions were of unqualified approval [84]); however, he was unsuccessful in his search for a half-time parish post in the Diocese [86-87]: the Tribunal heard that he had not, in fact, submitted an application for any particular post [95].

In February 2010 he applied for a full-time post at St Peter in the Forest, combined with the post of Mission and Parish Development Adviser to the Archdeacon of West Ham [101]. He did not move out of St John’s Vicarage in January 2010 [102]; and on 12 February 2010 he was served with two months’ notice to quit [102]. He asked whether he could stay on while the house remained unsold [104] but was refused [105-106]. He rejected two alternative offers of accommodation [107]; and he had not paid rent on St John’s Vicarage [111].

In May 2010 he applied for the post of Priest in Charge of St Andrew Ilford. There were five applicants and, from the documentation, it was apparent that the parish representatives wanted to interview Mr Ganga and Ms Marie Segal. The Revd Paul Sawtell, writing on behalf of Bishop Hawkins (then Bishop of Barking), asked the parish representatives why they did not intend to interview the other three candidates as well: eventually, all five were interviewed [112] and Ms Segal was the unanimous choice [113].

Very close to this time there was an e-mail exchange between the Personal Assistants to the Bishops of Barking, Colchester and Chelmsford (at the time vacant) in which one of them wrote: “I think the view at Bishops’ staff was that [Mr Ganga] was unemployable in this Diocese but … if reps want to see people you can’t say No.“ [117]. The current Bishop of Chelmsford, Stephen Cottrell, told the Tribunal that he had viewed the author of that e-mail as a problem and that she had had too much power [119], while Bishop Hawkins said that the e-mail chain between the PAs “did not represent his views and that he was doing his utmost to help the claimant get a post and a house to go with it” [120]. On the evidence, however, the Tribunal decided that the views expressed in the e-mails reflected strong misgivings about Mr Ganga aired at Bishops’ Staff Meetings at the time [122]. As to the appointment at St Andrew Ilford, however, the Tribunal accepted Bishop Hawkins’s evidence that both he, the panel and the parish representatives had decided that the person chosen, Marie Segal, was the best candidate based on interview.

In October 2010 the Diocese of Chelmsford started eviction proceedings against Mr Ganga and in December he was ordered to give up possession of St Johns Vicarage by 25 January 2011 and ordered to pay costs [147-150]. He then asked if he could rent All Saints Vicarage in Chigwell but was refused [149-154]. On 21 January 2011 Bishop Cottrell wrote back to Mr Ganga, setting out his history of occupation of St John’s Vicarage and stating that he had cost the Diocese £33,000 in unpaid rent, council tax liability, insurance and costs. He said that the Diocese was in no position to provide Mr Ganga with accommodation [159]; however, he did not move out and in February 2011 the Diocese sought a Warrant of Possession from Romford County Court. He eventually moved out on 3 March 2011 [161].

As to his licence, Mr Ganga had been helping out at St Chad, Chadwell Heath, from about 2010 in support of the Vicar, the Revd Martin Court [187]. When Mr Court asked if his role could be formalised, Bishop Hawkins told him that that would not be possible and that Mr Ganga could not officiate in the parish. When Mr Ganga showed Mr Court his 2006 licence, Mr Court e-mailed Bishop Hawkins asking whether the licence was current. After consultation it was concluded that Mr Ganga could not be offered Permission to Officiate and his existing licence was revoked [188-195].

The claim

Mr Ganga sued Chelmsford DBF and the Bishop of Chelmsford in his corporate capacity, alleging direct racial discrimination contrary to ss 13 and 53 Equality Act 2010 (“the Act”) and victimisation contrary to ss 27 and 53 [21]. The protected act on which he relied in respect of his victimisation claim was a race discrimination claim the he had brought against the Diocese of Southwark in 2004 (Case No. 2303434/2004): that claim had been settled – and the Respondent did not dispute that it was indeed a protected act under s 27 [23]. Mr Ganga made various complaints: inter alia, that his licence had been revoked, that the Diocese had failed to respond to a reference request from the Bishop of Birmingham in relation to a post in that diocese and that it had instructed, caused or induced prospective employers not to offer him posts in other dioceses.

The principal questions before the Employment Tribunal were as follows:

  • Was the Respondent a “qualifications body” within the meaning under s 54 of the 2010 Act? [24].
  • Had any of the pleaded claims been brought in time pursuant to section 123(1)(a) and, for those that were out of time, would it be just and equitable to extend the time limit under section 123(1)(b)? [25].
  • Had the Respondent discriminated directly against Mr Ganga by, on various occasions, denying him a “house for duty” position? [the full list of occasions is at 27].
  • Was the Respondent guilty of “instructing, causing or inducing the potential partners in a project of the Claimant not to enter into a partnership agreement with the Claimant in January 2010”? [27.2].

The judgment

The Tribunal concluded as follows:

  • that in order to be a qualifying body for the purposes of a complaint of discrimination, the body in question must confer a qualification needed for, or facilitating engagement, in some paid employment or a trade, profession or occupation which is for reward and not voluntary [240: emphasis added];
  • that the definition of “qualification” is broad [240];
  • that the body must have the power to set a particular objective standard and the power to declare that the candidate has attained that standard [241]; and
  • that a body is not a qualification body if it merely chooses which already-qualified candidates it wishes to engage for its own purposes [242].

On that basis:

“… the Respondent was a qualifications body when he granted the licence to the Claimant and also when he withdrew it. The withdrawal of the licence, on the Respondent’s case, was a consequence of the end of the Claimant’s paid employment. While there was a delay, so that the Claimant was no longer employed and was no longer being paid at the time that the licence was withdrawn … the delay does not change the nature of the licence and whether it was referable to paid work” [282: emphasis added].

The Tribunal concluded that Mr Ganga was not a locally-deployable priest but a nationally-deployable one [292]. The reason why he was not appointed to any house-for-duty post was that he never applied for such a post using the requisite application process. His race and protected act were no part of the reason either for that [293] or for the withdrawal of his licence [304]. Insofar as any of the senior clergy in Chelmsford had reservations about appointing him to a post in the Diocese it was because he had remained at St John’s Vicarage without paying rent and “[caused] the Diocese to lose a large amount of money in notional rent and in actual court costs” [294].

As to the allegation that the Respondent had discriminated against Mr Ganga or victimised him by failing to respond to reference requests, or by otherwise inducing prospective employers not to offer positions to him, the Tribunal held on the facts that there was

“… no hint from any of the evidence that Archdeacon Lowman or Bishop Cottrell treated the Claimant less favourably than they would have treated someone of a different race” [311]

The complaint in relation to the Bishop of Birmingham was out of time [312].

Claim dismissed. Leave to appeal was subsequently refused.

With thanks to Saira Salimi for providing a copy of the judgment.

Cite this article as: Frank Cranmer, "Is a diocesan bishop a “qualifications body”?: Ganga v Chelmsford DBF" in Law & Religion UK, 7 December 2015, https://lawandreligionuk.com/2015/12/07/is-a-diocesan-bishop-a-qualifications-body-ganga-v-chelmsford-dbf/

4 thoughts on “Is a diocesan bishop a “qualifications body”?: Ganga v Chelmsford DBF

  1. Please note that the ET judged that the Claimant had been victimised by the Bishop of Chelmsford but that he was out of time, the ET had refused to extend time and therefore it had no jurisdiction. On the basis of Nayif v High Commission of Brunei Darussalam [2014] EWCA Civ 1521, [2014] All ER (D) 297 (Nov) the claimant now has the option of taking the matter to the High Court. Please note that the Claimant had an unblemished record but he refused to be the victim of racists. The hostility to the Claimant in the Diocese of Chelmsford causing the Claimant and his family great stress and anxiety since the hierarchy in this Diocese was determined to get rid of the Claimant unlawfully.

  2. Noted, though I’m not sure I entirely agree with your interpretation of what the Tribunal ruled. The relevant part of the judgment reads as follows:

    “310. The Tribunal finds that the Respondent has failed to prove that the Claimant’s protected act was not part of the reason he sent a negative reference to the Diocese of Birmingham. The Respondent sent the negative reference, in part, because the Claimant had done a protected act. The Tribunal finds that the Respondent would have committed an act of victimisation against the Claimant by the sending of that reference.

    311. It finds, however, that the Claimant’s race was no part of the reason Archdeacon Lowman and the Respondent sent that reference. There is no hint from any of the evidence that Archdeacon Lowman or Bishop Cottrell treated the Claimant less favourably than they would have treated someone of a different race. The Tribunal accepts that Archdeacon Lowman considered that he was obliged to mention the Southward proceedings because of the standard questions asked on the CCSL. The Tribunal is satisfied therefore that a white comparator, not of African national origin, who had behaved in the way that the Claimant had done and who had brought race discrimination proceedings against another Diocese, would have been treated in the same way by Archdeacon Lowman.

    312. On these facts, the only potentially successful complaint by the Claimant against the Respondent would have been a complaint of victimisation arising out the negative reference the Respondent sent to the Bishop of Birmingham. However, the Claimant did not issue his Employment Tribunal proceedings until 28 February 2013 and the reference was sent to the Bishop of Birmingham on 20 April 2011. The complaint of victimisation was therefore about a year and a half out of time.”

    What that passage seems to be saying is that (a) the Respondent had failed to prove that he had not taken the Claimant’s protected act into account when he sent the negative reference to the Bishop of Birmingham; but (b) that his motivation for sending it was not racist.

  3. Here is the background, the Claimant an effective Parish Priest who grew a congregation from 11 over 70’s when he arrived to a flourishing large young people’s church acknowledged by the Diocese of London. The Parish had churchwardens aged 26 and 35. In 2004 he applied for a post in the Diocese of Southwark and in the week prior to the interviews he was called at home by a senior clergy person in this Diocese who told the Claimant why he was not suitable for the post. At the interview he was asked how would he cope as a black man if appointed. He responded, as far as he was concerned the Holy Spirit was colour blind. He was not appointed and the post re-advertised. He asked for an explanation and an apology but they refused to. Claimant complained about race discrimination.

    312. Above is the key, he would have been successful but for being out of time. Victimisation does not have to be also discriminatory. Above all, what it proves is the Bishop of Chelmsford’s antagonism toward the Claimant because he complained about race discrimination, no white clergy person has ever been treated in this manner.

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