Is an ordinand in training an employee? Gabe

In Ms F Gabe v The United Reformed Church [2017] UKET 2204367/2012, the claimant was accepted to train for the ministry of the URC as a full-time student at Westminster College, Cambridge. She was given a grant and allowances amounting to some £11,000 a year; ultimately, however, she was not ordained. On successfully concluding the course at Westminster, a trainee minister receives a “leaving certificate” from the College which will generally but not inevitably lead to the Church’s Assessment Board, when it reviews matters, determining that the candidate is fit for ordination. The candidate then has up to three years to be accepted for ordination by a Pastorate and, once accepted, he or she will be ordained.

In September 2009 Ms Gabe started a supervised internship at Clapton Park URC under the supervision of Elizabeth Welch and under the training auspices of Westminster College (where she had weekly sessions), during which she worked rather more than 32 hours a week. In the end, when Ms Gabe was not ordained she sued for breach of contract, disability, race and religion or belief discrimination and unfair dismissal.

The nub of section 230 of the Employment Rights Act 1996 is this: “(1) In this Act ‘employee’ means an individual who was entered into or works under … a contract of employment. (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied and (if it is express) whether oral or in writing” [emphasis added]. Section 83(2) of the Equality Act 2010 provides that “’employment’ means … employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.”

Ms Gabe claimed that in order to demonstrate a contract of apprenticeship the following needed to be shown: some sort of contract; training for a learned profession; that the organisation in question undertook to train the apprentice; that the apprentice was bound to serve and comply with the instructions of the organisation through delegation or directly; and that the apprentice was moving towards a qualification which was the point of the training. She also argued that, though not a necessary condition, it was certainly of assistance that she was being paid.

Employment Judge Segal QC found that there was, in fact, a contract of apprenticeship [43]. He also found, however, that Ms Gabe was not under a contract personally to perform work. She performed services for the respondent; but that was not

“the consideration in return for which she was paid the grant and allowances, or at least not the consideration in return for which she primarily was paid the grant and allowances. Like most apprentices … that is not the reason why the apprentice master or chambers/pupil supervisor or solicitor’s firm or carpenter pays the apprentice. The benefits for the chambers or the firm or the carpenter are more generalised and more long term…” [44].

Ms Gabe did not, therefore, satisfy that part of the test in s.83(2) of the Equality Act 2010.

The Tribunal held that Ms Gabe had been employed by the URC within the meaning of s.230(1) of the Employment Rights Act 1996 and had been in employment within the meaning of s.83(2) of the Equality Act 2010.

Comment: A very interesting case that has only recently been brought to my attention; however, it should be emphasised that employment cases like this are highly sensitive to the facts. Just because one ordinand in full-time training in one particular denomination has been found to have been employed for the purposes of the Employment Rights Act and the Equality Act does not mean that another ordinand in another denomination would necessarily be found to be in the same position.

Cite this article as: Frank Cranmer, "Is an ordinand in training an employee? Gabe" in Law & Religion UK, 18 July 2018, https://lawandreligionuk.com/2018/07/18/is-an-ordinand-in-training-an-employee-gabe/

 

[With my thanks to Ms Gabe for supplying a copy of the judgment.]

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