Is a cathedral dean an employee? Dean Martyn Percy

In Dean Martyn Percy v The Dean & Chapter of the Cathedral Church of Christ in Oxford of the Foundation of King Henry VIII [2020] UKET 3310878/2019, the Dean of Christ Church brought claims of disability discrimination and of religious discrimination against the Dean & Chapter, alleging breaches of the provisions of the Equality Act 2010. The Dean & Chapter disputed that Dean Percy had the relevant status to bring such claims, on the grounds that he was not in an employment relationship with them.

Background

The Dean is both Dean of the Cathedral and Head of House [6]. It was not in dispute that the Dean worked (and works) on behalf of the Dean & Chapter, both in relation to the Cathedral and the College, doing what other Heads of House (mostly full-time employees) would be expected to do. Before the “disputes” he did this almost full-time, but there had then been periods of complete and partial suspension from duties: “Currently, the Dean is not permitted by the respondent to carry out significant parts of what he would otherwise do because of the conflicts of interest which these on-going proceedings are said to give rise to. The relevance of those basic facts is hotly disputed” [5]. The Dean did not have the power to govern by imposing his decisions on the Dean & Chapter [7]. There was no written contract of employment and no grievance procedure, and the Dean & Chapter did not have the power to give the Dean notice (though there was a specified retirement date) [8]. Like the Canon Professors and the Sub-Dean, he was appointed by Letters Patent [8]. The College and Cathedral Statutes did not refer to the Dean having to undertake his duties personally: “On the contrary, provision is made for Censors (for academic matters) and the Sub-dean (for cathedral matters) to carry out those functions” [11].

As to his appointment:

“The procedure for appointing the Dean was largely drawn from that used in the case of his predecessor. As far as possible, the respondent wished to make the appointment itself, but it recognised that there were roles for Downing Street (which would pass the name of the proposed candidate to the Queen) and the Bishop of Oxford. In practice, the Bishop had a veto over any candidate proposed, because Downing Street would be unwilling to put forward any candidate which the Bishop opposed. If the Bishop was content with the person, Downing Street was content to receive only a single nomination, which it would then pass to the Queen” [15].

The law

In order to be successful, a claimant must show that he or she is an employee for the purposes of the 2010 Act, s. 83 of which states that:

“(2) ‘Employment’ means—

(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;

(b) Crown employment;

(c) employment as a relevant member of the House of Commons staff;

(d) employment as a relevant member of the House of Lords staff.”

Dean Percy relied upon two limbs of the definition of “employment” in the Act: that he was an employee under s.83(2)(a) or, alternatively, that he was employed in Crown employment under s.83(2)(b), which adopts the definition of “Crown employment” in s.191 Employment Rights Act 1996 [2].

The judgment

As to whether or not the Dean was an employee, Employment Judge Clarke began from the position that the authorities demonstrated that there was “no need to find a contract of any description to exist between the claimant and respondent in order to establish an employment relationship” [63]. On that basis:

  • The Dean was “well integrated into the respondent’s organisation”, provided leadership, and devoted substantially all of his time to the role – and to suggest that “the Dean could do nothing, if he so chose, does not accord with the practical realities of the situation” [64].
  • He could not be removed by notice, but there was a fixed retirement date [65].
  • The fact that he might be regarded as an office holder was not significant, because an office holder could be in an employment relationship with an alleged employer [66].
  • That he was appointed by Letters Patent and that his role is broadly described in a statute were not “decisive against the existence of an employment relationship” [66]
  • As to the argument that there was a lack of subordination, it was not necessary to demonstrate it in every case and, “as with many very senior employees, especially those with professional qualifications and responsibilities, the kind of subordination found in relation to more junior employees is rarely present. However, here one does see elements of subordination” [67].

The requirement for personal performance of his duties was not removed by the express provisions in the statutes that permit the Censor Theologiae and the Sub-Dean to stand in for the Dean: it was “a matter of practical common sense that circumstances may arise … where functions specified to be for the Dean to carry out may need to be undertaken by others” and was not equivalent to the much more general substitution provisions that could turn a contract of employment into some other kind of contract [66].

It was clear that the relationship was one of employment, not one of self- employment. The Dean was not an independent provider of services, but was integral to the respondent’s organisation and expected to provide a wide range of work on a full-time basis [69]. Even if it was necessary to find a contract between the parties, there was a contract in place in the present circumstances. But that was the wrong approach:

“I consider there to be a wage/work bargain in place here. The respondent pays the claimant and in return for that and other benefits he has agreed to carry the duties of Dean. I do not consider it material that the source of the obligation to pay a Dean some (albeit unspecified) amount is found in the statutes. The agreement for what he was to be paid (and as regards the provision of various other benefits, eg book and entertainment allowances) was made with the Dean” [70].

On the issue of whether or not the Dean was a Crown employee, the Dean & Chapter was not acting in place of, or on behalf of, the Crown, but on its own behalf, using its powers under its statutes. The fact that the Crown was the Visitor and the fact that changes to the statutes had to be approved by the Queen in Council were not relevant [75], nor was the fact that the Dean held his position by Letters Patent [76].

Hence, the Dean was an employee for the purposes of s.83(2)(a) of the 2010 Act [71].

Cite this article as: Frank Cranmer, "Is a cathedral dean an employee? Dean Martyn Percy" in Law & Religion UK, 9 November 2020, https://lawandreligionuk.com/2020/11/09/is-a-cathedral-dean-an-employee-dean-martyn-percy/

5 thoughts on “Is a cathedral dean an employee? Dean Martyn Percy

  1. Should Dean Percy be successful in his claim, the interesting issue will be the level of compensation which might be awarded.

    A tribunal can award unlimited damages in such cases and can take account of Injury To Feelings (upper band guidance £45,000)

    There is also the issue of Aggravated Damages based on
    ” evidence that the distress caused to the claimant was exacerbated on account of the employer’s conduct. They can be awarded in circumstances where the employer has acted in a “high-handed, malicious, insulting or oppressive” way, thus increasing the employee’s distress, or where the motive behind the discriminatory treatment was spiteful, vindictive or based on prejudice or animosity, or where the employer’s conduct subsequent to the discriminatory treatment was unnecessarily offensive or malicious.”

    Also, there is the capability to impose Financial Penalties of up to £20k payable to the Exchequer ” where “the breach (of the employee’s rights) has one or more aggravating features”; for example, where the treatment of the employee was deliberate or malicious, where the employer had repeatedly breached the right in question or where the employer has a dedicated human resources department”

    The record Tribunal award was in 2013 when an employee received a total of £3.5m in compensation.

    We await the hearing

  2. in my own view, none. My suspicion is that it’s a unique situation that won’t provide a future precedent for anything very much, however it plays out at the substantive hearing or on appeal. It’s perfectly possible that the Dean of Christ Church is an employee of the College but an office-holder as Dean of the Cathedral.

    • Yes. My reading of the statute was that it simply intended to be explicit that its ambit included employees of the Crown. I wondered whether there was some other reason why the claimant had pursued it, or whether it had been a precautionary second line of argument in the event that the Employment Judge should find that the claimant was not in an employment relationship with the college.

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