One issue that the COVID-19 pandemic has helped to highlight is the rather uncertain state of employment law in Great Britain and what employers may reasonably expect of their employees: see, for example, this article by Carl De Cicco and Alison Heaton on Employment Law Watch and the CIPD’s COVID-19 case-notes. And as readers will know, the current law – principally set out in the Employment Rights Act 1996, as amended – makes a series of distinctions between “employees”, “workers” and “office-holders”, each of which has a different set of employment rights.

I suspect that when I first joined the House of Commons service in 1970 I was probably an office-holder – though, for all I know, I may have been a worker. I certainly did not have a contract of employment, and to the best of my knowledge I still did not have one when I left the Clerk’s Department in 2006 – or, at any rate, I was never shown one or asked to sign one. In reality, clerking in the Commons in those days was assumed to be a long-term career and dismissals or requests to resign were (almost) unheard of – but I always assumed that, at least in principle, if I made a complete mess of things the Clerk of the House could sack me at the drop of a wig and just accepted that as a fact of life.

In July 2017,  a review of modern working practices was commissioned by the then Prime Minister, Theresa May, and chaired by Matthew Taylor, former Chief Adviser on Strategy to Tony Blair when he was Prime Minister and subsequently CEO of the Royal Society of Arts. The Taylor Review had this to say about the current state of employment law:

“Regardless of how they are employed, whether in a traditional, full-time role or on a more flexible basis, people should understand what rights they have. Even many individuals working in the most casual of relationships are entitled to basic employment rights and should be aware of this. Employment status is the gateway through which an individual must go to access statutory rights … determining employment status must be simpler, clearer, and give individuals and employers more information, a greater level of certainty and an understanding of which rights and responsibilities apply. We feel it is time that Government takes a fresh look at the legislation.”

The Review recommended that the Government “should replace the minimalistic approach to legislation with a clearer outline of the tests for employment status, setting out the key principles in primary legislation, and using secondary legislation and guidance to provide more detail”.

The Taylor Review was set up primarily to look at the legal implications of the so-called “gig economy”, and the report made no reference whatsoever to the employment status of office-holders. However, it ranged far more widely than zero-hours contracts, suggesting that “Ultimately, if it looks and feels like employment, it should have the status and protection of employment” – in short, if it walks like a duck and quacks like a duck…

But that begs the question, “So how do you know whether it does look and feel like employment?” (or a duck?), and the answer to that seems, at the very least, unclear.

The Revd Haley Preston (née Moore) was removed from her post as Superintendent Minister of Redruth Circuit and sued the Methodist Conference for wrongful dismissal. The Employment Tribunal dismissed her claim; however, the EAT reversed that decision, concluding that it had been wrong in law. That decision was appealed; and in President of the Methodist Conference v Preston [2011] EWCA Civ 1581 (Ms Moore having married in the meantime), the Court of Appeal unanimously upheld the EAT’s finding. Referring to Percy v Church of Scotland Board of National Mission [2005] UKHL 73 (in which the Revd Helen Percy, an Associate Minister and prison chaplain, had sued for unfair dismissal and unlawful sex discrimination), it concluded that it was “abundantly clear” [21] that part of the conclusion in Percy had been to abandon the rebuttable presumption that there was no intention to create an employer/employee relationship between a Church and its clergy. The effect of Percy, said the Court of Appeal in Preston, was that the spiritual role of a minister could not of itself justify denying recognition of an arrangement that otherwise had the marks of a contract.

In President of the Methodist Conference v Preston [2013] UKSC 29, however, the Supreme Court reversed the decision of the Court of Appeal and restored the original order of the Employment Tribunal dismissing Mrs Preston’s claim. The Court held by four to one – Lady Hale JSC dissenting ­– that a Methodist minister was not, in fact, an employee.

If it does nothing else, the Preston litigation points up the difficulties and uncertainties in the current law: four senior judges found in favour of Haley Preston and four found against her – but the Supreme Court trumps the Court of Appeal.

Fast-forward to the present and another Percy: the long-running dispute between the then Dean of Christ Church, the Very Revd Martyn Percy, and the Governing Body of the College. Our coverage of events at Christ Church Cathedral from November 2018 to the present is summarised here, and has been restricted to events in which the Church of England was directly involved and for which there was reliable source material. As we noted in an earlier post, however, 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, Employment Judge Andrew Clarke QC concluded at a preliminary hearing that Dean Percy was an employee for the purposes of s. 83(2)(a) of the Equality Act 2010, though not an employee of the Crown.

The merits or demerits of Martyn Percy’s case are emphatically not a matter for me – but though he has now resigned, the dual nature of the post as Cathedral Dean and Head of House remains. Unless changes are introduced as a consequence of the ongoing governance review – whose independent Chair is currently being selected: see here and here – I wonder whether the holder of the post might possibly be regarded both as an employee of the Governing Body of Christ Church as Head of House and as an office-holder in the capacity of Dean of the Cathedral Church? Whether or not that be the case, like the Preston litigation the dual nature of the position serves to illustrate the complexities of the current law.

So might it be time for a more thorough review of employment law generally?

The Background Notes to the Queen’s Speech in 2019 said: “We will continue to deliver on the commitments set out in the Good Work Plan, ensuring that our employment practices keep pace with modern ways of working and productivity is enhanced”. As Lucy Lewis and Hazel Oliver point out, however, no Employment Bill subsequently appeared – not even on the very limited issue of allocating tips, specifically mentioned in the Speech. The next Queen’s Speech in May 2021 made no mention of a Bill, but the Government later confirmed that one would be introduced when parliamentary time allowed.

In fairness to the Government, a considerable amount of parliamentary time over the past two years has been taken up with legislation and debates on various aspects of the COVID pandemic; but, even so, the most recent Speech and Background Notes did not mention the possibility of employment legislation at all, except in relation to the technical issue of the Harbours (Seafarers’ Remuneration) Bill. So has the issue been relegated to the “Too Hard” tray?

Frank Cranmer