Employment status of Church of England curates: Green v Lichfield DBF

In Reverend D Green v Lichfield Diocesan Board of Finance [2023] UKET 2409635/2022, the primary issue was the extent to which a stipendiary curate had standing to bring a claim before an Employment Tribunal.

The background

Mr Green had been ordained deacon by the Bishop of Lichfield in June 2019 and licensed as stipendiary assistant curate to a benefice in the Diocese for a four-year term until 29 June 2023 [25]. The Licence was issued subject to reg 29(1)(c) Ecclesiastical Offices (Terms of Service) Regulations 2009 [26]. The Licence and Authority specified that it was a training post and that Mr Green was required to undertake ministerial education (Initial Ministerial Education 2) while he held it [27].

The Employment Tribunal noted that

“Being ordained priest or deacon is distinct from being appointed to a particular employment or ecclesiastical office. Ordination as a deacon or priest is not an automatic route to any particular employment or ecclesiastical office (with or without stipend)” [30].

The ET further noted that deacons are normally priested around one year into curacy [49]; however, Mr Green was not. Though he did not make a complaint about that, one of his complaints of direct discrimination was the delay in allowing him to go forward to priestly ordination while reasonable adjustments for a perceived disability of autism were investigated [50].

In January 2022, the Bishop of Stafford told Mr Green in a meeting that his decision on whether to ordain him priest was dependent on his progress in the second stage of Initial Ministerial Education (IME2) [54] and wrote to him on 16 November 2022 telling him formally that his ministerial formation and practice did not currently satisfy the standards expected by the Church for Primary Responsibility as set out in the Formation Criteria, and that he did not expect that Mr Green would meet those criteria by the end of his curacy. He was given the opportunity to appeal that decision to the Bishop of Lichfield but did not do so [55]. On 18 October 2022, the Bishop of Lichfield informed Mr Green that he would not be ordained priest in the Diocese of Lichfield [51].

This was a preliminary hearing, and the primary issue before the Employment Tribunal was whether Mr Green had the status to bring complaints of detrimental treatment because of making protected disclosures (whistleblowing) and disability discrimination based on a perception that he was disabled by reason of autism.

The judgment

In Gilham v Ministry of Justice [2019] UKSC 44, the Supreme Court held that a judicial office holder could pursue a complaint of protected disclosure detriment even though there was no contractual relationship [69] and Lady Hale PSC had identified at [28] four questions to be addressed:

  • Do the facts fall within the ambit of one of the Convention rights?
  • Has the applicant been treated less favourably than others in an analogous situation?
  • Is the reason for that less favourable treatment one of the listed grounds or some “other status”; and
  • Is that difference without reasonable justification – put the other way round, is it a proportionate means of achieving a legitimate aim? [72, 100].

As to the definition of “employment”, s.83(2)(a) Equality Act 2010 defined it as “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work” [78].

The DBF had accepted that the facts potentially fell within the ambit of the Convention rights: Article 14 (non-discrimination) read with Article 10 (freedom of expression) but disputed that the other questions in Gilham could be answered in the affirmative [101]. The Tribunal disagreed, concluding that the definition of “worker” in the Employment Rights Act should be read in the extended way set out in Gilham, giving Mt Green the right to continue with his complaints of detrimental treatment on the grounds of making protected disclosures [113].

As to Mr Green’s employment position under the Equality Act, he “did not fall within an unextended interpretation of employment because he did not have a contract with the respondent (or anyone else)” [118]. However,

”the predecessor legislation to s.49 and, therefore, s.49, was intended to give protection against discrimination to clergy office holders, amongst others. I note that the Church of England Guide to Common Tenure 2016 edition notes … that the Equality Act applies to ‘personal offices (stipendiary curates)’. The respondent in this case accepts that the claimant can continue to pursue his disability discrimination complaints (in so far as they are contained in the claim form or allowed to be added by amendment), relying on s.49″ [120].

It was not, therefore, necessary to extend the meaning of s.39 Equality Act 2010 to ensure compatibility with EU law. The protection afforded to clergy office-holders by EU Directives was provided by s.49 of that Act. Mr Green was not an “employee” within the definition of employment in the Act, but his complaints of disability discrimination should proceed under s.49 – as the holder of a personal office. At the final hearing, unless the complaints were withdrawn or struck out before that stage, the Tribunal would determine whether the DBF was the “relevant person” for a complaint under s.49 [121&122].

As to the issue of “qualifications bodies”, the Tribunal had no jurisdiction to consider a complaint against the DBF under s.53 Equality Act because it was the Bishop of Lichfield who was required to sign off Mr Green’s IME2, not the Board. That part of the claim was dismissed [130].

Mr Green posted on X (still better known to some of us as Twitter) that a further preliminary hearing has been listed for November and a final hearing for April 2024.

Cite this article as: Frank Cranmer, "Employment status of Church of England curates: Green v Lichfield DBF" in Law & Religion UK, 25 August 2023, https://lawandreligionuk.com/2023/08/25/employment-status-of-church-of-england-curates-green-v-lichfield-dbf/

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