The Employment Rights Act 2012 can only be invoked by employees. But even though this is accepted, the determination of who is an employee has from time to time produced different answers by the employment tribunals and appeal courts which decide issues of law.
One such example is the recent English Supreme Court decision in The President of the Methodist Conference v Preston (2013).
In 2009 Ms Preston, an ordained minister of the Methodist Church, filed a claim for unfair dismissal after she resigned, claiming she was pressured to do so.
She was formally assigned to the Redruth Circuit after a procedure that included a written invitation from the Methodist Church which she accepted. She had no written contract. Her relationship with the church was governed by a “deed of union” containing the church’s constitution. Ministers are paid a stipend and given accommodation. However, the Methodist Church does not regard these as being given in return for the services of the ministers.
The tribunal dismissed her claim on the basis that she was not an employee. On appeal, the Employment Appeals Tribunal (EAT) and the Court of Appeal both held that she was an employee and could pursue her claim for unfair dismissal.
The matter came before the English Supreme Court in 2013 which held that both the EAT and the Court of Appeal were wrong and overturned the decision by a majority of four to one.
Under Section 94 of the Employment Rights Act 1996 (UK), only an employee has the right not to be unfairly dismissed.
Like our Employment Rights Act, the English legislation defines an employee as someone who has entered into or works under a contract of service or apprenticeship.
Part of the press summary with respect to the decision, which in my view accurately reflects the basis for the decision, reads:
“The modern authorities made clear that the question whether a minister serves under an employment contract can no longer be answered by classifying the minister’s occupation by type: office or employment, spiritual or secular. Nor can it be answered by an presumption against the contractual character of the service of ministers. The primary considerations are the manner in which a minister is engaged, and the rules of governing his service. This depends on the intentions of the parties and, as with all such exercises, any such evidence of the parties’ intentions falls to be examined against the factual background. Part of the background is the fundamentally spiritually purpose of the functions of a minister of religion.”
The court, in arriving at its decision, placed emphasis on the following factors, among others:
(1) The manner in which a minister assumes a position is not contractual. His duties are not consensual but depend on the unilateral decision of the Conference.
(2) The payment of a stipend and the provision of accommodation are payable to a minister on his being ordained and the benefits continue even in the event of sickness or injury.
(3) The relationship between the church and the minister is only terminable by the conference or its stationing committee or by a disciplinary committee. There is no unilateral right to resign even with notice.
The court held that the question of whether or not an arrangement was a contract depends on the parties’ intentions.
The case emphasises how important a right of appeal can be.
It also underscores the fact that an employment tribunal sometimes has to deal with some difficult legal issues. That is why it is important to have a chairman who is legally trained.
Merry Christmas to all!
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected].
