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Essentials of Business Law and the Legal Environment
This book examines the current law on the employment status of ministers of religion together with religious workers and volunteers and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. It also considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology. The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas.
John Duddington is a member of the Centre for Law and Religion, Cardiff University, UK, and editor of Law and Justice, the Christian Law Review. He was formerly Head of the Law School at Worcester College of Technology and is now a Visiting Lecturer at the University of Worcester.
ICLARS Series on Law and Religion
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The Church and Employment Law
A Comparative Analysis of The Legal Status of Clergy and Religious Workers
John Duddington
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The Church and Employment Law
A Comparative Analysis of The Legal Status of Clergy and Religious Workers
John Duddington
First published 2023 by Routledge
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Names: Duddington, John, author.
Title: The church and employment law: a comparative analysis of the legal status of clergy and religious workers/John Duddington.
Description: Abingdon, Oxon; New York, NY: Routledge, 2023. | Series: ICLARS series on law and religion | Includes bibliographical references and index. | Summary: “This book examines the current law on the employment status of ministers of religion and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. The work considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology. The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas”– Provided by publisher.
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DOI: 10.4324/9781003092964
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To Anne, Mary and Christopher and also to Walter in memoriam.
8 The perspectives of the churches on the legal status of the clergy
9 A solution?: Potential reforms to achieve a degree of employment protection for clergy and other religious workers
Acknowledgements
The academic community of those who deal in the interaction of secular law and religion remains, despite the growth of interest in this area, relatively small and notably friendly. Thus, it is a great pleasure to acknowledge the inspiration and enduring companionship of such friends as Prof. Norman Doe, Director of the Centre for Law and Religion at the University of Cardiff and his Cardiff colleague, Prof. Russell Sandberg; Fr. Robert Ombres OP of Blackfriars, Oxford; Prof. Julian Rivers of Bristol University and Frank Cranmer, case book editor of Law and Justice, whose wonderfully succinct summaries of cases have been invaluable in writing this book.
Of these, special thanks must go to Prof. Norman Doe who first invited me to deliver a seminar on this subject to his students on the LLM in Canon Law in 2002. Moreover, both these students and others who have heard my talks on this topic over the years added greatly with their insights and pertinent questions to my understanding of it and so, to them too, much thanks.
Some time ago, I completed a PhD at the University of Manchester on this subject and, although the subject matter of this book is wider than this, some of the PhD material has found its way, suitably edited, into this book. Thus it is a real pleasure to thank my two supervisors, Prof. Javier Oliva and Dr. Elaine Dewhurst, not only for their tremendous professional support in this project but for their enduring friendship.
Over the years I have badgered members of the clergy at all times and places with questions about how they view their status in employment law and their insights have been invaluable in helping to shape the ideas in this book. In addition, I would particularly like to mention Robert Higham, then Secretary to the Diocese of Worcester, who was kind enough to spend a morning with me sharing his thoughts on this area, and Paul Barber, Director of the Catholic Education Service for England and Wales, for invaluable help on the position of teachers in Roman Catholic schools.
While writing this book I have sought the help of many colleagues in various jurisdictions, in particular from Europe, North America and South Africa, none of whom of course must be thought to agree with anything that I have written here. Andreas Henriksen Aarflot, Senior Adviser in the Legal Department of the National Council of the Church of Norway and Lecturer in Church Law at the
x Acknowledgements
MF Norwegian School of Theology, Religion, and Society has been an invaluable resource on the employment status of the clergy in Nordic countries. In the USA Prof. Jerrold Waltman, Professor Emeritus of Political Science at Baylor University, was a very sure guide and in Spain Dra. Carmen Ferradans, Senior Lecturer in Labour Law at the University of Cádiz, not only commented on what I had written but also sent me details of some fascinating Spanish cases which have found their way into this book.
Meanwhile, nearer to home, David Frei, the External and Legal Services Director of the United Synagogue, London, was kind enough to give me his insights into rabbinical status and at an early stage I spoke to Rachael Maskell, then of the Unite Union, and members of their Faith Workers Branch who told me of the difficulties which clergy had endured through a lack of employment rights. Some of the ideas from that meeting have found their way into the concluding chapter.
To come to home itself, my thanks go to the members of my family to whom this book is dedicated: my wife Anne, for her wonderful support, loyalty and technical expertise now extending over very many years without which my books would never begin to be written; my daughter Mary, for her seemingly faultless proofreading and sense of fun which keeps me going; and my son Christopher for just being himself. Last, I cannot forget my late father Walter Duddington, to whom I owe both my own faith and thus my interest in religious matters and also my interest in the law. I hope that his son’s work will survive the ever-kindly yet critical and vigilant eye which I am sure he still exercises.
I would also like to thank the staff of Routledge, a publisher with whom I have found it a pleasure to work, and especially Alison Kirk, Senior Commissioning Editor, and Anna Gallagher, Editorial Assistant for Law.
Finally, I must mention that this book is based on sources available to me by 12 June 2022, which, in the UK, was kept by Christian churches as Trinity Sunday. Given that in Christian understanding the Trinity is about relationships and so is this book, albeit relationships of a less exalted kind, readers may find this appropriate.
Preface
This book is the result of the fusion of two long-standing interests of mine, employment law and the interaction between secular law and the law of religious organisations. I taught employment law for over 40 years to many generations of students at undergraduate, postgraduate and final professional levels and now, having given up full-time teaching, I find that I am increasingly asked to advise small charities on their legal responsibilities and liabilities in relation to their employees and other workers.
My interest in law, and religion in general, dates from 1991 when I was appointed editor of Law and Justice, the Christian Law Review, and then my interest in this particular area was stimulated by the publication in Law and Justice in 1997 of an article by Prof. Gillian Evans entitled ‘The Employment Status of Ministers of Religion’, followed by the publication of her book, Discipline and Justice in the Church of England, in 1998.
The way in which this book is structured has been shaped by several convictions of mine.
The first is that the extent to which the clergy should have employment rights is a pressing question which will not go away and as such merits a full-length treatment in a book such as this. By way of example, whilst writing this book employment status has emerged as an issue in two cases in the UK: the first involving a vicar of what is known as a proprietary chapel in the Church of England (Gould v. St. John’s Downshire Hill) and the Dean of Christ Church, Oxford (Percy v. The Dean & Chapter of the Cathedral Church of Christ in Oxford).1 Meanwhile, it was intriguing to note that the Anglican Diocese of Liverpool furloughed a number of its curates in 2020 under the Government’s Coronavirus Job Retention Scheme citing the ‘the technical, legal status of their ministry’. Was this a concession of their status as employees or as workers?
Lest it be thought that such matters are confined to the Church of England and to the UK, a striking instance occurred in the Roman Catholic Church over the case of Cardinal Ludwig Müller who was dismissed by Pope Francis as head of the Congregation for the Doctrine of Faith (CDF). In an interview with the
1 These cases are fully discussed in Chapter 4.
German newspaper Passauer Neue Presse, the cardinal said that on the last working day of his five-year term as a prefect of the Congregation for the Faith, Pope Francis informed him ‘within a minute’ of the decision not to extend his mandate. ‘He did not give a reason’, Cardinal Müller added: ‘I cannot accept this way of doing things. As a bishop, one cannot treat people in this way’.2 Had he had the status of an employee then of course this would not have happened.
On a wider canvas churches are taking what is now known as human relations more seriously. For instance, the Roman Catholic Archdiocese where I live now has a Human Resources & Communications Director and this is not untypical. This does not mean that clergy in the Archdiocese now have employment status but it does mean that there is a greater commitment to the whole question of how to treat not only clergy, but also other religious workers. Another example is from the Spectator magazine3 where, in the context of a discussion of problems facing the church with possible reductions in the number of parish clergy, the author remarks that this may mean the dissipation of assets inherited by the church ‘to pay lawyers and HR managers to make vicars redundant’. The actual detail is not the point: the point is that these matters are being discussed.
The second conviction is that it is wrong to adopt an isolationist approach to this subject and to look only at the position in the UK. Insights gained into the way in which different jurisdictions approach the question of clergy employment status are valuable wherever one lives. One example is what is known as the ‘ministerial exception’ in the US which is examined at various points in this book and especially in Chapter 3.
The third conviction is that over the years, it has become obvious to me that to examine this issue from a narrowly legal perspective is wrong. The fact that clergy often do not have, and indeed often do not want, the status of an employee has come about from the way that they see the nature of their calling and is in turn shaped by a variety of factors, both historical and theological, and needs to be seen against the background of church-state relations. This means that in my treatment of this topic I have gone beyond employment law and have explored these fields too. Moreover, I have not hesitated to use non-legal sources where this has been necessary to illustrate a point.
I have come to realise that in considering clergy employment rights one cannot draw a sharp distinction between ordained clergy and others. In some churches and other religious bodies such a distinction does not exist, as for instance in Judaism and in some Christian churches, particularly those with an evangelical emphasis. Therefore, the title of this book refers to ‘clergy and other religious workers’. Moreover, having gone this far it seemed logical to include those who,
2 The remarks were widely reported. See catholicherald.co.uk/.../pope-names-jesuit-as-succ essor-to-vatican-doctrinal-chief-card. I say nothing about the actual merits of the decision by the Pope.
3 6.2.21.
whilst not engaged in actual ministry in the sense of conducting worship and preaching, also serve as, for example, organists and lay chaplains.
It is tempting to regard the question of employment rights for clergy and religious workers as a modern phenomenon deriving from a contemporary insistence on a person’s rights buttressed by the growth in the rights available to employees. In one sense this is true but in fact the question goes deeper, and its origins lie in an age-old tug between the desire for clergy to have freedom to minister and the perennial obsession of organisations with exercising control over their workers. In The Northern Crusades, 4 Eric Christiansen considers the motives of priests and friars who left the security of Christian Sweden in the thirteenth century to seek to evangelise the then pagan Finland. In Sweden, many local landowners were ‘allowed by law to treat the parish priest as their own hired man’. However, ‘among the Finns, a priest might find martyrdom, but he would also find freedom’.5 One Diocesan Registrar expressed it to me in today’s world as ‘independence in the ministry of Word and Sacrament’. Looking at the matter in another way, one bishop said to me: ‘If the clergy are my employees, then they will have to remember that I am their employer!’
Lastly, a word about nomenclature: the title of this book refers to the clergy, yet in many cases courts have used the term ‘minister’ in the sense of a minister of religion. Here it would be straining language to revert to using the word ‘clergy’ and so I have used often ‘minister’. The effect is that for the purposes of this book ‘clergy’ and ‘minister’ are coterminous.
Here then is a topic of perennial interest and importance and if this book makes any contribution to a better relationship between clergy and their superiors and a wider appreciation of the demands of justice in this context then I shall feel that my efforts in writing it have been well rewarded.
4 Penguin 1997, 116.
5 Judging from what one hears of the experiences of some clergy today things have not changed much!
Part 1
Who are the clergy and religious workers and who is their employer?
Introduction
The heart of this study is the legal status of clergy and religious workers. However, this begs three questions: who are clergy, who are religious workers, and, by extension, what is meant by religious? Underlying all this is a fourth question. Legal status does not exist in a vacuum. Legal status generally brings with it rights and duties. Who, then, are those duties owed to and against whom are those rights enforced? In employment law, this is the employer and so this leads us to the fourth question: who is the employer in these cases? It is these questions which this part will seek to unravel. In a sense it bookends the following two chapters which seek to disentangle the actual labels which the law fixes onto clergy and other religious workers: are they employees, workers and so forth. Here we are asking the preliminary question: simply put, who are they?
Ministers of religion and religious workers
This would have been a much easier book to write if it had confined itself to looking at the legal status of clergy. However, it would have been an incomplete book and also a misleading one.
To take the second point first it would have been misleading because many churches and other religious bodies do not recognise the word ‘clergy’ at all. For instance, adherents of the Jewish faith refer to ‘rabbis’, amongst others, and Muslims refer to the ‘imam’. We shall examine both these offices later. Even in Christian churches the word ‘clergy’ does not have a specific meaning. In some churches there is a very clearly defined separation between clergy and laity, yet in others this is not so. Where there is this clear separation, such as in the Roman Catholic, Anglican, Orthodox and other churches, this is often the result of a ceremony of ordination after which a person is a member of the clergy.1 In
1 See Norman Doe, Christian Law, Contemporary Principles (CUP 2013) Ch. 3 for an account of Christian ordained ministries.
2 Who are the clergy, religious workers and the employer?
other Christian churches and other religious bodies there may be no specific ceremony and often no rigid separation between clergy and laity. The result is that, as Briden points out, ‘the sharpness of the distinction has varied from time to time and place to place’.2 Thus for various reasons the term ‘clergy’ is not always satisfactory and we shall on occasions use the term ‘minister of religion’ instead, or ‘minister’ for short, whilst recognising that the term ‘clergy’ has a value as it is clearly recognisable.
The other point is that if we confine ourselves to looking only at ministers of religion then this book would have been incomplete by drawing too sharp a dividing line between ministers and others involved in the work of churches such as church elders. For instance, we consider Barthorpe v Exeter Diocesan Board of Finance 3 where the Employment Appeal Tribunal (EAT) had to consider whether a Reader in the Church of England was entitled to claim for unfair dismissal on the basis that he was an employee. What, going further, of the very wide categories of people who are involved in religious work, ranging from monks and nuns living in enclosed religious orders to those who look very much like secular workers such as diocesan finance officers? Again, what of the large numbers who volunteer in churches and then of those who act as paid or unpaid chaplains in schools, hospitals, prisons, and other institutions? Going yet further, what of teachers of religion in schools and colleges? Suppose that a person teaches religion from a comparative aspect and emphasises spirituality rather than doctrine? Can they be considered teachers of religion per se at all? 4 We shall now look in detail at all these questions.
In addition, and of great importance now, there is the question of vicarious liability by the religious body for torts which has arisen recently in the context of liability for abuse committed by ministers and others. Here the courts have, as we shall see below, held that ministers of religion can for this purpose be held to be employees and that those who might be classed as religious workers can also be treated as employees so that in the case of both ministers and religious workers the religious body can be held liable for abuse committed by them. 5
Is there a contractual relationship?
This is of crucial importance in determining individual employment rights and needs to be considered first. As Anne Davies has pointed out ‘(despite efforts by Parliament to broaden the scope of protection) the courts are unshakeable in
2 Moore’s Introduction to Canon Law (T. Briden ed. 4th edn, Bloomsbury 2013) p. 148 where there is a useful short account of different offices in the Church of England.
3 [1979] ICR 900. This case is considered in Chapter 6
4 Note the position of teachers of religion in the US, examined in Chapter 3
5 This topic is considered in detail in Chapter 3
Who are the clergy, religious workers and the employer? 3 their view that contract marks the outer boundary of permissible employment claims’.6
In UK law, the governing statute is the Employment Rights Act (ERA) 1996 which defines the terms ‘employee’ (s.230(2)) and ‘worker’ (s.230(3)).7 These are considered in detail in Chapter 5, but for our purposes the essential and overriding issue is that for a contract there must be what is known as consideration, which is simply an element of bargain.8 So if the worker gives their services free then they will be neither an employee nor a worker but a volunteer. The other possibility is that the person is an independent contractor who has a contractual relationship with, in this case, the religious body, but is not an employee.
So, for our purposes we can classify religious workers into:
(a) Ministers of religion;
(b) Other religious workers who have some contractual relationship with the religious body;
(c) Volunteers.
The distinction between ministers and other religious workers is important because, as we shall see, the courts have generally set their face against according employment rights to ministers but the special considerations which lead to this will not necessarily apply to other religious workers.
Is it convenient to deal first with volunteers, who form an easily identifiable category. This then leads us to look at religious workers other than ministers to evaluate the extent to which ministers can be separated from religious workers. This part then concludes with an exploration of the question of who is a minister.
Bibliography
Briden T, Moore’s Introduction to Canon Law (4th edn, Bloomsbury 2013) Davies A, ‘The Employment Status of Clergy Revisited: Sharpe v Bishop of Worcester’ (2015) 44 ILJ 551
6 ‘The employment status of clergy revisited: Sharpe v Bishop of Worcester’ (2015) ILJ 551, 562. However, as we shall see in Chapters 5 and 6, there are suggestions that the concept might be widened from that of an employment contract to an employment relationship.
7 There is a further definition in s.83(2)(a) of the Equality Act 2010 which defines employment either under a contract of employment or of apprenticeship or under ‘a contract personally to do work’. See Chapter 4 where this definition is discussed alongside the definition of a worker in s.230(3) of the ERA 1996.
8 This is the general rule in most jurisdictions. Common law jurisdictions such as the US and Australia follow UK law: see for the US Fundamentals of American Law (Alan B. Morrison ed. OUP 1996) 205–206 and, for another jurisdiction, see for instance Susan Hardie Essentials of French Employment Law (Matador 2018) p. 7. See also Article 1.1 of the Spanish Workers' Statute, Royal Legislative Decree 2/2015, of 23 October, which defines employed workers as ‘Those who voluntarily provide their services in exchange for payment by others and within the scope of the organisation and management of another person, be it a natural or legal person, called employer or entrepreneur’ (my emphasis).
4 Who are the clergy, religious workers and the employer?
Doe N, Christian Law Contemporary Principles (CUP 2013)
Gleeson K, ‘Exceptional Sexual Harms: The Catholic Church and Child Sexual Abuse Claims in Australia’ (2017) 27(6) Social and Legal Studies 734
Hardie S, Essentials of French Employment Law (Matador 2018)
Morrison A B (ed), Fundamentals of American Law (OUP 1996)
1
Volunteers
Who is a volunteer?
It is of course possible for both a minister of religion and a religious worker to be a volunteer. There is no legal definition of a volunteer but s.43 of the National Minimum Wage Act 1998, which exempts certain voluntary workers from the right to receive a minimum wage, offers this definition which, it is suggested, may be used in other connections:
A worker employed1 by a charity, a voluntary organisation, an associated fundraising body or a statutory body does not qualify for the national minimum wage in respect of that employment if he receives, and under the terms of his employment (apart from this Act) is entitled to,—
(a) no monetary payments of any description, or no monetary payments except in respect of expenses—
(i) actually incurred in the performance of his duties; or (ii) reasonably estimated as likely to be or to have been so incurred; and
(b) no benefits in kind of any description, or no benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.
It will be seen that what sets volunteers aside from employees or workers is the right to receive some payment for services rendered but one might add that, under fundamental contract law principles, the intention to enter a contract is also required. Thus, even if the contract did stipulate some payment, it would be possible to establish that no contract was intended. However, Deakin and Morris argue that tribunals and courts should be slow to reach a conclusion that there was no intention and that ‘Clear evidence should be required of a
1 Although s.43 refers to volunteers as being employed, in fact this is misleading as the rest of the definition makes it clear that there is no contract of employment in these cases. A better term would be a personal work relationship, which we use below.
DOI: 10.4324/9781003092964-2
6 Who are the clergy, religious workers and the employer?
joint intention to create a voluntary work relationship’.2 It was held in the US case of McClure v Salvation Army3 that even where a person is described as a volunteer in the arrangements for their engagement, this still does not prevent the court from enquiring into their actual employment position. So here Mrs. McClure was held to be an employee. As Coleman J. put it: the contention that she was a volunteer ‘ignores the fact that employment contracts cannot be used to waive protections granted to employees by an Act of Congress’.4 As we shall see in Chapters 5 and 6, courts in the UK similarly examine the substance of a transaction and would not be deterred from doing so merely because the label ‘volunteer’ was affixed to it.5
There are countless examples of volunteers in religion, and it is stating the obvious to say that religious bodies could not function without them.6 Accordingly, they ought to be valued in themselves and for themselves. Some ministers of religion will be volunteers such as Benedictine monks or Dominican friars who are also parish priests. They will have taken vows of poverty in addition to other vows and so will not be able to receive any payment for their services. Another will be retired ministers. It is, however, easier to deal with ministers as a separate category and so here we consider the vast number of lay people who act as volunteers. If the person is an employee or a worker, then they have access to employment rights. If, however, there is no contractual relationship then the religious worker as a volunteer will not have access to most UK employment law rights. Thus, for instance, they will not be able to claim for either unfair dismissal or under antidiscrimination legislation.7 This is important as religious bodies rely to a great extent on the services of volunteers. Church cleaners, flower arrangers, those who take the collection, and many others will almost certainly be volunteers. Incidentally, it is interesting to note that the definition of a volunteer under s.43 of the National Minimum Wage Act (above) only refers to volunteers employed by certain organisations. Amongst these are charities and as religious bodies will, in virtually all cases, qualify as charities8 their volunteers will be within the scope of this legislation. The question is academic anyway as if they did receive a wage, they would not be volunteers.
2 Simon Deakin and Gillian Morris Labour Law 7th edn. (Hart Publishing 2021) at 2.27.
3 460 F.2d 553 (5th Cir. 1972) See chapter 3.
4 J. I. Case Company v NLRB, 321 U.S. 332, 64 S. Ct. 576, 88 L. Ed. 762 (1944).
5 The most recent instance is the Supreme Court decision in Uber BV v Aslan ( 2021) see chapter 5 . Also note s.203(1) of the Employment Rights Act 1996 – see Chapter 6
6 To take an (almost) random example there are over 500 volunteers at Exeter Cathedral. J. Foyle Exeter Cathedral The Garden of Paradise (Scala Arts and Heritage Publishers 2020).
7 There is an argument, which as far as is known has not received judicial consideration, that volunteers might be considered as ‘service users’ under s.29 of the Equality Act 2010 and so entitled to its protection. This seems, however, to strain the language somewhat. See ‘Your rights to equality from voluntary and community sector organisations’ Equality and Human Rights Commission, Vol. 3 (July 2010).
8 See s.2, s.3 and s.4 of the Charities Act 2011.
The question of the possible effect of payments to volunteers on their employment status has arisen in two UK cases. In Migrant Advisory Service v Choudri, 9 Mrs. Choudri was engaged at a flat rate of £25 per week which, although stated to be in respect of travel and subsistence expenses, bore no relation to the expenses which she actually incurred in travelling to and from work or having her meals at work. In fact she lived quite close to the respondents’ premises and, as she worked from 10.00am to 1.00pm, she did not take a lunch break. Moreover, these payments were made even when she was absent from work through sickness. It was held that although the payments were described as ‘voluntary expenses’ they were actually, as the ET Chairman put it: ‘a disguised form of salary or wages’.10 Thus she was not a volunteer but was entitled, as a worker, to claim for unfair dismissal and sexual discrimination on the basis of her dismissal.
A different decision was reached on the facts in Uttley v St. John’s Ambulance11 where the applicant sought worker status in order to bring a claim of alleged sexual harassment contrary to what was then the Sex Discrimination Act 1975.12 Mrs. Uttley was a member of the St. John’s Ambulance and in that capacity regularly attended public events (such as concerts, football matches and other public sporting events). She was not paid a wage or salary for any of these activities, but she was paid actual out-of-pocket expenses and would receive ‘fringe benefits’ in the form of refreshments or meals provided by the organisers of the events she attended. She also obtained free entry to those events when on duty. It was held that these were indeed just expenses and so the appellant was a volunteer.13
The lessons for religious bodies are clear:
(a) Where payments for expenses amount to anything more than just that it will leave the body open to a claim that the recipient is more than a volunteer. The wording of s.43 of the Minimum Wage Act 1998 cited above is a helpful guide; (b) Courts and tribunals will look beyond any description of a person as a volunteer and will examine the reality of the situation.
An ingenious attempt to argue that a volunteer did have some employment rights was rejected by the Supreme Court in X v Mid Sussex Citizens Advice Bureau.14 X had been a volunteer adviser for the bureau and had signed a ‘volunteer agreement’ which it was accepted was not a contract of employment and was not legally binding. Nevertheless, it contained provisions relating to equal
9 Appeal No: EAT/1400/97 (28 July 1998), unreported.
10 Note here the same approach as in McClure v Salvation Army (above).
11 Appeal No. EAT/635/98 (18 September 1998), unreported. See also Deborah Morris. ‘Volunteering and Employment Status’ 1999 25 ILJ 249.
12 The relevant provisions are now in the Equality Act 2010.
13 The judgement contains interesting remarks about the nature of the obligations required to constitute a contract where there is a volunteer.
14 [2012] UKSC 5.
8 Who are the clergy, religious workers and the employer?
opportunities (stating that volunteers were expected not to discriminate against clients and colleagues), bureau practices, holidays, reimbursable expenses, retirement (stated to be normally at 70), and outside activities. She claimed that after taking up the position she was later asked to cease acting as a volunteer, in circumstances amounting to disability discrimination. Her argument was that, although the legislation then in force15 referred to employment, this was inconsistent with Council Directive 2000/78/EC which established a general framework for equal treatment in employment and occupation (the ‘Framework Directive’). Article 3(1)(a) referred to ‘conditions for access to employment, to self-employment or to occupation’ and she argued that in effect ‘occupation’ should be read as a sui generis category distinct from employment or self-employment.
The Supreme Court had no difficulty in holding that the reference to ‘access … to occupation’ contemplated access to a sector of the market where, for instance, a professional qualification was required and did not create a separate category of occupation which could include volunteers.16 Thus the claim failed.17
This case is interesting as, although the claimant’s non-binding agreement contained various clauses which were identical to those in the contracts of employees, this did not mean that there was a contract. There is in fact a positive message here: organisations which use volunteers may be afraid that by including them in equal opportunities policies and other documents, as in the above case, they are giving volunteers legal rights. This will not be the case but equally, by including volunteers in their human relations practices, organisations are acting in an inclusive way towards them and not regarding volunteers as simply extras who are not considered part of the organisation.18 Some organisations have a volunteer policy which will outline the expectations of the volunteer, relevant legislation, safeguarding contacts and information that is important to anyone who wants to volunteer for an organisation.
15 S.68(1) of the Disability Discrimination Act 1995 where ‘employment’ meant ‘subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly’. This is now replaced by similar provisions in the Equality Act 2010 (s.83(2)(a)).
16 It is, however, interesting to note that at the consultation stage the European Parliament proposed amendments to Article 3(1)(a) to make it refer to: ‘(a) conditions for access to employment, unpaid and voluntary work’ but these were not accepted. (See Lord Mance in the above case at para. 39.)
17 See, however, the argument in John Bowers and Jeremy Lewis in ‘Judges, human rights and worker status: Gilham v Ministry of Justice’ (2020) 49(1) I.L.J.135 at 149 on the possibility that rights under the ECHR could be extended to groups such as volunteers by analogy with how they were extended to holders of a judicial office in this case.
18 Some organisations appear to be paranoid about giving rights to volunteers which might lead to them being classed as employees. See, for example, the decision of the National Trust which, if correctly reported, was that if volunteers were included in a consultation procedure this could lead to them being classed as employees (Daily Telegraph, 1.1.21) There is no legal basis for this at all.
Rights of volunteers
Moreover, it would be wrong to conclude that volunteers have no legal rights at all. These are some of the main ones although the remarks on safeguarding apply to all religious workers, whether volunteers, ministers, or other religious workers.
(a) Health and Safety. The starting point is s.3(1) of the Health and Safety at Work Act 1974 which provides that ‘It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety’.
The slightly curious result is that, if there is at least one employee in an organisation so that there is also an employer then that employer owes duties not only to employees but also to others, which includes volunteers. What constitutes an organisation for religious purposes is considered below in the context of who is an employer, but it is likely that there will be at least one employee in many of them. One example would be a church caretaker who is paid or the paid secretary to the bishop. If so the Act will apply to everyone in the organisation.
Even where the Act does not apply, the general civil law of negligence will apply to volunteers so that the ‘employer’19 owes them a duty of care. Equally, they will owe others this same duty.
(b) Safeguarding. This is of crucial importance, especially in relation to various safeguarding issues which have arisen in relation to religious bodies over the years.20 Safeguarding is a duty to protect those who are vulnerable, whether they are children or adults. A vulnerable person is someone who might be unable to protect himself or herself from significant harm or serious exploitation because of a physical or mental disability, age, or illness. Thus safeguarding covers inter alia, physical, mental, emotional and financial abuse.21 It hardly needs saying that all of us may be vulnerable at some time in our lives and so any safeguarding policies need to recognise this. Therefore safeguarding policies and procedures must include everyone who works for the religious body, volunteers, ministers, and other religious workers, all of whom equally must be aware of their own duty not to subject vulnerable people to abuse or exploitation. It is vital that safeguarding policies, along
19 Although strictly inaccurate it is convenient to refer to the ‘employer’ of the volunteer in parenthesis.
20 See the Report of the Independent Inquiry into Child Sexual Abuse, set up by the British government to examine ‘whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse in England and Wales’, which investigated and reported on the Anglican and RC Churches. See www.iicsa.org.uk/ investigations/all.
21 The term ‘safeguarding’ is understood slightly differently depending on whether adults or children are concerned. A useful resource is the OFSTED Safeguarding Policy which has links to statutory provisions. See www.gov.uk › government › publications › ofsted-safeguarding-policy
10 Who are the clergy, religious workers and the employer?
with all other policies, are reviewed regularly, preferably yearly.22 Finally, it is worth noting that the term ‘safeguarding’ does not have the same meaning in other jurisdictions as it does in the UK as legislation protecting the vulnerable is to be found under other headings. For instance, the Department of Social Services of the Australian Government has published ‘The National Framework for Protecting Australia’s Children 2009–2020’23 which actually covers areas other than safeguarding as well.
(c) Right to payment of expenses incurred in the performance of their duties.
(d) Protection from unauthorised use of personal data as laid down in the Data Protection Act 2018, the General Data Protection Regulation, and any other data protection legislation.
(e) Protection from bullying at work. The legislation giving protection from harassment at work is contained in the Equality Act 2010 and applies to harassment because of one or more of a worker’s protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.24 This will not apply to volunteers as they are not workers because they do not have a contract. However, if bullying at work by an employee causes foreseeable damage to the physical or mental health of a volunteer then there seems no reason why a volunteer cannot claim damages from the employer as they will be liable in civil law for the actions of the employee. Bullying could also amount to a criminal offence.
The practical result is that, in the areas covered above, it is essential that the employer’s policies specifically include volunteers and that they are made aware of their rights. It is stating the obvious, but needs to be stated, that religious bodies have a special responsibility to care for all those who work for them, paid or unpaid.25
The future: a new status for volunteers?
There is the possibility of an emerging category of ‘voluntary workers’ as distinct from volunteers. This was acknowledged in the UK in a Consultation Document
22 There are various excellent websites with detailed and up-to-date information on safeguarding. One example is that of the Chartered Institute of Personnel and Development: https:// cpdonline.co.uk/knowledge-base/safeguarding/legislation.
24 Harassment is defined by s.26 of the Equality Act 2010.
25 The National Council for Voluntary Organisations has further details: see https://knowhownonprofit.org/people/volunteers/keeping/treating (accessed 13 March 2018). See also Deborah Morris ‘Volunteering and Employment Status’ (1999) 28(3) I.L.J. 249. Philip Morgan ‘Recasting Vicarious Liability’ (2012) 71(3) C.L.J. 615 argues for what he calls ‘an account of vicarious liability’ which will encompass liability in tort for the actions of volunteers. See also Mark Freedland The Personal Employment Contract (OUP 2003) for a useful analysis of volunteer status at pp. 62–64.
produced by the Department of Trade and Industry (DTI)26 but nothing came of this. However, in some jurisdictions there has been an attempt to regulate personal work relationships. One example is France where Law no. 2006-586 (23 May 2006) provides for the recognition of ‘a volunteering contract which does not carry the risk of legal subordination’ which is normally expected to last for no more than two years. Under the legislation, the voluntary worker has the right to be paid what is termed an indemnity and is entitled to various benefits.27 The obvious problem here is the creation of an additional category where a ‘volunteer’ may have to be distinguished from a ‘voluntary worker’. Nevertheless, with the growth of what is termed in the UK as ‘The Third Sector’, including charities, voluntary and community groups, the status of volunteers may well be enhanced and this is something for religious bodies to keep an eye on. We shall return to this issue in Chapter 5 when we consider future developments in the regulation of personal work relationships.
Bibliography
Bowers J and Lewis J, ‘Judges, Human Rights and Worker Status: Gilham v Ministry of Justice’ (2020) 49(1) ILJ 135
Deakin S and Morris G, Labour Law (7th edn, Hart Publishing 2021) Equality and Human Rights Commission, Vol. 3 (July 2010). ‘Your Rights to Equality from Voluntary and Community Sector Organisations’ Foyle J, Exeter Cathedral, The Garden of Paradise (Scala Arts and Heritage Publishers 2020)
Freedland M, The Personal Employment Contract (OUP 2003)
Freedland M and Kountouris N, The Legal Construction of Personal Work Relations (OUP 2011)
Morgan P, ‘Recasting Vicarious Liability’ (2012) 71(3) C.L.J. 615
Morris D, ‘Volunteering and Employment Status’ (1999) 25 ILJ 249 ‘Report of the Independent Inquiry into Child Sexual Abuse’ https://www.iicsa.org .uk/investigations/al
26 ‘National Minimum Wage and Voluntary Workers – Consultation Document’ DTI June 2007
27 See Mark Freedland and Nicola Kountouris The Legal Construction of Personal Work Relations (OUP 2011) at pp. 144–147 for a discussion on the status of volunteers in the European context. See also the discussion in G. Davidov A Purposive Approach to Labour Law (OUP 2016) at pp. 202–204 and his reference to the interesting Israeli case of Suheir Sarugi v National Insurance Institute (Judgement of 3 May 2004) of the Israeli National Labour Court. Here Suheir Sarugi had periods of working as a volunteer and then as an employee but was held to be an employee for the whole time. One factor in the decision, a point to which we shall return to in Chapter 5, was her vulnerability as she was desperate for a job and so wanted a ‘foot in the door’.
Religious workers
Introduction
This category really defines itself, as it includes all those engaged in the life and work of the church or faith group who are not ministers of religion.1 As we will see when we examine the category of ministers of religion, there can be an overlap between these categories but the fundamental distinction for our purposes is that, whereas in general religious workers are entitled to employment rights, ministers of religion are generally not.2
Religious workers as a category are not mentioned in most jurisdictions but one example of where such a category exists, although not by this name, is Norway. Here by the Faith Communities Act 2020 the state is obliged to give grants to the Church of Norway in order to finance the ministry of priests and the church’s activities nationally and regionally, and the municipality (local authority) is obliged to provide grants for the local activities of the church. S.14 provides that the ‘grant shall also ensure that the parish has satisfactory staffing for worship and rites, including verger/sexton, parish clerk and organist at every church, and adequate administrative assistance’. Here then is at least the start of a list of religious workers and one could also add teachers of religion on the basis that they are not ministers, and also lay chaplains to schools, hospitals, prisons, seafarers and others. In the Roman Catholic Church, Canon 231 of the Code of Canon Law explicitly recognises the part played by what it terms ‘lay persons’ in the life of the church and provides that they have the right to ‘decent renumeration’. In addition they have the right to ‘social provision, social security and health benefits to be duly provided’ although it is not clear on whom this duty lies.
1 The exact meaning of the term ‘minister of religion’ will be explored in Chapter 3
2 A fascinating topic, far beyond this study but awaiting investigation, is the extent to which historically religious workers other than ministers were regarded as employees. See, for instance, ‘The Cloisters of Hereford Cathedral: A Hidden History’ (Hereford Cathedral 2020) which considers the status of the vicars choral, one example of a religious worker.
DOI: 10.4324/9781003092964-3
Religious workers divide into:
(a) Those who give their services voluntarily, who fall into the category of volunteers which we examined in the previous chapter;
(b) Those who have a contract of some kind, whether of employment or selfemployment, with the church or faith body.
In the case of (b), religious workers will, if they are employees, have prima facie the same rights as all other employees and can, in principle, claim for unlawful termination of contract and unlawful discrimination.3 However, this broad principle needs qualification because of three possible restrictions on their rights:
(a) Those imposed by their contract;
(b) Those imposed by domestic discrimination legislation;
(c) Those imposed by the interpretation by the courts of the ECHR.
There is also, to bring into the mix, the extent that religious bodies enjoy autonomy from the state.
These categories overlap in the case law and so it is convenient to consider them together. The issue in most cases is the extent to which lifestyle choices which are contrary to the tenets of the religious body, but which can be considered conduct by the employee outside work, justify dismissal.
In numerical terms, this is a larger class than ministers of religion. Thus, in Schüth v Germany4 the ECtHR observed that:
The Catholic Church and the Protestant Church employ over one million individuals, particularly in their charities, making them the second largest employer in Germany after the State. The two main charities alone, Caritas (Catholic) and Diakonie (Protestant), employ respectively almost 500,000 and 450,000 ‘staff members’. Their activities concern mainly the running of hospitals, schools, kindergartens, homes for children and the elderly and advice centres (for HIV sufferers, migrants, victims of domestic violence)
Summary of the relevant law
It will be seen that the cases examined below involve the integration of contractual provisions with both national legislation on unlawful discrimination and also international obligations under both the ECHR and EU law. The following summary may serve as a helpful guide as we make our way through this complex area and may also be found useful in succeeding chapters:
3 The position where a religious worker is self-employed is dealt with later in this chapter.
4 [2010] ECtHR(No. 1620/03) at para. . 31. This case is considered below.
Who are the clergy, religious workers and the employer?
(a) Individual contracts of religious workers. The fundamental point to remember here is that even if an employee has agreed to a particular contractual term which, for example, governs their lifestyle outside work, this may not be enforceable as it may breach the legislation summarised below;
(b) National law governing discrimination. There are three points to bear in mind:
(i) Under UK law the governing statute is the Equality Act 2010 which provides that discrimination on any of the ‘protected grounds’ is unlawful. These are Age, Disability, Gender reassignment, Marriage and civil partnership, Pregnancy and maternity, Race, Religion or belief, Sex, and Sexual orientation;
(ii) Discrimination can take four forms under the Equality Act 2010 in UK law: direct (s.13), indirect (s.19), discrimination by harassment (s.26), discrimination by victimisation (s.27);
(iii) Although unlawful discrimination was originally dealt with by UK law by, for instance, the Sex Discrimination Act 1975, EU law has had a significant impact, in particular the EU Directive 2000/78 which established what it terms ‘a general framework for equal treatment in employment and occupation’. This led to UK regulations dealing with discrimination on grounds of sexual orientation, religion and belief and age (now incorporated into the Equality Act 2010) and although the UK has now left the European Union this legislation of course still remains part of our law. The Court of Justice of the European Union is the chief judicial authority of the European Union and oversees the application and interpretation of European Union law, in co-operation with the national judiciary of the member states;
(c) The European Convention on Human Rights (ECHR) which is incorporated into UK law by the Human Rights Act 1998. National courts initially deal with claims which can then go, as a final court of appeal, to the European Court of Human Rights (ECtHR). The following articles of the ECHR have been considered in litigation involving religious workers and will be considered in more detail below:
● Article 6: Right to a fair trial;
● Article 8: Respect for your private and family life, home and correspondence;
● Article 9: Freedom of thought, conscience and religion;
● Article 10: Freedom of expression;
● Article 11: Freedom of assembly and association;
● Article 13: Freedom from discrimination in the exercise of these rights.
Article 9(1) of the ECHR is worth setting out in detail. It provides that:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either
Religious workers 15 alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
This general principle is then subject to Art. 9(2) which states that:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The fundamental difference between discrimination law and the ECHR is that discrimination law rests on comparisons; thus by s.13(1) of the Equality Act 2010: ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’ (my italics). By contrast, any protection of religious freedom under the ECHR is not based on a comparison with another person but involves the application of the principle of proportionality because the right to manifest religion under Art. 9(2) is not absolute but qualified. Therefore, a court will test any limitations on religious freedoms to see if they are proportionate under any of the three reasons set out in Art. 9(2).5
Restrictions imposed on religious workers and the effect of the European Convention on Human Rights
The rights of other religious workers have been examined by the ECtHR in a number of cases in Italy, Germany, and Spain where the common thread has been the extent to which the lifestyle of the religious worker outside work and also their views on church teachings can make them either liable for dismissal by the religious body which employs them or which will justify the religious body in not appointing them at all.
There are two general points to note when considering cases decided by the ECtHR:
(a) The principle that in certain areas national states and courts enjoy what is known as a ‘margin of appreciation’ when considering if a Convention right has been infringed.
Thus, in Fretté v France6 the court said: … the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different
5 Space precludes further discussion of this topic but readers are referred to the illuminating discussion in C. McCrudden Litigating Religions, An Essay on Human Rights, Courts and Beliefs (OUP 2018) especially chapter 4.
