Ecclesiastical Jurisdiction in UK Law

The critical point in this case is that an assistant curate is an ordained priest. The legal effect of the ordination of a person admitted to the order of priesthood is that he is called to an office, recognised by law and charged with functions designated by law in the Ordinal, as set out in the Book of Common Prayer. The Ordinal governs the form and manner for ordaining priests according to the Order of the Church of England.

The legal implications of the appointment of an assistant curate must be considered in the context of that historic and special pre-existing legal framework of a church, and an ecclesiastical hierarchy established by law, of spiritual duties defined by public law rather than by private contract, and of ecclesiastical courts with jurisdiction over the discipline of clergy.

Neither of them appointed him, removed him, controlled the performance of his functions, or had any contract with him. It was not contended that either of the vicars had a contract with Dr Coker. But that relationship, cemented by the Oath of Canonical Obedience, is governed by the law of the established church, which is part of the public law of England, and not by a negotiated, contractual arrangement.

In Re Employment of Church of England Curates [1912] 2 Ch 563, 568, 569, Parker J held that a curate in the Church of England was not employed under a 'contract of service' within Part I (a) of the First Schedule to the National Insurance Act 1911: 'the position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are defined by contract at all'.

He said that special features surrounding the appointment and removal of a Church of England priest as an assistant curate, and surrounding the source and scope of his duties, preclude the creation of a contract 'unless a clear intention to the contrary is expressed': page 147. He then considered and rejected one by one the possible candidates for the role of employer in that case.

My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. He does not devote his working life but his whole life to the church and his religion. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.

The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: