Ecclesiastical Law 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.

The Church Commissioners paid Dr Coker's stipend and the Diocesan Board of Finance made the necessary arrangements for that payment. Neither of them appointed him, removed him, controlled the performance of his functions, or had any contract with him. 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 a situation where the shadows of history and tradition are as long as they are here, the court has to be sure that the form does not obscure the present day substance. Put another way, by accepting office as rector he or she agrees to follow their calling. They do not enter into an agreement to do work for the purposes and benefit of the Church as a commercial transaction.

The same issue arose again in Diocese of Southwark v Coker [1998] ICR 140, this time in the context of an unfair dismissal claim by an assistant curate of the Church of England. 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.

The distinction in law between an employee, who enters into a contract with an employer, and an office-holder, who has no employer but holds his position subject to rules dealing with such matters as his duties, the term of his office, the circumstances in which he may be removed and his entitlement to remuneration, is well established and understood. One of the oldest offices known to the law is that of constable.

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: