Diocese of Southwark and Others v Coker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,LORD JUSTICE MUMMERY |
| Judgment Date | 11 July 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0711-5 |
| Docket Number | EATRF 96/0921/B |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1997 |
[1997] EWCA Civ J0711-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Staughton
Lord Justice Ward
Lord Justice Mummery
EATRF 96/0921/B
MR J HAGE (Mr M Rollason 11.7.97) (Instructed by Lawford & Co, Richmond, Surrey TW9 1UF) appeared on behalf of the Appellant
MR P GOULDING and MISS E DIXON (Instructed by Winckworth & Pemberton, London SW1P 3LR) appeared on behalf of the Respondent
I will ask Lord Justice Mummery to give the first judgment.
The question on this appeal is whether the Reverend Dr A B Coker, a priest in the Church of England, was, whilst an assistant curate, first at St Luke's, Woodside and then at St Philip's, Cheam Common, during 1 September 1990 and 31 May 1994, an "employee" within the Employment Protection (Consolidation) Act 1978, now re-enacted in the Employment Rights Act 1976. If he was, he had a right not to be unfairly dismissed by his employer (Section 54(1)), and the Industrial Tribunal had jurisdiction to hear his claim of unfair dismissal. If he was not, the Industrial Tribunal had no jurisdiction to hear his claim for unfair dismissal, and the claim for re-engagement made by Dr Coker in his originating application presented to the Central Office of the Industrial Tribunals on 15 September 1994.
There has been a sharp difference of judicial opinion in this case on its way to this court. On 24 February 1995 the Chairman of the Industrial Tribunal, sitting alone at London South, issued a decision on a preliminary issue that there was jurisdiction to hear Dr Coker's claim against the Diocese of Southwark. The Chairman held that a contract of employment had been created by the oral acceptance of an offer contained in a letter dated 12 November 1990 written by Reverend Peter Evans, Vicar of St Luke's, to Dr Coker.
On 25 March 1996 the Employment Appeal Tribunal, His Honour Judge Hull QC presiding, with jurisdiction to hear an appeal only on a question of law, handed down a 20-page judgment in support of its unanimous opinion that:
"The Industrial Tribunal had no jurisdiction to entertain this case since Dr Coker was not employed, whether by the Bishop or either of the vicars to whom we have referred, or by anyone else, under a contract of service."
The reference to "the Bishop" stems from the order of the Employment Appeal Tribunal that the Bishop of Southwark and the Diocesan Board of Finance, whom the EAT believed paid Dr Coker's stipend, should be respondents.
The Diocese of Southwark, initially named as sole respondent, is the relevant district under the jurisdiction of the Bishop, but it has no legal personality and it is unable to sue or be sued. No application was made to the Employment Appeal Tribunal or to this court to add either of the two vicars, or anyone else, as a respondent.
The Appeal
By a notice dated 4 July 1996, Dr Coker appealed by leave of a single Lord Justice, seeking to have the order of the Employment Appeal Tribunal set aside, and the order of Industrial Tribunal Chairman reinstated. The appeal to this court, like the appeal to the Employment Appeal Tribunal, can only be on a question of law. The appeal has been ably argued by Mr Hage from the Free Representation Unit, on behalf of Dr Coker, and by Mr Goulding, on behalf of the respondents.
Their submissions focused on three questions:
1. Did Dr Coker have a contract at all in respect of his post as assistant curate?
2. If so, was it a contract of service?
3. If so, who was Dr Coker's employer?
The relevant provisions of the 1978 Act conferred a right on an employee not to be unfairly dismissed "by his employer" (Section 54(1)). Employee is defined in Section 153(1) as:
"an individual who has entered into or works under…. a contract of employment"
which is defined in the same subsection as:
"a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing."
The Factual Background.
In June 1986 Dr Coker was ordained by the Bishop of London to a non-stipendiary position at St Peter's, Belsize Park, as assistant curate. He remained there for 4 1/2 years. Doctor Coker wished to secure a stipendiary appointment. The process was set in motion by which he became an assistant curate at St Luke's in the episcopal area of Croydon. By letter of 9 November 1989, the Bishop of Southwark informed Dr Coker that a panel of advisers had recommended that he be given permission to transfer to a stipendiary ministry. The Bishop accepted the recommendation.
By letter dated 12 November 1989, the Vicar of St Luke's wrote to Dr Coker as follows:
"I have been in touch with our Archdeacon, Ven F Hazell, today and am glad to say he has told me to go ahead with your appointment as curate here to commence on Advent Sunday 2nd December 1990.
I also rang Simon Parton at the Diocesan Office to tell him and he is waiting for you to get in touch. You will be put on the Diocesan payroll with effect from 1st December 1990.
This letter is our official offer to you of the appointment as Assistant Curate to this parish with effect from 1st December 1990. I would be glad to receive your reply as soon as possible, as it is necessary to have it in writing for record purposes. Also I would like to hold it before I announce your coming on Sunday next.
You have already intimated that you would like to come and I look forward to a good ministry together."
On the following day a letter was sent to Dr Coker from the Diocesan Board of Finance asking him for the basic information needed to make arrangements for the Church Commissioners to pay his stipend. He was provided with details of payment of his removal costs by the diocese and of a resettlement grant. The Bishop of Southwark, in accordance with The Canons of the Church of England, then licensed Dr Coker, described as "Clerk in Holy Orders as an Assistant Curate in the Parish". The standard form of licence provided for "a stipend in accordance with the Diocesan Scale", first, in reimbursement of certain costs of the official residence occupied by him, and, "secondly as stipend for serving the said cure". The licence concluded:
"We direct that you shall reside in the said Parish unless otherwise agreed by us."
On 20 May 1993 the vicar of St Luke's was sent a letter by the Bishop of Croydon giving the consent required for the termination of Dr Coker's curate's appointment on giving him not less than six months written notice. That notice was given by the vicar in a letter dated 23 May 1993.
On 24 February 1994, the Bishop of Southwark licensed Dr Coker as an assistant curate at St Philip's, where the Reverend Martin Goodlad was vicar. Dr Coker had been assisting there for some time after his departure from St Luke's. In October 1993 Dr Coker and the Reverend Martin Goodlad had agreed a written job description for Dr Coker. It is not suggested, however, that that document either was, or created, a contract. It was accepted by Mr Hage that, even if there was a contract of employment created in St Philip's when Dr Coker became assistant curate there, it does not assist him in this case, as he ceased to be assistant curate at the end of May 1994. In order to qualify for employment protection under the 1978 Act, he needed to establish continuing service for a period of not less than two years. It was, therefore, necessary for him to identify a contract dating from the earlier period when Dr Coker became assistant curate at St Luke's.
The Decision of the Industrial Tribunal
The reasons for the decision of the Industrial Tribunal may be summarised as follows:
1. Dr Coker was not an office holder in respect of the assistant curacy at either church, as the post of curate in the Anglican church is personal to the holder of it.
2. A contract was created by the acceptance of the offer in letter dated 12 November 1990. After reviewing the authorities and the rival contentions, the Chairman of the Tribunal concluded at paragraph 35 of his extended reasons:
"In my view, therefore, a contractually enforceable agreement should be assumed, in the absence of evidence to the contrary, in the case of curate of the Church of England."
He did not find, in the evidence that he heard from the Bishop, and from Dr Coker, facts to contradict the assumption stated by him.
3. That contract was a contract of employment. There was personal service by Dr Coker which he could not delegate to another; there was a high degree of control by the vicar on behalf of the diocese; Dr Coker was not economically independent; and the element of spirituality in the curacy was not sufficient to outweigh the element of personal service (see paragraph 38 of the extended reasons).
This summary probably does not do justice to the detailed consideration of the authorities and arguments given by the Chairman in his decision but, in my judgment, it is unnecessary for the purposes of determining this appeal to examine in the same detail as either the Industrial Tribunal or the Employment Appeal Tribunal the authorities and submissions on the issue whether there was, or was not, a contract of service. It became clear in the course of argument in this court that the critical question is whether there is any kind of contract at all between an assistant curate and a putative employer. If there is not, the "contract of service" point does not arise. It would also follow that the...
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