Helen Percy V. An Order And Judgment Of The Employment Appeal Tribunal Dated 22 March 1999
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Caplan,Lord President |
| Date | 20 March 2001 |
| Docket Number | 057/17 |
| Court | Court of Session |
| Published date | 20 March 2001 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| Lord President Lord Cameron of Lochbroom Lord Caplan
| 057/17/99 OPINION OF THE LORD PRESIDENT in APPEAL by HELEN PERCY, Appellant; under section 37(1) of the Employment Tribunals Act 1996 against an Order and Judgment of the Employment Appeal Tribunal dated 22 March 1999 _______ |
Act: Napier; Drummond Miller, W.S. (for A. & R. Robertson & Black, Blairgowrie)
Alt: Hodge, Q.C.; Solicitor of the Church of Scotland
20 March 2001
[1]In this appeal the appellant is Helen Percy and the respondents are the Board of National Mission of the Church of Scotland ("the Church"). The appellant was ordained as a minister of the Church in 1991. From 19 June 1994 until 3 December 1997 she was an associate minister in the charge of Airlie, Ruthven and Kingoldrum with Glenisla linked with Kilry linked with Lintrathen in the Presbytery of Angus ("the Presbytery"). In June 1997 an allegation of misconduct was made against the appellant. In the wake of the allegation the appellant first offered to resign from the Presbytery and from "her employment" with the respondents with effect from 17 June 1997. But on 23 June she withdrew her resignations and the respondents then agreed "to reinstate [her] employment from 17th June 1997". In the circumstances the Presbytery appointed a committee of enquiry to investigate the matter and, for that reason, the respondents' General Secretary, the Rev. Douglas Nicol, informed the appellant that she had been suspended from duty on full salary from 25 June until further notice. On 2 December 1997 the Presbytery accepted the appellant's demission of status as a minister as from 3 December 1997 and on 3 December she accordingly ceased to be the associate minister in the charge.
[2]In February 1998, on the basis of the events which I have outlined, the appellant made an application to the Industrial Tribunal for compensation alleging unfair dismissal and sex discrimination by the respondents. The part of the application relating to sex discrimination was in these terms:
"Separately, the Respondents have discriminated against the Applicant in terms of Section 6 of the Sex Discrimination Act 1975. The allegations made against the Applicant are similar to allegations of misconduct which have been brought to the attention of the Respondents in respect of a number of other employees of theirs. The Respondents have not taken similar action against male Ministers who are known to have had/are still having extra marital sexual relationships. In the circumstances the Applicant has been treated differently from male colleagues on the basis of her gender and has been unlawfully discriminated against. If the Applicant had been treated on a similar basis to her male colleagues, she would still be in employment with the Respondents."
On 21 September 1998 the Employment Tribunal dismissed her application. She appealed, but only against the rejection of her claim for sex discrimination. On 30 March 1999 the Employment Appeal Tribunal refused her appeal but they subsequently gave leave to appeal. Before this court she put her appeal on two grounds: first, that the Employment Appeal Tribunal had erred in law in finding that her claim of sex discrimination fell outside the jurisdiction given to the Employment Tribunal by Section 63(1) of the Sex Discrimination Act 1975 ("the 1975 Act"); and, secondly, that the Employment Appeal Tribunal had erred in law in finding that the arrangement between the appellant and the respondents did not constitute employment under a contract personally to execute any work or labour, within the meaning of Section 82(1) of the 1975 Act.
[3]Section 63(1) of the 1975 Act provides that an applicant may present to an Employment Tribunal a complaint that the respondent has committed an act of discrimination against the applicant which is unlawful by virtue of Part II of the Act. Section 6(2)(b), which is contained in Part II, provides that it is unlawful for a person, "in the case of a woman employed by him" to discriminate against her "by dismissing her, or subjecting her to any other detriment". In terms of Section 82(1) "employment" means inter alia "a contract personally to execute any work or labour" and related expressions, such as "employed", are to be construed accordingly. Before this court the contention for the appellant was that during the period from June 1994 to December 1997 she had been employed by the respondents. More particularly, there had existed a contract between the appellant and the respondents under which she had contracted personally to execute work or labour as an associate minister in the parish concerned. Mr. Napier, who appeared for the appellant, accepted that, if this contention failed, then the appeal would fail also, since Section 6(2)(b) of the 1975 Act would not apply to the appellant. For the respondents Mr. Hodge, Q.C., argued that not only should this contention of the appellant fail but in any event, even if there had been a contract of employment between the applicant and the respondents, the Employment Tribunal had no jurisdiction to entertain any complaint by the appellant of sex discrimination since it was a question concerning an office in the Church in terms of Article IV of the Declaratory Articles contained in the Schedule to the Church of Scotland Act 1921 ("the 1921 Act") and was accordingly a matter spiritual in terms of Sections 1 and 3 of that Act. It followed that the Church had the right, "subject to no civil authority," to adjudicate finally on the matter and the Employment Tribunal had no jurisdiction. Mr. Napier argued that on the ordinary principles of construction the appellant's claim was not a spiritual matter within the terms of the 1921 Act. Alternatively, even if it would otherwise fall to be so classified, by virtue of the Equal Treatment Directive (Directive 76/207/EEC) the provisions of the 1975 Act and of the 1921 Act had to be interpreted in such a way as to affirm the jurisdiction of the Employment Tribunal, even if this meant that the civil authority was entering to some extent into an area where Parliament had been concerned in 1921 to declare the autonomy of the Church courts.
[4]Both the Employment Tribunal and the Employment Appeal Tribunal looked first at the 1921 Act and concluded that its effect was to exclude their jurisdiction. In my view, however, it would not really be possible to determine what the effect of that Act might be in this case without first identifying the nature of the relationship upon which the applicant founds her case. In that respect the two issues are interlinked. I therefore turn first to consider whether the appellant was "employed" by the respondents in terms of "a contract personally to execute any work or labour". Unless she was, her appeal must in any event be refused and her application dismissed. In Kelly v. Northern Ireland Housing Executive [1998] I.C.R. 828 at p. 845 F Lord Clyde acknowledged that the concept of the contract envisaged by this wording is a wide and flexible one. Both parties accepted that this was indeed the correct approach and so it is on that basis that we must decide whether there was such a contract between the parties. In presenting his submissions to the court, Mr. Napier concentrated on the documents produced before the Employment Tribunal which deal with this particular case. I prefer, however, to try to fit those documents into a slightly wider picture drawn on the basis of the legislation of the Church and the circumstances of this case.
[5]The work of the Church of Scotland is, and has always been, carried out largely through its parishes. Originally, these were the traditional parishes in which the minister's stipend was paid for the most part out of the teinds gathered from the heritors. But, as the population grew and shifted, especially in the nineteenth century, there were too few churches and the traditional parish system and the related system of finance proved inadequate. New forms of organisation were adopted. This was the era of chapels of ease and Parliamentary ministers. As matters developed, new quoad sacra parishes were erected. Especially in the latter part of the last century, however, a different trend made itself felt: the numbers of people attending church declined and, as a result, the Church recognised that in some areas there were now too many churches and too many parishes. New forms of reorganisation were put in place to meet these new circumstances. Among the solutions which the Church adopted were the creation of a single charge out of what had formerly been two or more charges and the linking of various charges so that they could all use the services of the same minister or ministers. For present purposes the basic legislation is to be found in two Acts of the General Assembly, Act IV, 1984 anent Unions and Readjustments and Act V, 1984 anent Settlement of Ministers, which, as amended, regulated the position in 1993 when a vacancy arose in the charge of Airlie linked with Kingoldrum linked with Ruthven.
[6] The Presbytery reviewed the situation and decided, in terms of Section 3 of Act V, 1984 to pursue the question of readjustment. Thereafter, in terms of the provisions of Act IV, 1984, the Presbytery conferred with the relevant Kirk Sessions and the Parish Reappraisal Committee, which is a committee of the respondent Board. In broad outline, the Presbytery formulated a scheme in which the congregations of Airlie, Ruthven and Kingoldrum would unite but would continue to have the same three places of worship. This united congregation would be linked with the neighbouring charge of Glenisla linked with Kilry linked with Lintrathen and the minister of that neighbouring charge, the Rev. Robert Ramsay, would become the minister of the new charge. In the context of this scheme the Presbytery envisaged that a community minister should be appointed and they made...
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