Mrs L Fowkes v The East Midlands Synod of the United Reform Church: 2603342/2021
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2022 |
| Date | 20 December 2022 |
| Published date | 05 January 2023 |
| Court | Employment Tribunal |
| Citation | 2603342/2021 |
| Subject Matter | Age Discrimination |
Case No: 2603342/2021
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EMPLOYMENT TRIBUNALS
Claimant: Mrs Lynn Fowkes
Respondent: The East Midlands Synod of the United Reform Church
Heard at: Nottingham Employment Tribunal
On: 22 September 2022
Before: Employment Judge Rachel Broughton sitting alone.
Representatives
Claimant: In Person
Respondent: Mr Morgan KC – counsel
RESERVED JUDGMENT ON PRELIMINARY
ISSUES WITH REASONS
The judgment of the Tribunal is that:
1. The Claimant was not an employee of the Respondent pursuant to section
230 Employment Rights Act 2010. The claim of unfair dismissal therefore
has no reasonable prospect of success and is struck out under Rule 37.
2. The Claimant was an employee of the Respondent pursuant to section 83
Equality Act 2010 from, at the latest 29 June 2002 until 31 July 2021. The
Tribunal therefore has jurisdiction to determine the claim of age
discrimination and this claim will proceed to a hearing.
3. The application for a deposit order under Rule 39 is refused.
THE REASONS
.
Background
1. The Claimant was a Minister of Word and Sacrament (Minister) of the United
Reformed Church (URC) and complains that she was unfairly dismissed and
subject to age discrimination. Her employment status is a matter of dispute between
the parties.
2. The claim form was presented to the Tribunal on 24 December 2021 following a
period of early conciliation that started on 17 October 2021 and ended on 27
November 2021.
Case No: 2603342/2021
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3. In essence the claimant complains of a decision by the Respondent not to extend
her ministry beyond the age of 68 therefore forcing her to retire at the age of 68.
Preliminary hearing
4. There was an Open Preliminary Hearing before Employment Judge Ayre on 18 May
2022 where it was clarified that the age discrimination claim was a complaint of
direct age discrimination. Her comparators were identified as Reverend E Kemp
who was given a six month extension of her ministry when she reached the age of
68 and Reverend D Hopkins who was aged over 68 and given a further extension
of his ministry. Employment Judge Ayre had noted the difficulty of succeeding in a
claim of direct discrimination where her chosen comparators are of the same or very
similar age to her.
5. Employment Judge Ayre listed the case for today’s Preliminary Hearing to
determine the following issues:
5.1 Decide who the correct respondent is to this claim. The Respondent’s
position being that the correct respondent is the East Midlands Synod. The
Claimant’s position is that it is the East Midlands United Reform Church.
5.2 Decide whether the Claimant was an employee of the correct respondent
within the meaning of section 230 of the ERA and if so, when did her
employment with the respondent start and finish.
5.3 Decide whether the Claimant was an employee of the correct respondent
within the meaning of section 83 of the EqA 2010.
5.4 Consider any application for a Deposit Order made.
5.5 Make Case Management Orders to prepare the case for final hearing.
5.6 Discuss the length and dates for the final hearing, which remains listed at
present for 2nd, 3rd and 4th October 2023.
The Proper Respondent to the claim
6. The claim was presented against East Midlands United Reformed Church. The
Respondent contends that the correct respondent is the decision making body
exercising the ministry in St Stephen’s, which is The East Midlands Synod and that
decisions about the viability and sustainability of Pastorate structures are matters
determined within the local rather than national structures and bodies. The URC
only issuing the policies and procedures to assist the local pastorates when making
local decisions.
7. At the outset of today’s hearing, I discussed the issues with the parties. On the issue
of who the correct respondent is, the Respondent confirmed its position that the
correct respondent Is East Midlands Synod. The Claimant expressed the view that
it was the East Midlands Synod of the URC. The Respondent was prepared to
accept the Claimant’s suggestion regarding the correct name of the Respondent.
The parties informed me that they were in agreement regarding the correct
respondent, and thus this was no longer an issue to be determined by this tribunal.
8. The name of the Respondent was amended under rule 29 by agreement. It is
important to record that the Claimant during the cross examination of Reverend Dr
Bradbury, appeared however to be putting to him that the East Midlands Synod of
the URC (Respondent) had signed a document (see below) called a Settlement
Case No: 2603342/2021
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Agreement which set out key terms including the stipend to be paid and benefits to
be paid to the Claimant, not as the Claimant’s employer but only with respect to
confirming Concurrence and that the Settlement Agreement was between the
Claimant and the local church (St Stephens). The implication of that being that it
was St Stephens and not the Respondent who she appeared to be asserting must
be the putative employer, or it was St Stephens and the Respondent in partnership.
The Respondent objected on the basis that Counsel had not pursued this issue in
the cross examination of the Claimant because the Claimant had confirmed that it
was no longer disputed who the correct respondent to the claim was. I asked the
Claimant whether she wanted to revisit the issue of who the correct putative
employer was however she informed me that she did not want to do so and that it
appears that the “East Midlands Synod moved to acting as the employer”. I was
concerned that the Claimant may need time to reflect before we continued and thus,
we had a short adjournment for the Claimant to consider her position further before
we proceeded.
9. Following the adjournment, the Claimant did not want to revisit the issue of who the
correct respondent is and in her submissions stated that she was “very happy” to
agree it was the Respondent “because this is where the decision making lies”.
Evidence
10. There is an agreed bundle of 338 pages. All references to page numbers are to that
bundle.
11. The Claimant had prepared a witness statement, gave a solemn Affirmation and
was cross examined. She had also produced a statement from Mr Tiplady, Church
Secretary of St Stephen’s URC. Mr Tiplady did not attend the hearing. The
Respondent did not object to his statement being admitted into evidence however,
the Claimant was made aware that less weight would be attached to his evidence
because Mr Tiplady was not attending to given evidence under oath and to allow
the Respondent to challenge his evidence under cross examination.
12. The Respondent produced witness statements for Dr John Bradbury, an ordained
Minister of Word and Sacraments and General Secretary of the URC and Reverend
Camilla Veitch, an ordained stipendiary Minister of Word and Sacraments of the
URC and Synod Clerk of the URC East Midlands Synod.. Those witnesses gave
evidence under Oath and were cross examined by the Claimant.
13. Counsel for the Respondent and the Claimant made Submissions.
Findings of fact
14. All findings of fact are based on a balance of probabilities. All the evidence has been
considered however, this Judgment only deals with the evidence which the Tribunal
considers relevant to the determination of the issues.
URC
15. The URC was formed as a result of the passing of uniting declarations by the
Presbyterian Church of England and the majority of Churches in the Congregational
Church in England and Wales, adopting the Scheme of Union. The URC later
unified with the Reformed Association of the Churches of Christ in 1981 and the
Congregational Union of Scotland in 2000.
Governance Structure
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