Percy v Church of Scotland Board of National Mission

JurisdictionScotland
CourtCourt of Session (Inner House - First Division)
Judgment Date20 Mar 2001
Docket NumberNo 58

FIRST DIVISION

No 58
PERCY
and
BOARD OF NATIONAL MISSION OF THE CHURCH OF SCOTLAND

Employment Law—Church of Scotland minister an associate minister in a charge—Whether in “employment” for the purposes of establishing the jurisdiction of the Employment Tribunal—Sex Discrimination Act 1975 (cap 65), secs 6 (2)(b), 63(1) and 82—Church of Scotland Act 1921 (cap 29), secs 1 and 3, schedule: art IV of the Declaratory Articles Equal Treatment Directive (Directive 76/207/EC)1

Section 63(1) of the Sex Discrimination Act 1975 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 sec 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.

The appellant was ordained as a minister of the Church of Scotland in 1991. From 19 June 1994 until 3 December 1997 she was an associate minister in a charge in the Presbytery of Angus. 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 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. The appellant made an application to the Employment Tribunal for compensation alleging unfair dismissal and sex discrimination by the respondents, in that she was treated differently from male ministers who were having extra marital sexual relationships. The Employment Tribunal dismissed her application. She appealed but only in respect of the claim for sex discrimination. The Employment Appeal Tribunal refused her appeal and she appealed, with leave, to the Court of Session.

The appellant argued that the Employment Appeal Tribunal had erred in law in finding (1) that her claim of sex discrimination fell outwith the jurisdiction given to the Tribunal by sec 63(1) of the 1975 Act and (2) that the arrangement between the appellant and the respondents did not constitute employment under a contract to execute any work of labour, within the meaning of sec 82(1) of the 1975 Act. Alternatively, by virtue of the provisions of the Equal Treatment Directive the provisions of the 1975 Act and the 1921 Act had to be interpreted so as to affirm the jurisdiction of the Employment Tribunal. The respondents argued that the appellant had not been employed by the respondents, and, even if there had been a contract of employment between them, the Tribunal had no jurisdiction as it was a question concerning

an office in the Church which was a matter spiritual in terms of the Church of Scotland Act 1921 and the Church had the right “subject to no civil authority” to adjudicate finally on the matter.

Held (per Lord President, Lord Cameron of Lochbroom and Lord Caplan) (1) that the agreement between the appellant and the respondents was for the appellant to perform the duties of a minister of the Church along with the parish minister in the new charge, which duties were spiritual (p 763H); (2) that where the appointment was being made to a recognised form of ministry within the Church and where the duties would be essentially spiritual, there was a rebuttable presumption that there would be no intention that the arrangements would give rise to obligations in the civil law (p 765A); (3) that in the circumstances, the presumption was not rebutted in that (a) the formality of language and proceedings showed merely that the appointment was regulated in the framework of ecclesiastical law (pp 766C, 771C), (b) the complaint was dealt with within the legal structures of the Church and its courts (p 765G), and (c) the suspension of the appellant by the respondents at a stage when the presbytery had no power to do so did not indicate whether the agreement was intended to operate under Church law or civil law (p 766I); and (per Lord Cameron) that it was significant that under Church law the appointment proceeded on the basis that an “associate ministry” had already been established by the Presbytery and the appellant had been appointed to that associate ministry and a service of introduction required to be arranged on the lines of an induction (p 771B); and appealrefused.

Opinion that if the appellant and respondents had indeed entered into a contract of employment binding under civil law, there would have been force in the argument that they had deliberately left the sphere of matters spiritual in which the courts of the Church had jurisdiction and put themselves within the jurisdiction of the civil courts (pp 769I–770A).

Opinion reserved on whether, in reliance on the Equal Treatment Directive (Directive 76/207/EEC), the 1975 Act should be interpreted as covering the case of ministers employed by some Church body, if necessary by holding that the 1975 Act impliedly amended sec 3 of the 1921 Act to affirm the jurisdiction of the Employment Tribunal (pp 770D–F)

Helen Percy made an application to the Industrial Tribunal for compensation alleging unfair dismissal and sex discrimination. 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 subsequently gave leave to appeal.

The full facts and averments of the parties are sufficiently set forth in the opinion of the Lord President.

Cases referred to:

Ballantyne v Presbytery of WigtownSC 1936 SC 625

Church of England Curates (In re Employment of) [1912] 2 Ch 563

Davies v Presbyterian Church of WalesUNK [1986] 1 All ER 705

Diocese of Southwark v CokerICR [1998] ICR 140

Hastie v McMurtrieUNK (1889) 16 R 715

Kelly v Northern Ireland Housing ExecutiveICR [1998] ICR 828

Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR 1–4134

Scottish Insurance Commissioners v Church of ScotlandENR1914 SC 16

Webb v EMO Air Cargo (UK)ICR [1993] ICR 175

Textbooks etc referred to:

Cox, Practice and Procedure of the Church of Scotland (sixth edn, 1976), p 154

Herron, The Law and Practice of the Kirk (1995), p 227

Lord Davidson, “The Church of Scotland”, Stair Memorial Encyclopaedia Vol 3 (1994) para 1567

The cause called before the First Division, comprising the Lord President (Rodger), Lord Cameron of Lochbroom and Lord Caplan for a hearing on the summar roll on 20, 21 and 23 February 2001.

At advising, on 20 March 2001—

LORD PRESIDENT (Rodger)—[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...

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3 cases
  • Preston (formerly Moore) v President of the Methodist Conference
    • United Kingdom
    • Supreme Court
    • 15 May 2013
    ...MR agreed with both judgments. 7 The leading modern case in this area is the decision of the House of Lords in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28. The Appellant was an associate minister in a parish of the Church of Scotland, who wished to bring a se......
  • Percy v Church of Scotland Board of National Mission
    • United Kingdom
    • House of Lords
    • 15 December 2005
    ...QC Simon Collins (Instructed by Bircham Dyson Bell, London agents for Church of Scotland Law Department) SESSION 2005-06 on appeal from: 2001 SC 757 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD NICHOLLS OF BIRKENHEAD My Lords, 1 These proceedings concern a sex discriminati......
  • Jivraj v Hashwani
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 June 2010

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