Santokh Singh v Guru Nanak Gurdwara
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE McCOWAN |
| Judgment Date | 05 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1205-1 |
| Docket Number | 89/1145 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 1989 |
[1989] EWCA Civ J1205-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Neill
Lord Justice Butler-Sloss
and
Lord Justice McCowan
89/1145
MR HARJIT SINGH, instructed by Messrs Mandla & Co. (Birmingham), appeared for the Appellant (Appellant).
MR JAMES P. CORBETT, instructed by Messrs Wm Bache & Sons (West Bromwich), appeared for the Respondent (Respondent).
This is an appeal by Mr Santokh Singh against the order of the Employment Appeal Tribunal dated 18th December 1987 dismissing his appeal from the decision of an Industrial Tribunal sitting at Birmingham. The decision of the Industrial Tribunal was sent to the parties on 24th April 1987 following a hearing on 18th March 1987.
It is to be observed that this appeal has taken nearly two years to reach this court. At the outset of the hearing before us we gave Mr Singh leave to appeal.
By their decision the Industrial Tribunal decided by way of a preliminary issue that they had no jurisdiction to hear Mr Singh's claim that he has been unfairly dismissed. The ground of this decision was that Mr Singh had not been employed by the respondent, Guru Nanak Gurdwara, which is the Sikh Temple in Smethwick. I shall call the parties "the appellant" and "the Temple".
The appellant was born on 1st May 1927. He is now aged 62. From an early age he began to read the Holy Book or Granth of the Sikh religion. In 1949 he began to address congregations in Sikh temples in India and in later years, when he was working as a university teacher, he worked as a priest during vacation periods.
There is no ordination into the priesthood of the Sikh religion nor is there any special qualification for being a priest. It is necessary, however, for a priest to be able to read the Holy Granth and it is desirable that he should have an interest in music. It is to be noted that the appellant's father is a priest as are his brothers and his brother-in-law.
The appellant came to England on 12th June 1972. At that stage he was admitted as a visitor for a period of four months, initially on condition that he did not engage in any employment, business, profession or an occupation for gain. His permission to remain was later extended and finally on 4th August 1977 the Home Office informed the appellant that he was no longer under any restrictions as to the period for which he might remain in the United Kingdom. The letter containing this information included the following paragraph:
"You are now free to remain permanently in the United Kingdom. You do not require permission from a Government Department to take or change employment in England, Wales or Scotland and you may engage in business or a profession provided you comply with any general regulations governing the business or professional activity."
Meanwhile from about May 1973 the appellant had begun to preach and assist at the Temple in Smethwick.
It is clear that the appellant's work as a preacher was much appreciated because from time to time from 1973 onwards steps were taken, which ultimately proved successful, to persuade the Home Office to allow the appellant to remain permanently in this country to serve the Sikh community.
In due course, and perhaps in about 1978 or 1979, the appellant became the Granthi or priest at the Temple. In 1986, however, difficulties arose between the management committee of the Temple and the appellant and allegations of misconduct were made against the appellant. On 11th October 1986 the management committee wrote to the appellant to say that his misconduct warranted instant dismissal "of your services as Granthi". The letter continued:
"Your services as Granthi of this Gurdwara are hereby terminated with immediate effect."
Three weeks later solicitors acting on behalf of the management committee wrote to the appellant. So far as is material the letter was in these terms:
"We act on behalf of the Management Committee of the above named Gurdwara and we are informed that your employment with them as a granthi has been terminated. We are now instructed to write to you requiring you to:-
(a) Within 28 days hereof deliver vacant possession of the property 49 Stoney Lane, Smethwick, Warley, which you occupied in connection with your employment as a granthi, and deliver up the keys of the said premises to the Management Committee on the expiry of the said period.
(b) Forthwith hand over the keys to the Gurdwara and all other property belonging to the Gurdwara to the Management Committee."
A few days later the solicitors sent to the appellant a P45, a wage slip and a cheque for £487.39 in respect of holiday pay.
On 6th January 1987 the appellant made an application to the Industrial Tribunal for a finding that he had been unfairly dismissed from his employment and for an order that he should be reinstated or compensated. By their answer dated 28th January 1987 the Temple stated that they intended to resist the appellant's claim on the basis that he had been in breach "of his conditions of employment".
The appellant's application came on for hearing before an Industrial Tribunal sitting at Birmingham on 18th March 1987. Shortly before the hearing, however, the Temple, despite the terms of their answer to the originating application, raised the question whether the Industrial Tribunal had jurisdiction to hear the application. Accordingly when the hearing began it was agreed that the Tribunal should consider the question as a preliminary issue. It therefore became necessary for the Tribunal to consider whether the appellant was an "employee" for the purposes of a claim for unfair dismissal under section 67 of the Employment Protection (Consolidation) Act 1978 (the 1978 Act). Thus such a claim can only be brought against an employer. An "employee" is defined by section 153(1) of the 1978 Act as "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment". A contract of employment 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". It will be seen, therefore, that a contract of employment does not include a contract for services.
In paragraph 2 of their reasons the Tribunal stated the question for their consideration as follows:
"The question we must ask is one of law, namely whether upon a true construction of the constitution of the Temple and all the surrounding facts, we conclude that the applicant as Granthi was employed under a contract of service."
It is clear from paragraph 1(c) (ii) of the reasons that "nothing was reduced to writing about the specific duties of the applicant as a priest". It was therefore necessary for the Tribunal to consider and to construe the relevant parts of the constitution of the Temple and to examine the oral evidence which they had heard both from the appellant and from witnesses called on behalf of the Temple as to the duties which the appellant performed. In addition the Tribunal had before them copies of the letters which were sent to the appellant at the time when he was "dismissed" and of the letters written to the Home...
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