Sharpe v The Bishop of Worcester (in his corporate capacity)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Arden,Lord Justice Davis,Lord Justice Lewison
Judgment Date30 Apr 2015
Neutral Citation[2015] EWCA Civ 399
Docket NumberCase No: A2/2014/0112

[2015] EWCA Civ 399

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE

EMPLOYMENT APPEAL TRIBUNAL

MRS JUSTICE COX

UKEAT/0243/12/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden

Lord Justice Davis

and

Lord Justice Lewison

Case No: A2/2014/0112

Between:
Sharpe
Respondent
and
The Bishop of Worcester (in his corporate capacity)
Appellant

Mr Thomas Linden QC and Mr Matthew Sheridan (instructed by Herbert Smith Freehills LPP) for the Appellants

Mr John Bowers QC and Mr David Campion (instructed by EAD Solicitors LLP) for the Respondent

Hearing dates: 10–11 February 2015

Lady Justice Arden
1

Reverend Sharpe was from his installation on 8 January 2005 until his resignation on 7 September 2009 the Rector of the parish of Teme Valley South in the diocese of Worcester. He claims that he was unfairly dismissed, that he was, to use the colloquial term, a "whistle blower" and that he suffered detrimental treatment as a result of making what are in law called "protected disclosures". This appeal is not concerned with the substance of his claims but with whether, on the facts as found, he can meet a threshold test. To bring his claims, he must show that he falls within the relevant statutory definitions of "employee" (as respects his claim for unfair dismissal) and "worker" (as respects his other claims) in relation to the sole respondent in this appeal, the Bishop of Worcester.

2

This involves understanding the nature of Reverend Sharpe's appointment. As rector, Reverend Sharpe was the holder of a freehold office: Kirton v Dear (1869) 5 CP 217 at 220. That means that (until the recent introduction of an age limit) he could occupy the office for life. In previous times he would also have had a freehold interest in the income of his office, but in the case of glebe land (that is, land forming part of the benefice) the income is now assigned to the diocesan board of finance to help meet clergy stipends in the diocese and other income may now be similarly so treated. There is no statutory definition of "office" but its essence was captured by Lord Atkin in McMillan v Guest [1942] AC 561 in the following words:

Without adopting the sentence as a complete definition one may treat the following expression of Rowlatt J. in Great Western Ry. Co. v. Bater, adopted by Lord Atkinson, as a generally sufficient statement of the meaning of the word: "an office or employment which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders."

3

There are two relevant provisions in the Employment Rights Act 1996 (" ERA"). The first is section 230 ERA, which defines "employee" and "worker". The second provision, section 43K(1) ERA, extends the definition of "worker" for the purpose of "whistle-blowing" claims. The material parts of both definitions are set out in the annex to this judgment. The definitions in section 230 require a contract of employment or to perform work or provide services for a third party. I shall have to consider later whether section 43K(1) also requires a contract in all circumstances. The primary focus of this appeal is on the question whether there was a contract at all and if so whether it was a contract which fulfils the requirements of section 230 and section 43(K)(1) between the Bishop and Reverend Sharpe. (Earlier in the proceedings, there were other defendants, but we are not concerned with them). If Reverend Sharpe is unsuccessful on this issue he has further arguments based on section 43K(1). Reverend Sharpe contends (among other matters) that section 43(1)(a) does not require a contract between him and the Bishop. The Bishop contends that section 43K(1)(a) does require such a contract.

4

The Bishop was successful before Employment Tribunal ("ET") (Employment Judge McCarry) (judgment dated 15 February 2012) which dismissed his claim on the basis that Reverend Sharpe failed to meet the threshold tests. However, the Bishop lost on appeal by Reverend Sharpe to the Employment Appeal Tribunal ("EAT") ( Cox J) (judgment dated 28 November 2013), which set aside an order of the ET. The EAT remitted the matter for further findings to the ET. An appeal from the EAT to this court lies only on a point of law. There is no lack of recent case law on ministers of religion generally. The cases on ministers of religion have given rise to exacting questions about the very nature of the employment relationship at the highest judicial levels (see paragraphs 60 to 68 below). That case law has to be applied correctly to the particular circumstances of this case.

5

I shall now set out a brief outline of the facts, though I will have to summarise them in more detail below. In summary, Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles (though only Mrs Miles appears to have been involved on this occasion), but a person could not be nominated without the Bishop's approval, which was given. The Bishop conducted a ceremony of "installation" to complete the formalities of the appointment. After that, Reverend Sharpe became responsible for looking after the spiritual needs of parishioners unless the Bishop chose to intervene. Following his appointment, Reverend Sharpe received a set of papers, called "the Bishop's Papers", assembled into book form with an introduction. The Bishop's Papers dealt with a large number of matters, including when holidays should be taken and so on. The employment judge, however, held that there was no contract, express or implied, between the parties.

6

The main issues between the parties on this appeal fall into four categories which I will call: (1) the no-contract finding issue, (2) the no-employment contract issue, (3) the "worker" issue and (4) the Professor McClean issue. The main issues are as follows:

(1) No-contract finding issue

i) Did the ET find that there was no express contract at all between these particular parties?

ii) Alternatively, did the ET find that there was no implied contract between the parties?

iii) If so, were these findings in error, as the EAT held?

(2) No-employment contract issue

Was the contract (if any) between the parties an employment contract within section 230(1) and (2)?

(3) "Worker" issue

Should the ET have held that Reverend Sharpe was a "worker" within section 43K(1), as the EAT held?

(4) Professor McClean issue

Was the employment judge wrong, as the EAT held, to admit the evidence of Professor David McClean QC, who was called to give expert evidence on the practices of the Church, and to deal with it in the way in which he did?

7

Having carefully considered the submissions of the parties and for the reasons set out below, I conclude on this appeal as follows:

No-contract finding issue and no-employment contract issue:

1. The employment judge made clear findings against Reverend Sharpe which were not erroneous in law.

"Worker" issue:

2. Section 43K(1)(a), like section 43K(1)(b), on its true interpretation requires a person to have a contract with the person of whom he is said to be a worker so Reverend Sharpe cannot be a worker for the purposes of a claim against the Bishop;

Professor McClean issue:

3. The objection found by the EAT to the admission and use by the employment judge of the witness statement of Professor McClean is not well founded. In its totality it was admissible and the employment judge directed himself carefully about what parts he should accept.

8

In those circumstances the further points of law argued on section 43K(1)(a) do not arise, and in view of the considerable length of this judgment I do not propose in the circumstances to deal with them. In the absence of a contract between the parties, neither section 43K(1)(a) or (b) can apply.

9

Since the events in question on this appeal, the legal position of rectors has changed. These events occurred before the Ecclesiastical Offices (Terms of Service) Measure 2009 and the Ecclesiastical Offices (Terms of Service) Regulations 2009, which came into force on 31 January 2011. One effect of these enactments is that incumbents to whom those enactments apply now hold office under the terms of service set out in those regulations and have been expressly given the right not to be unfairly dismissed from office on the grounds of "capability" (as defined), and this right is enforceable in employment tribunals. Section 9(6) of the 2009 Measure states that it does not create an employment relationship between office holders and any other person. So these enactments assume that an office holder will not be an employee. Transitional provisions were made. These changes mean that there may now be only a limited number of clergy to whom the same issues as arise on this appeal could apply in future. These changes are also relevant for a further reason. I need not go further into the detail of these enactments, but they may constitute a reason why a court would be reluctant to hold that Reverend Sharpe was an employee if that conclusion required a development of the existing law (see generally, Johnson v Unisys [2003] 1 AC 518).

10

I will next summarise the facts and the findings and conclusions of the employment judge and of the EAT. My summary of the facts is based on the facts as found by the employment judge. It is necessary to consider the facts as well as any written record because the parties did not enter into a written document which is said to record the whole of their legal...

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