Divinity and dismissal

"Depart, I say, and let us be done with you. In the name of God go!" A suitable manner for Oliver Cromwell to seek to dismiss the Rump Parliament but such language is not generally recommended for dismissing an employee. But could such a command be fine if the person is a Methodist minister, who should depart whistling wistfully the hymns of Charles Wesley? Is this the effect of the decision of the Supreme Court in the President of the Methodist Conference v Preston [2013] UKSC 29 and does it have any wider impact on the issue of employment status?

Ms Preston was ordained into the Methodist Church in 2003. In 2005 following an exchange of letters she accepted an invitation to become the Superintendent Minister on the Redruth Circuit. In 2009 she resigned and claimed constructive dismissal. The issue was whether or not she was an employee and therefore entitled to bring a claim for unfair dismissal under section 94 of the Employment Rights Act 1996. The Employment Tribunal (ET) dismissed her claim but, on appeal, the Employment Appeal Tribunal (EAT) reversed the ET. The Court of Appeal upheld the EAT.

By a majority the Supreme Court held that she was not an employee. Lord Sumption, with his background as the leading commercial silk of his generation, and a historian to boot, delivered the leading speech. It was a matter of contractual construction in the context of the spiritual purpose of the functions of a minister of religion and the constitutional documents that govern the Methodist church. A minister of religion could enter into a contract of employment, but in the light of the documents Ms Preston had not done so. Her relationship with the church was governed by the terms of the Methodist Church constitution found in the Deed of Union. If the local church wished to dismiss her she had no protection under employment law.

In Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28 an associate minister in a parish of the Church had sought to bring a sex discrimination claim. It was accepted that she was not an employee but the majority of the lords found that she came within the definition under the Sex Discrimination Act which extended to anyone who contracts "personally to execute any work or labour". In Percy Lord Nicholls, giving the leading speech, said it was "time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect". Lord Sumption in Preston endorsed that observation but nevertheless found there was no contract. There was no intention to enter into legal relations.

The majority of the Supreme Court in Preston failed to draw a distinction between the general commitment to serve God, which is surely the wish of every believer, and the commitment to serve God in a particular place for a particular church, living in the manse and being paid a salary and carrying out particular duties.

The surprising decision in Preston is to be contrasted with decisions where the court or tribunal has been prepared to look at the reality of the situation and not necessarily be constrained by the language used in written documents. It was no surprise that Lady Hale dissented. She rightfully observed: "Everything about this arrangement looks contractual".

In light of Preston, the context of whatever documents evidence the creation of the relationship between a minister and the particular religious body will determine whether a minister of religion is an employee, set against the background of the historical documents that evidence '¨the general governance of that religion '¨or denomination.

Preston may hold a wider significance, being a reminder of the importance of the documents that govern the relationship. Assuming that the arrangement is not a sham, it is possible to define working practices in contractual documents that are inconsistent with an employment relationship. The careful analysis of the documents in Preston is consistent with the importance given by the Court of Appeal to the terms of the contractual documents in Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735 - the lap dancer case.

The Preston decision came shortly after the decision in O'Brien v Ministry of Justice [2013] UKSC 6. The Supreme Court rejected the Ministry of Justice's arguments that a recorder in the crown court was an office holder and not a worker. The historical background to O'Brien did not point to employee or worker status but the reality was that a recorder was not self-employed and was under the control of others. Ms Quashie was self-employed. Ms Preston was in reality under the control of her local church but the background constitutional documents deprived her of any remedy - a reminder of the importance of the terms of contractual documents or even documents which, on analysis, are not contractual.