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Are defendants to be convicted on the basis that their conduct has overstepped the boundary separating the unreasonable from the irrational? Are juries to be required to determine where that boundary lies? It may be that appropriate directions can be devised by judges, although I do not underestimate the difficulty of ... |
I have to confess that I am not sure that I understand the distinction drawn at para 14 between on the one hand rationality [as] a familiar concept in public law, which is not the same as reasonableness, and on the other hand the broader categories of Wednesbury unreasonableness; or the statement that there should be a... |
In any event, a meaningful jury trial requires not merely that the jury is given a legally accurate direction, but that it is one which they can make sense of in practice and apply with confidence to the evidence they have heard. Ratio |
I am not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw. Ratio |
That Parliament should have intended section 1(3)(a) to apply, regardless of whether the pursuit of the course of conduct was objectively reasonable or not, may at first sight seem surprising, given that the conduct must otherwise constitute harassment before section 1(3)(a) can come into play. Ratio |
It is however understandable that Parliament should not have intended that persons genuinely pursuing a course of conduct for the purpose of preventing or detecting crime should be vulnerable to prosecution or civil action under the Act, and should then have to justify their conduct to a court. Ratio |
The possibility of such proceedings could inhibit not only the activities of the numerous public agencies with responsibilities relating to the prevention or detection of crime, but also other activities of other persons such as investigative journalists. Ratio |
The possibility that such activities might, in the absence of immunity, be the subject of proceedings under the Act is by no means fanciful, as is demonstrated by the example of the late Robert Maxwell amongst others. Ratio |
Indeed, journalism has already been the subject of proceedings under the Act (Thomas v News Group Newspapers Ltd [2002] EMLR 78). Ratio |
I do not demur from the view that it may be desirable that the courts should be able to restrain the activities of a person who causes real distress through his irrational behaviour; and this case demonstrates that mental health legislation does not provide a complete answer. Ratio |
But that is not in my view a sufficient reason for extending the scope of the Act beyond what Parliament intended. Ratio |
If Parliament wished to amend the legislation in order to apply it to persons such as the appellant, it could do so; and, if it contemplated such an amendment, it could also consider whether, and if so how, it wished to preserve the immunity which had until now been thought to be conferred by section 1(3)(a), and the o... |
The Respondent, Haley Anne Preston (formerly Moore), a Minister in the Redruth Circuit of the Methodist Church until 2009, wishes to prosecute a claim against the Church in an employment tribunal for unfair dismissal. FAC |
Under section 94 of the Employment Rights Act 1996, only an employee has the right not to be unfairly dismissed. STA |
Section 230 uncontroversially defines an employee as someone who has entered into or works under a contract of service or apprenticeship. STA |
The question at issue on this appeal is whether Ms Preston was an employee. Ratio |
The tribunal held that she was not. RLC |
That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal. RLC |
The current state of the authorities STA |
Disputes about the employment status of ministers of religion have been coming before the courts ever since the introduction of national insurance in 1911 made it necessary to classify them for the first time. FAC |
There is now a substantial body of authority on the point, much of it influenced by relatively inflexible tests borne of social instincts which came more readily to judges of an earlier generation than they do in the more secular and regulated context of today. FAC |
Until recently, ministers of religion were generally held not to be employees. FAC |
Two recurrent themes can be found in the case-law. Ratio |
The first is the distinction between an office and an employment. Ratio |
Broadly speaking, the difference is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. Ratio |
A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder. Ratio |
But at an early stage curates in the Church of England were recognised as having the same status for this purpose: see In re Employment of Church of England Curates [1912] 2 Ch 563. Ratio |
The position of other ministers was taken to be analogous. Ratio |
In Scottish Insurance Commissioners v Church of Scotland (1914) SC 16, which concerned an assistant minister in the United Free Church of Scotland, Lord Kinnear said at 23 that the status of an assistant minister is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical... |
In Diocese of Southwark v Coker [1998] ICR 140, the Court of Appeal held that a stipendiary assistant curate was not an employee. PRE |
They held that his duties were derived from his priestly status and not from any contract. PRE |
Both Mummery LJ (at 147) and Staughton LJ (at 150) considered that there was a presumption that ministers of religion were office-holders who did not serve under a contract of employment. PRE |
The second theme is a tendency to regard the spiritual nature of a minister of religions calling as making it unnecessary and inappropriate to characterise the relationship with the church as giving rise to legal relations at all. Ratio |
In Rogers v Booth [1937] 2 All ER 751, 754, Sir Wilfred Green MR, delivering the judgment of the Court of Appeal, held that membership of the Salvation Army gave rise to a relationship pre-eminently of a spiritual character which was not intended to give rise to legal relations. PRE |
More recently, in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, the House of Lords held that the mere fact that a relationship founded on the rules of a church was non-contractual did not mean that that there were no legally enforceable obligations at all. PRE |
But they were inclined to find those obligations in the law of trusts, and adhered to the familiar distinction between an employment and a religious vocation. PRE |
At p 329, Lord Templeman, with whom the rest of the committee agreed, said: My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. PRE |
But in the present case the applicant cannot point to any contract between himself and the church. Ratio |
The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. Ratio |
The duties owed by the pastor to the church are not contractual or enforceable. Ratio |
A pastor is called and accepts the call. Ratio |
He does not devote his working life but his whole life to the church and his religion. Ratio |
His duties are defined and his activities are dictated not by contract but by conscience. Ratio |
He is the servant of God. Ratio |
If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. Ratio |
The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation. Ratio |
The duties owed by the church to the pastor are not contractual. Ratio |
The law imposes on the church a duty not to deprive a pastor of his office which carries a stipend, save in accordance with the procedures set forth in the book of rules. Ratio |
President of the Methodist Conference v Parfitt [1984] QB 368 was a decision of the Court of Appeal on a claim for unfair dismissal by a Methodist minister. PRE |
It is therefore directly in point on the present appeal. PRE |
The Court held that the minister was not an employee, but the reasons of its members differed. PRE |
Dillon LJ considered the spiritual character of the Methodist ministry to be fundamental to constitution and standing orders of the Methodist Church, but he reached the conclusion by an analysis of their terms. PRE |
He does not appear to have been influenced by the distinction between an office and an employment, and regarded the earlier authorities as of no assistance. PRE |
May LJ, on the other hand, adopted the analysis of the dissenting judgment of Waterhouse J in the Employment Appeal Tribunal, who had considered that the spiritual character was in itself inconsistent with the existence of a contractual relationship. PRE |
Sir John Donaldson MR agreed with both judgments. PRE |
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. PRE |
The Appellant was an associate minister in a parish of the Church of Scotland, who wished to bring a sex discrimination claim against the Church. PRE |
It was accepted that she did not have a contract of service. PRE |
But the statutory test of employment for the purposes of sex discrimination claims is broader than the test for unfair dismissal claims. Ratio |
Under the Sex Discrimination Act 1975, it extended to those who contract personally to execute any work or labour. Ratio |
Ms Percy claimed to come within that category. Ratio |
In spite of the difference between the tests for unfair dismissal and sex discrimination, the House took the opportunity to revisit both of the themes which had featured in the authorities to date on the question whether a minister was employed under a contract of service. Ratio |
The leading speech for the majority was delivered by Lord Nicholls, with whom Lord Scott and Baroness Hale agreed. Ratio |
Lord Nicholls regarded office- holding as an unsatisfactory criterion, at any rate on its own, for deciding whether a person was employed. Ratio |
The concept is clear enough but the boundaries are not, except in the case of holders of a small number of offices which have long been recognised as such by the common law, such as constables and beneficed clergymen of the Church of England. Ratio |
Moreover, offices and employments are not always mutually exclusive categories. Ratio |
A contract of employment is capable of subsisting side by side with many of the characteristics of an office. Ratio |
It followed that the classification of a ministers occupation as an office was no more than one factor in a judgment that depended on all the circumstances. Ratio |
Turning to the spiritual character of a ministers calling, Lord Nicholls recognised its relevance but pointed out that it could not be conclusive. Ratio |
At paras 23-25, he said: 23. Ratio |
There are indeed many arrangements or happenings in church matters where, viewed objectively on ordinary principles, the parties cannot be taken to have intended to enter into a legally-binding contract. Ratio |
The matters relied upon by Mr Parfitt in President of the Methodist Conference v Parfitt [1984] QB 368 are a good example of this. Ratio |
The nature of the lifelong relationship between the Methodist Church and a minister, the fact that he could not unilaterally resign from the ministry, the nature of his stipend, and so forth, all these matters made it impossible to suppose that any legally-binding contract came into being between a newly-ordained minis... |
Similarly with the Church's book of rules relied on by the Reverend Colin Davies in Davies v Presbyterian Church of Wales [1986] I WLR 323. Ratio |
Then the rebuttable presumption enunciated by the Lord President in the present case, following Mummery LJ's statements of principle in Diocese of Southwark v Coker [1998] ICR 140, 147, may have a place. Ratio |
Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship. Ratio |
24. Ratio |
But this principle should not be carried too far. Ratio |
It cannot be carried into arrangements which on their face are to be expected to give rise to legally-binding obligations. Ratio |
The offer and acceptance of a church post for a specific period, with specific provision for the appointee's duties and remuneration and travelling expenses and holidays and accommodation, seems to me to fall firmly within this latter category. Ratio |
25. Ratio |
Further, in this regard there seems to be no cogent reason today to draw a distinction between a post whose duties are primarily religious and a post within the church where this is not so. Ratio |
In President of the Methodist Conference v Parfitt [1984] QB 368, 376, Dillon LJ noted that a binding contract of service can be made between a minister and his church. Ratio |
This was echoed by Lord Templeman in your Lordships' House in Davies v Presbyterian Church of Wales [1986] I WLR 323, 329. Ratio |
Lord Templeman said it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. Ratio |
26 The context in which these issues normally arise today is statutory protection for employees. Ratio |
Given this context, in my view it is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect and, in consequence, its ministers denied this protection. Ratio |
Applying these principles to Ms Percys case, Lord Nicholls had no difficulty in finding that she had contracted personally to execute any work or labour. Ratio |
This was because of the manner in which she had been engaged. Ratio |
The relevant committee of the Church of Scotland had invited applications, referring to the duties, the terms of service and the remuneration associated with the job. Ratio |
Ms Percy had responded, was offered the job and sent a full copy of the terms. Ratio |
She replied formally accepting it. Ratio |
These circumstances suggested a contractual relationship, and nothing in the terms was inconsistent with that. Ratio |
Lord Hope, in a concurring judgment, reached the same conclusion, pointing out that the manner of appointment of an associate minister was significantly different from the induction of a minister to a charge. Ratio |
He considered that if the relationship was contractual at all, the contract was one which engaged the anti-discrimination provisions of the statute. Ratio |
He accepted that Ms Percy was appointed to an office. Ratio |
But, like Lord Nicholls, he thought that there was no reason why the duties of that office should not be performed under a contract. Ratio |
The circumstances in which Ms Percy was engaged showed that this was what the parties had intended in her case. Ratio |
It is clear from the judgments of the majority in Percy that the question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the ministers occupation by type: office or employment, spiritual or secular. Ratio |
Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally: see, in particular, Baroness Hale at para 151. Ratio |
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