Re-visiting the Methodist Church Supreme Court decision (President of the Methodist Conference v Preston 2013 IRLR 646) in the light of the CoE case (Sharpe v Worcester Diocesan Board of Finance UKEAT/0243/12) currently making its way through the system, illustrates the continuing effect on tribunal and court judgments of social changes affecting religious belief and practice in society. Most judgments in the 21st century to date concerning the issue of whether ministers of religion have employment rights, have favoured the ministers of religion eg Percy v Church of Scotland Board of National Mission in 2005 and Stewart v New Testament Church of God in 2008. Previous decisions largely favoured the churches; see for example Davies v Presbyterian Church of Wales 1986 and Diocese of Southwark v Coker 1997. This development probably reflects changes in the attitude of society towards religion in recent years as much as legislative changes.
In the Truro Employment Tribunal where Ms Preston (a Methodist minister) was represented by counsel and the President of the Methodist Conference by yours truly, the Judge had no difficulty in deciding that Ms Preston was not an employee, and so dismissed her claim for constructive dismissal. Appeals followed to the EAT and Court of Appeal, by which time counsel were briefed for both parties. The outcome at the Court of Appeal stage was that Ms Preston was after all an employee. The issue then proceeded to the Supreme Court by which time three counsel with leaders on both sides, were briefed to appear.
Meanwhile the Church of England had become involved in the not too dissimilar case of Sharpe v Worcester Diocesan Board of Finance which like the Methodist case resulted in a favourable outcome for the Diocese at the ET stage. Like the Methodists, after the minister's successful appeal to the EAT, the Worcester Diocesan Board referred to the Court of Appeal which is expected to hear the case next week.
After the Sharpe case started, the Ecclesiastical Offices (Terms of Service) Regulations 2009 affecting some Church of England Clergy were introduced. These essentially give many CoE ministers equivalent employment rights to secular employees. However as the Revd Sharpe was a freehold incumbent, his position like that of some 5,000 other Anglican clergy in similar positions before the 2009 Regulations were introduced, is not automatically subject to them.
The Supreme Court decided in 2013 that Ms Preston was not an employee and reinstated the original Truro Employment Tribunal decision in favour of the Methodist Conference. The costs of each side involved with the Supreme Court ran well into six figures - although fortunately most of the Methodist Conference's costs were then reimbursed by the other side’s insurers.
The costs of the original Employment Tribunal case (the decision of which was some three years later restored by the Supreme Court), were by contrast a relatively modest five figure sum - hence the wisdom of conciliation rather than litigation where feasible.