Father S Bozos v Greek Orthodox Community of Leeds: 1805572/2022

EMPLOYMENT TRIBUNALS

Case No 1805572/2022

Between

Father S BozosClaimant

Greek Orthodox Community of LeedsRespondent

Before

Employment Judge Bright

In person for claimant

Mr C Howells (instructed by Counsel) for respondent

Date 20 November 2024

JUDGMENT

The claimant was an employee of the respondent at the relevant time. The claim of unfair dismissal, wrongful dismissal and a failure to provide written reasons for dismissal will therefore proceed.

REASONS

Background

[1]The claims are for unfair dismissal, wrongful dismissal (breach of contract in respect of notice) and a failure to provide written reasons for dismissal.

[2]In short, the claimant says he was employed, and dismissed, by the respondent. The respondent says the claimant was not its employee but instead was, and remains, employed by the Church of Greece. The respondent says the claimant was on secondment to the Archdiocese of Thyateira and Great Britain and was merely hosted by the Greek Orthodox Community of Leeds, a registered charity.

[3]This preliminary hearing was listed, at a previous preliminary hearing for case management which took place on 7 March 2023, to determine whether or not the claimant was an employee of the Greek Orthodox Community of Leeds (“the Leeds Community”), however that entity ought to be legally identified.

[4]The respondent confirmed at this hearing that it no longer intended to pursue the case that, if the claimant was an employee of the Leeds Community, the claim had little or no reasonable prospect of success because it was the decision of the Archbishop to end/not renew the secondment and/or revoke the claimant’s licence to officiate as a priest. The respondent conceded that, if the claimant was found to be an employee of the Leeds Community, the circumstances of the dismissal would attract a finding of unfair dismissal and it would be likely that the Tribunal would be invited to set the matter down for a remedy hearing. Evidence

[5]The claimant adduced two witness statements. The first of these had been prepared by the claimant with the assistance of his former solicitor, prior to the postponement of this preliminary hearing on a previous occasion, and ran to seven pages plus 13 pages of exhibits. The second of these (the claimant’s supplemental witness statement) was prepared by the claimant as a litigant in person, ran to 88 pages, and was a dense document, was much less easy to follow, and did not appear to contain much actual evidence. The respondent objected to the admission of the supplemental witness statement on the grounds that it had not been available on the occasion of the previous postponed preliminary hearing. On reviewing the supplemental witness statement, it was apparent that it presented commentary on the facts, law and documentary evidence set out elsewhere, in the manner of submissions explaining the claimant’s case. I therefore determined that it would be more pragmatic to treat that statement as written submissions, rather than as witness evidence. The parties agreed to that approach. The claimant’s evidence in chief was therefore his first witness statement, on which he was cross examined, while his supplemental witness statement was treated as written submissions.

[6]The claimant also adduced the written statements of Nigel Gotteri, Leonidas Angelou, Elli Konstantakopoulou, Pavlos Lykoudis, and Alexandra-Despoina Gioutsou, whose evidence the respondent accepted and did not challenge. It was not therefore necessary for those witnesses to appear or be cross examined on their evidence.

[7]The respondent called George Karageorgis, Barry Paschali and Archbishop Nikitas of Thyateira and Great Britain. Those witnesses presented written witness statements and were cross examined at the preliminary hearing by the claimant.

[8]His Eminence, Archbishop Nikitas gave evidence from the United States on the second day of the preliminary hearing, having had difficulty joining the hearing on the first day of the hearing, initially by telephone but eventually succeeding by video on the second day. In view of the difficulties, it was agreed to interject his evidence at the outset of day two, ahead of the claimant’s evidence.

[9]The parties presented a file of documents of 1086 pages. Although Mr Howells for the respondent initially objected to the claimant apparently disclosing a large number of new documents in recent days, Mr Howells was unable to identify the new documents and many of them appeared to already be included in the file of documents before the Tribunal. Eventually the parties agreed to proceed with the file which had been presented to the Tribunal by the respondent. Page numbers in these reasons are references to pages in the agreed file of documents.

The facts

[10]There is very little dispute as to the facts of the case. Where there was a dispute, I have resolved it, on the balance of probabilities, on the evidence before me.

[11]In summary, the respondent is a community which follows the teachings of the Greek Eastern Orthodox Church. The members of the respondent are all Orthodox Christians under the spiritual jurisdiction of the Archdiocese of Thyateira and Great Britain (the Archdiocese). The respondent is a registered charity, the executive committee of which operates in accordance with a constitution adopted and voted by the clergy-laity (“the Constitution”). Under the Constitution the priest in charge of the Community is appointed by the Archdiocese after consultation with the respondent and a formal application (page 118). The respondent has, over the years, sought placement of community priests from the Archdiocese on temporary assignments and the Archdiocese, through its connection with the Church of Greece, sources priests directly from Greece. This is a not-uncommon practice, as there are insufficient numbers of Greek Orthodox priests available to minister to communities in Great Britain and such communities therefore rely on the Archdiocese seconding priests from Greece, in accordance with Article 60 of the Constitution of the Church of Greece 590/1977 (page 113). Mr Karageorgis gave evidence at the hearing that, while he understood that the claimant was seconded from the Church of Greece, and secondments could be for two or four years, sometimes they became more permanent depending on circumstances.

[12]The claimant like other seconded priests was, and remained throughout his time with the respondent, a priest of the Greek Orthodox Church in Greece, entitled to a salary, sick pay, holiday and pension from the Greek State, as a civil servant. Paragraphs 1 to 18 of Mr Karageorgis’ witness statement were not disputed.

[13]On 6 June 2018 the acting Chairman Dr Chris Hadjicharitou and Secretary of the Executive Committee confirmed to the claimant that His Eminence Archbishop Gregorios of the Archdiocese of Thyateira and Great Britain had given his blessing for him to assume his duties (pages 126 – 127).

[14]That letter reads (in translation from the Greek): We are writing following discussions we had with you during your Leeds visit and after your 17.04.2018 application to His Eminence and our MasterShepherd, Archbishop of the Greek-Orthodox Archdiocese of Thyateira and Great Britain, Mr Gregorius, regarding assuming “priest-in-charge” duties in our Three Hierarchs Greek Orthodox Community of Leeds and Surrounding Districts. In our regular Tuesday 05.6.2018 Community Executive Committee Meeting, at a quorum, and also expressing the opinion of the in-Christfold/members of it [the Community], we decided to address His Eminence, the Archbishop of the Greek-Orthodox Archdiocese of Thyateira and Great Britain, Mr Gregorios, and apply that he gives his blessing, so that we invite you to assume the priest-in-charge duties of our Community. This we did today. His Eminence wholeheartedly accepted our proposal, and, as per the rest, they will be noted in writing. Our Community will offer you a full time employment contract with duties as provided in the in-force Constitution of the GreekOrthodox Archdiocese of Thyateira and Great Britain. Our in-writing official offer (offer of employment) will follow very soon, and it will include everything orally agreed with our Community’s treasurer Dr Costas Papagiannopoulos. This [offer of] position lies under:• The reception of a satisfactory referral letter by your Metropolitan

• A letter by your ecclesiastical authority, the Church of Greece, for your secondment to the Greek-Orthodox Archdiocese of Thyateira and Great Britain. We request, in cooperation with your Metropolitan, to act everything necessary for your secondment to materialize. As Executive Committee we would like to stay informed as per developments and your actions as regards your secondment.

[15]I note the use of both the terms ‘secondment’ and ‘employment’ and the approval mechanism by which the respondent invited the claimant to assume the role by applying to the Archbishop. The offer of an employment contract was made by the respondent to the claimant and referred to “duties as provided in the Constitution”, rather than saying it would incorporate the Constitution. I note that the letter also references oral negotiations with the Treasurer and is conditional on the secondment.

[16]It was not disputed that the day after receiving the letter from the respondent the claimant applied to the Church of Greece for an “Abroad Secondment” (page 130), pursuant to Article 60 of the Constitution of the Church of Greece (page 113). This Article provides that Chaplains or Deacons of the Church of Greece may be seconded to Orthodox churches abroad whilst retaining their full salary.

[17]The Archbishop wrote to the claimant on 26 June 2018 notifying him, “We are temporarily appointing you as the incumbent priest and priest-in-charge of the Holy Three Hierarchs Greek Orthodox Community of Leeds” and setting out certain duties of the post (pages 139 – 140).

[18]The claimant was sent a further letter by the respondent dated 26 June 2018 (pages 143 -144) from the respondent entitled ‘Offer letter’, saying: Having received the blessing of our Archbishop Gregorgios of Thyateira and Great Britain on 26/06/2018, we would like to confirm the offer to you by the Greek Orthodox Community of Leeds and Surrounding Districts…of an appointment as the Community’s PRIEST and to confirm the principal terms of our discussions. The ‘Statement of Contract and Employment Particulars’ is attached. This offer is subject to the Company receiving:  Job reference(s) from your Bishop which are deemed to be satisfactory as outlined in our letter to you dated 06/06/2018.  An original or certified copy of your Ordination letter…  Relevant documents (certified copy of Passport) proving your legal right to work in the UK.  Proof of address.  Your P45 as soon as you have it available. Otherwise please provide us with a National Insurance number. Furthermore, we understand the process of your secondment to the Archdiocese of Thyrateira and Great Britain may take till autumn 2018. Your employment may commence with an official letter of your Bishop allowing you to service in our Community until your secondment is approved. We appreciate your secondment will be approved within the six-month probationary period from the beginning of your contract with the Company. If at the end of the probationary period your secondment is not yet approved, the Company may decide to extend the probationary period or terminate the contract. Please sign and date 2 copies of the ’statement of Contract and Employment Particulars’ where indicated to confirm that you understand and accept the offer. … The ‘Statement of Contract and Employment Particulars’ along with this Offer Letter, will form your contract of employment. We understand the date on which you are free to commence employment with us to be Sunday 1st of July 2018.”

[19]I note, again, the use of both ‘secondment’ and ‘contract of employment’. The respondent submitted that I should conclude that the Chairman must have been confused as to the correct approach and that the Statement of Contract and Employment Particulars (“the Contract”) offered by the respondent could not represent the true arrangement between the parties, because although the offer purported to be ‘as provided in the in-force Constitution’, the Constitution adopted by the respondent did not require that a contract of employment be issued to the Priest in charge and only provided for a ‘stipend’ to be paid, whereas the claimant was issued with a contract providing for payment of a salary. I was not persuaded by that submission, in the main because there was insufficient evidence that the Chairman was confused (see below regarding the respondent’s witness evidence) but also because there was insufficient evidence that the definition of a ‘stipend’ could not include a salary or that the provision of a contract of employment was contrary to the provisions of the Constitution.

[20]The Chairman of the Executive Board (who signed the Contract) was not present to give evidence at the hearing. Mr Paschali accepted in evidence that, although he had been a member of the respondent at the time in question, he had very little involvement in the creation of the document as he was not secretary at that time, he could not recall when he had first seen it and, while he had been aware that there was talk of putting some form of contract together, he was not aware of its precise terms until the claimant’s claim had been brought and legal advice had been sought. Mr Karageorgis, the current Secretary of the Executive Committee, had no involvement with the claimant’s appointment, as he was out of the country at that time and only saw the statement of employment particulars in March or April 2019. His Eminence Archbishop Nikitas was not appointed until a later date. As such, none of the respondent’s witnesses were able to give direct evidence of the respondent’s intentions at the time it entered into the arrangement with the claimant, none of them having been present or involved in the appointment of the claimant. The only direct evidence from that time can therefore be derived from the documentary evidence and from the claimant himself.

[21]I accepted the evidence of Archbishop Nikitas and Mr Karageorgis and Mr Paschali that they genuinely now believe that the claimant was ‘on loan’ to the respondent and that the Contract must have been drawn up to enable the claimant to pay tax properly on his salary in the UK. However, I find that their interpretation of the Contract was formed after the event and with the benefit of hindsight in the glare of this litigation.

[22]I did not accept Mr Karageorgis’ evidence, at paragraph 26 of his witness statement, that “the agreement (the statement of employment particulars) was not entered into with the intention of creating legal relations between the claimant and the Executive/Trustee Committee and our understanding was that after the completion of his secondment, if not renewed by consent, the claimant would return to Greece and his home parish”. Mr Karageorgis was not Secretary of the Executive/Trustee Committee at the time the agreement was signed and was not involved in the claimant’s appointment. I find that he could not have known what was in the mind of the Executive Committee at the time it was signed. My view is that it is more likely that if, as Mr Karageorgis suggests, the Committee understood that the claimant would be returning to Greece at the completion of his secondment, if not renewed by consent, then that understanding would have been captured in writing in the Contract or the offer letter at that time. Instead, the Contract does not contain any such clause or a reference to a fixed term. Instead it merely refers to a probationary period, on completion of which, subject to satisfactory completion, the implication is that the appointment will become permanent. In my judgment the Committee was entering into a permanent arrangement with the claimant, with the option to terminate if his secondment from Greece was withdrawn.

[23]The Contract (pages 145 - 150) itself is a standard form written employment contract. Clause 1 makes reference to the obligation to provide employees with a written statement of the main particulars of their employment as required by Section of the Employment Rights Act 1996. The statement refers to Father Bozos as ‘the employee’ throughout and the respondent as ‘the employer’, and refers to ‘the employment’. It states, at clause 3.1, “Your employment with the Company will commence on 1st July 2018” and, at 3.2, “You are entitled to receive from the company and are obliged to give to the Company 2 months written notice to terminate your contract of employment”. Clause 3.4 reads: If for any reason you cease from being a Canonical Orthodox Priest or your secondment to the Archdiocese of Thyateira and Great Britain and Ireland is not in place or terminated, the Company has the right to terminate this contract with immediate effect. The Constitution of the Greek Orthodox Communities of the Sacred Archdiocese of Thyateira and Great Britain and Ireland applicable at that time refers [sic].

[24]The Contract goes on to set out the usual contractual clauses one would expect to find in an employment contract, including place of work, hours of work (37.5 hours per week), remuneration (£25,800 per annum), pension, holidays (28 days), sickness, restrictions and confidentiality, grievance procedure (to the Chairman of the Executive Committee) and disciplinary procedure (the same principles as those already in place for other community employees). Clause 8 refers to duties: “Your duties will be ‘Priest in Charge’ of the Greek Orthodox Community of Leeds and Surrounding Districts, ‘the Three Hierarchs’. The main duties are based on the needs of the Company, and are summarized in Table 1 below. The Constitution of the Greek Orthodox Communities of the Sacred Archdioceses of Thyateira and Great Britain and Ireland appliable at that time refers” and Table 1 sets out an extensive list of liturgical, spiritual, pastoral, administrative and managerial and social duties. The governing law and jurisdiction is the laws of England and Wales. The statement is signed by Dr Hadjicharitou on behalf of the Executive committee of the respondent.

[25]It was not disputed that the claimant was paid a monthly amount by the respondent. Mr Karageorgis characterized this as a ‘stipend’ in his witness evidence, while the Contract called it ‘remuneration’. The claimant received payslips showing the amounts as ‘monthly pay’ (pages 355 to 371). Those payslips named the respondent as his employer, as did his P60s (pages 372 – 375) and his P45 from the respondent (pages 378). In my judgment, these payments were clearly salary payments from the respondent to the claimant, which were remuneration in return for work, as stated in the Contract. The claimant was, as Mr Karageorgis accepted in his witness evidence, responsible for his own accommodation for himself and his family and his other living expenses, such as transport etc. He therefore required a monthly salary from the respondent in order to live in the UK. The payslips, P60s, P45 and other tax documents in the file show that he paid tax and national insurance by PAYE as an employee of the respondent.

[26]It was not disputed that the claimant was expected to perform his duties personally. The key area of dispute in relation to the claimant’s role regarded the issue of control. The respondent says it had no control over the claimant’s duties and these were set down by the Archdiocese and the Church of Greece. The claimant’s job title was ‘Priest in Charge’. It was not disputed that, as an ordained priest of the Greek Orthodox Church, the claimant was a religious leader with the authority to perform religious rites. The laiety, including in this case the Executive Committee, had limited power to interfere with the claimant’s exercise of his spiritual or liturgical duties and it was clear from Mr Karageorgis’ evidence that there was a level of respect accorded to the claimant as the community’s priest that would be at odds with any interference with the way in which he chose to carry out his ecclesiastical duties. I accepted Mr Karageorgis’ evidence that he considered that the claimant had the freedom to conduct himself in a manner which suited him in the carrying out of his duties (paragraph 40 of his witness statement). Mr Karageorgis referred to the claimant’s duties as being conferred on the claimant by way of Article 8 of the Constitution of the Church of Greece (page 100). I also accepted the Archbishop’s evidence that the claimant looked up to him as the Higher Priest and would seek his expertise in spiritual and liturgical matters.

[27]While many of the liturgical and spiritual duties set out in the annex to the claimant’s Contract (page 148) were derived directly from the Constitution therefore, there remained a number of other duties, in particular the Administrative and Managerial and Social duties defined, which did not feature in the Constitution and were only mentioned in the Contract. I find that those duties, such as attending committee meetings, taking care of the cleanliness and appearance of the church interior, equipment and sacred vessels, issuing certificates and keeping records and disseminating information, were imposed on the claimant by the respondent, not by the Archdiocese, the Archbishop or the Constitution of the Church of Greece.

[28]The claimant had regular meetings and at least one periodic review appointment with the respondent at which his role in supporting the needs of the community were discussed (page 166). At a meeting on 9 December 2021 a minute of a review meeting between the Committee members and the claimant recorded (page 179): As a follow-up from Cross committees meeting and feedback from Trustees, as the pandemic measures are being lifted and the situation normalizes, Fr Stavros is required to resume his duties as described in his contract and outlined below: 1. School Catechisms every other Saturday. 2. Church Service at School, once a month on a Saturday. 3. Be present at Church premises between 10.30 – 14.30, two days a week in addition to Saturdays and Sundays. 4. Be available on the phone daily during 10.30 – 14.30. 5. Be immediately available for emergency pastoral visits when required.

[29]I find from the claimant’s and respondent’s evidence and the documentary evidence relating to his duties and life in the UK with the respondent community that the claimant was fully integrated into the respondent. He was encouraged to move his family to the UK, he bought a house and car, his wife found work and, following her death from Covid during the pandemic, the respondent rallied round and supported him and his young children. He communicated remotely with the Archbishop and the Church of Greece on a regular basis with regard to ecclesiastical issues, but his day-to-day work was as a fundamental key-stone of the respondent’s organization.

[30]It was agreed that on or around May 2020 the claimant contacted his Archdiocese in Greece to apply to extend his secondment with the respondent for a further 2 years and that extension was approved (pages 158 – 159). The claimant applied for a further extension on 29 April 2022 until August 2024 (pages 218 – 220).

[31]During the Covid pandemic the claimant was furloughed from 22 April 2020 until 31 May 2020, although he gave evidence that he continued to minster to his congregation during that time. Mr Paschali, as the Executive Committee Treasurer, wrote a letter on 19 June 2020 for the claimant’s mortgage broker (page 157) confirming that the claimant’s employment was permanent and full time and would remain so for the foreseeable future. Mr Paschali gave evidence that that letter was a mistake and should not have been worded like that: “It was the wrong thing to do. Now we know what the position is, we should really have thought about it from a secondment point of view”. I found that evidence from Mr Paschali significant, as it showed that Mr Paschali’s present view of the relationship with the claimant (“Now we know what the position is…”) is not the same as it was at the relevant time. The letter represents his genuine view, in my judgment. I find that he understood the claimant’s relationship with the respondent to be one of employment and to be on a permanent basis, until such time as the claimant left employment or returned to Greece, for whatever reason. I do not think Mr Paschali was lying or intending to deceive the claimant’s mortgage broker when he wrote the letter dated 19 June 2020, nor do I think he misunderstood or mischaracterised the relationship as it stood.

[32]The claimant applied to both the respondent and the Archdiocese with annual leave requests. At page 217 the claimant can be seen asking the respondent for “consent” to take leave so that he can “officially request for it in good time”. That suggested to me that the respondent had the actual power to agree or refuse the leave request (which would make sense as it would know the reality of whether the claimant’s services were needed on those days) and the request to the Archdiocese was more of a formality, although the Archdiocese had a veto if it could not provide cover. I find, as a fact, that the claimant was required to apply to the respondent for annual leave, albeit that he was required to also apply to the Archdiocese so that cover could be arranged.

[33]The Contract referred to a grievance and disciplinary procedure applicable to the claimant. The respondent’s evidence was that the respondent had no power to discipline the claimant. I find, from the evidence of Mr Paschali, that there was no formal disciplinary process applicable to the claimant in the way one would ordinarily expect for an employee. However, there was a process by which issues were raised with the claimant by the Committee (page 180 - 182), which accorded with the wording of the disciplinary provision in the Contract. In addition, from the correspondence relating to the dispute over the claimant’s conduct of school religious education provision, it appears that there was a process whereby the School and Executive Committees gathered evidence regarding the claimant’s performance and conduct from the Greek School Vice-Chair (page 182 – 183) and Chair of the School Committee (page 210). I find that, by 14 March 2022, relations between the Committee and the claimant had deteriorated to such a degree that the Committee clearly felt that the claimant could not continue in post. The minutes of the Extraordinary EC Meeting of that date (page 213) record that, after the claimant left the meeting the Trustees voted to approach the Archbishop to discuss the ongoing issues between the longstanding community members, the Committee and the claimant. One Trustee suggested putting the issues to the claimant to give him the right of reply, but was outvoted. In my judgment, the implication was that the Committee wished to terminate the arrangement with the claimant.

[34]Mr Paschali’s evidence was that the Archbishop asked the Committee members what they wanted and they indicated to him that they wanted the claimant’s position to be terminated. The minutes of the extraordinary meeting of the executive committee and board of trustees dated 20 May 2022 (page 222 – 224) records: 1. His Eminence listened to our requests and accepted our grievances. 2. We agreed we would send a written summary of the issues we have been facing for the last four years. 3. His Eminence offered us several possible solutions. We unanimously agreed that the best one for the community is that FS’s secondment from the Church of Greece not to be renewed with an appointment in our Community when it came up for renewal in August 2022. 4. His Eminence asked us to confirm the above decision in writing. 5. His Eminence will arrange a meeting with FS to inform him of our common decision. 6. His Eminence gave us his blessing to fill the vacancies for the rest of the AuxC and EC committee without consultation with FS. Members discussed and offered clarifications on the details of the meeting. Proposal by AC: Request from the Archdiocese that FS’s secondment from the Church of Greece not to be renewed with an appointment in our Community when it comes up for renewal in August 2022. Seconded by GK. Approved unanimously by member present. **Action: GK to send official letter to Archdiocese informing them of the ratified request**.

[35]Archbishop Nikitas informed the claimant on 1 June 2022 that he was appointed with immediate effect to the Greek Orthodox Community in Hull (page 232) albeit that that appointment never took effect. Archbishop Nikitas thereafter suspended the claimant’s priesthood. I find from this sequence of events that it was the respondent’s decision that the claimant’s appointment as Priest in Charge would be terminated.

The law

[36]The Employment Rights Act 1996 (“ERA”) defines an ‘employee’ as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment” (section 230(1). Section 230(2) defines a contract of employment as “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”. Section 230(4) defines employer as “in relation to an employee or a worker, … the person by whom the employee or worker is (or where the employment has ceased, was) employed”. Section 230(5)(a) defines employment as “in relation to an employee…employment under a contract of employment”.

[37]The fact that the parties to a contract describe the effect of their contractual arrangements in a particular way is not conclusive of the actual effect of the contractual arrangements (Street v Mountford

[1985] AC 809

[38]In Consistent Group v Kalwak

[2007] IRLR 560

, EAT and

[2008] IRLR 505

, CA) the EAT (reaffirmed by the Court of Appeal) warned that the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represented what was agreed and the truth of the agreement would often have to be gleaned from all the circumstances of the case, of which the written agreement was only a part.

[39]In Protectacoat Firthglow Ltd v Szilaygi

[2009] IRLR 365

: In a case involving a written contract, the tribunal will ordinarily regard the documents as the starting point and will ask itself what legal rights and obligations the written agreement creates. But it may then have to ask whether the parties ever realistically intended or envisaged that its terms, particularly the essential terms, would be carried out as written. By the essential terms, I mean those terms which are central to the nature of the relationship, namely mutuality of obligation: Carmichael v National Power

[2000] IRLR 43

and the obligation of personal performance of the work.’

[40]In Autoclenz Ltd v Belcher

[2011] UKSC 41

the Supreme Court amended that test to emphasize that, if subsequent conduct is to be used, it must still be used to address the question of the parties’ own intentions or expectations either initially or in the light of any later variation. The key question therefore is what was the true agreement between the parties? There is no need to show an intention to mislead anyone, it is enough that the written term did not represent the intentions or expectation of the parties (paragraph 49).

[41]In Uber BV v Aslam

[2021] UKSC 5

the Supreme Court held (in a case concerning ‘worker’ status) that the primary question was one of statutory interpretation, not contractual interpretation. It restated that the general purpose of employment legislation was to protect vulnerable workers and it would be inconsistent with that purpose to treat the terms of a written contract as the starting point in determining whether an individual fell within the definition of ‘worker’. To do so would reinstate the mischief which the legislation was enacted to prevent. It was the very fact that an employer was often in a position to dictate such contract terms and that the individual performing the work had little or no ability to influence those terms that gave rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship was characterized in the written contract determine, even prima facie, whether or not the other party was to be classified as a worker.

[42]In Ready Mixed Concrete (South East) Ltd v Ministry of Pensions

[1968] 2 QB 497

, it was held: A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service”.

[43]Recent cases refer to a consideration of a combination of factors as the ‘multiple test’. This constitutes a balancing all the factors, including in particular control, personal service and mutuality of obligation, but also other relevant factors, none of which are necessarily determinative in any given case.

[44]It is a general rule that a ‘servant cannot have two masters’, although it is possible to have different employers for different jobs or severable parts of the same contract of employment with one employer. I asked the parties for their additional written submissions in relation to the case of The Prison Officers Association & Ors v S J Gough and 1 or

[2009] UKEAT 0405/09

in which an employee was found to have two employers, and I was grateful to receive further written submissions from both parties, which I have incorporated into these reasons.

[45]The respondent reminded me of the case of Patel v Specsavers Optical Group Ltd UKEAT/O286/18 (13 September 2019, unreported), in which the EAT held it is, in general, impossible in an employment law context for an employee to be employed by two companies in respect of the same employment contemporaneously, although in the context of vicarious liability in tort, in the area of ‘borrowed servant’ cases it did occur. The general rule was subsequently applied in Fire Brigades Union v Embury

[2023] EAT 51

[2023] IRLR 520

, to hold that a firefighter employed by the London Fire Brigade could not also be an employee of the union when seconded to it full time. Judge Stacey in Patel cited policy reasons for the rule against more than one employer including some of the practical complications that would flow from a finding of dual employment given the structure of the Employment Rights Act 1996. It is possible that there can be a) separate contracts of employment with more than one employer in relation to the same work or b) severable contracts with the same employer. Determination

[46]In making my judgment I have considered all of the evidence before me, taken account of the parties’ useful submissions and weighed all of the factors I considered relevant, applying the burden of proof of the balance of probabilities to reach my conclusion. This has been a finely balanced decision, with factors weighing in both directions which in part explains the delay in promulgation of the decision, for which I offer my sincere apologies to the parties.

[47]This judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues that the Tribunal must consider in order to decide if the claimant is an employee of the respondent or not. If I have not mentioned a particular point it does not mean that I have overlooked it. It is simply because it is not relevant to that issue.

[48]It is agreed that the claimant was at all material times receiving a salary and pension from the Greek state, as a priest of the Church of Greece (Metropolis of Mesogaia and Lavreotiki) (“the Church of Greece”). The claimant acknowledges that he came to the UK on ‘secondment’ from the Church of Greece. He was appointed to the secondment by the Archbishop at the time, Archbishop Gregorios, and he deferred to the authority of the Archbishop in all ecclesiastical matters. When his secondment was due for renewal he applied to the Archbishop for renewal, and the respondent’s committee members approached the Archbishop for advice and assistance when they had concluded they no longer wanted the claimant to minister to their congregation. These facts weigh in favour of the conclusion that the claimant could not be an employee of the respondent.

[49]The respondent’s case is indeed that the claimant was employed by the Church of Greece, not the respondent and that the terms of the Contract are ambivalent as to whether the claimant was operating under a contract of employment or a secondment from the Church of Greece. The respondent says it cannot be both: the existence of the Contract might be a convenient starting point but it cannot be determinative of the question of status; the Tribunal must analyse the underlying facts to determine the correct basis upon which the claimant worked for the respondent. I agree, but see my comments below on ‘sham’ contracts.

[50]What was not clear from the respondent’s evidence or submissions was whether the secondment was said to be from the Church of Greece to the Archdiocese of Thyateira and Great Britain or to the respondent (the Greek Orthodox Community of Leeds) or to both those bodies. The former is a metropolitan of the Church of Greece, whereas the latter is a registered charity in Leeds. The precise legal personality of those bodies remains unclear to me, although I invited the respondent to clarify its legal status at the outset of the preliminary hearing, but Mr Howells was not in a position to do so. We agreed that, if the claim is to proceed, the respondent will identify the correct legal personality for the purposes of responding to the claim.

[51]As noted above, it was not disputed that the claimant continued to receive remuneration and a pension from the Greek Government during his time in the UK and, it was anticipated, would have a position to go back to in Greece if or when his work in the UK ended. However, I do not consider that that is necessarily determinative in preventing an employment relationship developing with the respondent in the UK.

[52]Nowhere in the Employment Rights Act 1996 is the term ‘secondment’ defined and it is not, to my knowledge, nor was it submitted that it is, a legal term of art. One dictionary definition is “the temporary transfer of an official, worker or employee to another position or employment”. Now that relations with the claimant have turned sour, the respondent is naturally focused on the temporary element of the arrangement. However, what is relevant for my determination is not what the parties believe at the present time, but what the parties believed about their relationship at the time it commenced and during its currency. That required a close examination of the arrangements at the time the claimant arrived in the UK, and during his work for the respondent.

[53]The respondent’s submissions also focused on the likelihood of an employment relationship between the claimant and the Church of Greece, excluding the possibility of any employment relationship between the claimant and the respondent. The key focus of the respondent’s submissions was therefore on the claimant’s relationship with the Church of Greece. While I recognize that that is relevant and is a factor which I must take into account, in my judgment the primary focus of my analysis must be on the claimant’s relationship with the respondent, through the lens of section 230 of the Employment Rights Act 1996: Was the respondent the claimant’s employer under section 230? Was there a contract of employment between the claimant and respondent? Was the claimant an employee of the respondent? While the claimant’s relationship with the Church of Greece and/or the Archdiocese of Thyateira and Great Britain is relevant, they are not a party to the claim and that relationship is not the subject of this preliminary hearing.

[54]The starting point in the relationship between the claimant and the respondent is the Contract. The respondent submitted that clause 3.4 of the claimant’s Contract reserved the right for the respondent to terminate the Contract with immediate effect if the Claimant ceases to be a Canonical Orthodox Priest of his secondment to the Archdiocese ends (page 146). The respondent submitted that the continuation of the Contract was therefore inextricably linked with the existence of the secondment. I accept that, were that the case, it would suggest that the respondent viewed the arrangement as temporary from the outset. However, Clause 3.4 merely gives the respondent the right to terminate the claimant’s appointment. It does not state that the appointment will be or must be terminated. Without meaning any disrespect to the claimant’s Church or position, similar provisions can be found in contracts for doctors or other professionals, stating that if they lose their professional registration the employer reserves the right to terminate their employment. It does not necessarily mean that the professional will be dismissed if they lose their registration however, as there is a discretion not to dismiss and, for example, alternative work may be available. The claimant passed his probation period and, according to the contract, his appointment therefore became permanent, subject only to him or the respondent terminating it with the appropriate notice.

[55]Clause 3.4 of the Contract is ambiguous in relation to the status of the Constitution of the Church of Greece. The respondent’s submissions were, in essence, that the Constitution of the Church of Greece was the governing document and, therefore the Church of Greece was the employer. However, clause 3.4 does not incorporate the Constitution. It merely ‘refers’ to it, implying that the Constitution is to be used for ‘reference’ purposes. Applying the ‘contra preferentem’ rule, any ambiguity should be construed against the party who drafted the clause and seeks to rely upon it. On balance, I find that the Constitution of the Church of Greece is not incorporated into the Contract, although that document allows for reference to be made to the Constitution. That accords with the general tenor of the Contract and the findings on the issue of control set out below.

[56]In every other regard, I find that the Contract is a contract of employment. Its terms are the terms one would expect to find in a Statement of Employment Particulars under section 1 of the Employment Rights Act 1996, drafted with the intention of creating an employment relationship between the respondent and the claimant.

[57]Were this a commercial law case that would be the end of the enquiry: The ‘parol evidence rule’ would mean that no extrinsic evidence would be admissible to help interpret the written contract and, absent a plea that it contained a rectifiable mistake or there was a common intention to mislead, it would be impermissible to depart from the clear wording of that contractual document. However, in employment law, the position is not that simple and the question of employment is primarily a statutory one. Therefore, the context, the parties’ intentions and the meaning that the written contract and its terms would convey to a reasonable person who appreciates the context are all relevant. Where there is ambiguity, it must be construed in the context of the whole contract and the factual matrix or circumstances surrounding it. The written contract may not reflect the true position between the parties and, ultimately, may only represent evidence of the true relationship between the parties. The question, going back to section 230 ERA, is whether there is a contract of employment, not whether there is a written contract.

[58]The respondent submitted that the Contract did not reflect the true agreement between the parties, as per Autoclenz and Protectacoat. I accepted that the Church of Greece and the Archdiocese did not intend there to be an employment relationship between the claimant and the respondent. The respondent submitted that the Contract was not intended to confer employment rights upon the claimant but, misguidedly, was used as a mechanism by the respondent to ensure that any money paid to the claimant was accounted for, in other words a ‘sham’ contract. The evidence of the respondent’s witnesses largely supported that submission, although they accepted that other priests had not received any contractual documentation when they were seconded. However, none of the respondent’s witnesses at the hearing were involved in the appointment of the claimant, nor were they actually present at or party to the preparation or signing of the statement of employment particulars. The only reliable evidence in relation to the claimant’s appointment available to me was from the claimant himself and the documents. I was therefore cautious about accepting the witness evidence of the respondent’s witnesses on the topic of what the respondent intended at the time the claimant was appointed, as it could only be hearsay and, while I had no reason to doubt their honesty, their views were clearly formed through the lens of the current legal dispute with the claimant.

[59]I therefore preferred to rely on the documentary evidence from the time of the claimant’s appointment. The first offer letter (pages 126 – 127) showed the respondent expressing an intention to offer the claimant a full time employment contract in the near future, having voted to ask the Archbishop to give his blessing for the claimant to be seconded to them. The contract was expressed to be conditional on receipt of a reference and on the secondment being agreed. The claimant was told that it would include everything orally agreed with the respondent’s Treasurer and would include the ‘duties as provided in the …Constitution’. In my judgment this appeared to make a clear distinction between the secondment, as a formality releasing the claimant to represent the Church abroad, and the agreement governing the claimant’s relationship with the respondent, which would set down in writing everything that had been negotiated by the claimant and the Treasurer. The Constitution was only referenced in terms of defining the claimant’s duties. The second offer letter (pages 143 to 144) recorded the respondent informing the claimant that the secondment had been approved (i.e. he had been released to them) and they wanted to offer him the position. Again, the Contract was subject to references and provision of a P45 and other conditions. The letter noted that he could start work before the secondment was finally approved and that, if the final approval did not come through before the end of his probation period, the respondent had the right to terminate his employment (as discussed above). In my judgment, the offer letters suggested that the respondent intended to create legal relations with the claimant. There was no evidence in the contemporaneous documentation that the Contract was used as a mechanism by the respondent to ensure that any money paid to the claimant was accounted for or that it was intended to be anything other than a contract of employment.

[60]Further, and separately, Mr Paschali’s letter (page 157) written on 19 June 2020 held the claimant out as an employee. I did not consider that Mr Paschali was lying or trying to deceive the claimant’s mortgage broker, but honestly believed the relationship between the claimant and the respondent to be one of employment (see my findings of fact at paragraph 31 above).

[61]The respondent submitted that the Contract must be a mistake because it did not reflect the reality of the relationship between the parties. It is interesting to note that the case law on ‘sham contracts’ almost exclusively concerns the protection of the employee in the context of the unequal bargaining power of the parties. In this case, however, it is the claimant who seeks to rely on the contract which was drawn up by the respondent, and the respondent who seeks to argue that the contract is a ‘sham’. In my judgment, in light of the sentiments of the Supreme Court in the Uber case (referred to above) it would be inappropriate to “reinstate the mischief which the legislation was enacted to prevent” by applying too strictly the very case law intended to protect the employee from that mischief. In any event, in my judgment, there is no need to construe the Contract or look behind the Contract because, on the facts as I find them, it reflected the reality of the relationship between the parties in any event. It may not have reflected what the Archdiocese believed or intended to be the reality, but it reflected the reality and intention of the claimant and the respondent, in my judgment.

[62]Turning to the facts of the claimant’s relationship with the respondent, and the tests set out in Ready Mixed Concrete, the parties were agreed that there was a requirement for mutuality of obligation and personal service. The Contract reflected the true situation, in that the claimant was required to carry out his duties himself and there was a duty to provide work and a duty on the claimant to do that work. The area of dispute was the issue of control. Control requires that ultimate authority over the purported employee in the performance of his or her work rests with the employer.

[63]The respondent made forceful submissions in relation to the issue of ecclesiastical hierarchy and how this ran contrary to the notion that the Community could be the Priest’s ‘master’. Mr Howells cited a number of examples where the claimant in practice would have to defer to his ecclesiastical masters, and I agree that, where liturgical and spiritual matters arose, that was clearly the case. The Archbishop exercised a considerable degree of control over the claimant, as would be expected by the leader of a church over its clergy. The claimant recognized that authority: “Nevertheless, I have and I will obey His Eminence’s orders, oral or in writing” (page 239) but, in my judgment that, in and of itself, does not prevent the relationship between the claimant and the respondent being one of employment in the present context. The claimant was under the authority of the Archbishop and the Church of Greece in all matters ecclesiastical, for example how services would be conducted. However, in my judgment that is not determinative, but rather broadly analogous to the regulation of doctors by the General Medical Council. An NHS Trust would not necessarily dictate how a doctor conducts their practice, but the GMC might. A firm of solicitors might not dictate how a solicitor manages client accounts, but the Solicitors Regulatory Authority might. The Archdiocese is not, of course, a regulatory body and there are limits to the analogy but there are no doubt other examples of specialist professions or vocations where an employer may not have complete control over the work of the employee because they do not share the skills, vocation or specialism of their employee. An employer does not always direct the day-to-day work of its employee. The question is whether the respondent has a sufficient degree of control for it to be the claimant’s employer. As ‘priest in charge’ it would be surprising if the claimant did not have a large degree of autonomy in how he carried out his duties, and surprising if he did not defer to a degree to the teachings of the Church of Greece and his superior priests.

[64]I find that the respondent exercised direct control over the claimant’s work. The practical arrangements relating to the claimant’s work in the UK were decided in the main by the respondent’s committee. The duties set out in the Annex to the Contract were derived solely from the respondent, not the Constitution (paragraph 27 above). It was clear from the Annex to the Contract and the later correspondence, that the respondent gave the claimant instructions on what to do and how to carry it out (paragraph 28 above). The letter at page 179 represented a clear example of the respondent instructing the claimant on what to do and how to do it. When the respondent considered that the claimant was not carrying out his duties as expected, the respondent took action against him (see my findings of fact at paragraph 33 and 34 above), by the mechanism of approaching the Archbishop. In fact, according to the Contract, the respondent could have terminated the claimant’s employment itself, but the fact it chose to do so in consultation with the Archbishop was, in my judgment, a matter of choice, not compulsion.

[65]Mr Howells submitted that for the claimant to continue working for the respondent he had to apply to the Church of Greece, either the Holy Synod or the Archdiocese to extend his employment and that shows the fallacy of the claimant’s case that this was an employment relationship: It is inconceivable that an employee would be required to apply to a third party to seek approval for the extension of their employment. Mr Howells submitted it would be extraordinary if a contract of employment could be effectively terminated because a secondment agreed between third parties had ended. I agree that this appears to be inconsistent with a contract of employment with the respondent. However, my findings of fact are that the claimant did not have to apply to the Church of Greece to extend his employment. He had to apply to the Church of Greece to extend his secondment from the Church of Greece, but this was not the same as his arrangement with the respondent. The Contract was clear that, as regarded the probation period, if the secondment was not yet approved by the end of the probation period, the respondent had the discretion to terminate or continue the Contract. The respondent therefore had the power under the Contract to employ the claimant without the secondment being approved. In fact, at the commencement of his relationship with the respondent the secondment had not been approved. He therefore entered into the relationship with the respondent without the secondment formally being in place. I find, on that basis, that the relationship with the respondent was a separate arrangement and not inherently dependent on secondment from the Church of Greece.

[66]I find that the respondent appointed the claimant on a permanent basis. The claimant had to apply to the Church of Greece for a renewal of his secondment from the Church of Greece and his appointment to the respondent was expressed to be conditional on that renewal being agreed. The respondent had the right to terminate the claimant’s employment if his secondment was not renewed, but it was not required to terminate the employment. The arrangement between the claimant and the Church of Greece was not incompatible with an employment relationship between the claimant and the respondent, in my judgment. The respondent had the right to dismiss the claimant. As it turned out, the respondent did in fact make the decision to terminate the claimant’s employment, albeit that they did so through the mechanism of a meeting with the Archbishop. But it was the respondent’s committee, voting to take action to terminate the claimant’s appointment, who were the decision makers.

[67]Although the claimant was required to apply to both the respondent and the Archdiocese for annual leave, and the Archdiocese had the right of veto, this was for practical purposes because it was the Archdiocese who would be responsible for providing a replacement priest. That arrangement was not inconsistent with the respondent being the claimant’s employer. The same would apply to sickness arrangements in my view, although there was no evidence of the claimant ever having taken sickness leave. The fact that the claimant was furloughed by the respondent during the Covid pandemic is strong evidence in my judgment that he was under the control of the respondent.

[68]In my judgment, the claimant was fully integrated into the respondent’s organization (see my findings of fact at paragraph 29 above), in so far as it was appropriate within his religion for a priest to be integrated. He had a written contract of employment which, I find, was genuinely intended to create legal relations and reflected the terms of the relationship between the parties which existed in fact. Applying the Ready Mixed Concrete test and other case law, and taking account of all of the factors relevant to the relationship between the claimant and the respondent, including the written Contract, I find that the claimant was an employee of the respondent, according to the definition in section 230 ERA.

[69]There are two further points I should address: Firstly, I asked the parties for further submissions in relation to the question of whether this might be a rare case in which the claimant was an employee of two employers. The Respondent reminded me of the long-standing principle that an employee cannot be employed by two or more employers at the same time and in respect of the same work (Patel) and (Embery) and the errors identified in respect of employment law in the case of Gough. I agree that, following those cases, the claimant cannot be a ‘servant of two masters’ no matter how convenient that solution might appear. However, on the balance of probabilities, it was not necessary to reach that conclusion on the facts of this case. The Contract reflected, in the main, the realities of the agreement between the parties and that agreement was that the respondent had control over the claimant so far as was appropriate for a role of that nature. Moreover, the claimant was fully integrated into the respondent and the respondent ultimately exercised control over whether the claimant continued in his position in Leeds. The claimant’s secondment from the Church of Greece and/or the Archdiocese was legally opaque and, ultimately, not the subject of my enquiry under section 230 ERA.

[70]Secondly, the respondent referred me to the first instance decision of Father Kosmas Pavlidis v The Trustees of the Greek Orthodox Community in Birmingham (3 November 2019) in which it was held that the priest was not an employee of the respondent. That was, of course, a first instance decision and therefore not binding. On the facts of that case, the relationship between the parties was quite different: there was no contractual documentation setting out the relationship, let alone anything purporting to be a contract of employment. Further, the ‘hosting’ arrangement was clearly just that: the priest’s accommodation was arranged by the local community and he was loaned a car by the local community. The respondent’s witnesses in this case gave evidence that there were different arrangements put in place for different priests and, in my judgment, this is an example of just such a different style of arrangement and the first instance decision was therefore not helpful to me.

[71]I concluded that the claimant’s relationship with the respondent was one of employment. He was working under a contract of employment. The claimant was therefore an employee for the purposes of section 230 of the Employment Rights Act 1996. The claimant was unfairly dismissed.

[2]The respondent must pay to the claimant the sum of £2,232.67 gross in compensation, representing the basic award.

[3]The claimant was not wrongfully dismissed. The breach of contract complaint fails and is dismissed.

[4]The respondent did not unreasonably refuse to provide written reasons for dismissal. This complaint fails and is dismissed.

The law

[1]The claimant was a priest for the respondent. By a judgment sent to the parties on 26 January 2024, I found that the claimant was an employee of the respondent. The respondent conceded that, not having appreciated that the claimant was its employee, it unfairly dismissed him without following a proper procedure. This hearing was therefore to determine remedy in the unfair dismissal complaint and both liability and remedy in the claimant’s complaints of wrongful dismissal (notice pay) and a failure to provide written reasons for dismissal.

[2]The respondent is an unincorporated association. While it can be sued in its own name, the correct respondents are the members of the relevant committee from time to time, in this case the executive committee. Mr Howells confirmed at the hearing that the current members of the executive committee are Mr Costas Tsakirides, Mr Andreas Christou, Dr Christos Hadjicharitou, Mr Barry Paschali, Mr Konstantinos Karakousis, and Mr Charles Kyriacou. Evidence

[3]The respondent called Mr George Karageorgis, Secretary of the Executive Committee, and Mr Barry Paschali, Chair of the Trustees.

[4]The claimant gave evidence on his own account and called Mr Leonidas Angelou. He presented written witness statements from Mr Nigel Gotteri, Miss Alexandra D Gioutsou, Mr Pavlos Lykoudis and Miss Elli Konstantakopoulou. Only Miss Gioutsou and Miss Konstantakopoulou were present at the hearing to take the oath/affirm their evidence, but the respondent did not challenge any of the evidence in the statements of the claimant’s witnesses, other than the claimant himself and Mr Angelou. I therefore accepted the evidence in the written witness statements of those witnesses who were not cross-examined.

[5]The case management order dated 27 February 2024 had suggested the claimant should give evidence first. However, the parties agreed, after the claimant was given time to properly prepare, that the respondent’s witnesses should give evidence first, as the central area of dispute was whether the claimant would have been dismissed in any event had a proper procedure been followed.

[6]The parties presented an agreed file of documents, of 1172 pages. Further documents were added to the file of documents, by consent, during the hearing, at pages 1173 to 1186. I have read and taken into account those pages of the bundle to which the parties referred me, either by way of cross reference in their witness statements, verbally during the course of the hearing (including cross-examination) or in the claimant’s email to the Tribunal on the first day of the hearing. Issues

[7]It was agreed at the outset of the hearing that the issues to be decided were:

[8]Unfair dismissal 8.1. What basic award is payable to the claimant, if any? 8.2. What financial losses has the dismissal caused the claimant? 8.3. Has the claimant taken reasonable steps to replace his lost earnings, for example looking for another job? 8.4. If not, for what period should the claimant be compensated? 8.5. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 8.6. If so, should the claimant’s compensation be reduced? By how much? 8.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 8.8. If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 8.9. Does the statutory cap apply?

[9]Wrongful dismissal/notice pay 9.1. What was the claimant’s notice period? 9.2. Was the claimant paid for the notice period? 9.3. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 9.4. If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion up to 25%?

[10]Written reasons for dismissal 10.1. Did the employer unreasonably refuse to provide written reasons for dismissal? If so, the claimant is entitled to an award of two weeks’ pay.

Findings of fact

[11]These reasons do not seek to address every point or fact about which the parties have disagreed. Nor do they mention all of the points or facts which, in his oral submissions, the claimant requested receive a mention. I only deal with points and facts which are relevant to the issues identified above. If I have not mentioned a particular point or fact it does not mean that I have overlooked it. It is simply because it is not relevant to those issues.

[12]I have made the following findings of fact. Where there was a dispute of fact, I have resolved it on the balance of probabilities, on the evidence before me.

[13]The respondent is a community which follows the teachings of the Greek Eastern Orthodox Church. The members of the respondent are all Orthodox Christians under the spiritual jurisdiction of the Archdiocese of Thyateira and Great Britain (the Archdiocese). The respondent is a registered charity, made up of two committees: the Trustee Committee and the Executive Committee. The Trustee Committee is responsible for the financial and administrative matters in the operation of the parish, as set out in the Trust Deed. The Executive Committee is responsible for the day-to-day operation of the respondent and operates in accordance with a constitution (“the Constitution”) adopted and voted by the clergy-laity. The Executive Committee was elected by the community as a whole.

[14]Priests, like the claimant, are seconded from the Church of Greece (where he is ordained and assigned to the Metropolis of Mesogaia and Lavreotiki under Metropolitan Nilolaos) to the Archdiocese and then assigned by the Archbishop of the Archdiocese to serve local communities. The claimant applied and was assigned to serve the Respondent community after consultation with the respondent’s committees. The claimant, like other seconded priests, remained a priest of the Greek Orthodox Church in Greece, throughout his secondment, but was, I found in January 2024, an employee of the respondent until his dismissal. I accepted the respondent’s evidence that, at the time of the claimant’s dismissal, the respondent genuinely did not understand that the claimant was an employee and that it had employment law obligations in that respect.

[15]Both the Constitution (pages 100 – 101) and the claimant’s contract of employment (pages 143 - 150) set out the claimant’s duties. I accepted the undisputed evidence of the respondent’s witnesses that the claimant’s role was to provide spiritual and pastoral care, be registrar for weddings, baptisms and funerals, to conduct confessions and catechisms, and church services on Sundays and during weekdays/holy days. The respondent says the dates and times of services and duties were agreed between the priest and the respondent, to be on dates and at times to suit the community. While the claimant did not expressly challenge this evidence in cross examination, in his evidence he implied that it was his decision, as priest, when services and duties were to be carried out. The claimant’s contract of employment (page 148) listed amongst his duties: holding church services and divine liturgies on Sundays and “Great Feast Days”, delivering divine liturgy for the Greek School once a month or as agreed with the Greek School headteacher, preparing a monthly schedule of church services in collaboration with the church chanters, delivering sermons during divine liturgies, providing catechism for children and adults, helping and supporting the community and Church in its everyday and strategic functions and operations and taking care of the “cleanness and seemly appearance of the Church interior”. I find, from the nature of his role, it must be implied that church services and other events would take place at times most convenient for the community, rather than solely to suit the priest or at his convenience.

[16]I accepted the evidence of the respondent’s witnesses that, once the Covid lockdown restrictions were lifted, it became apparent to the Committee that the claimant was not fulfilling the duties that were expected of him. In particular, the respondent became concerned that the claimant was not providing catechism on a regular basis at the Greek School. The respondent also formed the view that the claimant was reluctant to be in attendance at the Church other than on Sundays, was not readily available to engage with parishioners and was reluctant to provide services on feast days other than on Sundays.

[17]I accepted the evidence of the respondent’s witnesses that they had concerns about the claimant missing memorials, catechisms and church services at the school, failing to attend to school duties, being unavailable for community members to contact and failing to be physically present at the church. This was supported by the document showing concerns being raised by the Chair of the Greek School, Dr Trakoli (pages 174 – 175) about the claimant failing to provide catechism and hold church services at the Greek School and his refusal to attend school religious and national celebrations.

[18]The respondent’s concerns were raised with the claimant during Executive Committee meetings. In particular, a review meeting was held with the claimant on 9 December 2021 (pages 180 – 182) in which the respondent spelled out its concerns and what it expected of the claimant. I find from the evidence of the respondent’s witnesses and the minutes of the meeting, that the claimant was defensive and obstructive in the meeting. He made a number of different excuses for not being present at the Church, including that the community computer was at his house, it would be exhausting for him, he did not see the need in the community for him to be there, it would put a strain on his family and/or the commute would stop him working some hours. He did not accept the respondent’s requirement that he spend more time at the Church so as to be readily available for parishioners.

[19]A further executive committee meeting was held on 18 January 2022, at which members further indicated concerns about the claimant’s attitude and that he was being controlling and uncooperative (pages 185 – 191). The claimant produced a report (pages 192 – 207) in which he dismissed many of the complaints received by the respondent about him as “rumours and their ‘mud’”, blamed others and defended his actions. He produced an alternative proposal as to how he would carry out his duties which did not fully address the respondent’s concerns about the pastoral care he was providing, the amount of time he spent at the Church, his accessibility to parishioners or the provision of catechism and services at the Greek School. There is a dispute about whether the claimant delivered on the proposals in his report but, even if he did, those proposals did not satisfy the respondent’s requirements, for example for catechism to be delivered each week.

[20]I accepted the evidence of the respondent’s witnesses that they genuinely believed the claimant was not conducting services for feasts on days other than Sundays, or performing divine liturgy classes on Saturdays. The claimant suggested in cross examination that the evidence of the respondent’s witnesses was not credible because there was no statistical documentary evidence to support their assertion that he failed to deliver services on feast days which fell during the week. I preferred the evidence of the respondent’s witnesses because it was corroborated by the contemporaneous documentary evidence showing that this was an issue which was raised with the claimant at the time. Although there was a dispute about the regularity of the divine liturgy classes the claimant delivered, even on the claimant’s own evidence, he failed to provide divine liturgy classes during January, February and March 2022, despite the issue having been raised with him at the review meeting on 9 December 2021. This evidence supports the evidence of the respondent’s witnesses that they had genuine concerns about his performance of his duties.

[21]I find, from the respondent’s evidence and the documentary evidence, including the claimant’s own report (pages 192 – 207) that, although the respondent tried on a number of occasions to address its concerns with the claimant and find ways forward, the claimant was obdurate and evasive when challenged. Although the claimant gave evidence that this was not the case, I preferred the evidence of the respondent’s witnesses for the following reasons. The claimant was unable to account properly at the hearing for his failure to accede to the respondent’s stated wishes for him to provide catechism at the Greek school on at least two Saturdays per month from January 2022 onwards, or for his failure to provide divine liturgy classes. While he gave general explanations at the hearing, those reasons were not recorded in his report. The documentary evidence supported the respondent’s evidence that the claimant was reluctant to make himself available for parishioners. A Facebook post (page 1184 – 1186) shows the claimant making efforts to restrict his parishioners access to him, in particular by limiting unplanned face-to-face contact. I agreed with Mr Howell’s submission that the claimant adopted an entrenched position and was not prepared to meet the respondent’s requirements.

[22]I accepted the evidence of the respondent’s witnesses that relations between the Executive Committee and the claimant had deteriorated to such a degree by mid March 2022, that the Executive Committee clearly felt that the claimant could not continue in post. An Extraordinary General Meeting was called on 14 March 2022, with the Trustees and Executive Committee. The minutes of that meeting (page 211 - 214) record that, after the claimant left the meeting, they voted to approach the Archbishop to discuss the problems with the claimant. One member suggested putting the issues to the claimant to give him the right of reply, but was outvoted. I find that the Trustees and Executive Committee members effectively made up their collective mind at this meeting to remove the claimant from his post.

[23]The claimant suggested that the Executive Committee did not have the power to make decisions determining issues regarding his priesthood and that such a significant issue must be a community wide responsibility. However, the claimant was unable to direct me to any such provision in the constitution, his contract or otherwise. I concluded that, the Executive Committee having been elected to represent the community, they were mandated to manage the respondent’s affairs, including matters relating to the priest. The Executive Committee were the representatives of the respondent in matters of employment and must, therefore, in the absence of any contractual provision to the contrary, be responsible for the claimant’s employment. In my judgment the Executive Committee, voting at the EGM on 14 March 2022, were exercising their right as employers to decide matters relating to the claimant’s employment.

[24]A delegation of Executive Committee members and Trustees went to see the Archbishop on 17 May 2022 to convey their concerns about the claimant. I accepted the evidence of the respondent’s witnesses that the Archbishop asked them what they wanted and they indicated to him that they did not want the claimant’s assignment to the respondent to be renewed after the expiry of his secondment at the end of August 2022 (page 223). I accepted Mr Karageorgis’ evidence that, by this stage, the Trustees and Executive Committee members were resolute that they could not work with the claimant any more. The Archbishop asked them to put their wishes in writing, which they duly did. I find that the respondent in effect informed the Archbishop that the claimant’s contract of employment should be terminated, although they did not understand that the claimant was their employee. The Archbishop told the delegation that he would speak to the claimant.

[25]The Archbishop contacted the claimant on 18 May 2022 and told him that he would be transferred to another Greek Orthodox Community when his secondment expired at the end of August 2022. I find that the claimant was therefore given notice on 18 May 2022 of the termination of his contract of employment with the respondent, to take effect on 31 August 2022. Although the claimant was informed by the Archbishop, it was the respondent who had made the decision to terminate his employment. Although the respondent’s delegation believed that the Archbishop had the final say with regard to the claimant’s employment, in fact the Archbishop merely gave effect to the wishes of the respondent, reflecting the legal reality that the respondent was the employer and had the power to dismiss. I accepted the evidence of Mr Karageorgis that, had the claimant’s secondment been renewed, the Executive Committee would have pursued the termination of the respondent’s relationship with the claimant in any event. I accepted his account that the Executive committee “wanted a divorce” and, although they would “rather have a consensual divorce”, they were “prepared for an acrimonious one”.

[26]On 22 May 2022, the claimant issued a public announcement on Facebook, without consultation with the diocese or the respondent, accusing the respondent’s delegation to the Archbishop of rejecting and ousting him and suggesting that they did not represent the respondent as a whole. However, there was insufficient evidence that the claimant made any request, either in May 2022 or later, for written reasons for dismissal.

[27]It was not disputed that the community consisted of over 300 families, comprising some 600 people. Of these, 32 people signed a petition calling for an extraordinary general meeting to discuss the claimant’s position (page 245). The respondent rejected that proposal.

[28]On 1 June 2022 the Archbishop wrote to the claimant (page 232) confirming that his secondment would expire at the end of August 2022. The Archbishop informed the claimant that, rather than remain with the respondent for the remaining duration of his secondment, he would be transferred to the Hull Community with immediate effect. The Archbishop asked the respondent to continue paying the claimant his full salary until the end of August 2022 because the Hull Community was not in a position to do so at that time. The respondent agreed. I find that, in transferring the claimant, the Archbishop gave notice that the claimant would not work out his notice period on assignment with the respondent, but would be paid for the remaining two months of his salary. The respondent did not, on the evidence, have any involvement or input into the Archbishop’s decision to move the claimant to Hull. The claimant recognized the authority of the Archbishop to determine where he was assigned and accepted that he would obey his ecclesiastical superiors (page 226).

[29]On 4 June 2022 the claimant made a further public announcement on the respondent’s Whatsapp group, again without consultation with the diocese or the respondent. He informed parishioners that he was being transferred immediately to Hull and was “forbidden to do anything in Leeds” (page 233).

[30]On the evening of the same day, Bishop Maximos of Melitini telephoned the claimant to inform him that the Archbishop had suspended his priesthood. It was confirmed by email on 8 June 2022 (page 237) that, “as long as you are on a suspension, de facto you cannot officiate”. There was no evidence presented at the hearing from either Archbishop Nikitas or Bishop Maximos as to why the Archbishop changed his mind about the claimant remaining with the respondent until the end of his secondment and decided to transfer him to Hull from 1 June 2022, or why he then abandoned the transfer to the Hull Community and suspended the claimant’s priesthood from 4 June 2022. However, from the timeline of events, shown in the documentary evidence, I find that, on the balance of probabilities, it is most likely that it was the claimant’s indiscrete public announcements on social media on 22 May 2022 and 4 June 2022 which antagonized the Archbishop and caused him to rethink his plans for the claimant. There was no other plausible explanation for the Archbishop’s change of heart and, in my judgment, the indiscrete nature and timing of the claimant’s announcements means it is more likely than not that the Archbishop’s decisions were a reaction to those announcements. The respondent had no input or involvement in the Archbishop’s decision to suspend the claimant’s priesthood.

[31]I accepted the evidence of the respondent’s witnesses that they felt the need to issue a statement of their own, to quell any rumours and confusion that arose from the claimant’s announcements. They issued a statement dated 6 June 2022 (page 236) on the respondent’s Facebook page stating that the claimant was no long priest in charge of the community, thanking him for his service and wishing him well. The respondent continued to pay the claimant for the remainder of his notice period, until 31 August 2022.

[32]On 6 June 2022 the Archbishop’s office wrote to the Hull Community informing them that the claimant would no longer be assigned to them. The claimant subsequently applied to the Metropolitan of Mesogaia and Lavreotiki for canonical release so that he could be seconded by the Church of Greece to the Antiochian church, one of the other Orthodox diosceses with a presence in the UK. However, on 24 October 2022 (page 189 – 290) the Metropolitan refused the request and informed the claimant, with reference to his position as a priest of the Church of Greece, that “the ecclesiastically fitting solution is to return in humbleness and repentance to the Metropolis of Mesogaia and Lavreotiki to which you belong, at least for the time being, and until you take mature decisions. If this, for whatever reasons, is considered impossible, the only way is to resign from your incumbent-priest position or, so be it, to apply for a non-paid leave”.

[33]The claimant did not return to Greece, as proposed by the Metropolitan. The respondent put to the claimant that he had failed to mitigate his losses by failing to seek work as a lay-person in the UK from 24 October 2022, when it became clear that he could no longer work as a priest in the UK. The claimant gave evidence on this point that he did not seek work as a layperson from October 2022 until October 2023 because, having been an active priest for 18 years, a period of adjustment was required. He also gave evidence that he did not seek work during that period because he was continuing to pursue canonical release and was busy with his employment tribunal claim.

[34]While I accepted the claimant’s evidence that there would inevitably be a period of psychological adjustment from working as a priest to seeking work as a lay-person, in my judgment it was not reasonable to expect to work as a priest in the UK from the point at which the Metropolitan made it clear that the claimant was expected to return to Greece and would not be seconded to another diocese. Separately, on the claimant’s own evidence, he had the assistance of a solicitor in these proceedings until July 2023, so it is not clear why his employment tribunal claim precluded him from seeking work prior to that date. There was insufficient evidence, in my judgment, that the claimant was not capable of pursuing his canonical release and managing the employment tribunal proceedings at the same time as looking for employment as a lay-person. I accepted his evidence that he took steps to become a taxi driver from mid June 2023 but, having failed the test three times, he became an Amazon courier from October 2023. However, he has not explained what change took place in June 2023 that enabled him to start seeking to mitigate his losses at that date, rather than earlier. The claimant accepted that he has a PhD in History from a UK university and is qualified to teach up to A Level at a Greek school, although it was unclear if he can teach in UK schools. He accepted that he did not investigate whether he could work in education in the UK because he was not confident about teaching at his age. The Law Unfair dismissal

The Law

[35]Section 98(1) ERA provides that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within section 98(2) or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. Subsection (2) lists capability, conduct, redundancy, and illegality as other potentially fair reasons for dismissal.

[36]Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.

[37]Section 123 of the Employment Rights Act 1996 (“ERA”) provides that the compensatory award shall be: ‘…such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer’.

[38]In unfair dismissal cases, a compensatory award may be reduced where the Tribunal determines that, had a proper procedure been followed, there is a chance that the employee would have been dismissed in any event. This is called a ‘Polkey’ reduction after the case of Polkey v AE Dayton Services Ltd

[1987] IRLR 50

(HL). This may take the form of a percentage reduction, or a finding that the employee would have been dismissed fairly after a further period of employment (for example, the period in which a fair procedure would have been completed), or, in respect of different periods of loss, a combination of those approaches. The key questions for the Tribunal are: 1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? And 2) What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal? In considering how to assess a Polkey deduction, a Tribunal should take account of the guidance of the EAT in Software 2000 Ltd v Andrews

[2007] IRLR 568

[39]Section 123(4) provides that, in ascertaining the loss for the purposes of the compensatory award: ‘…the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.’

[40]Thus, a reduction to the compensatory award can be made where a claimant has failed to mitigate the loss they have suffered as a result of the unfair dismissal. An unfairly dismissed employee is expected to search for other work, and will not receive compensation to cover losses beyond a date by which the Tribunal concludes they ought reasonably have been able to find new employment at a similar rate of pay.

[41]The burden of proving a failure to mitigate is on the respondent to show that the claimant acted unreasonably, rather than merely failed to take a reasonable step. The Tribunal will consider: 1) What steps the claimant should have taken to mitigate their loss; 2) Whether it was unreasonable for the claimant to have failed to take any such steps; and 3) If so, the date from which an alternative income would have been obtained and the amount of that income.

[42]The question of reasonableness is for the Tribunal to determine. The claimant’s views and wishes are not determinative, but merely one factor in the analysis (Cooper Contracting Limited v Lindsey

UKEAT/0184/15

[43]Where an employee has failed to look for any jobs at all, the employer’s burden of proof is likely to be discharged and it is then for the claimant to explain why such a course of action was reasonable (Hilco Capital Ltd v Harrington

[2022] EAT 156

]

[44]A percentage increase or reduction up to a maximum of 25% of the compensatory award can be made to reflect an unreasonable failure by the employer or employee to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Wrongful dismissal

[45]If an employee is given notice of termination of employment, they will usually be entitled to their normal pay during the notice period. They may work their notice and be paid their normal wage, be placed on garden leave and be paid as normal during the notice period or be paid in lieu of notice in circumstances when the contract is immediately terminated. If the contract is terminated, the employee does not work the notice period and does not get paid any or part of their normal wage for the notice period, they may be entitled to compensation for breach of the obligation to be paid under the contract. Writtten statement of reasons for dismissal

[46]Section 92 ERA provides that an employee is entitled to a written statement of reasons for dismissal from his employer where the dismissal arises from the employer giving notice, terminating without notice or the end of a limited term contract. Section 92(2) requires that, except in specific circumstances related to pregnancy, maternity or adoption leave, the employee must have made a request for the written reasons.

[47]An employee may make a complaint to a tribunal that his employer has unreasonably failed to provide the statement or that the particulars of the statement given are inadequate or untrue (section 93(1)). Where a tribunal finds such a complaint well founded, it may make a declaration as to what it finds the employer’s reasons were for dismissing the employee and will make an award of two weeks’ gross pay. Determination

[48]In making my judgment, I have considered all of the evidence before me, taken account of the parties’ useful submissions and the relevant law, and applied the burden of proof on the balance of probabilities to reach my conclusions on the issues to be determined. Unfair dismissal

[49]The respondent has conceded that the claimant’s dismissal was unfair, as no proper dismissal procedure was followed because the respondent did not appreciate that it was his employer. The issues to be determined in the unfair dismissal complaint therefore relate to remedy only.

[50]The respondent concedes that the claimant is entitled to a basic award, and agrees the amount claimed by the claimant of £2,232.67, calculated on the basis of three years’ service x 1.5 (age-related factor) x weekly gross salary of £496.15.

[51]The central issue in this case is what financial losses the dismissal has caused the claimant, under section 123 ERA (the compensatory award). The claimant’s schedule of loss (page 48) identified a loss of salary for a period of twelve months from his dismissal, amounting to £21,206.88, plus employer’s pension contributions (unconfirmed) and £500 loss of statutory rights. The claimant gave evidence that he obtained replacement work as an Amazon courier in October 2023. These losses therefore represented the loss the claimant says he sustained during the period September 2022 to October 2023 in consequence of his dismissal by the respondent.

[52]The respondent does not dispute the maths. Rather, it’s position is that the claimant should not be entitled to any compensatory award on two counts: 1) He would have been fairly dismissed in any event had a fair procedure been followed or for some other reason (Polkey); and/or 2) He did not take reasonable steps to replace his lost earnings during the period September 2022 to October 2023 (failure to mitigate).

[53]The first of these arguments requires me to consider whether there was a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason. I find as a fact that the relationship between the claimant and respondent had broken down to the point where the Executive Committee, who represented the respondent as a whole, and Trustees voted by a majority to speak to the Archbishop to request that the claimant be removed. The decision at the EGM on 14 March 2022 to approach the Archbishop was, in my judgment, a decision to terminate the claimant’s employment. The decision was made because the respondent genuinely believed that its relationship with the claimant had broken down, because the claimant was no longer performing core duties that were expected of him and refusing to engage reasonably with the respondent’s efforts to address the issue. While the reason for the respondent’s decision could have been conduct or performance, I find as a fact that it was the relationship breakdown which lay at the heart of the respondent’s decision. The unique nature of the relationship between a community (represented by the respondent) and its priest is such that the breakdown of that relationship to the level displayed in the evidence before me could only result in a total rupture of the relationship. It was this that lay at the heart of the respondent’s expression of wishes to the Archbishop that the claimant’s assignment to the respondent be terminated. In my judgment the respondent therefore had a fair reason for dismissal, under section 98(1) ERA, for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”, being the breakdown of the unique relationship between priest and community.

[54]I find that the respondent had reasonable grounds for believing the relationship to have broken down. They had genuine concerns, supported by the evidence, that the claimant was not performing core duties (catechism, services on weekdays, being present at the Church for parishioners, and divine liturgy at the Greek school). They raised the issues with the claimant on 9 December 2021, but he continued to fail to do what was expected of him, as illustrated by his own report to the respondent (page 197) and his Facebook post to the community (page 1185). I agreed with Mr Howells’ submission that the claimant sending this announcement (page 1185) to parishioners, knowing that it did not reflect what he was expected to do as part of his role and without the agreement of his employer, was precisely the kind of conduct which would seriously damage the relationship of trust and confidence between employer and employee. I agreed with Mr Howells’ submission that, having spoken to the claimant and failed to resolve the differences, the respondent had reasonable grounds to conclude that the claimant would continue to fail to engage with their concerns, was looking to take control, was frustrating their instructions, undermining them and that the relationship was not sustainable.

[55]The claimant submitted that the Executive Committee did not, in effect, have reasonable grounds to dismiss him because their views did not properly represent the views of the whole of the community. The claimant suggested that there was community-wide responsibility for determining matters relating to the priest’s tenure and that the community’s views were not fairly represented by the respondent. The fact that the respondent had received complaints and that the concerns about the claimant’s performance of his duties were raised at the meeting on 9 December 2021 is evidence that there was concern in the community as a whole. The evidence of the claimant’s witnesses that their voices were not fairly represented is not at odds with the respondent’s position, as Mr Howells submitted. There were inevitably dissenting voices in the community who might, as Mr Howells submitted, have had reasonable grounds to wish to retain the claimant, but that does not mean that the respondent did not have reasonable grounds for dismissal. I find that the Executive Committee was elected and therefore mandated to manage the respondent’s affairs. The Executive Committee was the respondent’s representative in matters of employment and was responsible for the claimant’s employment. In taking the vote on 14 March 2022 to approach the Archbishop, they and the Trustees were exercising their right as employers to decide matters relating to the claimant’s employment and, in notifying the Archbishop that they did not want the claimant’s assignment to continue, they expressed to him their decision, taken on 14 March 2022, to terminate the claimant’s employment.

[56]I find that the only reason the Executive Committee did not take action to dismiss the claimant directly themselves was because they did not recognise that they were the claimant’s employer and therefore had that power. I agreed with Mr Howells’ submission that this was due to the unusual arrangement around secondment of priests from the Greek Church and assignment by the diocese to the local community. Had the respondent realized it had the power to dismiss the claimant, I find that they would have commenced proceedings to do so from the date on which they voted to take the issue of the breakdown in their relationship with the claimant to the Archbishop (14 March 2022).

[57]I agreed with Mr Howells’ submission that the respondent would not have continued to employ the claimant after 31 August 2022 because his secondment came to an end at that date. At the meeting with the Archbishop on 17 May 2022, the respondent indicated that it did not want the claimant’s assignment to them to continue after the end of his secondment. The Archbishop told the claimant on 18 May 2022 that he would remain with the respondent only until 31 August 2022, when his secondment came to an end and was due to be renewed and that he would be assigned elsewhere from that date. This was in accordance with the term of the claimant’s contract of employment that provided that, if his secondment ended, the respondent had the discretion to terminate the contract with immediate effect.

[58]In fact, following the claimant’s indiscrete public announcement on social media on 22 May 2022, the Archbishop notified the claimant that his assignment to the respondent was terminating with immediate effect on 1 June 2022. I find as a fact that this was the Archbishop’s own decision, without consultation or input from the respondent, in response to the claimant’s indiscrete public announcement, as explained to the claimant by Bishop Maximos. It was not, as the claimant submitted, for the same reason he was given notice on 18 May 2022. The claimant recognized the authority of the Archbishop to determine where he was assigned and accepted that he would obey his ecclesiastical superiors (page 226). The Archbishop went even further, following another indiscrete announcement by the claimant, and suspended the claimant’s priesthood from 4 June 2022, rendering him unable to practice as a priest at all.

[59]I find that, in these rather unusual circumstances, there was no chance that the claimant’s employment with the respondent would have continued beyond 31 August 2022 at the latest. The secondment was to end on that date, the Archbishop would not have renewed it, because of the claimant’s indiscrete announcements and other behaviour, and the respondent’s relationship with the claimant had broken down to such an extent that they wanted to get rid of him. In my judgment, even if the respondent had understood that it was the claimant’s employer and gone about the dismissal process in a fair manner, the outcome would have been the termination of the claimant’s employment by 31 August 2022.

[60]The claimant was paid his full wages by the respondent until 31 August 2022. In my judgment, the claimant is not entitled to recover any loss after that date because there is no chance that his employment with the respondent would have continued thereafter.

[61]The respondent’s second argument was that the claimant had failed to take reasonable steps to replace his lost earnings or mitigate his loss. For completeness, I address those submissions here. I find that it was clear to the claimant, from the message from the Metropolitan dated 24 October 2022 (page 189 – 290), that he would not be permitted to continue to practice as a priest in the UK and that, if he wished to continue as a priest, he would have to return to Greece. The claimant did not feel able to return to Greece for family reasons. The only option open to him was therefore to obtain alternative employment in a role as a lay-person.

[62]I accepted the claimant’s evidence that he required a period of adjustment, after 18 years as a priest, before being ready to seek non-clerical work. In my judgment, given the unique character of a priest’s role and the length of time the claimant had served as a priest, it was not unreasonable for him to require a period of adjustment of some weeks or months before being psychologically or emotionally ready to search for non-clerical work. While the claimant did not give evidence as to how long he required to adjust to looking for lay work, in my judgment, given the Metropolitan’s clear message that priest work in the UK was not an option, that period ought reasonably to have been a period of weeks or at most a few months.

[63]The claimant did not account sufficiently for his total lack of effort to find alternative work until the time when he sought to train as a taxi driver and eventually found work in October 2023 as an Amazon courier. He said he was busy with his employment tribunal claim, yet he instructed solicitors until June 2023 and has been managing litigation and work together since October 2023. He said he was pursuing his canonical release to the Antiochian diocese, but did not offer sufficient explanation as to why it was not possible to do this at the same time as looking for alternative employment. The claimant should act as reasonable man and the claimant’s reasons are not reasonable excuses for failing to pursue alternative avenues of income, in my judgment. Taking account of a period of adjustment, I consider that the claimant failed to mitigate his loss from 1 December 2022. If I am wrong on the Polkey issue, therefore, the claimant will be entitled to compensation for lost earnings for the period September, October and November 2022.

[64]I agree with Mr Howells’ submissions that this was not a disciplinary matter and the ACAS Code of Practice on Disciplinary and Grievance Procedures did not therefore apply and there was no breach of the ACAS Code. There is therefore no uplift in that regard. In light of my findings on Polkey, it is not appropriate to award any compensation for loss of statutory rights, as those statutory rights would have been lost in any event. Wrongful dismissal

[65]The claimant is not entitled to damages for breach of contract in respect of notice because he was not wrongfully dismissed. His contract provided for a notice period of two months. I find that the claimant was given notice by the Archbishop on 18 May 2022 that his employment contract would terminate at the end of August 2022, giving effect to the respondent’s decision to dismiss the claimant. The intervening events were initiated solely by the Archbishop and were not decisions of the respondent. In transferring the claimant to Hull and subsequently suspending the claimant’s priesthood, the Archbishop gave the claimant notice that he would not be working the remainder of his notice period with the respondent. However the respondent paid the claimant his full pay until 31 August 2022, in excess of the two month notice period set out in his contract of employment, so he suffered no loss from the Archbishop’s decisions to transfer him to Hull and then to suspend his priesthood. This complaint therefore fails and is dismissed. Written reasons for dismissal

[66]The respondent did not unreasonably fail to provide written reasons for the claimant’s dismissal. The claimant has not directed me to any evidence that he requested written reasons for dismissal. Section 92(2) provides that an employee is only entitled to a written statement of reasons for dismissal if he makes a request for one. This complaint therefore fails and is dismissed.