Birmingham Mosque Trust Ltd v Alavi [1991] UKEAT 188_91_0312

EAT
Birmingham Mosque Trust Ltd v Alavi
[1991] UKEAT 188_91_0312 · 1991-12-03
MR JUSTICE WOOD (PRESIDENT): By a Decision promulgated on 6th February 1991 an Industrial Tribunal sitting at Birmingham under the Chairmanship of Mr Macmillan found unanimously that the Applicant, Dr Alavi, was employed by the Respondents between June 1985 and 25th April 1990 and therefore that it had jurisdiction to entertain his complaint of unfair dismissal. The Respondent now appeals.The Respondent company is limited by guarantee and enjoys charitable status. We shall refer to it as "The Trust". Its principal object is the maintenance of the Birmingham Central Mosque and its associated Centre. The Mosque itself neither has rules nor a constitution of its own. The Governing Body is its Council of which for many years Dr Naseem has been the Chairman. As one would imagine the Centre is associated with the Mosque through common interests in the muslim religion and the advancement of Islam.As appears from correspondence it was in 1983 that The Trust was looking for a Khateeb for the Mosque. Dr Naseem approached Dr Alavi whilst the latter was taking his PhD in Hadis Literature at Edinburgh University. Upon completing his studies in Edinburgh, Dr Alavi returned to the Sirah Chair in the Department of Islamic Studies at the University of the Punjab. That Chair was created for studies in the biography of the Prophet and literature related to his person.

The Tribunal found in relation to the appointment of a Khateeb that

"Unlike the Church of England or indeed the Methodist Church or the Presbyterian Church of Wales, there is no centralised authority governing Islam, or the institution and management of its places of worship. As with the Sikh religion, each mosque is independent and determines for itself the way in which it conducts its worship. As with Sikhism there is no formal ordination of priests."
Dr Alavi did not wish to come to the Birmingham Mosque solely as Khateeb. He wished to take part in and indeed, to be in charge of, the other activities for which the Trust was responsible. He wished to be its Director and was so appointed. As the Tribunal found
"Although Dr Naseem has told us that the term 'Director' was adopted to describe the post purely at Dr Alavi's request, the tribunal are satisfied that it was not merely a hollow title. It describes accurately Dr Alavi's function which was much wider than that of Khateeb and did include the day to day management of the Mosque and the Centre associated with it, subject to the, sometimes very close, control of the Council of the respondents in general and Dr Naseem in particular."
By a letter of 23rd May 1984 Dr Naseem wrote to the Vice-Chancellor of the University of the Punjab as follows:-
"Further to my letter Reference number BMTL/54 dated 19 April 1984, I am pleased to confirm that Dr Khalid Alvi may please take his appointment as Director of Birmingham Central Mosque as soon as he can be relieved of his present responsibilities. It is also requested that he may please be seconded to the Birmingham Mosque Trust for a period of two years at least. He would have a free hand to devise a programme to meet the religious needs of the Community in consultation with the Council of Management of the Birmingham Mosque Trust. A brief outline of his duties will include sermon on Friday, overall responsibility for children's education, devising programme for dissemination of Islamic knowledge amongst the Muslim population and a general responsibility for matters pertaining to the Birmingham Central Mosque. He would be required to work for forty hours a week. His salary will be £8000 per annum and the BMTL will also pay his pension contributions.
This is just a brief letter to help move the matter further but if there are any further queries, it will be my pleasure to answer them."

The Tribunal describes the position of Khateeb in the Mosque as follows:-

"When Dr Naseem first approached Dr Alavi he was studying for his PhD at Edinburgh University. He told Dr Alavi that he wished him to come to the Central Mosque as the Khateeb. In Dr Alavi's words the Khateeb is a simple preacher. His job is to deliver the sermons at Friday prayers. The Khateeb is one of two purely religious appointments at the Mosque, the other being that of the Imam whose function is to lead the prayers themselves. The Khateeb can fulfil the functions of an Imam but not vice-versa. As we understand it, at all material times the Mosque possessed its own Imam, a Mr Patel. We are satisfied that Dr Alavi made it clear to Dr Naseem that he would not be interested in coming to the Mosque purely as Khateeb. He would only come if he was given wider duties of an administrative and intellectual nature. He said he would like to be the Director of the Mosque. As he envisaged the role, it would include the function of Khateeb but would cover also all of the management of the Mosque and the teaching and promotion of Islam in a much wider sense than that of mere Khateeb."
It is appreciated by both sides that the functions carried out by Dr Alavi are from one aspect central to the present issue and it seems to us that help can be derived from a report of Dr Alavi himself which is dated 5th December 1987 and was before the Tribunal.

" DIRECTOR'S REPORT

Our activities are divided into religious, educational and social categories. The staff of Birmingham Central Mosque is making efforts according to their capacity and available sources at their disposal. These activities can also be classified as daily and weekly. An overall picture of the activities could be described as follows:

RELIGIOUS

a. Daily prayer . Hafiz Ahmed Ibrahim Patel is responsible for leading the prayer and in his absence myself or Mr Khurram Bashir does the job. As for morning prayer Khurram Bashir or myself leads it.b. Friday . Director is responsible for Khutaba and prayer. Khutaba is being delivered in urdu, English and Arabic languages.c. Sunday Dars-i-Quran . Every Sunday after Zuhr prayer there is a Dars-i-Quran.d. Visiting groups. Birmingham Central Mosque receives quite a large number of groups. Normally it is the Director who talks to them on the introduction of Islam and Muslim community, the role of the Mosque and the education of Muslim children. Mr Mughal takes them to a conducted tour of the Mosque where various sections of the Mosque are explained to them and Mr Akbar Khan helps with providing tea and drink to them. In the occasional absence of the Director Mr Khurram Bashir or Mr Mughal talk to the groups. We have received 37 groups (comprising 1328 members) 28 were attended by the Director.e. Special individuals . (i) The Director received and entertained fifteen special individuals also consisting of school teachers, members of research organisations, university staff and church men.

EDUCATION

a) General advice. During office hours we entertain any enquiry about any religious matter.b) Evening school . Separate report.c) Sunday classes. Separate report.The Director is taking a class of Quranic studies.d)Special guidance is provided to the students of religious studies by talking to them or by replying their questions.e) Library . We have small reference library and we have arrangements for helping the readers. MrKhurram Bashir and Mr Akbar Khan will be helping the readers in future.f) Social . an occasional advice on certain matters the only organised effort is the Day Centre. We serve light refreshment and provide some recreation facilities to the elderly people. The normal attendance is - Mr Akbar Khan is responsible for Day Centre activities. He is also helping in general welfare and maintenance of the Mosque.g) Special programme. Last month we organised a seminar on the Seerah of the Prophet in English. Unfortunately none of the trustees could grace the occasion.

MEETING ATTENDED

The Director attended and participated in the following programmes:1) Sparkbrook Islamic Centre. Seerah Conference (4.11.87)2) Iqbal Day, Iqbal Academy, Birmingham University (7.11.87)3) Shariah Council. 9.11.874) Muslim Jewish Liaison groups 9.11.875) Haramnoya Conference, London (15.11.87)6) Turkish students (21.11.87)7) Malaysian students (22.11.87)

MAULANA KHURRAM BASHIR

Maulana Khurram Bashir is making his contribution as follows:a) Taking evening and Sunday classes.b) Visiting prison once a week.c) Leading Friday prayer in Birmingham or Aston Universities.d) Religious guidance to the people in the Mosque.e) Helping readers in the library.

OFFICE

Mr Mughal is dealing with financial matters, routine transactions and matters related to the maintenance. He also makes marriages and funeral arrangements, booking for meetings and conferences and collection of funds on these occasions.We have started weekly staff meetings where administrative educational and religious issues are discussed and efforts are made to find their solutions."The members of the staff at the Mosque apart from Dr Alavi seem to have been the Imam, Mr Patel; Mr Khurram Bashir who was capable of taking prayers; Mr Mughal who showed parties around the Mosque and dealt with the office; and Mr Akbar Khan who is responsible for the social centre.As we read that document it seems clear that save for the heading "social" which be it noted is a sub-heading under "education" - and "office", all other items of the report are connected with the Islamic religion and are aimed towards its understanding and advancement. To put it another way, without the foundation of the Islamic Religion, the Mosque and the activities of the Centre would have no basis for existence - no "raison d'etre". It is because of his learning in that faith that Dr Alavi was so sought after by the Trust.The first submission of the Trust before the Industrial Tribunal was that Dr Alavi at all times remained in the employ of the University of the Punjab and was only seconded to the Trust. This was rejected by the Tribunal and for the reasons given we agree. It also seems to us that such employment would not necessarily preclude employment by the Trust. The appeal on this issue is rejected.This appeal raises yet again this issue of employment in connection with non-Christian religions found amongst the ethnic minorities now citizens of this country. We find it a difficult case.

The basic reasoning of the Tribunal is as follows:-

"9 In our judgment it is clear from the correspondence, and in particular the letter from Dr Naseem of the 23 May 1984, that there existed a contract between Dr Alavi and the respondents. In our judgment that contract exhibits all of the normal indices of a contract of employment. Specifically it defined the salary, the hours of work, the nature of the duties. In the performance of those duties it is clear that, even in his religious duties, Dr Alavi was under the control and direction of the Council of the respondents. Dr Naseem has told us that if in a sermon Dr Alavi said something with which they disagreed, they could direct him to make no further reference to it in future sermons. It is perhaps not entirely accurate to paraphrase the authorities which we have cited by saying that there exists a presumption against the relationship between a holy man and his church being that of employer and employee. But in this case we are satisfied that that is indeed the relationship between Dr Alavi and the respondents. In brief our reasons are, firstly, that Dr Alavi is not a holy man in the sense that Davies, Parfitt and Santokh Singh would consider themselves to be. He is basically an academic who undertook, as part of his duties with the respondents, certain priestly work. The post was created specifically for him and designed around his requirements as much as the respondents. The terms and conditions are set out in an exchange of letters and have all the appearance of a desire between the parties to create a legally binding relationship between them. Those terms and their execution in practice demonstrate all the characteristics of a contract of employment."
No one doubts that the Trust could and no doubt does enter into contracts of employment with some of the purely secular members of its staff, such as secretarial and domestic staff. The problem arises where religious factors are introduced and it seems to us desirable that the same broad approach should be taken by all those faced with this issue.There are four authorities to which we would refer.

PRESIDENT OF METHODIST CONFERENCE v. PARFITT [1984] ICR 176 - CA

DAVIES v PRESBYTERIAN CHURCH OF WALES [1986] ICR 280 - HL

SANTOKH SINGH v GURU NANAK GURDWARA [1990] ICR 309 - CA

GURU NANAK SIKH TEMPLE v SHARRY EAT/145/90 - EAT

It is from these four cases that we seek guidance. The facts are distinguishable save perhaps in the SANTOKH SINGH case, but it is to the principles that we look. In PARFITT decided in October 1983 the leading judgment in the Court of Appeal was given by Dillon LJ. The first passage to which we would refer is at p.178H where the learned Lord Justice says -
"The question is therefore whether Mr Parfitt had a contract of service with the Methodist church or somebody on behalf of that church. That question has been broken down in argument in this court, as it was in both the lower courts, into two questions. 1. Did Mr Parfitt have a contract with the church? 2. If so, was that contract a contract of service?"
This passage illustrates that the correct approach of any court faced with the present problem is to look at it from those two aspects. The importance of the first question is whether there is sufficient certainty of offer and acceptance for the parties to be ad idem, and secondly whether there was an intention to create a contractual relationship. This particular aspect was deemed to be of importance by May LJ in his judgment and he cited with approval from the dissenting judgment in the EAT of Waterhouse J. That passage is in our judgment of the greatest assistance in guiding our approach and reads -
"I consider that the starting point of any consideration of the relationship between the Methodist Church and its ministers must be an examination of the faith and doctrine to which they subscribe and they seek to further. The concept of a minister as a person called by God, a servant of God and the pastor of his local church members seems to me to be central to the relationship. In my judgment the reasoning of the Court of Appeal in Rogers v. Booth [1937] 2 All E.R. 751 and of Joyce J in In re Employment of Ministers of the United Methodist Church (1912) 107 L.T. 143 affords persuasive authority for rejecting the assertion that there was a contract between Mr Parfitt and the Methodist Church, and I do not consider that the concept of a Methodist minister's role of the interpretation of the words 'a contract of service' has changed significantly since the enactment of the National Insurance Act 1911. I am unable to accept that either party to the present proceedings intended to create a contractual relationship. Moreover the elaborate code of practice and discipline of the Methodist Church, containing a wide spectrum of subsidiary organisations and persons, does not seems to me to be capable of formulation in terms of a contract between identifiable parties. The submission by the Methodist Church that a minister is, in effect, a person licensed by the Methodist Conference to perform the work of a minister in accordance with the doctrine of the church and subject to its discipline is, in my judgment, the most persuasive description of his status and role."
It is also clear that Dillon LJ shared the same view that no contract had come into being, we would refer particular to the passage at p.182G where he says -
"... Even so, however, in my judgment, the spiritual nature of the functions of the minister, the spiritual nature of the act of ordination by the imposition of hands and the doctrinal standards of the Methodist Church which are so fundamental to that church and to the position of every minister in it make it impossible to conclude that any contract, let alone a contract of service, came into being between the newly ordained minister and the Methodist Church when the minister was received into full connection. The nature of the stipend supports this view. In the spiritual sense, the minister sets out to serve God as his master; I do not think that it is right to say that in the legal sense he is at the point of ordination undertaking by contract to serve the church or the conference as his master throughout the years of his ministry.
Equally I do not think it is right to say that any contract, let alone a contract of service, comes into being between the church and the minister when the minister accepts an invitation from a circuit steward to become a minister on a particular circuit and the invitation and acceptance are approved by the stationing committee of the conference. Despite the elaborate detail of the standing orders in relation to the manse and the furniture and fittings to be provided by the circuit for the newly appointed minister on the circuit, it seems to me that it follows, from a correct appreciation of the spiritual nature of the minister's position and relationship with the church, that the arrangements between the minister and the church in relation to his stationing throughout his ministry and the spiritual discipline which the church is entitled to exercise over the minister in relation to his career remain non-contractual.It is not in dispute that there are persons such as secretaries or caretakers who are employed by the Methodist Church or by its local circuits under contracts of service. But because of his spiritual position and functions a minister is in a very different position from such persons.I would agree with Mr Parfitt's submissions to this extent that the spiritual nature of the work to be done by a person and the spiritual discipline to which that person is subject may not necessarily, in an appropriate context, exclude a contractual relationship under which work which is of a spiritual nature is to be done for others by a person who is subject to spiritual discipline. On any view the spiritual nature of the work and the spiritual discipline under which it is performed must be very relevant considerations when it has to be decided whether or not there is a contractual relationship."

Finally, the learned Lord Justice summarises his views at 183G where he says -

"The courts have recognised that it is not practicable to lay down a hard and fast list of what is required to constitute a contract of service. There are too many variants. None the less the courts have repeatedly recognised what is and what is not a contract of service and I have no hesitation in concluding that the relationship between a church and a minister of religion is not apt, in the absence of clear indications of a contrary intention in the document, to be regulated by a contract of service."
The learned Master of the Rolls agreed with the reasoning of both judgments. PARFITT was cited in DAVIES in the House of Lords and its reasoning was not doubted in any way.PARFITT was also followed in SANTOKH SINGH .This Industrial Tribunal dealt with those earlier decisions in paragraph 8 of the Decision which reads -
"In our judgment there are significant and fundamental differences in the relationship between Dr Alavi and the respondents on the one hand and those between Messrs Davies , P arfitt and Santokh Singh and their respective churches on the other. There was no religious service (as in Davies and Parfitt ) at which Dr Alavi was appointed to the church. There is no constitution, book of rules, or any similar instrument governing his appointment. Unlike Davies , Parfitt and Santokh Singh his appointment is governed exclusively by the exchange of letters and the conversational background to them which we have set out above. Dr Alavi is not a pastor or a priest in the sense that Davies , Parfitt and Santokh Singh were. He is an academic, albeit his speciality concerns the life of a Prophet and might properly be described as religious. He did not undertake to devote his whole life to the respondents but merely his working life, 40 hours per week. He made it clear before accepting the appointment that he was not interested in undertaking a rule which was exclusively priestly in nature. He reached a specific agreement with the respondents for the creation of a post which, if not exactly unique, was certainly not one commonly met with in Mosques. It embraced matters which were administrative and academic, or at least intellectual, in nature as well as being priestly or sacred."
Mr Corbett for the Appellant criticises that paragraph in a number of ways. In particular he submits that the facts of the present case are in many cases very similar to that of Santokh Singh . He also points out that there was no particular specific appointment of a priest, but that Santokh Singh had come to read the Holy Book and thereafter to gain experience. He was originally an academic.Mr Corbett seeks to draw an analogy with the following situation. A priest of the Church of England who is a vicar of a parish has no contract of service with the church. He will carry out his functions as a vicar in the church and in activities connected with the church. He will also no doubt visit the sick and may visit prisons; in all those matters he will be carrying out his functions because he is the vicar of the parish. His situation is to be compared with a social worker who has a contract of employment with a Local Authority and who happens to be a priest. In the latter case no one would doubt that there is in existence a contract of employment but not in the former. To take that analogy to the facts of the present case the functions carried out by Dr Alavi in the Mosque and in the Centre connected to the Mosque arise because he is the Khateeb and because of his learning in the faith and because of his work in advancing Islam. The whole basis of his work is his religious learning and his religious appointment. Whether spiritual is the right adjective in connection with the Islamic faith, we do not know. Because of our lack of understanding of the deeper teachings of some religions it seems to us preferable when taking a general and consistent approach to these problems to use the word religious.Indeed we would welcome guidance from Higher Courts because a number of these cases are likely to continue to appear before Industrial Tribunals. If the correct approach is to look at those religious duties or duties based upon religion which are involved in the cases of a mosque and a centre connected with a mosque, then on the facts of the present case it seems to us that almost the entirety of Dr Alavi's functions at the Trust were connected with the Islamic religion.To return to the principles enunciated in PARFITT - this Tribunal failed to approach the problem in two parts. There was no finding of an intention to enter into contractual relations or whether there was sufficient certainty that the parties were ad idem, and if and insofar as the Tribunal found that if there had been a contract there was a contract of service it seems to us that it erred in that it allowed those matters which are based on a religious appointment to be deemed to be obligations related to employment rather than related to the appointment as a religious person.It seems to us therefore with great respect to the Industrial Tribunal in this extremely difficult case that it erred in two respects and that the matter should be remitted to another Tribunal for it to ascertain whether there was a contract and whether in the light of the reasoning in this decision following the PARFITT guidance, there was a contract of service.Appeal allowed, matter remitted.