Turns v Smart & Ors [1991] UKEAT 510_90_1706

EAT

Turns v Smart & Ors

[1991] UKEAT 510_90_1706 · 1991-06-17

MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 18 April 1990, Father Turns brought proceedings, alleging unfair dismissal against three Respondents, his Vicar, the Reverend J F Smart; the Bishop of Bath & Wells; and the Bath & Wells Diocesan Board of Finance.

He had been appointed as the Assistant Curate to the Rector, the Reverend J F Smart, and the issue raised by the Respondents was that the Tribunal did not have jurisdiction because Father Turns, the Applicant, was not employed under a contract of employment. That was the issue that was before an Industrial Tribunal sitting at Bristol, under the Chairmanship of Mr Woods, who on the 6 August 1990 heard the case and found against Father Turns. He now appeals.

The Judgment of the Industrial Tribunal was commendably short and the background of the case is set out in paragraph 2:

"The applicant held the position of assistant curate in the parishes of East Clevedon, Walton and Gordano from 19 May 1987 until it was terminated on 31 January 1990. He was selected for this position by the Rector of these parishes, ... He was offered this position by the Rector in a letter."

It was offered to him subject to the approval of the Bishop, the Bishop did approve the appointment and licensed the Applicant to carry out this appointment in a document which is dated the 19 May 1987. That is before us, it refers to the license to Father Turns as an Assistant Curate to the Reverend John Francis Smart Incumbent of the benefices of those parishes and then goes on to set out that he should receive -

"a stipend in accordance with the appropriate scale as agreed with the Bath and Wells Diocesan Board of Finance"

and also to free accommodation and ends with the phrase:

"as your stipend for serving the Cure and I direct that you reside etc"

Problems arose, and ultimately there was a termination.

The Industrial Tribunal heard evidence from the Applicant, the Respondents called no evidence. They also had before them a Church handbook and they heard considerable argument and reference to a number of authorities.

It is common ground between the parties that a Rector of a parish holds an office and is not subject to a contract of service. The question was whether the Applicant, as the Assistant Curate, was subject to a contract of service.

In looking to his duties, and the supervision of his duties, the Tribunal found that Father Turns was required to carry out ordinary services; weddings; funerals and other pastoral work and that he was, in carrying out those duties, subject to the supervision of a Rector. They then found that the Rector was able to exercise control over the manner in which he carried out those duties and from time to time had disciplined him when the Rector disapproved of the manner in which the Applicant carried out those duties.

They then referred to the question of holidays and they made the point that the Rector did not fix the amount of holidays but did exercise control over when they should be taken.

The Tribunal then deal with the question of the stipend and point out that neither the Rector nor the Bishop personally contributed financially to the Applicant's stipend.

The exercise of control is further examined in paragraph 7 and the basis of the decision was on two grounds first:

"that the measure of control which the Rector was able to exert over the applicant's performance was not materially different from the measure of control that the Bishop would be able to exert over the Rector"

It was found that because the Rector was not the subject of a contract of service, therefore his Assistant Curate would not be. That was the first basis.

The second basis for the Decision was that there was no consideration, in any event, so far as the Applicant was concerned, passing from the Bishop or the Rector, and that the Diocesan Board had no question of control and therefore, on that second ground, the Applicant failed.

Father Turns has argued his case, if we may say so, attractively, and as one would expect, with ability; he has made his points succinctly and effectively. He takes two points on the question of control. The first is that there is no evidence that the Industrial Tribunal could find that the Rector did not fix the amount of holidays and that they were laid down in the Church Handbook. We have been helpfully referred to the Notes of Evidence and it seems to us, from page 3 of those Notes of Evidence, there was evidence before the Tribunal upon which it was entitled to rely, namely the contents of the Diocesan Handbook. It seems to us in the circumstances that that first point must therefore fail.

However, the main argument raise by Father Turns relates to paragraph 7 of the Judgment and it is convenient to us to refer to that first of all in its entirety it reads thus:

"The applicant argues that the positions of all of the clergymen and priests, who were the parties to the cases to which the respondents have referred us, were those of people who were in the position of a Rector in charge of a parish. He says that his case is distinguishable from theirs because he was only an Assistant to the Rector and not in charge of the parish. We have looked at that point with great care. The applicant was clearly accountable to the Rector and the Rector was able to influence the manner in which he carried out his duties. However the Rector is in a similar position to his superiors in that if the Rector does not carry out his duties in accordance with the edicts and precepts of the church that the Bishop would be able to take up those matters with him and ultimately terminate the Rector's employment. We therefore find that there is no substantial difference between the position of the applicant and that of the Rector. Both of them were subject supervision from other clergy holding more exalted positions in the Church than they held. We therefore find that the measure of control which the Rector was able to exert over the applicant's performance was not materially different from the measure of control that the Bishop would be able to exert over the Rector or over any other inferior clergy. We therefore find that this is not a factor which points towards a contract of employment in this case"

Father Turns points in particular to the penultimate sentence of that paragraph:

"We therefore find that the measure of control which the Rector was able to exert over the applicant's performance was not materially different from the measure of control that the Bishop would be able to exert over the Rector or over any other inferior clergy."

Secondly, he submits that the statement that the Bishop was able, ultimately, to terminate the Rector's employment is an inaccurate statement.

We have been helpfully informed, without looking in detail at the actual Measures, by which a Rector could be removed from his living. There seem to be two main routes, the first would be under a Measure of 1977 where on three specific grounds the matter could be referred to the Diocesan Board of Inquiry and if the Diocesan Board found that one or more of those grounds had been established, then the Bishop could remove the Rector. Those three grounds were first, unsoundness of mind; second, physical incapability and third that the Vicar was at loggerheads with his congregation. None of those matters might seem to apply to a case of some misbehaviour, and therefore, there is a second way in which the Bishop could act but it would only be in laying charges against the Vicar before the consistory Court and then if those charges were proved, the Bishop could remove the Vicar.

Whereas, so far as the Assistant Curate was concerned, there was a power under the "Pluralities Act 1838", section 95, whereby with the leave of the Bishop, the Rector could give six month's notice to quit and that was a different procedure.

Secondly, Father Turns took this point, that in paragraph 7 the Rector, as the Tribunal found, was under an obligation to carry out his duties in accordance with the edicts and precepts of the Church. If he failed to do so then the procedures to which we have already referred could be activated. But it is also quite clear from the findings of the Tribunal that the Curate was under the supervision of the Rector, who was able to exercise control over the manner in which he carried out the duties, and to discipline him; indeed, the Notes of Evidence indicate that instances as to that did occur.

It is argued by Mr Auld, for the Respondents that one should not analyse paragraph 7 too minutely; one should not put it under the microscope, and that when read as a whole, what the Tribunal were really saying was that the measure of control was by someone with a superior position in the Church, and that although some of the statements taken piecemeal in paragraph 7 are not as clearly stated as they might have been and perhaps are erroneous, nevertheless looked at as a whole here, this was a question of fact. We have been referred to cases on that, in particular the case of Lee Ting Sang v. Chung Chi-Keung

[1990] ICR 409

, and he submits that therefore, as it was a question of fact the Tribunal ultimately reached a conclusion and as there was evidence upon which they could reach it, the reasoning is not really overly important.

Were that the only point in this case then we would feel that far greater enquiry would be needed to ensure that the approach was strictly in accordance with the authorities and that the factual findings were entirely correct and therefore the reasoning sound. We do not however feel it necessary to examine that in greater detail ourselves because even if that was carried out and the matter therefore should be sent back for a further examination and finding on that, it is quite clear, in our judgment, that the second ground upon which this Decision was based, namely that there was no consideration here, in the contractual sense, is sound. It seems to us that the reasoning in paragraph 8 is not open to criticism. The paragraph reads as follows:

"Another matter that we have considered is the matter of consideration. Clearly the Rector did not pay the applicant and nor did the Bishop. Whilst the Board paid the applicant there is no evidence before us to show that they had any measure of control over the manner in which he carried out his work. On the material before us we find it impossible to find that the applicant was employed by any of these respondents either alone or collectively under a contract of employment."

The Tribunal go on to deal with the matter reiterating what they have already referred to above.

It follows therefore, in this case the Appeal must be dismissed, as the second ground seems to us a valid ground upon which there is no error on the part of the Industrial Tribunal. As for the earlier points, we have made the issues clear, we hope, but it is unnecessary for us to review all the authorities and reach a conclusion as to whether or not the matter should be remitted on those grounds. This Appeal is therefore dismissed.