Subhan v Enfield Mosque Society [1995] UKEAT 1061_93_0702

EAT

Subhan v Enfield Mosque Society

[1995] UKEAT 1061_93_0702 · 1995-02-07

JUDGE LEVY QC:

Prior to 29 November 1995, Mr M.K. Subhan was approached by the Enfield Mosque Society ("the Society") to become its leader, its priest in its Mosque in Enfield. On or before 28 April 1984, an agreement of employment ("the Agreement") had been typed, the text of which reads as follows:

"AGREEMENT OF EMPLOYMENT 28 April 1984

We, the Committee of the ENFIELD MOSQUE SOCIETY are willing and prepared to offer Moulvi Kazi Mohammed Abdus Sobhan of Village KALA LOTA district Sylhet, Bangladesh the position of IMAM/TEACHER at the Enfield Mosque on the terms as follows:

1. The initial period of appointment will be ONE year, after which yearly renewal will be offered subject to mutual agreement and the Home Office Approval.

2. The Imam shall be responsible for the following:

(a) He will lead all Jamaatos prayers including Jumma and EIDS.

(b) He will teach Islamic Education in accordance with the Holy Quran and the Sunnah of the profet (sic) to the local children who attend the Mosque.

(c) He will enhance the moral and social attitude of the Muslim Community emphasising on good community relations as taught by Islam.

(d) He will perform all Islamic ceremonies such as NIKA (Marriage) funeral Services etc and to help generally all Muslims in religious matters.

(e) He will refrain from taking part in all types of political activities as well as causing differences among Muslims by way of speech lecture and writing controversial articles etc.

(f) He will from time to time visit different Mosques in the United Kingdom to make speeches to Muslim congregations on the importance of good community relations benefits of crime-free society and other subjects which would generally improve social and moral standard of the whole society and create an atmosphere of trust and understanding in the general public.

The committee shall be responsible to pay the IMAM a monthly salary of £300 and to grant him four weeks Annual Leave with full pay. A suitable accommodation will also be provided for him by the Committee".

This Agreement was signed by both parties, Mr Subhan's signature being witnessed on 20 May 1984. It appears to have been common ground between the parties at a hearing of the Industrial Tribunal which took place, in circumstances I will come to in a moment, that the "Agreement" led Mr Subhan coming to serve the Society from the date when he came to England.

A time came when his employment, (if such it was) was, with the Society, came to an end and thereafter he commenced proceedings in the London North Industrial Tribunal. We do not have copies of his Originating Application or the Society's Notice of Appearance but we assume he claimed that he was unfairly dismissed and sought an appropriate remedy. In the Industrial Tribunal there was a hearing on a preliminary point, namely whether or not Mr Subhan was an employee of the Society. It was common ground that if he was not an employee, the Industrial Tribunal had no jurisdiction to adjudicate on his claim. The preliminary hearing took place on 13 October 1993. The Decision was sent to the parties on 24 November 1993. The unanimous decision of the Tribunal was that the Applicant was not an employee and therefore the application failed.

From that decision we have the appeal today, the Notice of Appeal being dated 21 December 1993. Mr O'Dempsey who appears for the Appellant but who did not appear below, says, we think with some force and reason, that the decision below was inadequate in the sense that no appropriate findings of facts were made and there was a failure to understand or at any rate properly to set out the relevant law.

Mr West, who did appear below and appears today, says that the Industrial Tribunal made all necessary findings of fact and the decision is sound. We have no doubt whatsoever that the Tribunal below cannot stand. We have set out the Agreement which was the contractual agreement made by the parties. We turn to the relevant facts as found in paragraph 1(1) of the Full Reasons.

"1.1 The Applicant was engaged under an `Agreement of Employment' dated 28th April 1984 to be Imam of the Respondents' mosque in Enfield. At the time of his engagement of the Applicant was a resident of Bangladesh. His initial application was for one year and the Respondents had to obtain a work permit for him in order that he could enter the UK to take up his post.

1.2 The duties of the Applicant were in summary, the conduct of prayers in the Mosque, the teaching of children in religious subjects and in Arabic in order for them to be able to read the Koran, visiting the sick and some ancillary duties in relation to keeping the mosque clean and tidy. In essence the post involved the Applicant being the religious leader of the Mosque. In order to be qualified to be an Imam the Applicant had had to undergo considerable training and had a number of certificates showing that he had completed that training. The training was of an essentially religious nature.

1.3 The Applicant was paid a salary from which National Insurance was deducted. It does not appear that he paid PAYE".

Mr O'Dempsey points to the finding that in paragraph 4.1 of the conclusions of the Tribunal they said:

"4.1 the relationship between the Applicant and the Respondents was regulated by a contract which was contained in the letter of appointment and in the Byelaws of the Respondent society".

He says, with both force and reason, that the Byelaws of the Respondents' society were not referred to in paragraph 1 of the Full Reasons, nor were they referred to in the Agreement, nor do they appear to have played any part in the contractual relations between the parties. He also refers to a finding that Mr Subhan had "some ancillary duties in relation to keeping the mosque clean and tidy" - duties referred to neither in the Agreement or in the evidence.

Mr O'Dempsey submits, again with some force, that where there is a written agreement, it is from that agreement that the court spells out the contract between the parties. In that context he refers us to the decision of the House of Lords in Davies v Presbyterian Church of Wales

[1986] ICR 280

. He particularly draws our attention to the passage in the speech of Lord Templeman where he says at page 289C:

"My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church ...." .

He points too, to the decision of the President of the Methodist Conference v Parfitt

[1984] ICR 167

and to this passage in the judgment of Lord Justice Dillon at page 183.

"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".

Further down, at letter E:

"A contract of service between a newly ordained minister and the church could perhaps be drafted .... but the arrangements under such a contract would not be the same as the arrangements for ministers under the CPD .... ".

Mr O'Dempsey points out that the two cases to which we have so far referred are both cases where there was no direct agreement of employment between the minister as there was here with the congregation which he served. He suggests that the reference by Mr West in his submissions to us and the decision of the Tribunal below failed to take any, or any sufficient account of the facts and analysis of the two cases to which we have referred and to the three others to which the Reasons made reference. The Tribunal below said in paragraph 3:

"All of these cases concerned the question of whether the Applicant who was engaged in some religious occupation was an employee .... ".

Of course they did, but what they also did was to consider that question in relation to the contractual position of that minister in accordance with the facts as found. In one of the other cases cited, namely Santokh Singh v Guru Nanak Gurdware

[1990] ICR 309

, there was no written contract between the minister and the congregation which appointed him but, as that decision shows, (page 312, letters F - H) that is not the end of the matter; what an Industrial Tribunal has to do is to consider from the contract and from the facts of the case, whether a claim can be brought under Section 153(1) of the Employment Protection (Consolidation) Act 1978 and to see whether, there is in fact, a contract of service or of services.

This is an exercise which the Tribunal below tried to do in the sense that they asked, "Is there a contract. If so, is it a contract of service?". But we are quite satisfied that they did not make any or any proper analysis of the Agreement nor, having looked at it, did they make any or any proper investigation to see whether the contract was of service or for services. We think it would be inappropriate for us, who have neither heard the evidence nor seen the parties, to make such a determination now.

We accordingly intend to allow this appeal and remit Mr Subhan's claim to the Industrial Tribunal for further hearing before a Tribunal, which should be differently composed.

We should add that Mr West, in the course of his address referred to an unreported decision of the Employment Appeal Tribunal of 16 September 1994 ( Race v St Romaine) where he, as advocate, failed to persuade the Tribunal there was an arguable point to go forward from a preliminary hearing to a full hearing. In dismissing the appeal, the Employment Appeal Tribunal found that the Industrial Tribunal "had been referred to the relevant authorities, they had gone through all the facts in careful and unexceptional detail": if that happened in this case, Mr O'Dempsey's task would have been more difficult. Mr West also referred us to a number of well known cases which show that this Tribunal should be slow to interfere with the decision of an Industrial Tribunal, but we are quite satisfied from what we have heard and what we have read, that the decision under appeal cannot be supported.