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EMPLOYMENT STATUS OF STATUTORY OFFICEHOLDERS: MATTHEW SHERIDAN SUCCEEDS IN COURT OF APPEAL

Does the test for implication of contracts which has been applied to tripartite agency situations also apply in bipartite situations? Does the extended definition of ‘worker’ in section 43K(1)(a) Employment Rights Act 1996 require there to be a contractual relationship between the parties? Was an ET entitled to admit expert evidence which strayed into expressing opinions on the questions to be decided by the ET?

Yes, held the Court of Appeal in Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 in a decision which features references to Magna Carta and Pride and Prejudice and which contains a masterful exposition of legal history by Lewison LJ (prefaced as follows: "The right to appoint someone to an ecclesiastical office may seem to be a dry subject; but it was a hot topic throughout Europe in the Middle Ages”).

The case concerned a Church of England vicar (a freehold incumbent not on Common Tenure) who wanted to claim constructive unfair dismissal and bring a whistleblowing claim against his bishop.

The primary questions addressed by the Court of Appeal were whether the claimant had a contract with the bishop such that he could be an ‘employee’ or a ‘worker’ (within the standard definition) or, if there was no contract, whether he could be a ‘worker’ under the extended definition in section 43K(1)(a) Employment Rights Act 1996 (which applies in the context of whistleblowing claims).

The Court of Appeal held that the ET had been correct to conclude that there was no express contract between the claimant and the bishop. The claimant was a statutory office holder and the relationship between the parties was in almost all respects governed by a pre-existing ecclesiastical public law framework. The decision of the Court of Appeal in Diocese of Southwark v Coker [1998] ICR 140 was correctly decided and had not been impliedly overruled in the light of developments in the case law relating to the employment status of ministers of religion heralded by the Supreme Court’s decision in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28.

It also followed that there was no basis on which to imply a contract. The correct test for implication of contracts is the test of necessity set out in The Aramis [1989] 1 Lloyds Rep 213. This is the same test as the Courts have regularly applied in tripartite employment agency cases (see, for example,Tilson v Alstom Transport [2011] IRLR 169). Lord Sumption’s comments in paragraph 12 of Preston (formerly Moore) v President of the Methodist Conference [2013] 2 AC 163 gave no cause to doubt that this is the correct test.

The Court of Appeal also held that even though the extended definition of ‘worker’ in section 43K(1)(a) Employment Rights Act 1996 does not state in terms that there must be a ‘contract’ (either between the worker and the introducer/supplier or between the worker and the person for whom he or she works) on its correct interpretation the section is intended to apply only where there is a contract.

Finally, the ET had admitted expert evidence on behalf of the bishop. That evidence was found by the ET to contain not only facts but also some expressions of opinion. The ET admitted the evidence in its entirety but cautioned itself against uncritically accepting the expert’s opinions. The Court of Appeal (applying Rogers v Hoyle [2014] 1 WLR 148) held that the ET had been entitled to adopt that approach.

Matthew Sheridan acted for The Bishop of Worcester and was instructed by Herbert Smith Freehills. Matthew was led by Thomas Linden QC. On the other side were John Bowers QC and David Campion.

Posted: 06.05.2015 at 10:50
Tags:  Cases  Employment Law
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