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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.

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