Review of Clergy Terms
of Service
Report on the first phase of the work
GS 1527
Contents
Foreword .......................................................................................................................... v
1. Summary of conclusions ........................................................................................... 1
2. Introduction ................................................................................................................. 6
3. Section 23 rights ......................................................................................................... 9
4. Employment Tribunals ............................................................................................. 13
5. The notion of unfair dismissal ................................................................................. 16
6. The current position of clergy without the freehold .............................................. 19
7. An inappropriate model: ‘on the strength of the diocese’ .................................... 24
8. Our preferred approach ............................................................................................ 26
9. The scope of common tenure .................................................................................. 28
10. Responsibilities and accountability ...................................................................... 30
11. Capability Procedures ............................................................................................ 37
12. Implementation issues ........................................................................................... 41
13. Organizational, legislative and financial implications ......................................... 46
Annexes
1. Membership and Terms of Reference ..................................................................... 51
2. Work carried out by the group ................................................................................. 53
3. Some thoughts on theological principles relating to the
Employment Relations Act...................................................................................... 57
4. List of Rights that might be made applicable to clergy under
Section 23 of the Employment Relations Act 1999 .............................................. 65
5. An outline of the Provisions of the Clergy Discipline Measure 2003 .................. 67
6. The duties of the clergy ............................................................................................ 72
7. Current law as to the legal status of the clergy ..................................................... 81
8. An outline of a Capability Procedure for clergy ..................................................... 88
iii
Foreword
Foreword
The Group reviewing Clergy Terms of Service was set up by the Archbishops’ Council in
December 2002, following its response to the DTI’s discussion document Employment
Status in relation to Statutory Employment Rights. Further details can be found in GS
1488. The Group produced an interim report, GS 1518, which was considered
separately by the Convocations and the House of Laity at the July sessions of General
Synod in 2003, as well as being circulated widely within the Church.
The Group’s terms of reference required it ‘to give priority to consideration of the
position of clergy without the freehold or employment contracts, and to report on this
aspect in 2003 with detailed proposals and a programme for their implementation, the
rest of the review to be completed, if possible, in 2004’.
The Review Group has now produced this report on the first phase of its work, which, on
behalf of the Archbishops’ Council, we warmly commend to the Church for study and
further debate.
 ROWAN CANTUAR
 DAVID EBOR
v
Summary of conclusions
1. Summary of conclusions
Part 3 – Section 23 rights
(i)
The rights which may be conferred by section 23 of the Employment Relations
Act 1999 are seen as good practice and should be granted to all clergy (except
in a very few cases where the rights are not applicable, such as the right not to
work on Sunday).
(ii)
Section 23 rights should be conferred on all clergy in a way that makes them
legally binding.
(iii)
The Church should itself take action to confer section 23 rights on all clergy
through Church legislation, and should not invite the Government to exercise
its Order-making power under that section.
Part 4 – Employment Tribunals
(iv)
Clergy should have access to Employment Tribunals to claim unfair dismissal
or a breach of section 23 rights with the Diocesan Board of Finance as the
normal respondent, and the Church should not attempt to set up its own
system of internal tribunals.
(v)
The Church of England (Legal Aid) Measure 1994 should be amended so that
financial assistance from the Church Legal Aid Fund should be available to
clergy appearing before Employment Tribunals.
Part 5 – The notion of unfair dismissal
(vi)
Both the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline
Measure 2003 give full protection to the interests of those accused of
misconduct, and it would not be appropriate for there to be resort to an
Employment Tribunal in respect of penalties imposed under those Measures.
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Review of Clergy Terms of Service
Part 6 – The current position of clergy without the
freehold
(vii)
Clergy without the freehold – who have very limited security of tenure and, at
present, may be summarily removed from office – should be given greater
security, in addition to having access to Employment Tribunals.
Part 7 – an inappropriate model: ‘on the strength of
the diocese’
(viii)
Clergy appointments should in general continue to be made to specific posts
rather than to a diocese.
Part 8 – Our preferred approach
(ix)
Future appointments of clergy without the freehold should be made on a new
basis to be called common tenure (see Part 9). These appointments would
normally be open-ended until retiring age, and only in special circumstances
for a fixed term. However, those appointed with common tenure would be
subject to removal after a capability procedure (see Part 11) that would be
invoked where a post-holder is failing to reach minimum standards, or on
grounds of discipline, redundancy, or ill health.
(x)
We have yet to examine in detail the position of clergy with freehold (including
bishops, deans, archdeacons and most residentiary canons, as well as
incumbents), but we consider that this approach could be applied to them also.
Part 9 – The scope of common tenure
(xi)
We recommend that common tenure should apply to team rectors, team
vicars, some assistant staff, most priests in charge, cathedral clergy and many
who work in other ways under a bishop’s licence. The rules we have set out as
to the revocation of licences would disappear in their present form, and any
loss of office would be subject to rights of appeal and to the jurisdiction of the
Employment Tribunal.
(xii)
A number of special provisions would have to be made for part-time or nonstipendiary appointments, but we think the basic model is robust enough to
cover these cases.
(xiii)
Subject to further legal advice, we think limited term appointments would be
acceptable in these circumstances:
2
Summary of conclusions
(1)
‘Training posts’, principally those held by assistant curates;
(2)
Posts which are necessarily time-limited because they are related to a
particular project or dependent on special funding which is for a limited
number of years, where this fact was clearly stated in the licence or
deed of appointment.
Priests in charge appointed to interim posts pending pastoral
reorganization could be appointed on the common tenure, and indeed
appointed as rector or vicar on that basis, with the prospect of
reorganization mentioned in the instrument of appointment.
(xiv)
The Pastoral Measure 1983 should be amended to allow for fair removal from
office under the common tenure when someone is appointed on the
understanding that the appointment will end when the reorganization process
under the Pastoral Measure has been completed.
(xv)
We have given some thought to the position of those currently serving in
appointments for a term of years. One possibility is that, assuming our
recommendations are accepted in principle, appointments made (as they
would have to be) for a term of years while the necessary legislation was going
through the synodical process could be converted to common tenure posts
with the consent of the priest concerned and, possibly, the other parties to the
normal appointment process.
(xvi)
We emphasize that these changes in the legal conditions of tenure cannot be
conferred without at the same time clarifying the responsibilities of clergy.
They should therefore be seen as conditional on what we say below about
clergy responsibilities and accountability.
Part 10 – Responsibilities and accountability
(xvii)
We consider that to identify the duties and responsibilities of the clergy
involves reference both to general rules (expressed particularly in the Canons
but also reflected in other rules of ecclesiastical law) and also to specific, local
circumstances.
(xviii)
We are convinced of the need for an accessible statement containing a
realistic and flexible statement of the rights, duties and responsibilities of the
clergy, easily available to both clergy and laity. The Canons do not meet this
need. We therefore recommend that national norms as to the rights and
responsibilities of the clergy should be expressed in Clergy Terms of Service
Regulations, which would replace some of the material now in the Canons.
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Review of Clergy Terms of Service
(xix)
All clergy should be required to participate in a diocesan ministerial review
scheme and to take appropriate advantage of Continuing Ministerial
Education.
(xx)
All diocesan bishops should be required to ensure that diocesan ministerial
review schemes are in place and are properly followed.
(xxi)
Diocesan ministerial review schemes should be adapted to ensure lay
participation and could usefully encourage clergy and congregation to explore
together what God might be requiring of them by developing an agreed set of
objectives on a regular basis.
(xxii)
We have become increasingly aware of the importance of preserving what is
distinctive about the relationship between bishop and clergy, and are seeking
to clarify and remove any ambiguities in this relationship.
(xxiii)
The Church must put in place proper mechanisms to encourage good practice,
and to foster deeper relationships of trust and partnership, including the
provision of professional human resource advice and appropriate training for
bishops and archdeacons.
Part 11 – Capability procedures
(xxiv)
The Group is strongly convinced that a capability procedure for clergy is
required, to be invoked where a post-holder is failing to reach minimum
standards. This procedure should take into account criticisms made of the
Team and Group Ministries Measure Code of Practice, and should include the
following features:

The procedures adopted must ensure that proper human resource advice
is taken at every stage, and must be fully in accord with the requirements
of natural justice.

There must be a right of appeal at every formal stage.

The procedures must ensure that the minister has full opportunity to
respond to all points made.
4

A panel should be involved at every formal stage, not a single individual.

The procedure should be based on best secular practice.
Summary of conclusions

The minister should have the right to be supported by a friend or union
representative.

Sufficient notice should be given in advance of any appearance before a
panel.
(xxv)
We recommend that a capability procedure along the lines of the outline in
Annex 8 should be introduced for clergy. Clergy who are dismissed following
the capability procedure would have the right to appeal to an Employment
Tribunal.
Part 12 – Implementation issues
(xxvi)
If clergy were to become employees, we would not recommend that the parish
should be their employer. It would imply a congregationalist model that is at
odds with the Church of England’s ecclesiology. Being employed by their
parish might make it more difficult for clergy to challenge their congregations
or act in a prophetic or leadership role.
(xxvii)
If clergy were to become employees, they should not have a national
employer, as this would represent a fundamental change to the Church of
England’s polity, based as it is on the unit of the diocese. For this and other
reasons, we do not consider that there should be a national employer of
clergy.
(xxviii)
Accordingly, we consider that, if there were to be an employer of clergy, it
would have to be the Diocesan Board of Finance.
(xxix)
We have not formulated a proposal as to who might be the employer of
diocesan bishops, although the obvious candidates would seem to be the
Archbishops’ Council and the Church Commissioners.
(xxx)
After extensive reflection, we do not recommend that clergy should be made
employees. Instead we recommend that the office-holder status of clergy
should be retained through the medium of common tenure.
Part 13 – Organizational, legislative and financial
implications
(xxxi)
Our terms of reference were limited to clergy, but we consider that there is no
reason why, with appropriate adjustment, our recommendations could not also
apply to licensed lay workers.
5
Review of Clergy Terms of Service
2. Introduction
1.
The Working Group reviewing clergy terms of service was set up by the
Archbishops’ Council as part of its response in December 2002 to the
Department of Trade and Industry’s discussion document Employment Status in
relation to Statutory Employment Rights. This explored the implications of the
Government’s powers under section 23 of the Employment Relations Act 1999
to confer some employment rights on people who are not technically employees
(so-called atypical workers). The Group’s terms of reference and membership
are set out at Annex 1.
2.
Annex 2 sets out the work carried out by the Group to date, and lists the
evidence and submissions it has considered.
3.
The importance of the Government’s initiative for the churches lies in the fact,
which we examine more fully at a later stage in our report, that the
overwhelming majority of clergy in the Church of England are not employed but
hold office in accordance with ecclesiastical law. This is also the case in other
churches, where clergy hold office in accordance with the internal rules of the
church concerned.
4.
In its response to the Department of Trade and Industry’s consultation paper,
the Archbishops’ Council wrote:
Our starting point derives from our understanding of the mission
entrusted to his followers by Jesus Christ and in particular of the
specific responsibilities for that mission of those called to the
threefold order of bishop, priest and deacon. All clergy who
have received authority to minister in any diocese owe
canonical obedience to their bishop, who in turn owes
allegiance to the archbishop of his province…The relationship
between ‘orders’ and ‘office’ has not been constant and there is
no one pattern which is necessarily right for all times and all
societies. But any model needs to be compatible with the
Church’s underlying understanding of Christian ministry.
6
Introduction
5.
The Council went on to set out its approach to the issues raised by the
Department of Trade and Industry:
The Church of England firmly believes that the clergy and all
others who work for it are entitled to terms and conditions of
service which adequately protect their rights, recognize their
responsibilities and provide proper accountability arrangements.
The Council’s response noted that the parochial clergy enjoyed a wide measure
of day to day autonomy and that many had ‘a measure of independence and
security of tenure which far exceeds that of those in almost any other walk of
life’. The Council recognized that for some clergy the present arrangements did
not provide sufficient safeguard against possible injustice, while for a greater
number the present arrangements did not provide an effective framework of
accountability.
6.
The work of the Group has of necessity involved the examination of complex
and often rather technical matters. We have tried to keep in mind at every stage
the distinctive nature of Christian ministry, other aspects of which have been
touched on in recent Synod debates on the pastoral care of the clergy and the
standards of their professional conduct. We are dealing with the men and
women called by God to a particular form of service, of whom much is expected,
and whose work is often demanding and difficult. We have sought to develop a
framework of rights, responsibilities and accountability which is sensitive to their
individual interests as well as those of the Church as a whole.
7.
As our work progressed, we became aware of a perception that there was a
conflict between Christian ministry as a response to divine grace alone and the
elaboration of legal rules about the exercise of that ministry. Our concerns about
whether this perception was soundly based led us to consult Professor Anthony
Thiselton, Emeritus Professor of Christian Theology in Residence at Nottingham
University. His analysis of the theological issues raised by section 23 of the
Employment Relations Act is included at Annex 3.
8.
In that annex, he reminds us that Luther saw the laws which operate within the
structures of society as one face of divine grace on behalf of the weak and
vulnerable. Professor Thiselton thus argues that it is legitimate to appeal to
covenant as a basis on which to defend contractual relationships among
Christian people, who worship the covenant God. He identifies as key features
of the concepts of covenant and of legal agreements between Christians:
7
Review of Clergy Terms of Service
(1)
the formulation of a defined relationship on the basis of which both
parties know where they stand;
(2)
the imposition, definition and acceptance of mutual constraints that
limit deviations from what has been agreed by the parties;
(3)
a significant measure of protection for the helpless or vulnerable;
(4)
and the nurture of the sense of confidence that can arise only from
knowing where one stands.
9.
There has been much discussion within the Church in recent decades about
clergy conditions of service, and the diocesan synod motion about the freehold
to be found in the General Synod’s current agenda paper is an expression of the
continuing debate. One legislative outcome has been the Clergy Discipline
Measure 2003. This will apply procedures similar to those found in many
professional groups to clergy discipline. Reflection on the role of the ordained
ministry has also led to notable developments in ministerial review, and to the
formulation of theological priorities in the recent report on Formation for Ministry
within a Learning Church. The Group agrees with the Archbishops’ Council that
a study limited to the particular issues immediately raised by the Department of
Trade and Industry’s consultation paper would have been a wholly inadequate
response to the nature of the debate within the Church. We interpret our Terms
of Reference as calling for recommendations covering a much wider range of
related issues.
8
Section 23 rights
3. Section 23 rights
10.
The rights that the Government is looking to confer on atypical workers are
contained in section 23 of the Employment Relations Act 1999. Whilst it is
convenient to speak of ‘section 23 rights’, the section creates no new rights. It
enables a number of existing rights, at present enjoyed by employees, to be
conferred on others by a Government Order. A full list of the relevant rights is
provided at Annex 4. The principal rights are:

to time off for certain purposes;

to maternity and parental leave;

to a detailed pay statement;

to a detailed statement of terms and conditions of service; and

to apply to an Employment Tribunal in case of breach of any of the above
rights and for redress against unfair dismissal.
Rights in the first three of those categories are already enjoyed by the clergy as
a matter of practice but not of law. The two latter categories would be new, and
they raise a range of issues.
11.
The trade union Amicus, which has one section representing a number of clergy
and church workers, has been arguing that the rights in section 23 should be
conferred on clergy for some time. The Group looked carefully at the response
of Amicus to the DTI discussion document, and Amicus accepted the Group’s
invitation to attend one of its meetings and to respond to its interim report.
12.
Our interim report of June 2003 (GS 1518) was largely concerned with section
23 rights. As we noted in that report:
As part of its commitment to social justice, the Church has
urged employers to treat their workers well. It would therefore
follow that clergy ought to enjoy the same rights and protections
that the Church would urge employers to provide…The rights
conferred by section 23 are generally seen as good practice
9
Review of Clergy Terms of Service
and the Group can see no reason for not granting them to
clergy.
A provisional conclusion to that effect was recorded in the Group’s Interim
Report. There was no dissent from that view in the discussions of the Report in
the Convocations and the House of Laity in July 2003 or from other
commentators. We therefore recommend:
(i) The rights which may be conferred by section 23 of the Employment
Relations Act 1999 are seen as good practice and should be granted to all
clergy (except in a very few cases where the rights are not applicable,
such as the right not to work on Sunday).
13.
Various matters were aired in the discussions in the two Convocations and in
the House of Laity. We read the transcripts of the discussions with care. We
noted that much of the reaction to our report was in the form of questions. In the
House of Laity and in the Convocations there were concerns about the effect of
change on the relationship between the bishop and his clergy, and between
clergy and the parochial church council; practical questions about tax, pensions
and housing; and questions about Employment Tribunals, and about the
attitudes of other churches. There was a recognition of the need for greater
accountability and greater equity as between freeholders and others, and for
any proposals to apply to all categories of clergy not on employment contracts,
including dignitaries and cathedral clergy as well as those in parochial posts.
There was clearly a growing awareness of the complexity of the issues, but also
some lack of understanding of the existing position in which clergy find
themselves (as to both rights and responsibilities). Although it is sometimes
suggested that the views of clergy and laity might be expected to differ on at
least some of the relevant issues, there was no evidence of that in the
transcripts: members of the various Houses made similar points. It might be
appropriate to repeat here the clarification offered in response to questions, that
neither the granting to the clergy of section 23 rights (nor the other
recommendations in this report) would have any Income Tax, National
Insurance or Council Tax implications for the clergy, nor would it affect the
operation of the central payroll system operated by the Church Commissioners.
14.
We have already referred to material provided by Professor Thiselton on the
relationship of law and grace at Annex 3. In our interim report we dealt with the
suggestion that the nature of the priestly vocation and of ultimate accountability
to God made it inappropriate to apply secular legal methods to the clergy. We
argued that it was all but impossible to sustain the idea that accountability to
God or the concept of vocation can only be applied to the clergy. The New
Testament rarely uses the language of vocation in respect of ministry; rather the
10
Section 23 rights
focus is on gift, and on all people (whether ordained or not) being gifted and
called to use their gifts in the service of the Kingdom of God. There seemed no
reason for concluding that accountability to God precluded accountability to
anyone else. This approach supported the second of our provisional
conclusions, that the clergy should be given the section 23 rights as a matter of
law. As we observed, it is difficult to see how improved protection of clergy who
do not have the freehold can have any credibility unless it has the force of law.
This seems to have met with general approval. We therefore make a firm
recommendation:
(ii) Section 23 rights should be conferred on all clergy in a way that makes
them legally binding.
15.
We have deliberately referred to ‘all’ clergy being given section 23 rights. We
see no justification for distinguishing for this purpose between archbishops and
assistant curates, or between those who have the freehold and those who do
not.
16.
As to the method by which section 23 rights should be conferred, the other
churches argued, in their responses to the Department of Trade and Industry’s
discussion document, for self-regulation; in their cases, this means reliance on
their internal rules. It may be that the Government will find that acceptable in
some form, but we do not know whether this will be so. The special position of
the Church of England means that our internal rules as set out in Measures, or
instruments made on the authority of a Measure, have the force of law. The
clergy are already the subject of a great deal of ecclesiastical law, a fact which
reinforces the view we have taken that section 23 rights should be no less
matters of law. We have examined three suggested ways of achieving this.
17.
The first is the incorporation of section 23 rights as terms of employment
contracts.
18.
The second is for the Church to invite the Government to make an Order under
section 23.
19.
The third method is for rights equivalent to those provided for in section 23 to be
conferred through church legislation, for example through a set of detailed
clergy Terms of Service Regulations made under a Measure or Canon.
20.
We examine the first and third of these methods more closely later in our report.
We indicated our opposition to the second method, a Government Order, in our
11
Review of Clergy Terms of Service
Interim Report (GS 1518, paragraph 30), noting that it would give the Church
considerably less room for manoeuvre than if it were to amend or produce its
own legislation, and the Church would still have to devise its own mechanisms
for clarifying the responsibilities of the clergy. In addition, the legislation would
not go through the transparent process of revision in Synod, which we believe
would have an important role in ensuring that the clergy had confidence in the
new arrangements. It would also represent a departure from the constitutional
convention that Church legislation is devolved to the Synod.
21.
In its comments on our interim report, Amicus favoured the first, employment
contract, method, giving as a reason the need to ensure full protection against
discrimination. This seems to rest on a misunderstanding of the legal position.
Anti-discrimination legislation in England is now almost wholly based on
European Community Directives, principally Council Directive 2000/78/EC and
Council Directive 76/207/EEC as recently amended by Directive 2002/73/EC.
These instruments apply to all workers, whether employed, self-employed or
engaged in an ‘occupation’, and do not rest on the existence of an employment
contract.
22.
We accordingly recommend that:
(iii) The Church should itself take action to confer section 23 rights on all
clergy through Church legislation, and should not invite the Government
to exercise its Order-making power under that section
12
Employment Tribunals
4. Employment Tribunals
23.
An important element in the Government’s proposals is that all those who
receive section 23 rights should have access to Employment Tribunals, to
challenge any denial of rights and in particular to claim that they had been
unfairly dismissed. We examine the notion of unfair dismissal as it might apply
to the clergy below, but we deal here with a number of issues about the use of
Employment Tribunals.
24.
The theological issue of Christians going to law was covered in the Group’s
interim report. As we said there
It is sometimes suggested, on the basis of 1 Corinthians 6: 1–8
that Christians should not have recourse to the secular courts to
settle disputes between them, and that this implies that clergy
ought not to have access to Employment Tribunals. Professor
Thiselton has argued in his commentary on 1 Corinthians that
Paul is talking here about the abuse of power and the use of
manipulation to gain wealth and property. Whilst the Roman
criminal law was relatively just and fair, the outcome of a civil
case would rest on the use of wealth, influence and social and
business connections by those involved. Elsewhere Paul’s
attitude to the use of Roman state institutions is far more
favourable. On this interpretation, there would not appear to be
any intrinsic obstacle to the use of Employment Tribunals for
clergy.
25.
Some have questioned the appropriateness of access to an Employment
Tribunal on practical grounds. This may, at least in part, be because of
unfamiliarity with the work of these tribunals. The Employment Tribunal is now a
well-established feature of our legal system. There are normally three members:
a legally qualified chairman, appointed by the Lord Chancellor, and two other
members who are lay members appointed by the Secretary of State for Trade
and Industry from persons with experience in dealing with work related
problems. The former name of the Tribunals (‘Industrial Tribunals’) suggested
that they dealt with employment issues arising in a particular context, but, if that
ever were the case, it is so no longer. Applicants come from almost every
13
Review of Clergy Terms of Service
professional category, and the tribunal members are well aware of the need to
take into account the special features of particular professions and spheres of
work.
26.
Applications may be made to the Tribunals by a wide range of people, not just
employees. The respondent will be the employer or other body alleged to have
infringed the applicant’s rights, represented at a tribunal hearing by someone it
designates. In a large organization, it will be the person who was directly
responsible for the matters complained of. The respondent will normally be a
body
(a) with legal personality (which means being recognized as a legal entity
capable of suing and being sued) and (b) in possession of funds from which any
award of financial compensation could be met.
27.
Where an Employment Tribunal finds in favour of the applicant, it can award
compensation (currently subject to an upper limit of £53,500 for all claims except
discrimination, which has no upper limit, although awards are normally much
below that figure). Employment Tribunals seldom order reinstatement or reengagement, as this is rarely achievable in practice.
28.
In response to suggestions raised following our earlier consultations, we have
considered again the possibility of using the church courts or a new church
tribunal to deal with clergy cases of the type that would otherwise be within the
jurisdiction of the Employment Tribunals. This issue was addressed in our
earlier report, and our further reflections have not led us to amend our earlier
view that the Church should not set up its own alternative to Employment
Tribunals. It is essential that clergy employment cases be heard by a body
which is demonstrably independent, not least to meet the requirement of the
Human Rights Act 1998 for a hearing by an impartial tribunal. It must also be
properly constituted and resourced to deal with employment issues, and to do
so swiftly and at convenient venues. There should also be some opportunity of
appeal to a higher tribunal on a point of law, as there is in the Employment
Tribunal system to the Employment Appeal Tribunal and in some cases to the
Court of Appeal. We doubt if any system of church tribunals could meet these
criteria, and the attempt to establish such a system would generate considerable
(and in our view unnecessary) additional costs. (In any case, it is intended that
cases of serious misconduct would continue to be dealt with by the Church’s
own procedures under the Ecclesiastical Jurisdiction Measure 1963 and the
Clergy Discipline Measure 2003 without the resort to Employment Tribunals.)
We therefore recommend that:
14
Employment Tribunals
(iv) Clergy should have access to Employment Tribunals to claim unfair
dismissal or a breach of section 23 rights with the Diocesan Board of
Finance as the normal respondent, and that the Church should not
attempt to set up its own system of internal tribunals.
Costs
29.
Each party at an Employment Tribunal generally pays its own costs, which are
much less than in a court case (especially if that involved an application for
judicial review, for which some clergy have applied in the absence of any other
remedy). Legal aid is not available in respect of proceedings before Employment
Tribunals in England and Wales, although it is available for the purpose of
bringing or defending proceedings in the Employment Appeal Tribunal (Civil
Legal Aid (General) Regulations 1989 SI 1989/339, reg 149).
30.
The Schedule to the Church of England (Legal Aid) Measure 1994 defines the
proceedings in respect of which an application may be made for assistance from
the Legal Aid Fund. An amendment to the Measure would therefore be
necessary before proceedings before Employment Tribunals could qualify for
such assistance. Legal Aid from the Church's fund is currently available (inter
alia) in respect of proceedings before a provincial tribunal under Part 1 of the
Incumbents (Vacation of Benefices) Measure 1977 and also in respect of an
appeal under any Canon against revocation of a licence. In so far as our
proposed new procedures will replace these proceedings, there is a good
argument that clergy should not be deprived of assistance to which they
are presently entitled. We therefore recommend that:
(v) The Church of England (Legal Aid) Measure 1994 should be amended
so that financial assistance from the Church Legal Aid Fund should be
available to clergy appearing before Employment Tribunals.
15
Review of Clergy Terms of Service
5. The notion of unfair
dismissal
31.
A central feature of section 23 of the Employment Relations Act 1999 is the
possibility of enabling persons who are not employees to have access to
Employment Tribunals if they feel they have been unfairly dismissed. In the case
of the clergy, this would mean that they would be able to go to an impartial
tribunal, independent of the Church, if they felt that they had been unfairly
deprived of their office.
32.
It is important to understand that ‘dismissal’ (and so deprivation of office) has a
wide meaning. Section 95 of the Employment Rights Act 1996 provides that an
employee is to be treated as dismissed where he or she is employed under a
fixed-term contract and that term expires without being renewed under the same
contract. The Church experience so far has been that the most publicized
cases have been those involving the non-renewal of the appointment of clergy
holding office on a fixed-term basis. One such case (that of the Reverend
Raymond Owen) led to a resolution of the European Parliament of 7 November
2001 calling on the Church of England to review the legal rights of such clergy.
Mr Owen had had no access to an Employment Tribunal, and applied to the
High Court for judicial review. His case was rejected on its merits, and, when he
applied to the European Court of Human Rights, his application was declared
inadmissible.
33.
The Fixed-term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 enshrine the right of a fixed-term employee not to be treated
less favourably than a comparable permanent employee as regards the terms of
his or her contract, unless that treatment can be justified on objective grounds.
The Regulations also provide that a person who is employed on successive
fixed-term contracts together amounting to more than four years’ continuous
employment is to be treated as a permanent employee, unless the use of a fixed
term was justified on objective grounds at the time of the most recent renewal.
34.
These provisions have profound implications for those clergy at present holding
office on a fixed term basis (for example most clergy in team ministries and
holders of leasehold canonries in cathedrals). Unless specific provision were
16
The notion of unfair dismissal
made to the contrary, the grant of section 23 rights to all clergy would mean that
these clergy would have the right to apply to an Employment Tribunal if their
appointment were not renewed after four years’ continuous employment and
they felt their treatment was unfair, even if their fixed term appointment had
come to an end.
35.
Not every dismissal or loss of office is unfair. The case law indicates a range of
reasons that an Employment Tribunal would regard as fair. These include the
following.
(1)
A reason related to the capability or qualifications of the applicant.
Capability is defined by the Employment Rights Act 1996 as ‘capability
assessed by reference to skill, aptitude, health or any other physical or
mental quality’.
(2)
A reason related to the conduct of the applicant.
(3)
Redundancy, where there is no longer need for the post which the
applicant had held.
(4)
‘Some other substantial reason’. This is a broad and potentially openended category. Most fair dismissals under this heading arise because
the employee refuses to accept changes in his terms and conditions
which are reasonably required by the employer.
36.
In the Church context, cases (2) and (3) are affected by other legislation.
(vi) Both the Ecclesiastical Jurisdiction Measure 1963 and the Clergy
Discipline Measure 2003 give full protection to the interests of those
accused of misconduct, and it would not be appropriate for there
to be resort to an Employment Tribunal in respect of penalties imposed
under those Measures.
37.
Following discussions with the Department for Trade and Industry, we consider
it likely that such a provision would be acceptable to the Government. Details of
the Clergy Discipline Measure can be found at Annex 5.
38.
Redundancy in the Church context will arise where a post disappears as a result
of pastoral reorganization, and the Pastoral Measure 1983 provides safeguards
for clergy affected in this way including full compensation for loss of office.
39.
It follows that, in the case of clergy, fair dismissals would be based on
‘capability’, a concept we discuss much more fully later in the report, or ‘some
17
Review of Clergy Terms of Service
other substantial reason’. The latter might include, for example, the refusal of a
minister to adapt to major changes in the parish, perhaps as a result of new
housing developments or the collapse of local industry. It would not be sufficient
merely to rely on either an assertion that removal from office was required ‘in the
interests of the parish’ or on the advantages of a change of personnel. This last
point has particular relevance to the use of fixed-term appointments in team
ministries and cathedrals. A Tribunal would also regard dismissal as unfair if the
respondent had failed to follow the proper procedures.
18
Clergy without the freehold
6. The current position of
clergy without the freehold
40.
Parochial clergy exercise their ministry under various forms of legal authority,
which can be summarized as follows. Letters of Orders are issued under the
bishop's seal after ordination, to record the event.
41.
Canon C8(3) provides that a minister may officiate in any place only after he or
she has received authority to do so from the bishop of the diocese. This
authority is conferred in one of three ways specified in Canon C8(3):

Institution to a benefice (or collation where the bishop is also the patron).
The deed of institution is a written instrument under the episcopal seal
(Canon C10(6)). Institution to the spiritualities of the freehold office is
followed by induction by the archdeacon or his or her deputy into
possession of the temporalities of the benefice. This is not recorded in
writing but is usually effected by placing the priest's hand on the key of the
church door or other part of the building (Canon C11(2)). Before being
admitted to office, the priest must make the declaration of assent and take
the oath of allegiance to the Sovereign and of canonical obedience to the
bishop (Canons C13(1), 14(3) and 15(1)).

Licence under the bishop's hand and seal. This can take one of two forms:
a general licence to preach or otherwise to minister in any parish or
ecclesiastical district, or a licence to perform some particular office
(Canon C12(1)). Priests in charge are licensed rather than instituted
because they do not acquire the freehold of the benefice.

42.
Written permission to officiate.
The Group’s Terms of Reference require it to ‘give priority to consideration of
clergy without the freehold or employment contracts’. It is in this area that the
Archbishops’ Council recognized that existing procedures do not give adequate
protection against possible injustice.
19
Review of Clergy Terms of Service
43.
There are currently around 3,500 clergy in this category. They are licensed by
the diocesan bishop, with the terms of the licence varying according to the office
held. We set out the present position as it affects each group of clergy.
Team rectors without the freehold and team vicars
44.
Until 1 May 1996, when the Team and Group Ministries Measure 1995 came
into force and required all appointments to be for terms of years, some team
rectors held freehold office, and the status of freeholders still in post is
preserved. All team rectors and team vicars are now appointed for a term of
years (Pastoral Measure 1983, s20(2)(3)). The team rector holds the property of
the benefice, and the team vicars have the same security of tenure during that
term as a freehold incumbent. The licence cannot be terminated on notice
during that fixed term. The licence may be extended for a further term or terms,
but there is no automatic right to such an extension. There are certain other
members of team ministries, licensed under s20(3B) of the Pastoral Measure
1983, who also serve for a term of years; their licence is not subject to summary
revocation.
Assistant curates
45.
Assistant curates (which term includes all assistant staff, even if some such title
as ‘associate vicar’ or ‘associate minister’ is used) are licensed by the bishop,
and, under Canon C12, paragraph 1 the licence may specify a maximum term of
years; practice seems to vary from diocese to diocese. The expiry of the stated
term will not of itself terminate the licence: the bishop may give notice that
it will terminate at the end of the period originally specified; otherwise the licence
will continue in force, but the bishop may give three months' notice of
termination at any later date.
46.
Under the present law, it is possible for the assistant curate’s appointment to be
terminated before the end of the original term. Apart from disciplinary and illhealth cases, there are two sets of circumstances:
20
(a)
An assistant curate can have his or her appointment terminated by the
incumbent on six months’ notice, under a power given by the Pluralities
Act 1838; no reason need be given, but the giving of notice requires the
consent of the bishop. There is no right of appeal by the curate, but the
incumbent can appeal to the archbishop when the bishop has refused
consent.
(b)
An assistant curate is also within Canon C12, paragraph 5, which gives
the bishop power to revoke any licence ‘summarily and without further
process’. The bishop may so act ‘for any cause which appears to him to
Clergy without the freehold
be good and reasonable’; the bishop must explain his reasons before
giving the minister the opportunity to show reason to the contrary. There
is a right of appeal to the archbishop, acting in person or through a
diocesan or suffragan bishop appointed to hear the appeal, which is
conducted in accordance with ‘the Elphinstone rules’ approved by the
archbishops.
Priests in charge
47.
Priests in charge, who hold office while a benefice is in suspension (i.e. no
incumbent may be appointed), and some other parochial clergy without any
freehold office, may be licensed by the bishop for a fixed term or without limit of
time. Their licences may be revoked summarily under the procedure just
described. A licence granted for a fixed term may not be terminated on notice
(as opposed to summarily) during the currency of that fixed term. Otherwise, if
the licence so provides, it may be terminated on reasonable notice, and there is
no right of appeal if such notice is given.
48.
Parochial clergy without freehold office (with the exception of team ministers)
are not subject to the compulsory age for retirement nor to the provisions for
removal from office on grounds of incapacity or pastoral breakdown under the
Incumbents (Vacation of Benefices) Measure 1977. They are, however, subject
to the same disciplinary procedures under the Ecclesiastical Jurisdiction
Measure 1963 as freeholders. However, it has been the general practice in
cases of misconduct by licensed clergy for the bishop to revoke the licence
rather than invoke the statutory disciplinary procedures. The Church has
recognized that this position is unsatisfactory and has agreed to remedy it. The
Clergy Discipline Measure 2003 will, when it comes into effect, prohibit the
revocation of a licence (or the termination of the appointment of an assistant
curate) on grounds of misconduct that could give rise to disciplinary
proceedings. In such cases, the procedures introduced by the Measure must be
followed.
Clergy given a general licence under Canon C12,
paragraph 1(a) ‘to preach or otherwise to minister
subject to the provisions of paragraph 4 of Canon
C8 in any parish or ecclesiastical district’
49.
Such ministers hold no particular office, but issues may still arise as to the
revocation of the licence. The rules stated above as to summary revocation
apply in these cases.
21
Review of Clergy Terms of Service
Non-stipendiary ministers
50.
Most NSMs fall within the last category, but some are appointed to specific
posts. In these cases, we hope that the tenure rules appropriate to the office in
question would apply.
House for duty posts
51.
Again, holders of ‘house for duty’ hold a licence capable of being revoked by
summary process. The housing element is, of course, an important and
complicating factor; various different legal arrangements govern the occupation
of the house.
Cathedral clergy
52.
Leasehold canonries have existed in a number of cathedrals for many years,
and a feature of the revision of cathedral constitutions and statutes after the
enactment of the Cathedrals Measure 1999 was a considerable increase in the
proportion of residentiary canonries to be held on a leasehold basis, that is for a
term of years. Provisions as to the term of the appointment and its possible
renewal are contained in the constitutions and statutes of the relevant cathedral.
However, it is relevant to note in this context that many residentiary canons
carry out what are effectively additional diocesan roles (for example Diocesan
Missioners or Directors of Ordinands). See section (3) of the next paragraph.
Sector ministers
53.
22
This is not a formal legal category, but can be used of various groups of clergy.
(1)
A significant number (typically hospital, prison and school or college
chaplains) work under a contract of employment with a body outside the
Church, and the terms of that contract and general employment law
govern their rights and responsibilities, including the term of their
appointment and the procedures for its termination. In some cases, their
continued employment may depend on the employee holding a bishop’s
licence; whether this is the case depends on the terms of the employment
contract.
(2)
Another group of clergy is employed by a Diocesan Board of
Finance/Education, or work in one of the National Church Institutions;
again the terms of their employment contract govern their position, though
many will also hold a bishop’s licence in respect of either their principal
work or the assistance they may give in parishes.
(3)
Finally, there are clergy who hold a dual appointment, serving part-time in
a parish, usually as priest in charge, and part-time in a diocesan role or
with an outside body (for example a local charity addressing a particular
Clergy without the freehold
social problem). Part of their work may be carried out under an
employment contract, but, overall, their work for the Church will be under
a bishop’s licence, which should be clear as to the relationship between
the two posts in terms of tenure. Similar issues arise for residentiary
canons also holding diocesan posts.
Permission to Officiate
54.
In the case of these clergy, the permission to officiate is very much at the
discretion of the bishop, and this provision to maintain this discretion would need
to continue under any new arrangements.
55.
It will be seen that, in very many of these cases, the minister has very limited
security of tenure. He or she may be summarily removed from office, or may
come to the end of a fixed term with no certainty of renewal. There are very
limited rights of appeal within the Church and no access to an outside tribunal
(save for an application for judicial review in the High Court). In very few of
these cases is any compensation or ‘severance package’ available: the only
exceptions are those involving the removal of a team rector or team vicar under
the Incumbents (Vacation of Benefices) Measures 1977 and 1993 or the
Pastoral Measure 1983. We therefore recommend that:
(vii) Clergy without the freehold – who have very limited security of tenure
and, at present, may be summarily removed from office – should be given
greater security, in addition to having access to Employment Tribunals.
23
Review of Clergy Terms of Service
7. An inappropriate model:
‘on the strength of the
diocese’
56.
Partners in Ministry, the 1967 Report of the Commission on the Deployment and
Payment of the Clergy associated with the name of its chairman, Canon Fenton
Morley, advocated the model of clergy ‘being on the strength of a diocese’. In
essence, this would mean that a priest would be appointed to the diocesan staff,
serving in a particular place as determined by the diocese working through a
Diocesan Ministry Commission in which all patronage would be vested. That
Commission would also, subject to review at the provincial level, be able to
move a priest against his will. It has some similarities with the Roman Catholic
‘incardination’ model. We do not think this approach is appropriate for the
Church of England today.
57.
Whilst bishops have the power to move clergy from certain posts in certain
circumstances, they do not have the corresponding power to appoint clergy to
other posts, as the patron and the parish representatives would usually have the
right of veto. (Whilst the bishop could create new posts, this is not an option that
can be used very often.) To give bishops this power would require a
fundamental revision of patronage and the whole process by which clergy were
appointed. Such an extension of the bishop’s powers would be problematic,
when posts vary so much in terms of geography, social profile and
churchmanship. We recommend that:
(viii) Clergy appointments should in general continue to be made to
specific posts rather than to a diocese.
58.
In debates on clergy tenure of office, there are often calls for greater mobility.
The Group took the view that there needs to be more realism about mobility,
which is a word that can easily mean different things to different people. Many
people, clergy included, have constraints on their mobility ranging from their
spouse’s career and children’s schooling to a shortage of suitable posts. But
what makes mobility particularly difficult for clergy is that, in addition to these
constraints, a change in post requires a change in home.
24
An inappropriate model
59.
As a concept, mobility carries with it an implication that someone is appointed to
an organization rather than to a single post; a branch manager may be
transferred to another branch on instructions from head office. As clergy are
appointed to individual posts, the wrong sort of pressure to move will create
unhelpful feelings of insecurity. There will, of course, be times when it may be
helpful to encourage clergy to have a change of scene and to take on a new
challenge, but it is clergy who feel secure who will be more likely to be motivated
to develop their talents, take responsibility for their ministerial development and
be receptive to pursuing new paths and considering alternative posts. It may
sometimes be appropriate to try and encourage clergy who are struggling in a
particular post to seek a fresh start, but, if a move is used as a substitute for
dealing with issues of poor performance, then it is unlikely to beneficial in the
long term, as the mistakes may simply be repeated.
25
Review of Clergy Terms of Service
8. Our preferred approach
60.
It will be clear from what we have already written that the Group found itself
addressing a range of considerations. We found that our conversations used
words from quite different registers. Words like ‘rights’, ‘process’, ‘tribunal’, and
‘appeal’ have a legal flavour. But we also spoke of ‘objectives’, ‘performance’,
‘career development’ and ‘mobility’, terms which come more easily to human
resource professionals. All had to be held against the Gospel words of ‘grace’,
‘mission’, ‘calling’, ‘vocation’ and ‘service’. Whatever set of words we used, we
found the present situation unsatisfactory. There is no doubt that many clergy
without the freehold feel insecure, especially as they near the end of a fixedterm appointment. Even those whose position is legally secure lack confidence
in the fairness of assessments made of them, which can affect their future work.
On the other hand, there are cases where an individual priest is demonstrably in
the wrong post, or is under-performing, or so going about his or her ministry as
to hinder the Church’s work, and the bishop and his advisers can find no means
of addressing the problem.
61.
We have therefore developed proposals which in addition to the grant of section
23 rights will give appropriate protection to clergy without the freehold, clarify
clergy responsibilities, and provide means of addressing issues of poor
performance. These aspects must be taken together: we are quite clear that
tinkering with legal rules alone is not enough, that it must be accompanied by a
change of culture ensuring that the Church follows the best human resource
practice whilst also adhering to the mutual expectations laid down in the Ordinal
and the Canons We recommend that:
(ix) Future appointments of clergy without the freehold should be made on
a new basis to be called common tenure (see Part 9). These appointments
would normally be open-ended until retiring age, and only in special
circumstances for a fixed term. However, those appointed with common
tenure would be subject to removal after a capability procedure (see Part
11) that would be invoked where a post-holder is failing to reach minimum
standards, or on grounds of discipline, redundancy, or ill health.
(x) We have yet to examine in detail the position of clergy with freehold
(including bishops, deans, archdeacons and most residentiary canons as
well as incumbents) but we believe this approach could be applied to them
also.
26
Our preferred approach
62.
We will seek to demonstrate how that might be the case in the context of the
capability procedure.
63.
The features of common tenure are elaborated in the material which follows.
27
Review of Clergy Terms of Service
9. The scope of common
tenure
(xi) We recommend that common tenure, should apply to team rectors,
team vicars, some assistant staff, most priests in charge, cathedral clergy
and many who work in other ways under a bishop’s licence. The rules we
have set out as to the revocation of licences would disappear in their
present form, and any loss of office would be subject to rights of appeal
and to the jurisdiction of the Employment Tribunal.
(xii) A number of special provisions would have to be made for part-time
or non-stipendiary appointments, but we think the basic model is robust
enough to cover
these cases.
64.
We will need to do further work on the question of clergy without a licence who
do have permission to officiate.
65.
There are some exceptional cases in which the common tenure would have to
be modified because the post was required to be for a limited term. We
emphasize ‘required to be’, for the use of fixed-term appointments as a means
of encouraging mobility or a change of personnel in a team is no longer
acceptable; removal on these grounds would be an unfair dismissal. One of the
major difficulties associated with fixed term appointments is that they tempt
those with the responsibility of oversight to defer grappling with difficult issues
about capability and competence until the appointment is coming to an end. This
is not good practice and does not ultimately benefit anyone, as, by this point,
any under-performance is likely to be entrenched.
(xiii) Subject to further legal advice, we think limited
term appointments would be acceptable in these circumstances:
(1)
‘Training posts’, principally those held by assistant curates.
We would define such a post as an assistant curacy to which a person
is appointed during whatever is the minimum period of training after
ordination defined by the House of Bishops (currently three years) and
which is designated as a training post in the licence. (Certain other
special categories may be regarded as similarly ‘probationary’, such as
clergy who have been allowed to resume the exercise of their Orders
28
The scope of common tenure
after having relinquished it, and equivalent cases after disciplinary
exclusion.)
(2)
Posts which are necessarily time-limited because they are related
to a particular project or dependent on special funding which is for
a limited number of years, where this fact was clearly stated in the
licence or deed of appointment.
Priests in charge appointed to interim posts pending pastoral
reorganization could be appointed on the common tenure, and
indeed appointed as rector or vicar on that basis, with the prospect
of reorganization mentioned in the instrument of appointment.
66.
The ending of the appointment when the reorganization process under the
Pastoral Measure is completed would be a ‘fair’ removal from office, and we
recommend that:
(xiv) The Pastoral Measure 1983 should be amended to allow for fair
removal from office under the common tenure when someone is
appointed on the understanding that the appointment will end when the
reorganization process under the Pastoral Measure has been completed.
67.
Part-time parish appointments linked to a diocesan post or sector ministry
present additional complications. The non-parochial post may in fact be timelimited (for funding or project reasons) but sometimes the dual appointment is
seen as the best use of scarce resources. It might be the best approach to
appoint to the parish post (as rector or vicar) on the common tenure with special
terms written in, the ending of the dual-post arrangement justifying the
termination of the parish appointment, which would be ‘fair’ on the ‘other
substantial reason’ basis. Further legal advice may be required on the difficult
implications of handling the ending of such dual role appointments.
(xv) We have given some thought to the position of those currently
serving in appointments for a term of years. One possibility is that,
assuming our recommendations are accepted in principle, appointments
made (as they would have to be) for a term of years while the necessary
legislation was going through the synodical process could be converted
to common tenure posts with the consent of the priest concerned and,
possibly, the other parties to the normal appointment process.
(xvi) We emphasize that these changes in the legal conditions of tenure
cannot be conferred without at the same time clarifying the
responsibilities of clergy. They should therefore be seen as conditional on
what we say below about clergy responsibilities and accountability.
29
Review of Clergy Terms of Service
10. Responsibilities and
accountability
68.
We have already touched on the Archbishops’ Council’s reference, alongside
that to the ‘rights’ of the clergy, to their ‘responsibilities’ and to ‘accountability
arrangements’. The clergy, like all Christians, have an accountability to God. Yet
to be called into fellowship with God in Christ is also to be called into fellowship
with one another. (Cf. 1 John 1.1ff: It is this…that we declare to you, in order
that you may share with us in a common life, that life which we share with the
Father and his Son Jesus Christ.)
69.
So, as 1 Corinthians12.4ff. reminds us, any accountability to God, while it
cannot be reduced to prescriptive rules, does have to be seen in the context of
the mutual accountability that comes with being a member of the body of Christ:
‘All are under authority and accountable to one another as interdependent
members of the body of Christ.’ Thus anyone holding office in the Church is part
of a network of mutual responsibilities, and it is unhelpful if those responsibilities
are unclear and ill-defined. All this points to a complex set of issues. Some can
be stated in legal terms: the duties attached to the offices to which the clergy
may be appointed. Others are more concerned with relationships, with
the establishment of priorities, and with the development of gifts.
70.
The Archbishops’ Council noted, in a passage we quoted earlier, that ‘the
relationship between “orders” and “office” has not been constant, and there is no
one pattern which is necessarily right for all times and all societies’. However,
the distinction between orders and office is very relevant to the matters
addressed in this report. The fact of ordination, of being a bishop, priest or
deacon, is significant in itself, and it carries certain obligations, which the Ordinal
describes in terms of a relationship of the bishop, priest and deacon to others
with whom they serve. Our guiding principle has been that the orders of bishop,
priest or deacon do not arise from appointment to a particular office; rather the
priest, (or bishop or deacon), on being appointed to a particular office in
which to carry out his or her ministry, acquires a particular focus for his or her
work, in the form of a particular set of responsibilities.
30
Responsibilities and accountability
Responsibilities derived from Canon Law
(xvii) We consider that to identify the duties and responsibilities of the
clergy involves reference both to general rules (expressed particularly in
the Canons but also reflected in other rules of ecclesiastical law) and also
to specific, local, circumstances.
71.
Relevant extracts from the Canons, and from the Ordinal, appeared in our
interim report, but we reproduce them in Annex 6.
72.
Canon Law is binding on the clergy, but most clergy appear to be unfamiliar with
the Canons. The Canons deal in repetitious detail with some matters (for
example, the use of the Catechism in teaching the young), but many aspects of
a minister’s work are hardly mentioned. It is well understood in the Church that
some requirements of the Canons, for example as to the reading of the Litany in
the parish church, are generally ignored. It is sometimes said that the Canons
are aspirational rather than prescriptive, but some (notably the provision
allowing an incumbent to be absent from his benefice for three months in any
one year) seem to be neither.
(xviii) We are convinced of the need for an accessible statement
containing a realistic and flexible statement of the rights, duties and
responsibilities of the clergy, easily available to both clergy and laity. The
Canons do not meet this need. We therefore recommend that national
norms as to the rights and responsibilities of the clergy should be
expressed in Clergy Terms of Service Regulations which would replace
some of the material now in the Canons.
Local responsibilities
73.
As well as responsibilities derived from ordination, clergy will have particular
responsibilities that arise from their local situation. The process of appointment,
certainly in the case of an incumbent, involves both the parish (especially the
parochial church council) and the bishop. Under s11(1) of the Patronage
(Benefices) Measure 1986, the PCC is responsible for 'preparing a statement
describing the conditions, needs and traditions of the parish' and for appointing
two lay members to act as representatives in connection with the selection of an
incumbent. The PCC may also (but does not have to) ask for a statement in
writing from the bishop 'describing in relation to the benefice the needs of the
diocese and the wider interests of the Church'. In addition, under
s12, the bishop, the patron or the PCC may request a joint meeting of all three
parties, at which the bishop will present either orally or, at the request of either
the PCC or the patron, in writing, a statement as described above.
31
Review of Clergy Terms of Service
74.
Thus, before an appointment starts, there will be significant input, certainly from
the PCC, and very possibly from the bishop, who, at the institution of the new
incumbent, may well speak of his sense of the future direction the parish should
take. The input of parish and bishop taken together will give something akin to
an initial job-description for the new incumbent. There is always a risk that there
will be unrealistic expectations of a new incumbent, although greater clarity over
exactly what is required can go a considerable way towards addressing this
problem.
75.
More generally, one of the main threats to clergy morale is the issue of
unreasonable expectations, on the part of the both the clergy themselves and
also of the laity. This is a particular problem when the expectations are not
articulated, or there is a lack of clarity and awareness of what is required.
However, the importance of clarity and knowing where you stand also requires
an acknowledgement that, ultimately, the Gospel is not about meeting targets,
but about being faithful.
Ministerial Review
76.
Since the publication of Ministerial Review: Its Purpose and Practice (ABM
Ministry Paper No. 6) in 1994 and Servants and Shepherds (ABM Ministry
Paper No. 19) in 1998, the practice of ministerial review has continued to
develop, although progress has been greater in some dioceses
than others.
77.
32
Servants and Shepherds usefully distinguishes between the following.
(1)
Spiritual direction looks at how clergy ‘have learned to relate to God
and other people through their own journeys of faith and spirituality’.
(2)
Consultant’s review looks at how clergy deal with their role, its
competing demands on their time and energy, the resources available,
and ways of dealing with difficulties, It identifies specific skills that
need developing, underused skills and knowledge, and training and
other needs. It is likely to be carried out by a lay or ordained person
specifically commissioned by the bishop, who may or may not be a
member of the bishop’s staff, and may involve input from
churchwardens, PCC representatives and other colleagues.
(3)
Episcopal review looks at how clergy deal with their role in a broader
context than the parish. It is likely to be carried out by the bishop or a
member of his staff team, and enables conversations to take place
about future deployment and development.
Responsibilities and accountability
78.
In the great majority of cases, ministerial review is not about drawing attention to
poor performance, but affirming what is good, providing support, enabling clergy
to realize their full potential, identifying training needs, and helping parishes to
understand that clergy cannot do all the work of the parish on their own and so
protecting clergy against unrealistic expectations. We are convinced of the
importance of ministerial review, and would like to see it recognized in every
diocese as an important means of ensuring that the gifts of the clergy are best
used.
79.
The Group considered whether or not to recommend the setting up of a formal
group to review annually the ministry of all clergy consisting of churchwardens,
the rural dean, and another clergyperson chosen by the person being reviewed.
However, it came to the view that this might be seen as inflexible and as
imposing an additional bureaucratic burden. But we suggest that diocesan
ministerial review schemes need to make more active provision for lay
involvement in ministerial review and this is considered further at paragraphs 83
and 84.
80.
Servants and Shepherds suggested that ministerial review should not be
mandatory, as ‘in practice no-one can be forced to undertake ministerial review,
and its effectiveness would be severely compromised if the person felt they had
no choice’. However, it is the very clergy who are unwilling to participate in such
reviews who might be most likely to benefit. We believe that participation in
ministerial review is a proper part of the responsibilities of the clergy and we
recommend that:
(xix) All clergy should be required to participate in a diocesan ministerial
review scheme and to take appropriate advantage of Continuing
Ministerial Education.
(xx) All diocesan bishops should be required to ensure that diocesan
ministerial review schemes are in place and are properly followed.
Clergy and people
81.
At a service of Institution, the people are asked whether they will support the
new incumbent in his or her ministry; the reply is a loud ‘We will’. What clergy
are able to achieve in the parish will be limited by the extent to which this
promise is fulfilled, by the availability and capability of those who volunteer in the
parish. This means that, however collaborative their style of ministry, clergy
have to be able to turn their hand to a wide range of tasks in a parish. In this,
they are unlike employees in a large organization, who can have a narrower
range of skills and may work in a limited area which uses those particular skills.
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Review of Clergy Terms of Service
Clergy are not always able to play to their strengths. Any assessment of their
work must recognize that they are not required to excel at everything, and that
less than optimum performance in some areas can be compensated for by high
performance in other areas.
82.
Once someone is in post, an initial set of objectives may rapidly fall out of date.
There will often be a need to identify new objectives, to determine priorities and
handle conflicting demands. Ideally this will happen as part of the natural and
developing relationship between the priest and the people he or she serves, and
also as part of the rather different relationship of priest to bishop. The process of
ministerial review is an opportunity for necessary stock-taking and reflection.
Some of the objectives arising from ministerial review for an oncoming year will
be personal to the priest concerned (e.g. going on an annual retreat or taking up
particular training) while others will be parish objectives.
83.
We have considered suggestions that the parochial clergy should be required to
agree annual joint objectives with their PCC, based on a national template. This
would serve, not exactly as a rolling job description but as a statement of agreed
expectations. We feel that a mandatory requirement of this sort would be unduly
prescriptive.
84.
It is by having conversations with their congregation about what they are doing
together that the parish clergy and their congregations develop an insight into
what is possible. In the process, both clergy and congregation may well discover
that their expectations in certain areas were unreasonably high, rather than that
either was failing to meet their responsibilities. We therefore recommend that:
(xxi) Diocesan ministerial review schemes should be adapted to ensure
lay participation and could usefully encourage clergy and congregation to
explore together what God might be requiring of them by developing an
agreed set of objectives on a regular basis.
Clergy and their bishop
85.
There is a continuing relationship between the clergy and their bishop. The
Ordinal speaks of one of the roles of the bishop as being ‘to lead in serving and
caring for the people of God and to work with them in the oversight of the
Church’ and ‘to ordain and send new ministers, guiding those who serve with
him and enabling them to fulfil their ministry’. His role is one of oversight and
partnership in the gospel, rather than management per se, in that there is no
day to day interaction. Bishops rarely have direct experience, for example, of
how their clergy preach or take funerals. The Group is aware that clergy strongly
34
Responsibilities and accountability
value the way that their ministry is grounded in the relationship with the bishop
(largely expressed through the Ordinal, the Canons and the licence or its
equivalent).
(xxii) We have become increasingly aware of the importance of preserving
what is distinctive about the relationship between bishop and clergy, and
are seeking to clarify and remove any ambiguities in this relationship.
86.
Episcopal review, as defined above, has an important role in this context. In fact,
the bishop, especially in large dioceses and areas, would not be able to review
all his clergy personally every year. Even if this function is delegated to a
member of his staff team, there will be considerable pressures on the time
available. These reviews need to be carried out properly and thoroughly, but it is
necessary to acknowledge that they will be different in nature from appraisals
conducted by a line manager with his or her staff. The relationship is not the
same – other considerations apart, clergy will be largely setting their own
priorities – and the level of detail will be less, not least because of the number of
clergy involved. However, a review system, even when carried out with a light
touch, will still allow for the activation of further more detailed procedures in
connection with capability where problems are identified.
87.
As well as acting as Father in God and having pastoral responsibility for clergy,
a bishop is often required to take with his colleagues some decisions which are,
in effect, management decisions. He has a role in appointments, and must
sometimes warn or discipline clergy. In making these decisions, the bishop will
be aware of his pastoral responsibility to the parishes in his diocese as well as
to his clergy. If our recommendations are accepted, the fairness of some of his
decisions could be challenged before an Employment Tribunal.
88.
We have been concentrating on the legal aspects of the relationship between
bishop and clergy, and appreciate that this examination has not fully captured all
of its dimensions. However, we would wish to comment on what is sometimes
perceived as a potential conflict between the bishop’s desire to offer effective
oversight and at the same time to demonstrate pastoral concern. Although, in
some cases, this may lead to bishops giving mixed messages, and causing
unintended pain, confusion and unfairness by appearing suddenly to switch
roles, it has to be acknowledged that the exercise of discipline and the offering
of effective oversight are also part of pastoral care. Moreover, these tensions
and potential role confusions are not unique to bishops. They may also be
experienced by those who wish to act as caring employers, although secular
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Review of Clergy Terms of Service
employers may have the advantage of being more used to taking advice from
human resource advisers and having clear procedures in place.
89.
This points to the need for much better provision of human resource advice, and
of related training, for bishops and those with whom they share their
responsibilities. We hope that an increase in clarity would be helpful to all and
reduce the likelihood of harmful confusion, particularly as the personal exercise
of the bishop’s power becomes more grounded in good HR practice. Whatever
model is adopted by the Church will require substantial legal and cultural
change. We recommend that:
(xxiii) The Church must put in place proper mechanisms to encourage
good practice, and to foster deeper relationships of trust and partnership,
including the provision of professional human resource advice and
appropriate training for bishops and archdeacons.
90.
36
We return to this, and to the costs it necessarily entails, later in our report.
Capability Procedures
11. Capability Procedures
91.
The great majority of clergy are carrying out their ministry to a high standard.
However, there will be some cases where problems that are not disciplinary in
nature arise, and clergy are falling below an accepted minimum standard. The
Group considers that having a formal capability procedure to deal with these
cases would not only help to prevent small problems from becoming greater, but
would also ensure that cases were consistently and properly handled.
92.
The principal concerns of a capability procedure should be to help people to
improve and to deal with problems of poor performance before they become too
serious to be remedied. It is about ensuring that people have been made fully
aware what is required of them, and have been given opportunity – through
training and other means – to equip themselves with the resources to improve
their performance (where this is necessary) and realize their full potential. This
will require the Church to make a substantial investment of both time and
money. It will be necessary to improve resources in such areas as counselling.
93.
Capability issues must be distinguished from misconduct, which falls within the
ambit of the Clergy Discipline Measure 2003. Although that Measure includes
neglect or inefficiency in the performance of a minister’s duties within its
definition of misconduct, there would need to be an element of wilful or
deliberate refusal to improve for such matters to merit disciplinary action. It may
be that the distinction will need to be formally clarified once the capability
procedures are in operation, either by amendment to the Measure or by
explanations in the Code of Practice relating to it.
94.
Capability also needs to be distinguished from cases where people are fulfilling
the basic requirements of the post, but no more, and are doing ‘a just good
enough job’. In such cases, those concerned may well benefit from a move, and
are probably not working to the best of their ability, but a capability procedure is
not an appropriate way of resolving these issues.
95.
Capability procedures should thus be seen as addressing major non-disciplinary
problems where the requirements of the post are not being met, and where
dismissal is a real possibility, even if this is an outcome that is to be avoided if
possible.
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Review of Clergy Terms of Service
96.
In a church context, a capability procedure is likely to apply to those few clergy
who are idle, or incompetent, or where the job is being done but pastoral
relationships are breaking down because of an abrasive personality. Under our
proposals, the use of this procedure would replace the Incumbents (Vacation of
Benefices) Measure in its application to team rectors and team vicars (it does
not apply to non-beneficed clergy). Whilst some instances might be fairly clear
cut – such as a failure to take services or a refusal to have anything to do with
the local school or even support other people doing so on behalf of the parish –
others, where they are based on a particular attitude, may be more difficult to
prove, and might require a sustained accumulation of evidence. The incidents
may be small in themselves, but may represent part of a cumulative and
persistent pattern of behaviour that prevents the person from fulfilling the
requirements of the post, as measured against what is required of clergy. It is
hoped that moves to clarify the responsibilities of clergy would assist in
promoting awareness among both clergy and lay people of what was required of
them.
97.
Lack of capability implies a mismatch between the requirements of the job and
the person doing it. In some cases, it should be possible to address the
mismatch by providing the appropriate training, although this requires a
willingness on the part of the cleric concerned to participate in training.
98.
Because the appropriate time needs to be given for improvement, the procedure
is a lengthy one, with more than one stage and opportunities to appeal against
formal warnings. Each stage needs to be undertaken properly in the hope that it
might not be necessary to move onto the next stage. This may lead to a sense
of frustration with the length of the process, although cases where a swift
resolution is required are likely to be more appropriately dealt with under the
Clergy Discipline Measure. Moreover, in the case of someone who is failing to
provide an adequate ministry, who has the freehold, where removal is not easily
possible, even a long drawn out capability procedure would produce a more
rapid resolution than is presently the case, where clergy can remain in the same
parish for decades, despite persistently unsatisfactory performance.
99.
Lack of capability is one of the main grounds for fair dismissal as far as
Employment Tribunals are concerned. However, the decision to dismiss on this
ground must never be the outcome of a single meeting, but only after a series of
conversations that have recorded unhappiness with performance, provided
evidence of opportunities given to improve and develop, and noted where there
was persistent failure to improve. Potential dismissal on capability grounds
38
Capability Procedures
should never come as a bolt from the blue. Conversations about capability
issues should have taken place, not only during the ministerial review process
and more general career development discussions, but also on a regular basis
as the issues arise. Evidence would need to be provided that all other possible
options than dismissal – including offers of help to enable people to improve
their performance – had been explored.
(xxiv) The Group is strongly convinced that a capability procedure for
clergy is required, to be invoked where a post-holder is failing to reach
minimum standards. This procedure should take into account criticisms
made of the Team and Group Ministries Measure Code of Practice, and
should include the following features:

The procedures adopted must ensure that proper human resource
advice is taken at every stage, and must be fully in accord with the
requirements of natural justice.

There must be a right of appeal at every formal stage.

The procedures must ensure that the minister has full opportunity to
respond to all points made.

A panel should be involved at every formal stage, not a single
individual.

The procedure should be based on best secular practice.

The minister should have the right to be supported by a friend or
union representative.

Sufficient notice should be given in advance of any appearance before
a panel.
(xxv) We recommend that a capability procedure along the lines of the
outline in Annex 8 should be introduced for clergy. Clergy who are
dismissed following the capability procedure would have the right to
appeal to an Employment Tribunal.
100.
Details of the appropriate people to hear each case are given in the table at the
end of the Annex. There will need to be a degree of flexibility over membership
of the panels, to ensure that no member had had previous involvement with the
case, before the procedure was set in train or at earlier stages. Where
necessary, for example because of illness or a member of the panel moving on
to another diocese, the Bishop could ask a substitute of equal standing to serve.
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Review of Clergy Terms of Service
Cathedral statutes for tenure and dispute resolution would be overridden where
necessary.
101.
A further issue yet to be considered is whether or not the panels should be
required to be unanimous.
102.
It is difficult to be too precise about what is meant by ‘improvement in
performance’. Action plans, clearly specifying where improvement is needed,
will have to be drawn up, but these must not be used as a means of making
additional demands on clergy without appropriate consultation. Rather the action
plans will be ways of applying what is already required of them in the Canons
and Ordinal (and in future by the Terms of Service Regulations) to their
particular situation.
40
Implementation issues
12. Implementation issues
103.
The Group has given much thought to the best mechanism in which to enshrine
the rights and responsibilities of the clergy and the new rules as to tenure and
capability outlined in this report. In our interim report, we identified two possible
mechanisms: clergy could be given contracts of employment and become
employees; or clergy could retain their present status as office-holders, holding
office in accordance with a set of detailed Terms of Service Regulations. In
Annex 7 we reproduce an extract from a paper considered by the Group which
examines the present legal position.
104.
Reactions to earlier reports produced by the Group have, not unnaturally,
tended to focus on the issue of whether clergy should become employees or
remain office-holders. Many of the practical effects of our proposals could be
achieved by either route. Rights and responsibilities can be spelt out in a set of
Regulations or individual contracts (which would almost certainly incorporate
nationally agreed procedures). There would be need for very substantial
changes to legislation to give effect to either option, especially if they applied to
posts which now carry the freehold (including bishoprics). The legislation would
confer access to Employment Tribunals regardless of the method by which
terms of service were expressed. As we have already noted, European
Community anti-discrimination legislation already in place would not be affected
by the choice of mechanism, as the Directives apply to all occupations and not
merely employment.
105.
There are, however, some differences between the two models.
(i)
The distinction between employees and office-holders is well recognized
in the law both of England and of the European Community. Neither the
Department of Trade and Industry nor the Directorate-General for
Employment and Social Affairs of the European Commission has any
wish to remove the distinction. So long as the ministers of other churches
in this country and elsewhere in Europe remain in the office-holder
category, there would be some risk that employment status for our clergy
would attract inappropriate rules by being in a different category.
(ii)
The essential difference between the position of an employee and an
office-holder is that the employee must obey the reasonable orders of his
or her employer. This obligation to obey reasonable orders is potentially
more restrictive of the autonomy of the clergy than their oath of canonical
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Review of Clergy Terms of Service
obedience. Although it is true that many employers (for example,
employers of hospital consultants) will seldom interfere in their
employees’ day to day exercise of professional judgement, recent events
demonstrate that binding directions can be given (for example, financial
considerations leading to restrictions on the use of certain procedures).
106.
(iii)
An employer, even if not directly liable on account of his or her own
negligence, is vicariously liable for the wrongful conduct of the employee
causing injury or loss to third parties and may be required to pay financial
compensation by way of damages as a result of a court action. This form
of vicarious liability is peculiar to the employment relationship, and an
office-holder’s conduct does not in itself make any other person or body
liable.
(iv)
Many clergy – including those who are currently employees – value the
way that their relationship with the bishop is expressed in the form of a
bishop’s licence. Although the bishop’s licence could be retained
alongside a contract of employment, the relationship between a contract
and a licence could present legal difficulties in some cases. Individual
contracts might contain more detailed requirements than are usual in a
licence; the tenor of our discussions has, however, been against legally
binding job-descriptions, and rather on the setting and adjustment of
objectives through ministerial review and informal conversations.
As we have indicated, our work thus far has concentrated on the position of
clergy without the freehold. We note, however, the fact that the concept of the
incumbent’s freehold is not simply about tenure but involves a particular
understanding of the benefice as a piece of property, a bundle of rights including
those relating to the office, the church and churchyard, and the parsonage
house. There are ways in which the substance of these rights could be
preserved even if the freehold itself disappeared.
107.
Before giving our own recommendations, we address the issue of who might be
the employer of the clergy were the employment model to be adopted.
Identity of the employer of the clergy
108.
Part of the debate on the issue of employee status for the clergy concerns the
identity of the employer. Some see this as essentially a second order issue, but
others point to the difficulty in identifying the right employer as a telling point
against the whole notion. The current law as to the legal status of clergy is
considered at Annex 7, which examines the distinguishing features of an
employer. An employer is a person or body that (i) appoints, (ii) pays, (iii)
controls and (iv) dismisses. As can be seen from Lord Justice Mummery’s
analysis of the case of Coker v Diocese of Southwark in Annex 7, there is no
one individual or body that is responsible for exercising all of these functions in
42
Implementation issues
respect of clergy. This is one reason why finding a suitable employer of clergy
presents such difficulties.
109.
The Group has considered a number of options.
(xxvi) If clergy were to become employees, we would not recommend that
the parish should be their employer. It would imply a congregationalist
model that it is at odds with the Church of England’s ecclesiology. Being
employed by their parish might make it more difficult for clergy to
challenge their congregations or to act in a prophetic or leadership role.
110.
The Group examined closely the possibility of having a national employer of
clergy. It would seem inevitable that any national employer, who would be liable
to meet any awards made by Employment Tribunals, would wish to exercise
control over decisions taken at diocesan level. In large organizations, it is
perfectly possible to have a designated employing body – in effect, the
organization itself – which is at some remove from the individuals who make
decisions about the future of employees, but who act in accordance with the
policies and instructions of the organization’s directors. The Church fits very
uneasily into this model, and we judge it would be radical change to the Church
of England’s polity if bishops were subject to central direction in decisions about
the clergy serving in their dioceses. Bishops are not now regarded as being
legally responsible to ‘the Church of England’, which does not have any legal
personality of its own. We are advised that the use of a national employing body
would carry a substantial risk of additional VAT liabilities, as Customs & Excise
could take the view that the national employer was providing a service to
dioceses if it recovered its costs from them, or even that it was supplying clergy.
(xxvii) If clergy were to become employees, they should not have a
national employer, as this would represent a fundamental change to the
Church of England’s polity, based as it is on the unit of the diocese. For
this and other reasons, we do not consider that there should be a national
employer of clergy.
111.
In many dioceses, some non-parochial clergy already have contracts of
employment with the DBF, which is a corporate body with legal personality and
access to funds. The Diocesan Synod and the Bishop’s Council, the other
obvious possibilities, are not in that position; this is true even in those diocese
where the Synod and the DBF have a common membership. We recognize that
some parochial clergy feel concerned about the idea that they would be
responsible to what they may see as a primarily financial body, but we do not
see this point as strong enough to require the creation of a separate diocesan
employing body.
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Review of Clergy Terms of Service
112.
It would be necessary to explore with the Charity Commissioners how it might
be possible for clergy to represented on the employing body. For example, if
clergy were employees of the Diocesan Board of Finance, there might be
difficulties arising from their membership of the Diocesan Board of Finance.
(xxviii) Accordingly, we believe that, if there were to be an employer of
clergy, it would have to be the Diocesan Board of Finance.
(xxix) We have not formulated a proposal as to who might be the employer
of diocesan bishops, although the obvious candidates would seem to be
the Archbishops’ Council and the Church Commissioners.
Our views on the two models
113.
The Group perceived at the outset that there was some expectation that it would
recommend the transfer of all clergy to employee status, and we began our work
with an examination of that model. Some of us thought that the employment
model had significant attractions: most parishioners are or have been
themselves employees, and many no doubt suppose that the clergy are
employed. There would thus be a real advantage in terms of understanding,
were the clergy to serve on terms familiar to the laity. Some of us felt from the
outset that employee status would not be appropriate, given the particular
features of the work and role of the clergy. We spent much time exploring the
issues, and those of us who had early enthusiasm for the employment model
have moved away from it, albeit with some reluctance. We came to a common
view that the clergy should not be transferred to employee status.
114.
An employment contract undeniably sits more easily than does the concept of
holding an office with ideas such as exerting control and giving orders, the
direction of work on a daily basis, and the setting of targets. In practice, an
employment contract will allow some give and take over the requirements of the
job, and it is possible to build into it considerable freedom and flexibility, but it
does imply an entitlement to control – and an assumption that such control
could, if necessary, be exercised on a day to day basis. There may be some
unease, among laity as well as clergy, over whether they want an employer –
whether in the form of the bishop, the DBF or a national employer – exerting that
kind of control over their clergy.
115.
Office-holder status is instinctively preferred by many clergy, partly because it is
seen as sitting more easily with the concept of vocation, and as articulating
more clearly that they are not called on to meet specified targets but to be
faithful and preach the Gospel. An office-holder model could readily provide the
vehicle for additional clarification of the responsibilities of clergy as well as
44
Implementation issues
ministerial review, capability procedures, access to Employment Tribunals,
common tenure, adoption of better human resources practice, and, above all,
the necessary change of culture. But, by doing so through the Canons, Terms of
Service Regulations – which will ensure national consistency across the Church
of England – and whatever further understandings are made at local level,
office-holder status would offer general pointers rather than tying clergy down to
too many specific requirements. This greater flexibility has value given that the
clergy cannot be good at everything, and need a certain freedom to set their
own priorities, even though they would generally wish to listen carefully to their
bishops and congregations when doing so.
116.
We note that the introduction of individual contracts of employment for all clergy
would be a long process, one that could not be applied to those now in freehold
posts, so, to that extent, it would not provide a satisfactory means of conferring
section 23 rights.
117.
Some will argue that retaining the office-holder status of the majority of clergy
may be a sign of a reluctance to face the implications of the changes that will be
brought about through conferring section 23 rights on clergy and the
implementation of our other recommendations. However, it is equally important
to convey the message that, through the profound changes that are taking
place, that which is distinctive and important in the role of the clergy is being
maintained. For many clergy, the retention of office-holder status may provide
the reassurance that they need to accept the other changes.
(xxx) After extensive reflection, we do not recommend that clergy should
be made employees. Instead, we recommend that the office-holder status
of clergy should be retained through the medium of the common tenure.
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Review of Clergy Terms of Service
13. Organizational,
legislative and financial
implications
118.
Our proposals will add new responsibilities to those already borne by the bishop
and the clergy who support him in his oversight role, but we expect that the
additional clarity as to rights and responsibilities, the provision of more human
resources advice, and procedures designed to tackle problems at an early stage
will all contribute to a reduction in the time the bishop’s staff have to devote to
cases that present major difficulties.
119.
The new arrangements will require bishops and clergy who support him in his
oversight role to take human resources advice before making many decisions
referred to in this report. Every diocese should have a designated person
responsible for giving human resources advice, ensuring that appointment,
ministerial review and capability procedures are properly followed. This does
not, however, mean a new appointment in each diocese, and the human
resources function could well be organized on a regional basis.
120.
Basing ourselves on typical arrangements and costs in comparable professional
areas, we estimate that an additional 18 human resources staff across the
Church might be needed, at a cost of £735,000 per annum or some £17,000 per
diocese on average. It needs to be remembered there are also costs in not
taking action, in the form of expensive disputes, pastoral damage, and ill health
retirements. A failure to take the appropriate professional advice and institute
the necessary procedures may well be far more expensive in the long run.
Severance payments
121.
There are circumstances in which it becomes necessary for someone to leave
full-time stipendiary ministry. Where no disciplinary matter is involved, dioceses
already seek to make some reasonable provision, by way of financial grants or
housing facilities, until the priest concerned has been able to make his or her
own arrangements. It will be appropriate to provide some clergy leaving an
appointment as a result of the capability procedure we outline with a similar
‘safety net’, especially if it is hoped that they can be found another, more
46
Implications
suitable, post. There is already some information available on diocesan practice
in this area. It is important that severance payments are not set at an
unrealistically high level, particularly as they may be seen as rewards for poor
performance, and they need to be seen in the context of the amount that would
be awarded at an Employment Tribunal or the statutory provisions for
redundancy. It may be appropriate for us to look more closely at this matter in
the second phase of our work.
Legislative changes
122.
Legislation to implement the proposals in this report will necessarily be complex.
Readers of the report will have realized that there are ideas in this report,
notably that of the common tenure, which could form the basis of proposals
applying to posts which are now freehold posts. There would be much to be said
for legislation that addressed the whole field, rather than dealing separately with
posts which are and which are not held on freehold tenure. We have already
begun to consider what material could be in Clergy Terms of Service
Regulations: material on the duties and responsibilities of clergy in various types
of post; rules applying the section 23 rights to the clergy; and provisions as to
tenure and the capability procedure. A Measure would be required, but its extent
cannot be determined at this stage. Consequential changes would have to be
made to the Canons.
123.
We are aware of some complex issues as to phasing in any new arrangements.
Some changes could be applied as soon as the legislation were in place, but
others could only be applied to new appointments, and possibly to existing
post-holders who so agreed.
Further issues
124.
Our terms of reference require us to consider the implications for the freehold in
the second phase of our work. This will necessarily include the ‘freehold of
property’. We will also need to assess the implications of the recommendations
made by the group that reviewed the Pastoral Measure, and of the proposed
changes to the Ordinal. We have already had some material touching on the
definition of the stipend in a changed situation. We may be able to do more work
on the training implications of our recommendations.
And we are happy to assure those from the Channel Islands, the Isle of Man
47
Review of Clergy Terms of Service
and the Diocese of Europe that their own, very different, legal systems will not
be forgotten.
(xxxi) Our terms of reference were limited to clergy,
but we consider that there is no reason why, with appropriate adjustment,
our recommendations could not also apply to licensed lay workers.
48
Annexes
Annex 1
Annex 1
Membership
Professor David McClean (Chairman)
Professor of Law, University of Sheffield,
Chairman of the Legal Advisory Commission and member of General Synod
The Revd Canon Bob Baker
Rector of Brundall with Braydeston and Postwick, Prolocutor of the Lower House of the
Convocation of Canterbury and member of the Archbishops’ Council
The Revd David Houlding,
Vicar of Hampstead St Stephen with All Hallows, and member of General Synod
Mr Andrew Howard
Diocesan Secretary of Leicester (Winchester from January 2004)
The Rt Revd Michael Langrish
Bishop of Exeter
The Revd Canon Cathy Rowling
Dean of Women’s Ministry and Co-Director of Ordinands, York Diocese
Mrs Anne Sloman
member of the Archbishops’ Council
Assessors
Miss Judith Egar
Legal Division
The Ven. Dr Gordon Kuhrt
Director of Ministry
Mrs Su Morgan
Director of Human Resources
Mr Stephen Slack
Chief Legal Adviser to the Archbishops’ Council and General Synod
Secretariat
Mr Kevin Diamond
Margaret Jeffery
Mr Patrick Shorrock
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Review of Clergy Terms of Service
Terms of Reference
To review the terms under which the clergy hold office to ensure
a proper balance between rights and responsibilities, and clear procedures for resolving
disputes which afford full protection against possible injustice; and
to consider in this context the future of the freehold and the position of the clergy in
relation to statutory employment rights.
In the review, to give priority to consideration of the position of clergy without the
freehold or employment contracts, and to report on this aspect in 2003 with detailed
proposals and a programme for their implementation, the rest of the review to be
completed, if possible, in 2004.
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Annex 2
Annex 2
Work carried out by the
group
The following attended meetings of the Group:
Representatives of Amicus: Dr Chris Ball, the Revd Andrew de Berry, the Revd Paul
Andrew
The Revd Ray Owen
The Clergy Appointments Adviser – the Revd John Lee
The Archbishops’ Appointments Secretary – Mr Anthony Sadler
Submissions were received from the following:
The Rt Revd Christopher Hill, Bishop of Stafford
The Most Revd David Hope, Archbishop of York
The Revd Hamish Fullerton
The Revd Dr Richard Turnbull
Mr Dudley Coates, General Synod Ecumenical Representative
Mr Lionel Lennox, Legal Secretary to the Archbishop of York
Mr Philip Petchey, Deputy Chancellor in the Diocese of Southwark
Mr David Phillips, Secretary of Chelmsford DBF
Mr Anthony Sadler, Archbishops’ Appointments Secretary
Amicus
The Church Commissioners
Canterbury DBF
Carlisle DBF
Lichfield DBF
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Oxford DBF
Truro DBF
Other material considered by the Group in whole
or in part included:
DTI discussion document on Employment Status in relation to Statutory Employment
Rights
Responses to the DTI discussion document from:
The Archbishops’ Council
Amicus
The Free Churches Group
The Churches Main Committee
The United Reformed Church
The Catholic Bishops’ Conference of England and Wales
The Methodist Church
The Church in Wales
The Scottish Episcopal Church
The Church of Scotland
The Revd Ray Owen
Proceedings of the European Parliament on 7 November 2002: report of the Petitions
Committee
Motion for Resolution on Petition declared admissible on discrimination towards priests
in the UK by the Revd Ray Owen
Westminster Hall debate on 8 April 2003 called by Ben Chapman MP
Team and Group Ministries – Code of Recommended Practice
The Clergy Discipline Measure 2003
The Incumbents (Vacation of Benefices) Measure 1977
A draft Clergy Grievance Procedure
Dignity at Work: a paper by the Revd Stephen Trott for the Ecclesiastical Law Journal
Some theological principles relating to the Employment Relations Act – paper by Dr
Martin Davie, theological consultant to the House of Bishops
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Annex 2
The Ordinal
The Canons
GS 1126 – Clergy Conditions of Service: a Consultative Paper
GS 1173 – Improving Clergy Conditions of Service: a summary of responses to the
consultative paper
Partners in Ministry: The 1967 report of the Commission on the Deployment and
Payment of the Clergy
GS 1449 – Draft Guidelines for the Professional Conduct of the Clergy
Resourcing Bishops: report of the Archbishops’ Review Group on bishops’ needs and
resources
GS 1405 – Working with the Spirit: Choosing Diocesan Bishops
Diocesan Handbooks
ABM ministry papers:
No. 6 – Ministerial Review: its purpose and practice
No. 17 – Beginning Public Ministry
No. 19 – Servants and Shepherds
The recommendations of the Central Stipends Authority for maternity pay, maternity
leave, paternity pay, paternity leave, adoption pay, adoption leave and parental leave for
clergy and licensed lay workers
Debates at the Convocations and the House of Laity on Monday 14 July 2003
Ministers of Religion and Employment Rights: an examination of the issues – paper by
Philip Petchey, Deputy Chancellor in the Diocese of Southwark
Affirmation and Accountability – a manual of practical suggestions for the prevention of
clergy stress, sickness and ill health retirement produced by the Society of Mary and
Martha
Capability Procedures for
The National Church Institutions
The University of London
The Group’s work has been discussed at:
The February and July 2003 sessions of General Synod
Meetings of the House of Bishops in January and June 2003
The Archbishops’ Council in April 2003
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The Archbishops’ Council’s Deployment, Remuneration and Conditions of Service
Committee in July 2003
The Bishops’ Committee for Ministry in November 2003
The Archbishops’ Council in December 2003
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Annex 3
Some thoughts on
theological principles
relating to the
Employment Relations
Act
Anthony C. Thiselton
1.
When considering the question of the extent to which secular good practice
should apply to clergy and whether to give the rights and responsibilities of
clergy the force of law, it is right to emphasize that the vocation of clergy and
their related conditions of employment retain distinctive features as over against
other vocations and occupations. Nevertheless, some of the assumptions that
are sometimes made in the light of these distinctive features need to be critically
examined in the light of fundamental theological principles and exegetical
constraints in particular:
(1)
the distinction between originating divine action and mediate causes or
channels of divine agency;
(2)
the role of secular courts, in the light of a careful exegesis of 1
Corinthians 6.1–8 including the distinctive situation imposed by Roman
civil law in first-century Corinth;
(3)
the role of ‘covenant’ in biblical theology compared with modes,
operations, and presuppositions of ‘contracts’ in modern society;
(4)
why those theologians who most strongly expound theologies of divine
grace (notably Martin Luther) also stress the necessary role of law and
secular or ecclesial ‘order’ as a gracious constraint to protect the
vulnerable.
1. Divine action and governance in the world:
the role of human agency
2.
The notion of God as ‘employer’ does not imply logical exclusion of the role of
human agents. Augustine and Aquinas explicitly state the broader principle in
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the context of expounding the phenomenon of miracle. ‘God’ is not an
alternative Agent, or cause, to the mediate agencies of humankind or ‘nature’.
For Augustine and Aquinas the action of God may be praeter naturam but not
contra naturam. To illustrate: in 1959 Ninian Smart set his BD candidates the
exam question: ‘ ‘It is fine’, said the Vicar, ‘because we prayed for the fete’; ‘it is
fine’, said the meteorologist, ‘because a band of high pressure is moving over…’
Discuss’. Candidates were meant to show that these do not conflict, because
they refer to different levels of agency or causality. Indeed the doctrine that all
divine action is immediate and direct is known as ‘occasionalism’, and is not the
mainstream view in Christian or even Islamic thought.
3.
In Lutheran and Reformed traditions, Luther and Calvin regarded chief pastors
and magistrates as acting in loco Dei, but nonetheless as instruments through
whom divine action may be channelled and manifested. Contrary traditions in
Western Christendom seem to be largely confined to Anabaptist, Pentecostal,
and Neo-charismatic circles, where divine action is too frequently construed
along the lines of a two-storey worldview. ‘God’ is relegated to the upper realm
of the supernatural, and effectively excluded from working through ordinary,
everyday, agencies. In turn, these spheres are too readily seen as purely
‘natural’ alternatives to direct divine agency. Anglican theology traditionally
regards the use of means (whether human or natural) for divine action as
essentially ‘incarnational’. God's action in and through the incarnate Jesus
Christ was no less divine action for its being subject to the constraints of time,
place, and the socio-political structures and conditions of the first century.
4.
The logic of exclusion by which if God is deemed to be ‘employer’, human
institutions and agents are thereby excluded from co-sharing in this role appears
to rest more readily on a dualist, Anabaptist, or charismatic view of divine
governance than on an Augustinian, Lutheran, Calvinist, or Anglican theology. It
would take too long to address this principle as it emerges in the New
Testament writings, but I have tried to articulate this in a number of essays, one
of which criticizes an over-readiness to describe some gifts of the Spirit, but not
others, as ‘supernatural’. I do not thereby seek to restrict the scope of divine
sovereignty in the world; indeed the reverse is the case.
5.
There are many reasons why Paul would not have approved of the word
‘supernatural’, since it opens the door precisely to the devaluation of human
agency and human institutions and ‘order’ as chosen vehicles of the divine will
that Paul is at pains to expound in 1 Corinthians in 11–14. The apostolic and
ecclesial regulation to stop prophesying when the speaker hogs the stage too
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Annex 3
long is no less ‘divine’ in origin than the original prophetic inspiration (14.27–
33a). 1 Corinthians 14 is not a million miles away from ‘regulations for those
employed in using glossolalia or prophetic speech’. Some of the Corinthians, but
not Paul, thought it was all simply between them and God.
6.
To move to the modern world, clergy who serve as chaplains in the Armed
Forces, or as professors or lecturers in universities, in social services or
hospitals, might be surprised to learn that submission to the ordinances and
directives of their managers and of their institutions somehow diminished or
threatened the notion that they are primarily working for God. Once again,
Lutheran theology would stress the vocation of all committed Christian people to
the work that they undertake, without such an implicit dichotomy between
clerical and non-clerical callings. ‘Directives’ come from God and from
institutions and agents without logical conflict, even if in some circumstances
contingent conflicts may arise. In the light of all this it is difficult to infer that it
would be profoundly wrong to describe ordained ministers as working for
anyone else other than God whether it be the Bishop or the Diocesan Board of
Finance.
2. The exegesis of 1 Corinthians 6:1–8: about lawcourts or about manipulation?
7.
It is essential to understand what is at issue in 1 Corinthians 6.1–8 within the
context of the specific situation which Paul addresses. Recent research has
demonstrated conclusively that without question the political and social setting
at Corinth is Roman rather than Greek. The Greek city was virtually destroyed in
the second century BC, and Julius Caesar re-founded it as a Roman colony
mainly for his veterans in 44 BC. Roman freed-persons, business
entrepreneurs, labourers, and slaves, swelled the population over the next
century. In Paul's day, within the Roman administrative system that prevailed in
Corinth, the administration of criminal law was relatively just and fair. However,
civil law was a different matter. Here patronage and social influence moved to
centre-stage. Judges and juries expected reciprocal favours from both plaintiffs
and defendants. What the modern world would call ‘bribes’ were usually
expected; or if not on the spot, a debt to be paid off by pulling the right strings at
the right time. Hence the outcome of a civil case rested in no small degree on
the wealth, influence, and ‘the right’ social or business connections which the
plaintiff or defendant could bring to the case.
8.
I set out these issues in my commentary on 1 Corinthians (Thiselton, The First
Epistle to the Corinthians: a Commentary on the Greek Text, Eerdmans and
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Paternoster, 2000, pp. 418–40). There I argued that the key point at issue
between Paul and the Corinthians was not that of using a secular court but that
of manipulation on the basis of superior wealth, power, or influence. No one
would initiate a civil case against another Christian believer unless they relied
upon superior social or financial power as one of the ‘strong’ at Corinth. This is
why Paul is so appalled that a Christian believer should seek to outmanoeuvre
another Christian on such a basis: ‘But believer goes to court against believer,
and before unbelievers at that’ (v. 6). The opening, ‘Do you dare to take it to
court before the unrighteous?’ (v. 1) alludes not to these being ‘secular’
authorities, but to those whose stock in trade is reciprocal favours, manipulation,
and power-play.
9.
Two further factors clinch the point beyond all possible doubt. First, Bruce
Winter in several writings (e.g. ‘Civil Litigation in Secular Corinth and the
Church: the Forensic Background to 1 Corinthians 6.1–8’ in New Testament
Studies vol. 37 (1991) pp. 559–72, also reprinted in his Seek the Welfare
of the City (Eerdmans and Paternoster, 1994, pp.105–21) argues that only these
special circumstances could explain Paul's otherwise more favourable attitude
to the use of Roman state institutions by Christians. Second, this entirely fits the
context of chapter 5 (moral failure) and 6.9–11 (another version of moral failure).
Many scholars argue that the grasping, greedy desire to own property and to
control others lies in the background of both passages which precede and follow
6.1–8. The sudden intrusion of an issue about a ‘secular’ court would make no
sense of the integrated flow of thought. On the other hand, if 6.1–8 is about the
abuse of power and the use of manipulation to gain wealth and property the
connection between the three passages makes perfect sense, and exactly fits
the first-century background in Roman Corinth. This passage, therefore, should
not be used to determine the role of secular courts for Christians in modern
England.
3. Biblical covenant and modern contract
10.
In the biblical writings the concept of covenant plays a prominent part in defining
the relationship between God and Israel, and later between God and the
Christian community. The earlier period of the Old Testament portrays a striking
difference between Israelite theology and that of the surrounding nations. The
actions of pagan deities were arbitrary and unpredictable. On the other hand,
with the God of Israel the people of God ‘know where they stand’ (W. Eichrodt).
In a succession of covenants God commits himself to honour promises, to enter
into a clearly defined relationship on given specified terms, and thereby by free,
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Annex 3
sovereign, choice, to place limits or constraints upon what he might otherwise
choose to do by his sovereign will. The faithfulness of God is expressed in the
covenant, and permits God's people to know on what terms they may worship
God, approach God, seek God's blessing, and call themselves God’s people.
11.
In the New Testament the importance of covenant is reiterated throughout the
Epistle to the Hebrews, in 2 Corinthians 3, in the institution of the Lord's Supper
as a covenant meal, and elsewhere. A principle of divine voluntary self-limitation
and voluntary self-constraint runs like a thread through ‘incarnational’ and ‘
kenotic’ theology. If this characterizes the nature of God, it would not be
surprising if such a principle may also be discerned in the created order, in
Christology, and in the structures of society. A recent book edited by John
Polkinghorne traces this kenotic principle in the created order. Arguably the
Davidic monarchy differed from other monarchies of the time by being based
upon a covenant of a type that resonates with the modern notion of a
‘constitutional’ monarchy, in contrast to an unfettered one.
12.
Many theologians warn us not to assimilate modern secular categories too
readily into biblical ones. Professor Oliver O'Donovan, for example, has not
minced his words in stating that much of the modern democratic apparatus of
the state, especially in America, owes more to the secular Enlightenment than to
biblical concepts. Even notions of democratic voting and the regrettable habit of
paying more attention to representation than to gifts, callings, and wisdom or
expertise (as is perhaps sometimes evidenced in Synodical government in the
Church of England) may well call for this kind of prophetic critique. Some recent
discussions of episcopal nominations may perhaps reflect such unconscious
‘secularization’. On the other hand it may be argued that the self-constraints and
protections for the weak and vulnerable embodied in covenant more closely
overlap with parallel safeguards in ‘contracts’ than might be said to diverge from
them. To be sure there are differences, but there are fundamental similarities of
principle between them.
13.
In the modern world there is seldom an exact one-to-one match between
historical situations presupposed in the biblical writings and the specificities of
modern structures. In terms of what theologians have sometimes called ‘a loose
fit’, however, it seems to me that there is a sufficient overlap to legitimate and
support an appeal to covenant as a basis to defend the value of contractual
relationships among Christian people, who worship the covenant God. Key
features that link both concepts include: (1) the formulation of a defined
relationship on the basis of which both parties know where they stand; (2) the
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imposition, definition, and acceptance of mutual constraints that limit deviations
from what has been agreed by both parties; (3) a significant measure of
protection for the helpless or vulnerable; and (4) the nurture of the sense of
confidence that can arise only from knowing where one stands. In my view, it is
arguable that these four features model the kind of relationship that God has
purposed to characterize his own relationship with his people.
14.
Nevertheless, when it comes to specifying how the relationship between clergy,
bishop and people might be formulated, the terms of service set might well be
very different from those in non-clerical or so-called secular employment
contract. Modern notions of contract are not self-validating, but depend upon the
extent to which they model biblical principles and divine purposes. Nevertheless,
in terms of general principle, it is very difficult to see why it should be
appropriate to have a written statement of the mutual obligations of Church and
minister but not a contract between them. A contract is a statement of mutual
obligations.
15.
All the same, just as the specificities of successive biblical covenants varied
from situation to situation, any wooden literalism about terms of a covenant or
contract should be avoided. It would be naive, for example, to argue that since
God's relation to his people is not ‘fixed term’, the biblical writings could not
encourage the use of fixed-term contracts. The specific form and function of
covenants and contracts may vary from case to case, as wisdom and common
sense may suggest. Indeed, as the philosopher Hans-Georg Gadamer
observes, ‘common sense’ derives from the common wisdom handed down by
traditions within a community. In the Old Testament this has close connections
with ‘wisdom’.
4. Grace and law
16.
It is of course true that what lies behind the ministry of the gospel is the freedom
of divine grace. However, this applies to all forms of Christian service: ‘Freely
you have received, freely give’.
17.
Moreover, it does not seem to follow that service in response to sheer free,
sovereign, unmerited grace, excludes the possibility of a contractual response. If
this argument were valid, it is difficult to explain why God's free, sovereign,
gracious election of Israel was followed by a ratification by covenant in which
each party, God and Israel, entered into such obligations as (in the case of
Israel) obedience to the Decalogue. Exodus and Deuteronomy view the law
precisely as a response to sovereign divine grace, made in covenantal form.
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Annex 3
However, it would be a serious mistake to regard obedience to the Decalogue
as an attempt to deserve divine grace. Pauline scholarship today has been
decisively influenced by the claims of E. P. Sanders and others that
the law was for Israel part of both the gift of grace and a response to grace. Only
in distorted forms of Judaism was the law regarded as ‘earning one's way
towards salvation’, as if it provided some alternative route to divine grace.
18.
Just as the first main point about divine governance of the world raised broader
issues about first and mediate causality and agency, even so the present
argument raises broader questions about the relationship between grace and
law.
19.
Luther, who stressed the centrality of grace no less vigorously than Jesus, Paul,
and Augustine, perceived laws that operate within the structures of society to be
one face of divine grace on behalf of the weak and vulnerable. In Luther's
words, to abolish the law is to say to the wolves, ‘Come, help yourselves to the
lambs of the flock; for they have no walls to defend them’. Calvin perceived law
even more positively as filling grace with specific cognitive content for the
guidance of the Christian life. Looking back to the tradition of the Psalms in
which the law (the Torah) is life-giving, he saw the commandments as offering
specific embodiments concerning the living out of divine grace as this is
experienced in the Christian life.
20.
Thus for Luther and for Calvin, over against their Anabaptist and ‘left-wing’
opponents, the structures and ‘orders’ of the Church provide ways in which
divine grace is cognitively and corporately appropriated and lived out. As has
been noted in the first main point, they would have regarded the notion that
these two categories represented a relationship of mutual logical exclusion as
resting upon a confusion of logic, or a category mistake. In this context Ernest
Kevan (I declare an interest as his nephew) wrote a volume on the Puritan
theology of law under the title The Grace of Law.
5. Residual considerations: individualism, and the
ecumenical dimension
21.
First, hand-in-hand with the model of causality called into question under
heading 1, we might ask whether the over-ready separation of legal and
ecclesial structures from notions of the divine imperative may also rest in part on
an undue individualism. Does God direct ordained ministers as their ‘employer’,
or ‘Lord’, in abstraction from the corporate college of their co-workers and
overseers? Is not the latter an integral part of the former? Once again, more
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recent New Testament research has urged that Paul, among others, never
regards apostleship as an individual calling apart from the context of ‘coworkers’.
22.
Although the ecumenical dimension may seem to reflect a partial consensus, we
should perhaps note that the reasons why the different traditions arrive at their
respective conclusions differ considerably. Thus, although the Roman Catholic
tradition appears to move as far as possible from such notions as those of legal
contracts, it is precisely because the Roman Catholic Church regards the
agencies of Bishops and the Roman hierarchy as virtually in loco Dei, as
channels of the divine imperative almost without qualification, that it adopts its
distinctive approach.
Anthony C. Thiselton
Emeritus Professor of Christian Theology in Residence at Nottingham University
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Annex 4
Annex 4
List of Rights that might
be made applicable to
clergy under Section 23
of the Employment
Relations Act 1999
a written statement of employment particulars
an itemized pay statement
protection against unlawful deductions from wages
protection for making a ‘protected disclosure’, that is
‘whistle-blowing’
protection against detriment for exercising certain employment rights including rights in
respect of Sunday working
time off for public duties
time off to look for work or arrange training in the event of redundancy
time off for ante-natal care
time off in respect of dependants (eg when child-care arrangements unexpectedly break
down, or a dependant gives birth, is ill or dies)
time of for duties as trustee of an occupational pension scheme
time off to serve (or to be a candidate for election as) an employee representative
remuneration when suspended on medical grounds or on maternity grounds
maternity leave
paternity leave
parental leave
adoption leave
access to dispute resolution procedures
a minimum period of notice of termination of employment
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a written statement of reasons for dismissal
not to be unfairly dismissed
a redundancy payment
an insolvency payment
be accompanied to certain hearings
be informed of collective redundancies
the national minimum wage
rest-breaks and annual leave
belong (or not to belong) to a trade union
time off for trade union activities
not to have unauthorized union subscription deductions from wages.
The right to ask and have considered flexible working hours for parents of young and
disabled children.
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Annex 5
Annex 5
An outline of the
Provisions of the Clergy
Discipline Measure 2003
The Clergy Discipline Measure provides a credible, fair and open system for
administering discipline when complaints are made against clergy.
Making a complaint
1.
A person who wishes to make a complaint against a deacon or priest must do
so in writing to the bishop of the diocese, or, in the case of a complaint against a
bishop, to the archbishop of the province. The complaint must include written
particulars of the alleged misconduct and written evidence in support of the
complaint.
2.
Disciplinary proceedings may be instituted if the complaint relates to the
contravening of ecclesiastical law, the failure to do any act required by
ecclesiastical law, the neglect or inefficiency in the performance of the duties of
office or conduct unbecoming or inappropriate to the office and work of a clerk in
Holy Orders.
3.
Disciplinary proceedings will not be instituted if more than one year has elapsed
since the last occurrence of the alleged misconduct. It is possible however for
the President of Tribunals (a national post) to give his written permission for
proceedings to be instituted after this time, after consultation with the
complainant and the respondent, if he or she considers that there is good
reason why the complainant did not institute proceedings at an earlier date.
Responses to the complaint
4.
The bishop will refer the complaint in the first instance to the diocesan registrar
who will decide whether there is sufficient substance in the complaint to justify
proceeding with it under the Clergy Discipline Measure. The registrar will notify
the respondent that the complaint has been referred to him or herself.
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5.
The registrar will, within a period of twenty-eight days of receiving the complaint,
send a written report to the bishop as to whether the complaint should be dealt
with under the Measure. This period of 28 days may be extended once, after
consultation with the complainant and the respondent, if the registrar considers
it justified by the particular circumstances of the case.
6.
After receiving the registrar’s report, the bishop may dismiss the complaint. If he
does, he will inform the complainant and the respondent in writing and send
them each a copy of the registrar’s report.
7.
If the complaint is dismissed, the complainant may request the President of
Tribunals to review the dismissal.
8.
If the complaint is not dismissed, or the President of Tribunals directs the bishop
to pursue the complaint, the following courses may be followed by the bishop:
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(i)
He may, if the respondent consents, direct that the matter remain on a
record maintained by the diocesan registrar for a period, not exceeding
five years, to be determined by the bishop. The complaint and the
bishop’s determination will be sent to the archbishop of the province.
(ii)
He may attempt to bring about conciliation. If this is done, the complainant
and respondent will be given an opportunity to make representations,
and, if both of them agree, a conciliator will be appointed. The bishop
must be satisfied that the conciliator is impartial. The conciliator will
endeavour to bring about a conciliation between the complainant and the
respondent within three months and send a report to the bishop. If a
conciliation is not brought about, another conciliator may be appointed
with agreement of the complainant and the respondent. If the complainant
and the respondent do not agree, the matter will be referred back to the
bishop to consider using other provisions of the Measure of dealing with
the complaint.
(iii)
He may impose a penalty with the consent of the respondent, after the
complainant and respondent have both been given the opportunity to
make representations. Where agreement cannot be achieved, the bishop
will use other provisions of the Measure to deal with the complaint. Where
it is agreed that resignation is the appropriate course, the respondent or
the bishop may withdraw their agreement within seven days.
(iv)
he may require the complaint to be formally investigated. He will refer the
matter to the designated officer who will be responsible for causing
inquiries to be made into the complaints. After inquiries have been made,
the President of Tribunals will be asked to decide whether there is a case
to answer in respect of which a disciplinary tribunal (or the VicarGeneral’s court in respect of a bishop) should be requested to adjudicate.
If the President of Tribunals decides that there is no case to answer, he
will declare his decision and no further steps shall be taken. The decision
will be sent in writing to the complainant, the respondent, the bishop and
Annex 5
the designated officer. If it is decided that there is a case to answer, it will
be considered by the bishop's disciplinary tribunal. The hearing will be in
private except where the tribunal directs, or the respondent requests, a
public hearing. The outcome will rest on the majority decision of the five
tribunal members based on the standard of proof required in proceedings
of the High Court exercising civil jurisdiction.
The tribunal can impose a penalty or defer consideration of the penalty, for
which purpose the proceedings may be adjourned, or impose no penalty. The
bishop may be invited to give his views in writing about the penalty to be
imposed.
The penalties recommended can include:
(a) prohibition from exercising ecclesiastical office whether for a specific time
or without limit of time;
(b) removal from office;
(c) revocation of a licence;
(d) injunction to do or refrain from doing a specified act;
(e) rebuke.
The Measure makes it possible for the above penalties to be imposed where
proceedings have been instituted against a clerk in Holy Orders in a secular
court.
The designated officer will conduct the case for the complainant at the tribunal.
The designated officer on a question of law, and the defendant, on a question of
law or fact, may appeal against the decision of the disciplinary tribunal or the
Vicar-General’s court to the Arches Court of Canterbury (where the proceedings
take place in the province of Canterbury) or the Chancery Court of York (where
the proceedings take place in the province of York).
9.
There are similar procedures at provincial level for dealing with complaints
against bishops and archbishops;
10.
There will be a Clergy Discipline Commission having 12 members appointed by
the Appointments Committee of the General Synod which will include at least
two people from each of the Houses of the General Synod, and two people with
specified legal qualifications and experience. The Commission will be required:
(i)
to give advice to the bishops’ disciplinary tribunals, the courts of the VicarGeneral, bishops and archbishops as to the penalties which are
appropriate in particular circumstances;
(ii)
to issue codes of practice and general policy guidance to people exercising
functions in connection with clergy discipline;
(iii) to make an annual report to General Synod through the House of Bishops
on the exercise of its functions during the previous year.
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11.
The Commission will compile a panel for each province of persons available for
appointment as members of a disciplinary tribunal or Vicar-General’s court. The
list will include names of:
(a) two lay people from each diocese nominated by the bishop of the diocese
after consultation with the Bishop’s Council, who are resident in the diocese
and on the electoral roll of a parish in the diocese;
(b) two people in Holy Orders from each diocese nominated by the bishop after
consultation with the Bishop’s Council, who must have been ordained for at
least seven years and resident in the diocese;
(c) ten people nominated by the archbishop of the relevant province who have
specified legal qualifications.
12.
The archbishop of the relevant province may also nominate to the panel up to
five lay people resident in the province and on an electoral roll in the province
and up to five people who have been ordained for at least seven years and
resident in the province.
13.
The normal period of office on the panel with be six years with the possibility of
one extension of a further six years.
14.
The Chairman of the Commission shall act as the President of Tribunals. The
Deputy Chairman of the Commission will act as the Deputy President of
Tribunals.
15.
Any bishop’s disciplinary tribunal shall consist of five members as follows:
(a) the chairman who shall be the President of Tribunals or such other person
as he may appoint as chairman selected from the provincial panel with
legal qualifications;
(b) two lay persons appointed by the President of Tribunals from the provincial
panel;
(c) two persons in Holy Orders appointed by the president of tribunals from the
provincial panel.
16.
A cleric who is convicted of an offence or is arrested on suspicion of committing
a criminal offence or who has been involved in divorce proceedings is under a
duty to inform his bishop within 28 days of the conviction, arrest or order.
17.
Where a cleric is arrested on suspicion of committing a criminal offence or a
complaint in writing is made against him or her, the bishop may suspend the
cleric from exercising or performing any right or duty of his or her office.
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18.
A cleric who is convicted of an offence and has a sentence of imprisonment
(whether or not suspended) imposed on him or her, or who has a finding of
adultery, unreasonable behaviour or desertion made against him or her in
matrimonial proceedings, may without further process be removed from office or
be made subject to prohibition (either for life or for a limited time).
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Annex 6
The duties of the clergy
This material provides a summary of the duties of clergy as contained in the Ordinal and
Canon Law. It does not attempt to provide details of the duties laid on clergy through
other legislation, such as those in respect of synodical government, parochial registers
and records, or the church, churchyard and parsonage house.
The text of the Ordinal is from the Alternative Services Book, which does not use
inclusive language; the new Common Worship Ordinal will be drafted to provide for
women as well as men being ordained to the diaconate or priesthood.
The text of the Canons also uses 'non-inclusive' language. We reproduce the official
text, which is in this form, as the Canons have hitherto been drafted using the
Parliamentary drafting conventions under which the masculine includes the feminine.
A. Extracts from the Ordinal
(i) The descriptions of the work of a deacon, priest or
bishop:
A deacon is called to serve the Church of God, and to work with its members in caring
for the poor, the needy, the sick, and all who are in trouble. He is to strengthen the
faithful, search out the careless and the indifferent, and to preach the word of God in the
place to which is licensed. A deacon assists the priest under whom he serves, in leading
the worship of the people, especially in the administration of the Holy Communion. He
may baptize when required to do so. It is his general duty to do such pastoral work as is
entrusted to him.
A priest is called by God to work with the bishop and with his fellow-priests, as servant
and shepherd among the people to whom he is sent. He is to proclaim the word of the
Lord, to call his hearers to repentance, and in Christ's name to absolve, and to declare
the forgiveness of sins. He is to baptize, and prepare the baptized for Confirmation. He
is to preside at the celebration of the Holy Communion. He is to lead his people in
prayer and worship, to intercede for them, to bless them in the name of the Lord, and to
teach and encourage by word and example. He is to minister to the sick, and prepare
the dying for their death. He must set the Good Shepherd always before him as the
pattern of his calling, caring for the people committed to his charge, a joining with them
in a common witness to the world.
A bishop is called to lead in serving and caring for the people of God and to work with
them in the oversight of the Church. As chief pastor he shares with his fellow bishops a
special responsibility to maintain and further the unity of the Church, to uphold its
discipline, and to guard its faith. He is to promote its mission throughout the world. It is
his duty to watch over and pray for all those committed to his charge, and to teach and
govern them after the example of the Apostles, speaking in the name of God and
interpreting the gospel of Christ. He is to know his people and be known by them. He is
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to ordain and to send new ministers, guiding those who serve with him and enabling
them to fulfil their ministry. He is to baptize and confirm, to preside at the Holy
Communion, and to lead the offering of prayer and praise. He is to be merciful, but with
firmness, and to minister discipline, but with mercy. He is to have a special care for the
outcast and needy; and to those who turn to God he is to declare the forgiveness of
sins.
(ii) The declarations made by those to be ordained:
Q
Do you believe, so far as you know your own heart, that God has called you to
the office and work of a [deacon/priest/bishop] in his Church?
A
I believe that God has called me.
Q
Do you accept the holy Scriptures as revealing all things necessary for eternal
salvation through faith in Jesus Christ?
A
I do so accept them.
Q
Do you believe the doctrine of the Christian faith as the Church of England has
received it, and in your ministry will you expound and teach it?
A
I believe it, and will so do.
Q
Will you accept the discipline of this Church, and [(d,p) give due respect to those
in authority/(b) faithfully exercise authority within it]?
A
By the help of God, I will.
Q
Will you be diligent in prayer, in reading holy Scripture, and in all studies that will
deepen your faith and fit you to uphold the truth of the Gospel against error?
A
By the help of God, I will.
Q
Will you strive to fashion your own life and that of your household according to
the way of Christ?
A
By the help of God, I will.
Q
Will you promote unity, peace, and love among all Christian people, and
especially among those whom you serve?
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A
By the help of God, I will.
Q
(d,p) Will you then, in the strength of the Holy Spirit, continually stir up the gift of
God that is in you, to make Christ known to all men?
(b)
Will you then be a faithful witness to Christ to those among whom you live, and
lead your people to obey our Saviour’s command to make disciples of all
nations?
A
By the help of God, I will.
B. Related provisions of Canon Law
Some of the declarations in the Ordinal are made matters of legal obligation by
provisions in the Canons. So, Canon C26 provides:
1. Every bishop, priest, and deacon is under obligation, not being let by sickness or
some other urgent cause, to say daily the Morning and Evening Prayer, either
privately or openly; and to celebrate the Holy Communion, or be present thereat,
on all Sundays and other principal Feast Days. He is also to be diligent in daily
prayer and intercession, in examination of his conscience, and in the study of
the Holy Scriptures and such other studies as pertain to his ministerial duties.
2. A minister shall not give himself to such occupations, habits, or recreations as do
not befit his sacred calling, or may be detrimental to the performance of the
duties of his office, or tend to be a just cause of offence to others; and at all
times he shall be diligent to frame and fashion his life and that of his family
according to the doctrine of Christ, and to make himself and them, as much as
in him lies, wholesome examples and patterns to the flock of Christ.
C. The Declaration of Assent
More closely associated with the assumption of a particular office within the church is
the Declaration of Assent which Canon C15 requires to be made at every consecration
and before anyone is admitted to a benefice, curacy etc.
Preface
The Church of England is part of the One, Holy, Catholic and Apostolic Church
worshipping the one true God, Father, Son and Holy Spirit. It professes the faith
uniquely revealed in the Holy Scriptures and set forth in the catholic creeds, which faith
the Church is called upon to proclaim afresh in each generation. Led by the Holy Spirit, it
has borne witness to Christian truth in its historic formularies, the Thirty-nine Articles of
Religion, The Book of Common Prayer and the Ordering of Bishops, Priests and
Deacons. In the declaration you are about to make will you affirm your loyalty to this
inheritance of faith as your inspiration and guidance under God in bringing the grace
and truth of Christ to this generation and making him known to those in your care?
Declaration of Assent
I, A B, do so affirm, and accordingly declare my belief in the faith which is revealed in
the Holy Scriptures and set forth in the catholic creeds and to which the historic
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formularies of the Church of England bear witness; and in public prayer and
administration of the sacraments, I will use only the forms of service which are
authorized or allowed by Canon.
D. The Oaths of Allegiance and Obedience
There are two other declarations required by Canon Law, in the form of oaths: the Oath
of Allegiance under Canon C13, and the Oath of Obedience. This latter is dealt with in
two Canons. Canon C1, paragraph 3 declares:
3.
According to the ancient law and usage of this Church and Realm of England, the
inferior clergy who have received authority to minister in any diocese owe
canonical obedience in all things lawful and honest to the bishop of the same, and
the bishop of each diocese owes due allegiance to the archbishop of the province
as his metropolitan.
Canon C14 deals with the Oath itself:
1.
Every person whose election to any bishopric is to be confirmed, or who is to be
consecrated bishop or translated to any bishopric or suffragan bishopric, shall first
take the oath of due obedience to the archbishop and to the metropolitical Church
of the province wherein he is to exercise the episcopal office in the form and
manner prescribed in and by the Ordinal.
3.
Every person who is to be ordained priest or deacon, or to be instituted to any
benefice, or to be licensed either to any lectureship, preachership, or stipendiary
curacy, or to serve in any place, shall first take the Oath of Canonical Obedience
to the bishop of the diocese by whom he is to be ordained, instituted, or licensed,
in the presence of the said bishop or his commissary, and in the form following:
I, A B, do swear by Almighty God that I will pay true and
canonical obedience to the Lord Bishop of C and his
successors in all things lawful and honest: So help me God.
It is probably true to say that the precise scope of ‘all things lawful and honest’ is
uncertain. Some clue as to its meaning may be found in the Canon dealing with
diocesan bishops, Canon C18. Paragraph 4 of that Canon provides:
Every bishop is, within his diocese, the principal minister, and to him belongs the right,
save in places and over persons exempt by law or custom, of celebrating the rites of
ordination and confirmation; of conducting, ordering, controlling, and authorizing all
services in churches, chapels, churchyards and consecrated burial grounds; of granting
a faculty or licence for all alterations, additions, removals, or repairs to the walls, fabric,
ornaments, or furniture of the same; of consecrating new churches, churchyards, and
burial grounds; of instituting to all vacant benefices, whether of his own collation or of
the presentation of others; of admitting by licence to all other vacant ecclesiastical
offices; of holding visitations at times limited by law or custom to the end that he may get
some good knowledge of the state, sufficiency, and ability of the clergy and other
persons whom he is to visit; of being president of the diocesan synod.
E. Duties of ministers having the cure of souls
The specific duties of the parochial clergy are set out at many points in the body of
Canons. Some provisions apply to ‘ministers’ generally, but a number refer specifically
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to ministers having the cure of souls (which includes team vicars and priests in charge
as well as incumbents). The most general provision is Canon C24:
1.
Every priest having a cure of souls shall provide that, in the absence of
reasonable hindrance, Morning and Evening Prayer daily and on appointed days
the Litany shall be said in the church, or one of the churches, of which he is the
minister.
2.
Every priest having a cure of souls shall, except for some reasonable cause
approved by the bishop of the diocese, celebrate, or cause to be celebrated, the
Holy Communion on all Sundays and other greater Feast Days and on Ash
Wednesday, and shall diligently administer the sacraments and other rites of the
Church.
3.
Every priest having a cure of souls shall, except for some reasonable cause
approved by the bishop of the diocese, preach, or cause to be preached, a
sermon in the church or churches of which he is the minister at least once each
Sunday.
4.
He shall instruct the parishioners of the benefice, or cause them to be
instructed, in the Christian faith; and shall use such opportunities of teaching or
visiting in the schools within his cure as are open to him.
5.
He shall carefully prepare, or cause to be prepared, all such as desire to be
confirmed and, if satisfied of their fitness, shall present them to the bishop for
confirmation.
6.
He shall be diligent in visiting the parishioners of the benefice, particularly those
who are sick and infirm; and he shall provide opportunities whereby any of such
parishioners may resort unto him for spiritual counsel and advice.
7.
He and the parochial church council shall consult together on matters of general
concern and importance to the parish.
8.
If at any time he shall be unable to discharge his duties whether from nonresidence or some other cause, he shall provide for his cure to be supplied by a
priest licensed or otherwise approved by the bishop of the diocese.
Some of the paragraphs of that Canon are reinforced by other provisions. So,
paragraphs 4 and 5 are amplified in Canon B26, paragraph 1:
Every minister shall take care that the children and young people within his cure are
instructed in the doctrine, sacraments, and discipline of Christ, as the Lord has
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commanded and as they are set forth in the Holy Scriptures, in The Book of Common
Prayer, and especially in the Church Catechism; and to this end he, or some godly and
competent persons appointed by him, shall on Sundays or if need be at other
convenient times diligently instruct and teach them in the same.
and in Canon B27, paragraph 2:
Every minister who has a cure of souls shall diligently seek out children and other
persons whom he shall think meet to be confirmed and shall use his best endeavour to
instruct them in the Christian faith and life as set forth in the Holy Scriptures, The Book
of Common Prayer, and the Church Catechism.
Paragraph 6 is amplified in Canon B37
1.
The minister shall use his best endeavours to ensure that he be speedily informed
when any person is sick or in danger of death in the parish, and shall as soon as
possible resort unto him to exhort, instruct, and comfort him in his distress in such
manner as he shall think most needful and convenient.
2.
When any person sick or in danger of death or so impotent that he cannot go to
church is desirous of receiving the most comfortable sacrament of the Body and
Blood of Christ, the priest, having knowledge thereof, shall as soon as may be
visit him, and unless there be any grave reason to the contrary, shall reverently
minister the same to the said person at such place and time as may be
convenient.
F. Residence and ‘Leave entitlement’
A typical contract of employment will deal with holiday entitlement. There are some
general understandings about this but the nearest equivalent in Canon Law is Canon
C25:
1.
Every beneficed priest shall keep residence on his benefice, or on one of them if
he shall hold two or more in plurality, and in the house of residence (if any)
belonging thereto.
2.
No beneficed priest shall be absent from his benefice, or from the house of
residence belonging thereto, for a period exceeding the space of three months
together, or to be accounted at several times in any one year, except he have a
licence to be so absent, granted by the bishop of the diocese subject to the
statutory provisions in this behalf for the time being in force, or be otherwise
legally exempt from residence.
3.
Any beneficed priest, within one month after refusal of any such licence, may
appeal to the archbishop of the province, who shall confirm such refusal or
direct the bishop to grant a licence, as shall seem to the said archbishop just
and proper.
4.
In the case of any benefice in which there is no house, or no fit house of
residence, the priest holding that benefice may he licensed by the bishop of the
diocese to reside in some fit and convenient house, although not belonging to
that benefice: Provided that such house be within three miles of the church or
chapel of the benefice, or, if the same be in any city or borough town or market
town, within two miles of such church or chapel.
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G. Specific duties in connection with liturgy and
the sacraments
Most of the other provisions deal with the work of the minister in terms of liturgy and the
sacraments.
(a) Forms of worship
Every minister shall use only the forms of service authorized by this Canon, except so
far as he may exercise the discretion permitted by Canon B5. It is the minister's
responsibility to have a good understanding of the forms of service used and he shall
endeavour to ensure that the worship offered glorifies God and edifies the people
(Canon B1, paragraph 2).
The minister having the cure of souls shall give adequate public notice, in any way
which is locally convenient, of the Feast Days and Fast Days to be observed and of the
time and place of services on those days (Canon B7).
The minister shall teach the people from time to time, and especially before the festivals
of Christmas, Easter and Whitsun or Pentecost, that they come to [the Holy
Communion] with such preparation as is required by The Book of Common Prayer
(Canon B15, paragraph 2).
It is the duty of the minister to ensure that only such chants, hymns, anthems, and other
settings are chosen as are appropriate, both the words and the music, to the solemn act
of worship and prayer in the House of God as well as to the congregation assembled for
that purpose; and to banish all irreverence in the practice and in the performance of the
same (Canon B20, paragraph 3).
(b) Baptism
Canon B22 provides
4.
No minister shall refuse or, save for the purpose of preparing or instructing the
parents or guardians or godparents, delay to baptize any infant within his cure
that is brought to the church to be baptized, provided that due notice has been
given and the provisions relating to godparents in these Canons are observed.
6.
No minister being informed of the weakness or danger of death of any infant
within his cure and therefore desired to go to baptize the same shall either refuse
or delay to do so.
9.
The minister of every parish shall warn the people that without grave cause and
necessity they should not have their children baptized privately in their houses.
(c) Marriage
It shall be the duty of the minister, when application is made to him for matrimony to be
solemnized in the church of which he is the minister, to explain to the two persons who
desire to be married the Church's doctrine of marriage as herein set forth [i.e. in Canon
B30, para 1], and the need of God's grace in order that they may discharge aright their
obligations as married persons (Canon B30, paragraph 3).
It shall be the duty of the minister, when application is made to him for matrimony to be
solemnized in the church or chapel of which he is the minister, to inquire whether there
be any impediment either to the marriage or to the solemnization thereof (Canon B33).
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In all matters pertaining to the publication of banns of marriage and to the solemnization
of matrimony every minister shall observe the law relating thereto, including, so far as
they are applicable, the rules prescribed by the rubric prefixed to the office of
Solemnization of Matrimony in The Book of Common Prayer (Canon B35, paragraph 2).
(d) Burial
Canon B38 sets out at some length the minister’s duties:
1.
In all matters pertaining to the burial of the dead every minister shall observe the
law from time to time in force in relation thereto, and, subject to this paragraph in
general, the following paragraphs of this Canon shall be obeyed.
2.
It shall be the duty of every minister to bury, according to the rites of the Church of
England, the corpse or ashes of any person deceased within his cure or of any
parishioners or persons whose names are entered on the church electoral roll of
his parish whether deceased within his cure or elsewhere that is brought to a
church or burial ground or cemetery under his control in which the burial or
interment of such corpse or ashes may lawfully be effected, due notice being
given; except the person deceased have died unbaptized, or being of sound mind
have laid violent hands upon himself, or have been declared excommunicate for
some grievous and notorious crime and no man to testify to his repentance; in
which case and in any other case at the request of the relative, friend, or legal
representative having charge of or being responsible for the burial he shall use at
the burial such service as may be prescribed or approved by the Ordinary, being
a service neither contrary to, nor indicative of any departure from, the doctrine of
the Church of England in any essential matter: Provided that, if a form of service
available for the burial of suicides is approved by the General Synod under Canon
B2, that service shall be used where applicable instead of the aforesaid service
prescribed or approved by the Ordinary, unless the person having charge or being
responsible for the burial otherwise requests.
(e) Registration
In all matters pertaining to the registration of baptisms, marriages, and burials every
minister shall observe the law from time to time in force relating thereto (Canon B39,
paragraph 1).
H. Care of the church building
Finally there are two Canons dealing with faculties and the use of the church:
It shall be the duty of the minister and churchwardens, if any alterations, additions,
removals, or repairs are proposed to be made in the fabric, ornaments, or furniture of
the church, to obtain the faculty or licence of the Ordinary before proceeding to execute
the same (Canon F13, paragraph 3).
1.
When any church or chapel is to be used for a play, concert, or exhibition of films
or pictures, the minister shall take care that the words, music, and pictures are
such as befit the House of God, are consonant with sound doctrine, and make for
the edifying of the people.
2.
The minister shall obey any general directions relating to such use of a church or
chapel issued from time to time by the bishop or other the Ordinary (Canon F16).
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Annex 7
Current law as to the
legal status of the clergy
1.
It is clear that the clergy of the Church of England who are ‘in post’ can be
accurately described in legal terms as ‘ecclesiastical office-holders’. In many
cases, including diocesan bishops, archdeacons and incumbents, their post will
have been created by a legal process, but any minister with the cure of souls has
detailed rights, duties, and obligations defined by Canon Law. This is, of course,
not the position of ministers of religion outside the Established Church. (See
President of the Methodist Conference v Parfitt [1984] Q B 368 (CA))
2.
It does not necessarily follow that the categories of ecclesiastical office-holder and
employee are mutually exclusive. Certainly, someone with divided duties may be
an employee as to part of the work but an ecclesiastical office-holder as well: a
diocesan Director of Education may have a contract of employment, and may
continue to work under that contract if appointed additionally as a residentiary
canon of the cathedral of the diocese. However, the courts have consistently held
that Church of England clergy (and those of other denominations and faiths) are
not employees.
3.
This was first established for the purposes of the new system of National
Insurance by the High Court in Re National Insurance Act 1911; re Employment of
Church of England Curates [1912] 2 Ch 563. Counsel defined the issue in making
a submission to the court:
The question seems to be whether the curate is the servant of the
incumbent. It is submitted that he is not. An incumbent does not employ
a curate. The bishop appoints him and, as the form of licence shews,
assigns the yearly stipend for serving the cure. The curate only renders
assistance to the incumbent in the performance of his duties to the
parish.
4. That approach was largely accepted by Parker J. His judgment touched on a
number of matters and a passage deserves to be quoted in full:
I have come to the conclusion that the position of a curate is the
position of a person who holds an ecclesiastical office, and not the
position of a person whose duties and rights are defined by contract at
all. It appears to me that there can be no pretence in reality for arguing
that the relation between him and his vicar, or between him and his
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bishop, or between him and any one else, is the relation of employer
and servant. As I understand, nobody can assume the office of curate,
or can fulfil the duties ordinarily exercised by curates in a parish, without
the consent or licence of the bishop. If a stipendiary curate is to be
appointed, this may in some cases be done, as in the absence of the
vicar or if the vicar is not carrying out his duties properly, by the bishop
on his own initiative. If, on the other hand, the vicar requires assistance,
it is open to him to ask the bishop to license his nominee for the
purpose of assisting him. But in neither the one case nor the other do I
think it can properly be said that the vicar appoints the curate. He
nominates him, and, if the appointment is made at all, it is made by the
bishop and is contained in the bishop's licence.
Again, it appears to me that, at any rate in the case of those curates who
hold a full licence from the bishop, it is impossible to say, with any real
accuracy, that they can be dismissed at the will of the vicar. They can
only be dismissed with the consent of the bishop, and, as I gather, for
some reasonable ground – either that their services are no longer
required, or, possibly, that there has been some misconduct or deficiency
on their part which would justify their dismissal; but in every case the
bishop must consent. Similarly, if the curate himself wants to resign, I
doubt whether he can resign without the consent of the bishop. Certainly
he cannot do so without giving a certain amount of notice in that behalf to
the bishop.
Further, when I come to consider the duties of the curate, it appears to
me that those duties are in no way defined by any contract of
employment between him and any one else. He owes, no doubt, a certain
amount of obedience to the vicar, as to the precise extent of which there
may be some question – at any rate into that part of the case I do not
intend to enter at any length – but the duty which he owes to the vicar is
not a duty which he owes because of contract, but a duty which he owes
to an ecclesiastical superior. He may owe one kind of duty to the bishop
and another kind of duty to the vicar, and one may have greater control
over his actions than the other, but whatever authority either exercises
over him is an authority which can be exercised by virtue of the
ecclesiastical jurisdiction, and not an authority which depends in any case
upon contract. If I were to hold that the vicar and his curate were in the
position of master and servant, I might be imposing on the vicar at
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common law very serious liabilities, from which I think, in all common
sense, he ought to be exempt.
5.
It will be seen that the judge relies on the fact that there is no form of contract
between curate and incumbent. He did not say that there could be no such
contract. None existed in written form; the special processes for appointment and
resignation were not those commonly found in employment cases, so no
employment contract could be implied. The judge also, by his references to the
bishop, hints at some uncertainty as to who any employer might be; and in the
final sentence refers to the vicarious liability of employers for the acts of their
employees.
6.
A contract, whether of employment or of any other sort, requires agreement
between defined parties, ‘consideration’ (that is ‘something of value in the eyes of
the law’ given in return for a promise and rendering the promise enforceable), and
an intention by the parties to create legal relations. In a number of cases, the
courts have noted the absence of one or more of these elements in examining the
position of ministers of religion.
7.
In President of the Methodist Conference v Parfitt [1984] Q B 368, the Court of
Appeal held that a Methodist minister could not bring a claim for unfair dismissal
as he was not an employee. The minister concerned argued his case before the
Court of Appeal in terms which are not without force. They were summarized by
Dillon LJ:
(i)
The spiritual nature of the work done by a minister and the spiritual
discipline to which he is subject do not necessarily exclude a
contractual relationship. (ii) Any reasonable person could do no other
than conclude, looking at all the facts, that a minister, though a servant
of God, is also a servant of the church. (iii) The minister has to provide
for non-spiritual matters as well as spiritual matters, and his
arrangements with the church cater for the non-spiritual matters, such
as provision for his house and food and pension and provision for his
wife and children, which are matters appropriate to be covered by a
contract of service, and (iv) there are many persons employed under
contracts of service, such as the master of a ship or a journalist on the
staff of a newspaper, who have to perform functions or exercise their
skills in circumstances in which it would be impossible for the employer
directly to control the capacity of the servant for doing the work. Such
persons are none the less still employees.
8.
Dillon LJ nonetheless held that there was no contract arising either from
ordination (‘reception into full connexion’) as a Methodist minister or from
appointment to a particular circuit.
[T]he spiritual nature of the functions of the minister, the spiritual nature
of the act of ordination by the imposition of hands and the doctrinal
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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 [sic]. The nature of
the stipend supports this view.
9.
However, the judgment focuses on the life-long nature of the obligations accepted
by the minister and the Methodist Conference, which have no parallel in the
Church of England. He agreed with the minister
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.
10.
In view of the decision in the Parfitt case, and because of anxieties about a
possible divergence between the legal position in England and Scotland, leave
was given for an appeal to the House of Lords in Davies v Presbyterian Church of
Wales [1986] 1 WLR 323. The House of Lords held that they could not enforce
the rules of that church, technically an unincorporated association, except insofar
as property matters were concerned. As to the position of a minister, the House
held that there was in this case no contract of service. Lord Templeman (with
whose speech the other Law Lords agreed) said:
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 pastor of the Church cannot
point to any contract between himself and the Church. The book of
rules does not contain terms of employment capable of being offered
and accepted in the course of a religious ceremony. The duties
owed by the pastor to the Church are not contractual or enforceable.
A pastor is called and accepts the call. He does not devote his
working life but his whole life to the Church and his religion. His
duties are defined and his activities are dictated not by contract but
by conscience. He is the servant of God. If his manner of serving
God is not acceptable to the Church, then his pastorate can be
brought to an end by the Church in accordance with the rules. The
law will ensure that a pastor is not deprived of his salaried pastorate
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save in accordance with the provisions of the book of rules but an
industrial tribunal cannot determine whether a reasonable Church
would sever the link between minister and congregation.
The duties owed by the Church to the pastor are not contractual.
The law imposes on the Church a duty not to deprive a pastor of his
office which carries a stipend, save in accordance with the
procedures set forth in the book of rules. The law imposes on the
Church a duty to administer its property in accordance with the
provisions of the book of rules.
11.
The power of a minister of religion, and indeed of a Church of England clergyman,
to seek judicial review where the church fails to observe its own rules in
terminating an appointment is illustrated by R v Bishop of Stafford ex parte Owen
(High Court, QBD, unreported, 5 April 2000; Court of Appeal, unreported, 14
August 2000 (where the long history of judicial review applications by clergy is
summarized). No issue arose as to the right of Mr Owen to apply, but his
application was dismissed on the merits.
12.
The most recent case on the ‘employment’ issue concerning Anglican clergy was
that of Coker v Diocese of Southwark. An Industrial Tribunal, consisting of
Professor Roger Rideout, a distinguished employment lawyer, sitting alone, held
that an assistant curate was not an ecclesiastical office-holder (because there
was no permanent, established, office); that the spiritual nature of the work done
did not prevent there being a contract; and that on the evidence there was indeed
a contract of service ([1995] ICR 563). The Employment Appeal Tribunal reversed
this decision, holding that that a priest of the Church of England appointed to an
assistant curacy was not, as a result of that appointment, employed under a
contract of service but was the holder of an ecclesiastical office and as such his
rights were not conferred by contract but by ecclesiastical law. ([1996] ICR 896).
13.
The matter went to the Court of Appeal ([1998] ICR 140), which upheld the
Appeal Tribunal’s decision. The leading judgment was given by Mummery LJ,
who reviewed the earlier case-law and said:
Although not explicitly analysed in these terms in the authorities, the
simple reason, in my view, for the absence of a contract between the
church and a minister of religion is the lack of an intention to create a
contractual relationship. If that is so, then it is unnecessary to ask
whether the contract is one of service or some other kind of contract.
I agree with the appeal tribunal that the chairman of the industrial
tribunal misinterpreted the law, which has been settled by a long line of
authority. In my judgment, the legal position is as follows.
(1) Not every agreement constitutes a binding contract. Offer,
acceptance and consideration must be accompanied by an intention
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to create a contractual relationship giving rise to legally enforceable
obligations.
(2) That intention is to be objectively ascertained. In the case of an
ordinary commercial transaction, it will be for the person who
contends that there was no contract to establish that the intention to
create a binding contract has been negatived.
(3) In some cases, however, there is no contract, unless it is positively
established by the person contending for a contract that there was
an intention to create a binding contractual relationship. This is such
a case. Special features of the appointment and the removal of a
Church of England priest as an assistant curate and the source and
scope of his duties preclude the creation of a contract, unless a clear
intention to the contrary is expressed.
The critical point in this case is that an assistant curate is an
ordained priest. The legal effect of the ordination of a person
admitted to the order of priesthood is that he is called to an office,
recognized by law and charged with functions designated by law in
the Ordinal, as set out in The Book of Common Prayer. The Ordinal
governs the form and manner for ordaining priests according to the
order of the Church of England. Those functions are also contained
in the Canons of the Church of England and are discharged by a
priest as assistant curate. It is unnecessary for him to enter into a
contract for the creation, definition, execution or enforcement of
those functions. Those functions embrace spiritual, liturgical and
doctrinal matters, as well as matters of ritual and ceremony, which
make what might otherwise be regarded as an employment
relationship in the secular and civil courts and tribunals more
appropriate for the special jurisdiction of ecclesiastical courts.
The legal implications of the appointment of an assistant curate must
be considered in the context of that historic and special pre-existing
legal framework of a church, of an ecclesiastical hierarchy
established by law, of spiritual duties defined by public law rather
than by private contract, and of ecclesiastical courts with jurisdiction
over the discipline of clergy. In that context, the law requires clear
evidence of an intention to create a contractual relationship in
addition to the pre-existing legal framework.
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That intention is not present, either generally on the appointment of
an assistant curate, or in the particular case of Dr Coker. I would add
that it has never been held, and it is not suggested by [counsel] in
this case, that the incumbent of the parish, holding its church and its
benefice, is under a contract with the bishop or with anyone else in
respect of his cure of souls in the parish…
(4)
The legal position stated by Parker J has not been changed by the
Act of 1978 or by any other employment protection legislation. It
should be noted that the right of an employee under section 54(1) of
the Act of 1978 is not to be unfairly dismissed by his employer. Dr
Coker had no employer while he was assistant curate, because
there was no intention that he should have a contract, let alone a
contract of service, with anyone for the discharge of the functions of
his priestly office.
The Diocese of Southwark was not his employer; it is the district
under the supervision of the bishop and is not a legal person with
whom a contract can be concluded. The Church Commissioners
paid Dr Coker’s stipend and the Diocesan Board of Finance made
the necessary arrangements for that payment. Neither of them
appointed him, removed him, controlled the performance of his
functions, or had any contract with him. It was not contended that
either of the vicars had a contract with Dr Coker. That leaves only
the bishop, chief pastor of the diocese, who has legal responsibility
for licensing the appointment of assistant curates, on the nomination
of the incumbent, and the termination of such appointment, or
revocation of it. But that relationship, cemented by the oath of
canonical obedience, is governed by the law of the established
church, which is part of the public law of England, and not by a
negotiated, contractual arrangement. Vis-a-vis the bishop, Dr Coker
had a legal status stemming from his priestly office, but he had no
private law contract transforming him into an ‘employee’ for the
purposes of the Act of 1978.
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Annex 8
An outline of a capability
procedure for clergy
In this Annex, we give an outline of a procedure that could be applied to any groups of
clergy. It reflects the recommendations of ACAS and fulfills the requirements of the
Employment Act 2002.
Although this procedure could lead to removal from office, we repeat what is said in the
body of our report:
The principal concerns of a capability procedure should be to help people to
improve, and to deal with problems of poor performance before they become
too serious to be remedied. It is about ensuring that people have been made
fully aware what is required of them, and have been given opportunity –
through training and other means – to equip themselves with the resources
to improve their performance (where this is necessary) and realize their full
potential.
Capability is defined by the Employment Rights Act 1996 as ‘capability assessed by
reference to skill, aptitude, health or any other physical or mental quality’.
Instigation of the procedure
This procedure may be instigated by a complaint or series of complaints from clergy or
laity or other people working with the person involved, or by the archdeacon or other
officer of the diocese. For ease of reference, the expression ‘complainant’ has been
used to cover all possible situations.
Confidentiality
At all stages, it is important to ensure that information is only given to those who need to
know, and that those involved realize the need for confidentiality. Breach of
confidentiality could undermine the position of the minister involved.
Presence of Human Resource adviser
So far as possible, the diocesan Human Resource adviser must be present at each
stage of the formal procedure.
Minister’s right to be accompanied
At all stages, if the minister concerned wishes to bring a friend or union representative to
any panel, he or she may do so, but should inform the archdeacon or the chair of the
relevant panel in advance.
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Burden of proof
Where the facts are disputed, the burden of proof should be ‘the balance of probabilities’
and not ‘beyond reasonable doubt’.
Exceptional circumstances
There may be exceptional circumstances in which it would be fair to omit one or more
stages, but this should not be done without the advice of the diocesan HR adviser.
Before the formal stages of the procedure
Any complaints which appear to raise issues of capability should be initially referred to
the archdeacon (or suffragan bishop or dean where appropriate; the term archdeacon in
what follows applies to other officers where appropriate). The archdeacon will conduct
initial investigations; frivolous and unsubstantiated complaints should be weeded out at
this point. If the complainant is not prepared to be put on record or participate in the
procedure, the archdeacon should take the matter no further. If the complaint concerns
a parochial minister and the complainant is not one of the churchwardens, the
archdeacon may discuss the matter with the churchwardens, and ensure that both the
complainant and minister are informed about the results of the conversation.
If he decides to take the matter further, the archdeacon, in collaboration with the
diocesan HR adviser should arrange an interview with the minister; alerting the minister
in advance to the concerns raised, and giving at least 10 days’ notice of the interview. At
the interview the archdeacon reviews the matters with the minister, explores what can
be offered to the minister to assist in improving performance (for example, mediation,
training, enforced leave), explores with the minister any contributory factors (such as
domestic circumstances), and seeks to agree with the minister a form of action to
improve performance and sets a date for reviewing progress. The complainant will be
told that action is being taken, that improvement is expected and that he or she will be
asked to comment on this at a later stage. At this stage, nothing is given to the diocesan
bishop in writing.
After the agreed interval, the archdeacon with the collaboration of the HR adviser
reviews with the minister and the complainant whether improvement has taken place as
hoped. If the complainant is not one of the churchwardens, the archdeacon may take
the advice of the churchwardens. Any separate conversations with the complainant or
churchwardens must be reported to the minister. If no further action is required, the
archdeacon informs the complainant and the minister in writing.
If the archdeacon, as a result of a lack of improvement in the minister’s performance,
decides to issue an informal warning, he or she does so in writing indicating that
performance will be monitored over a specified period and that, if there is a failure to
improve, the next stage may be formal action in accordance with the procedure; a copy
of the letter will be put on the minister’s personal file. The complainant and others as
appropriate will be asked to assist in the monitoring process, keeping records.
At the end of the set period, the archdeacon gathers information from the complainant
and others as appropriate and from the minister and then decides whether or not there
has been sufficient improvement and whether or not to move to the formal stage of the
procedure. If the improvement has taken place, the archdeacon writes to the minister
confirming this, and the note of the informal warning is removed from the personal file.
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Formal Procedure – stage 1: first formal warning
If, in the light of the outcome, the archdeacon decides that the minister’s standard of
performance has failed to improve, and that it is right to move onto the formal stage of
the procedure, the archdeacon through the HR adviser writes to the minister requiring
him or her to attend an interview with the panel, giving at least 10 days’ notice providing
details of the complaints about performance, and inviting the minister to bring a friend or
union representative; invites the complainant and as appropriate the churchwardens or
others who have been involved in monitoring the minister’s performance to them to
attend.
At the interview, the panel is required to consider the evidence provided, to give the
minister the opportunity to respond to the complaints and provide explanations; to give
the complainant and the minister and opportunity to call witnesses; and to decide
whether to give a formal warning.
If the panel decides that a formal warning should be given, the archdeacon writes to the
minister notifying him or that a formal warning has been given, reminding him or her of
the improvement expected, informing him or her that further action will be taken if there
is no improvement within a specified time period (not less than 3 months) and that this
may lead to eventual dismissal; place a copy of the warning on the personal file; and
inform the diocesan bishop in writing.
The minister has the right to appeal against the panel’s decision, to an appeal panel, as
shown in the table. None of those on the original panel may serve on the appeal panel,
although the appeal panel may ask members of the original panel to appear before it or
provide written evidence.
At the end of the set period, the archdeacon again gathers information from the
complainant and others as appropriate and from the minister The archdeacon may
decide that improvement has taken place, and so inform the diocesan bishop; that more
time for improvement should be given; or that it is necessary to move to the next stage.
Formal Procedure – stage 2: final formal warning
A similar procedure is followed to that at Stage 1. If the panel agrees that a final formal
warning should be given, the diocesan bishop, who chairs the panel writes to the
minister with a final formal warning, which he or she is told will be placed on the
personal file, informs the minister that if there are no satisfactory improvement within a
specified time period (not less than 3 months), they may be dismissed. Where the
diocesan bishop considers it appropriate, he may nominate a bishop from a different
diocese to act on his behalf if he has been involved at an earlier stage.
The minister has the right to appeal against the panel’s decision, to an appeal panel as
set out in the table at the end of this annex.
At the end of the set period, the diocesan bishop again gathers information from the
complainant and others as appropriate and from the minister. The bishop may decide
that appropriate improvement has taken place, or decide to move to the dismissal stage.
Formal Procedure – stage 3: dismissal
If, in the view of the diocesan bishop, the improvement has not taken place, the
diocesan bishop writes to the minister and complainant requiring them to attend a formal
hearing of the dismissal panel, and notifying them that the minister has failed to meet
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required standards and that dismissal is being proposed. The minister is given the
opportunity of making a representation to the panel as to why he or she should not be
dismissed. If the panel decides to confirm the dismissal, the minister will be given written
reasons for the dismissal, and details of appeal rights.
After dismissal
Where the dismissal panel considers that the minister is unsuitable for his or her current
position, and should be dismissed, but may be able to meet the requirements of other
posts, the panel will encourage the minister to seek advice from the Clergy
Appointments Adviser and the diocesan HR adviser in obtaining a new post. Where the
bishop/archdeacon believes that the minister cannot meet the required standard (even
with training) and is unsuitable for an equivalent post in another parish/diocese, and
the minister recognizes this, a severance payment, in exceptional circumstances, may
be negotiated (in accordance with national guidelines). Before any offers are made, HR
and legal advice must be obtained.
Clergy who are dismissed following the capability procedure have the right to appeal to
an Employment Tribunal.
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Membership of panels to hear cases and appeals
Clergy
involved:
Parochial clergy, sector ministers,
cathedral clergy (except Dean)
Dean or Archdeacon
Bishop
Informal
Warning
Normally Archdeacon
Suffragan Bishop or Dean if
Archdeacon unable to act
Diocesan Bishop
Archbishop
First Formal
Warning
Archdeacon (or Suffragan Bishop or
Dean) with
1 priest *
1 layperson *
Diocesan Bishop with:
1 priest *
1 layperson *
Archbishop with:
1 priest *
1 layperson *
Archdeacon (or Suffragan Bishop or
Dean) not involved with first formal
warning, with:
Chair of Diocesan House of Clergy
Chair of Diocesan House of Laity
Other Diocesan Bishop
+
with 1 priest + and 1
layperson +
Other Archbishop
with:
1 priest +
1 layperson +
Diocesan Bishop with:
Archdeacon (or Suffragan Bishop or
Dean)
1 priest *
1 layperson *
Diocesan Bishop with:
1 priest *
1 layperson *
Archbishop with:
1 priest *
1 layperson *
Archdeacon (or Suffragan Bishop or
Dean) not involved with first formal
warning, with:
Chair of Diocesan House of Clergy
Chair of Diocesan House of Laity
Other Diocesan Bishop
+ with:
1 minister +
and 1 layperson +
Other Archbishop
with:
1 minister +
1 layperson +
Diocesan Bishop with:
Archdeacon (or Suffragan Bishop or
Dean)
1 priest *
1 layperson *
Diocesan Bishop with:
1 priest *
1 layperson *
Archbishop with:
1 priest *
1 layperson *
Prolocutor of the
Province
Diocesan Bishop + with:
1 priest +
1 layperson +
Other Diocesan Bishop
+ with:
Suffragan Bishop +
Layperson +
Other Archbishop
with:
Prolocutor of other
Province
Chair of General
Synod House of Laity
Appeal
Final Formal
Warning
Appeal
Dismissal
Appeal
*
Nominated by the Diocesan Bishop
+ From another diocese nominated by the Archbishop of the Province (the Vicar General
where the complaint is against a priest in the Diocese of Canterbury or York)
In each case, the first person mentioned will chair the panel.
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