The judgement of the House of Lords delivered on 15 December 2005 in
Percy v Church of Scotland Board of National Mission has overturned the
Court of Session, Employment Appeal Tribunal and Employment Tribunal to
hold that for the purposes of the Sex Discrimination Act 1975 a
minister of religion was an "employee".
Percy was an ordained minister of the Church of Scotland. She was
advised to resign from her post in Angus after an allegation that she
had an affair with a married elder. Percy claimed that she had been
unfairly dismissed and discriminated against under the Sex
Discrimination Act 1975 because in the past male ministers who had in
extra marital affairs had not been treated in the same way as she was.
The Employment Tribunal dismissed her claim on the grounds that she
was not an employee for the purposes of the Unfair Dismissal or Sex
Discrimination Legislation. Percy accepted the finding of the
Employment Tribunal that she was not an employee for the purpose of the
unfair dismissal legislation but appealed to the Employment Appeal
Tribunal and then to the Court of Session on the question of whether
she was an employee for the purposes of the sex discrimination
legislation. The Employment Appeal Tribunal and Court of Session agreed
with the Employment Tribunal and dismissed her appeal. In any case, the
Employment Tribunal, Employment Appeals Tribunal and the Court of
Session agreed that they had no jurisdiction to hear Percy's complaint
as the right was reserved to the Church of Scotland under the Church of
Scotland Act 1921 to hear "matters spiritual".
Percy appealed to the House of Lords and in a four to one majority
(with Lord Hoffman dissenting) the House of Lords upheld Percy's claim
that she was an employee under the Sex Discrimination Act 1975 and held
that the civil courts had jurisdiction to hear her discrimination claim
notwithstanding the Church of Scotland Act 1921.
The House of Lords considered previous authority in which there
appeared to be a principle that there is no intention to create legal
relations in religious matters. However, it was accepted by Lord
Nicholls of Birkenhead that some arrangements can be intended to create
legal relations and that Percy's was one of them, notwithstanding the
religious nature of her duties. Percy had terms and conditions, a
minimum stipend and was allowed travel expenses. He held that it was
quite possible for an office holder to perform duties under a contract
of employment.
On the question of jurisdiction, the House of Lords considered that a sex discrimination claim was not spiritual in nature.
Although this judgement is authority for the proposition that
ministers of religion can be considered by the civil courts to work
under contracts of employment for the purposes of a sex discrimination
claim (this is now enshrined in new s10A and s10B of the Sex
Discrimination Act 1975), this judgement undoubtedly leaves open the
argument that ministers of religion are "employees" for the purposes of
other employment rights such as the right against unfair dismissal.
Certainly, the move for employment rights for ministers of religion
had been gaining force in recent times. Amicus, which has over 2,000
clergy members, is a strong supporter of giving ministers of religion
employment rights.