Ecclesiastical Offices (Terms of Service) Measure - Ecclesiastical Committee Contents


LEGISLATIVE COMMITTEE OF THE GENERAL SYNOD: COMMENTS AND EXPLANATIONS ON THE ECCLESIASTICAL OFFICES (TERMS OF SERVICE) MEASURE

The Ecclesiastical Offices (Terms of Service) Measure puts in place a legislative framework to enable the introduction of new terms and conditions of service (to be known as 'Common Tenure') for clergy and certain lay ministers in the Church of England. The principal object of the legislation is to establish fair and clearly stated terms of service which will deliver the security that is needed for ministry to flourish, while also putting in place a proper measure of accountability.

The Measure, together with subordinate legislation in the form of Regulations and an Amending Canon, seeks to remedy the present inequality of tenure as between freehold clergy and others by providing conditions of service which will, so far as possible, apply across the board. It retains the established office-holder status of clergy - because, in the General Synod's view, this expresses more appropriately than employment status the way in which ministry is exercised in the Church - while conferring upon them, for the first time, many of the legal rights enjoyed by employees. These include rights relating to stipend and housing, a statement of particulars of office, annual and other leave and continuing ministerial education. The legislation also specifies the circumstances in which an office can be terminated, and defines certain particular cases where an appointment can be made on a fixed or limited-term basis.

The legislation also seeks to strengthen the accountability of office holders by requiring them to take part in regular ministerial development reviews, as well as by introducing a capability procedure designed to address issues of poor performance. Any office holder who, in the last resort, is removed from office under this procedure is given the right to bring a claim of unfair dismissal in an employment tribunal.

INTRODUCTION


1. The Legislative Committee of the General Synod, to which a Measure entitled the Ecclesiastical Offices (Terms of Service) Measure ("the Measure") has been referred, has the honour to submit the Measure to the Ecclesiastical Committee with these Comments and Explanations.

The object of the Measure

2. The Measure introduces new terms and conditions of service, referred to as 'Common Tenure', which will eventually apply to the great majority of clergy as well as to certain lay ministers of the Church of England. The principal object of the Measure is to promote the Church's ministry by providing terms of service which embody a proper balance between security of tenure and accountability, ensure parity of treatment wherever possible and, while preserving the existing status of the clergy as office holders, afford them rights broadly equivalent to those enjoyed by employees.

The need for change

3. Patterns of ministry in the Church of England have evolved over many centuries, and as a result there are presently a number of ways in which clergy can hold office, with very different degrees of security of tenure.

4. In 2006 there were some 13,600 clergy serving in the Church of England. Of these:

5. 5,000 held one of the ancient freehold offices of archbishop, bishop, dean or residentiary canon of a cathedral, archdeacon or incumbent of a benefice;

  • ·  7,000 (including 3,000 non-stipendiary clergy) held office under licence from the diocesan bishop in team ministries, as priests-in-charge or as assistant ministers (technically described as assistant curates); and
  • ·  1,600 were engaged as chaplains or in other types of ministry, usually under a contract of employment from a non-church body (such as an NHS Trust or educational institution) or a diocesan board of finance, coupled with a licence from the diocesan bishop.

6. Although the freehold has been gradually modified over the years, those holding freehold office retain a high degree of security of tenure. They are only obliged to leave office:

  • ·  upon reaching the statutory retirement age of 70;
  • ·  if they are removed from office under disciplinary proceedings;
  • ·  if they become unable to perform their duties because of physical or mental disability;
  • ·  if (in the case of incumbents) there is a finding by a tribunal of serious pastoral breakdown; or
  • ·  if their office is abolished as a result of pastoral reorganisation.

7. In the last three of these circumstances, compensation is payable. In addition, incumbents (but not other freeholders) hold the legal title to the parsonage house (though they do not have the responsibility of maintaining it) and have the power to prevent its disposal, and certain other dealings with the house, while they hold office.

8. Clergy holding office under licence, on the other hand, have far more limited security under the present law. Except in the case of team ministers, the bishop has power under Canon law to terminate a licence summarily for any cause that seems to him good and reasonable (other than misconduct), subject to a right of appeal to the archbishop of the province. Team ministers are appointed for a term of years, but have no right to an extension of that term (though the bishop has power to grant one). Some residentiary canons are now also appointed for a term of years, and their terms of service are governed by the statutes of the individual cathedrals.

9. Furthermore, most clergy do not enjoy the rights that would be usual in an employment relationship; nor, equally, are they subject to the responsibilities of employees. Thus there is no legal right to a stipend or to housing; arrangements for annual holidays and maternity and related leave are made separately by each diocese; and there is no procedure to address cases where a cleric is failing to discharge the duties of his or her office to an acceptable standard.

10. The Church has recognised the deficiencies in the system as it stands, particularly in terms of the potential for inequitable differences of treatment between those with and without the freehold. Over recent years a number of debates in General Synod have addressed these problems. In 2003 an important step forward was taken with the introduction, in the Clergy Discipline Measure, of a common set of procedures for dealing with disciplinary issues amongst the clergy, which removed the bishop's power to terminate a licence summarily on grounds of misconduct.

11. The immediate impetus for the comprehensive review that gave rise to the present legislation was the discussion document Employment Status in relation to Statutory Employment Rights issued by the Department of Trade and Industry ("the DTI") in December 2002. This explored the implications of the Government's powers under section 23 of the Employment Relations Act 1999 to confer some employment rights on 'atypical workers' who are not technically employees. In its response to that document the Archbishops' Council stated:

"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, recognise their responsibilities and provide proper accountability arrangements."

12. The Council also emphasised, however, that any such terms and conditions must reflect the Church's understanding of the character of Christian ministry.

The Principles Governing the Legislation

13. In response to the DTI consultation, the Archbishops' Council set up a group ("the Review Group"), chaired by David McClean QC, then Professor of Law at the University of Sheffield and a member of the General Synod. The Review Group was given the following terms of reference:

  • ·  to review the terms under which Church of England clergy hold office to ensure a proper balance of rights and responsibilities, and to introduce clear procedures for resolving disputes which afford full protection against possible injustice;
  • ·  to consider in this context the future of the freehold and the position of the clergy in relation to statutory employment rights; and
  • ·  to give priority in the review 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 remainder of the review to be completed, if possible, by 2004.

14. The Review Group's report on the first phase of its work, containing proposals for the introduction of 'Common Tenure' for non-freehold posts, was welcomed by the General Synod in February 2004. A second report, recommending the extension of Common Tenure to freehold posts, was debated in February 2005 and was also accepted, but the Synod expressed concerns about related proposals concerning property. As a result, the Review Group produced a further report recommending some modification of these proposals, which was debated and accepted by the Synod in November 2005.

15. By the end of this process the following governing principles had emerged, which are reflected in the legislation as subsequently drafted:

  • ·  that clergy should, so far as their different roles and responsibilities allowed, hold office under common terms and conditions of service, to be known as Common Tenure;
  • ·  that the clergy should not be given employee status, but should retain the status of office holder (this issue is explored more fully in paragraphs 13-18 below);
  • ·  that, while remaining office holders, clergy should be given a range of legal rights equivalent to those enjoyed by employees;
  • ·  that these rights should be conferred by Church legislation, to ensure that they were expressed in a manner that properly reflected the way in which ministry is exercised in the Church of England;
  • ·  that the power to remove licensed clergy from office summarily should be abolished, and that fixed-term appointments should only be permitted in specified circumstances;
  • ·  that a capability procedure should be introduced to address problems of poor performance, with clergy having the right to bring claims of unfair dismissal in an employment tribunal if they were removed from office under this procedure;
  • ·  that clergy should be obliged to take part in regular ministerial development review and continuing ministerial education, to assist them in developing their ministry; and
  • ·  that freehold offices should be phased out, but that those holding such an office when the legislation took effect should not be obliged to surrender their freehold while they continued to hold that particular office.

The Retention of Office-Holder Status

16. The Review Group gave much thought as to whether the legislation should confer employment status on the clergy. The Group recognised that an ecclesiastical office holder may also work under a contract, as indeed many chaplains already do. However, in the case of diocesan and parochial clergy it was found to be very difficult to reconcile the essential characteristics of an employment relationship with the reality of how such ministry is exercised. Identifying an employer was a particularly problematic issue: whilst clergy take an oath of canonical obedience to their diocesan bishop, he is not primarily responsible for appointing or paying them. Nor does the bishop have that degree of control over a parochial minister's activity that is central to the relationship between employer and employee: within the general framework of responsibilities laid down in Canon law, clergy have a great deal of autonomy, the bishop having no power to control what his clergy do on a day to day basis.

17. The Review Group therefore concluded that a statutory framework which preserved office-holder status, but at the same time conferred rights and responsibilities that reflected current employment law and practice, was more consistent with the character of ministry as it was understood in the Church of England.

18. These issues were revisited by the Revision Committee and the Synod in the light of the decisions of the House of Lords in 2005 in Percy v Church of Scotland Board of National Mission and of the Court of Appeal in 2007 in New Testament Church of God v Stewart. It was noted that neither of these cases related to a minister of the Church of England, and also that neither resulted in any finding that ministers of religion in general, or in the Church of England in particular, are employees in law.

19. In Percy, the House of Lords affirmed the existence of common-law offices, and accepted that an office holder may work under a contract, although this will not necessarily be so in every case. The judgment also reviewed and questioned a series of older cases which had established a presumption that, where a minister of religion was appointed, the parties did not intend to create a legally binding relationship. This presumption has now, effectively, been overruled.

20. Following the decision in Percy, the Court of Appeal were asked to consider in Stewart whether an ordained minister in the New Testament Church of God held office under a contract of employment and was therefore entitled to bring a claim for unfair dismissal in an employment tribunal. On the facts, it was held that Mr Stewart was an employee. However, the Court was at pains to emphasise that this decision involved no general finding that ministers of religion were employees: it accepted that an analysis of the specific facts of each case was needed before reaching a conclusion, and that those facts would vary as between different religions and different Churches.

21. In the view of the Revision Committee and the Synod these cases have not affected the need for the present legislation. On the contrary, they have, if anything, strengthened the argument for a clearer statutory framework which will promote greater clarity and certainty.

The Shape of the Legislation

22. The complete package of legislation consists of the Measure, Regulations and an Amending Canon. The Measure provides the framework for the new terms and conditions of service. Within that framework, the legislation has been so designed that the detailed provisions for terms of service will be contained in the Regulations. This is to enable those provisions to be refined and amended as necessary from time to time in response to practical experience and changes in employment law, by a process which is somewhat simpler than that required to amend a Measure, but which requires Synodical and Parliamentary approval.

23. A set of draft Regulations was introduced into the Synod at the same time as the draft Measure, and these are appended to these Comments and Explanations as an Annex. They are in the form in which they stood following revision by the Revision Committee and in the Synod, and also incorporate some further consequential amendments which the Archbishops' Council proposes to include when the Regulations are reintroduced into the Synod, for its approval, after section 2 of the Measure comes into force.

24. A draft Amending Canon was also introduced into the Synod at the same time as the Measure. The intention is that the Amending Canon should be brought back to the Synod for final drafting and final approval after the Regulations have been made.

25. A panel appointed by the Archbishops' Council's Deployment, Remuneration and Conditions of Service Committee, under the chairmanship of the Bishop of Hull, is working on the various directions and guidance provided for in the Regulations, and in particular on the capability and grievance procedures. The essential features of the proposed capability procedure are as follows:

  • ·  the principal objective of the procedure is to provide the support and resources needed to enable an office holder to improve his or her performance. Only in the last resort, where it has not been possible to bring about such improvement, can the office holder be removed from office;
  • ·  the procedure consists of initial informal discussions followed, if necessary, by a three-stage formal process - first and second warnings and finally removal from office, with time between stages for measures to promote improved performance to be put in place;
  • ·  at each of the formal stages the office holder is notified in writing and invited to a meeting with a panel of three people - the diocesan bishop or his representative and an independent cleric and lay person. Membership of the panel changes at each stage, so the matter is never heard by the same panel more than once;
  • ·  the office holder is entitled to be accompanied at meetings, and has a right of appeal to a different panel at each stage of the process;
  • ·  an office holder who is removed from office following a capability procedure, and whose appeal against such removal has not been upheld, has the right to bring a claim for unfair dismissal to an employment tribunal.

Legislative History

26. The draft Measure, as introduced into the Synod for First Consideration in February 2007, was prepared by an Implementation Group chaired by Professor McClean, which continued the work of the Review Group. In relation to the provisions of the draft Measure and the draft Regulations that relate to the use of employment tribunals, the DTI was consulted and raised no objection.

27. The legislation was received positively by the Synod and was committed to a Revision Committee. As the Synodical process continued, the draft Measure received very careful scrutiny from the Revision Committee and then also from the Synod at the Revision stage in February 2008. The revision process resulted in a number of amendments, most significantly those arising from the Synod's decision that the legal title in parsonage houses should remain vested in the incumbent as corporation sole rather than, as proposed by the Revision Committee, being transferred to an independently constituted parsonages board for the diocese. (More information about this is given in paragraphs 46-49 below.) However, apart from this change, the principles and objectives of the legislation remain largely unaffected. The Final Drafting stage, which dealt with some points of detail, was taken at the July 2008 group of sessions of the Synod, which then proceeded to give the Measure Final Approval by overwhelming majorities in all three Houses.

28. The voting on the Measure at the end of the Final Approval debate was as follows:

In favour Against Abstentions
Bishops
20
0
0
Clergy
109
5
4
Laity
110
13
2



 
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Prepared 23 February 2009