Coker v Diocese of Southwark

An ecclesiastical appointment does not ordinarily create an employment contract. Offer, acceptance and consideration must be accompanied by an objectively established intention to create legally enforceable obligations. For a Church of England assistant curate, the person asserting a contract must show a clear contrary intention. The relevant context includes ordination, duties defined by the Ordinal and Canons, the established church’s public-law framework and ecclesiastical discipline. Spiritual duties are not independently decisive. But absent a contract there is no employee or employer for statutory unfair-dismissal purposes, even where a stipend is paid and the appointment is licensed or administered by church authorities.

Dr Coker, an ordained Church of England priest, served as assistant curate at St Luke’s and later St Philip’s. He claimed unfair dismissal after his appointment at St Luke’s was terminated. The Industrial Tribunal held that a contract had arisen and that it had jurisdiction. On 25 March 1996, the Employment Appeal Tribunal unanimously reversed that decision, holding that Dr Coker was not employed under a contract of service. The appeal concerned whether any contract existed, whether it was a contract of service, and who the employer was under the Employment Protection (Consolidation) Act 1978.

The Court of Appeal dismissed the appeal. Lord Justice Mummery gave the leading judgment, and Lord Justice Staughton agreed with its analysis and conclusion.

1. The Industrial Tribunal had wrongly presumed a contract merely because there was no evidence to the contrary. Offer, acceptance and consideration require an intention to create legally enforceable obligations. That intention is assessed objectively. Although ordinary commercial transactions begin with a presumption against the person denying contractual intention, a ministerial appointment is a special case. The person asserting a contract must establish a clear intention to create binding obligations.
2. An assistant curate is an ordained priest called to an office recognised by law. His functions arise from the Ordinal and the Canons of the Church of England within an established ecclesiastical hierarchy. They include spiritual, liturgical, doctrinal, ritual and ceremonial functions, supported by public law and ecclesiastical disciplinary jurisdiction. Those features make the ministerial relationship non-contractual unless a clear contrary intention is expressed. The court applied the approach in President of the Methodist Conference v Parfitt [1984] ICR 176 and Davies v Presbyterian Church of Wales [1986] ICR 280, and followed Parker J’s reasoning in Re National Insurance Act 1911; Re Employment of Church of England Curates [1912] 2 Ch 563.
3. The Employment Protection (Consolidation) Act 1978 did not alter that legal position. Section 54(1) protects an employee against unfair dismissal by an employer, while section 153(1) requires a contract of employment. Dr Coker had no such contract. The Diocese was not a legal person; the Church Commissioners and Diocesan Board of Finance paid or administered the stipend but did not appoint, remove or control him. The Bishop’s licensing relationship, governed by ecclesiastical public law and the Oath of Canonical Obedience, was not contractual. There was therefore no employee, employer or tribunal jurisdiction. The alternative dismissal issues under section 57 did not arise.
4. Lord Justice Staughton added that holding ecclesiastical office is not itself an absolute bar to employment status. An ordained priest may have secular employment or subsidiary contracts concerning matters such as pensions or occupation of a house. Those observations did not alter the conclusion concerning the core ministerial relationship.

Order: appeal dismissed. Section 18 costs were payable by the Legal Aid Board, with nil liability, and the appellant’s costs were subject to legal aid taxation.

1. Court of Appeal — The appeal on questions of law was dismissed. [1997] EWCA Civ 2090.
2. Employment Appeal Tribunal — On 25 March 1996, the EAT unanimously held that the Industrial Tribunal had no jurisdiction because Dr Coker was not employed under a contract of service.
3. Industrial Tribunal — On 24 February 1995, the tribunal held on a preliminary issue that it had jurisdiction, finding that Dr Coker had accepted an offer creating a contract of employment.