Percy (AP) (Appellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland)

A minister of religion may hold ecclesiastical office and also work under a legally binding contract. Office-holding and the spiritual character of the duties do not exclude “employment” under section 82(1) of the Sex Discrimination Act 1975.

A fixed post with agreed duties, remuneration and benefits may constitute a contract personally to execute work or labour. Employment arrangements between a church and its ministers should not lightly be treated as having no legal effect.

A statutory sex discrimination claim founded on such a contract is a civil matter. It remains within the civil courts’ jurisdiction under section 3 of the Church of Scotland Act 1921, even when the alleged discrimination arose during ecclesiastical disciplinary proceedings.

Percy (AP) (Appellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland) concerned a Church of Scotland associate minister appointed for five years on written terms providing for defined duties, salary, a manse, expenses and holidays. After allegations of misconduct, she was suspended and subsequently demitted her status as a minister. She complained that comparable action had not been taken against male ministers and brought a sex discrimination claim.

The employment tribunal dismissed her application for want of jurisdiction. The Employment Appeal Tribunal dismissed her appeal. The First Division of the Court of Session also dismissed her appeal, holding that the parties had not intended to create obligations enforceable in civil law: 2001 SC 757.

The central questions were whether the arrangement was “employment” under section 82(1) of the Sex Discrimination Act 1975, and whether the claim was a spiritual matter within the Church’s exclusive jurisdiction under the Church of Scotland Act 1921.

1. Disposition. By a majority of four to one, the House allowed the appeal, recalled the interlocutor of the First Division and remitted the sex discrimination claim to an employment tribunal. Lord Nicholls and Lord Hope gave the principal majority reasoning. Lord Scott agreed with Lord Nicholls, Lord Hope and Baroness Hale; Baroness Hale agreed essentially with Lord Nicholls.

2. Statutory employment. Per Lord Nicholls, Lord Hope, Lord Scott and Baroness Hale, section 82(1) of the Sex Discrimination Act 1975 extended beyond contracts of service to contracts personally to execute work or labour. Authorities concerning unfair dismissal addressed the narrower question whether a contract of service existed. They did not determine this claim.

3. Office and contract. Per Lord Nicholls, holding an office and working under a contract are not mutually exclusive. The description of a position as an ecclesiastical office is relevant but does not determine whether contractual obligations exist. There was no sound general presumption that a minister’s arrangements lacked legal effect merely because the duties were spiritual. Lord Hope and Baroness Hale likewise rejected that presumption.

4. Application. Per the majority, the written offer, acceptance, fixed term, defined duties, salary, accommodation and expenses established a legally binding agreement with the Board of National Mission. Its object was that the appellant should perform personally the duties of associate minister in return for remuneration and benefits. The Board’s allocation of supervision and discipline to the presbytery did not prevent it from being the contracting party.

5. Civil and spiritual jurisdiction. Per Lord Nicholls, Lord Hope, Lord Scott and Baroness Hale, the Church retained exclusive jurisdiction over doctrine, worship, government and discipline. The alleged sex discrimination was nevertheless a civil matter. A claim did not become spiritual merely because it arose from the way ecclesiastical disciplinary powers had been exercised. Section 3 of the Church of Scotland Act 1921 therefore did not exclude the employment tribunal’s jurisdiction.

6. European law. Lord Hope, supported on this point by Lord Scott and Baroness Hale, considered the appellant a worker within the Equal Treatment Directive because she undertook personal services for remuneration under an organised working relationship. Lord Hope regarded the point as acte clair and refused a preliminary reference. Lord Nicholls found it unnecessary to decide the Community-law arguments.

7. Dissent. Lord Hoffmann would have dismissed the appeal. He regarded the appellant as the holder of a recognised ecclesiastical office whose duties arose from that office rather than from contract. On that analysis she was neither employed within section 82(1) nor a worker under the Directive.

1. House of Lords: By a majority of four to one, allowed the appeal, recalled the First Division’s interlocutor and remitted the sex discrimination claim to an employment tribunal: [2005] UKHL 73.
2. First Division of the Court of Session: Dismissed the appeal, holding that the parties had not intended to create civilly enforceable obligations: 2001 SC 757.
3. Employment Appeal Tribunal: Dismissed the appeal in March 1999, holding that the matter was spiritual and expressing the view that the arrangement was not employment under the Sex Discrimination Act 1975.
4. Employment tribunal: Dismissed the application for want of jurisdiction in December 1998. It treated the complaints as spiritual matters and stated that the contract was not statutory employment because of the religious nature of the duties.