Review of Clergy Terms of Service Report on the first phase of the work GS 1527
Church House Publishing Church House Great Smith Street London SW1P 3NZ ISBN 0 7151 4030 2 GS 1527 Published 2004 for the Ministry Division of the Archbishops Council by Church House Publishing Copyright The Archbishops Council 2004 All rights reserved. No part of this publication may be reproduced or stored or transmitted by any means or in any form, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without written permission which should be sought from the Copyright Administrator, The Archbishops Council, Church House, Great Smith Street, London SWIP 3NZ. Tel: 020 7898 1594 Fax: 020 7898 1449 Email: copyright@c-of-e.org.uk Cover design by Visible Edge Printed by Halstan & Co Ltd Amersham, Bucks
Contents Foreword... v 1. Summary of conclusions... 1 2. Introduction... 7 3. Section 23 rights... 11 4. Employment Tribunals... 16 5. The notion of unfair dismissal... 20 6. The current position of clergy without the freehold... 23 7. An inappropriate model: on the strength of the diocese... 30 8. Our preferred approach... 32 9. The scope of common tenure... 34 10. Responsibilities and accountability... 37 11. Capability Procedures... 46 12. Implementation issues... 51 13. Organizational, legislative and financial implications... 58 Annexes 1. Membership and Terms of Reference... 64 2. Work carried out by the group... 66 3. Some thoughts on theological principles relating to the Employment Relations Act... 71 4. List of Rights that might be made applicable to clergy under Section 23 of the Employment Relations Act 1999... 81 5. An outline of the Provisions of the Clergy Discipline Measure 2003... 83 6. The duties of the clergy... 89 7. Current law as to the legal status of the clergy... 102 8. An outline of a Capability Procedure for clergy... 112 iii
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
1. Summary of conclusions Part 3 Section 23 rights (i) (ii) 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). 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) (v) 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. 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. 1
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) (x) 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. 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. 2
Summary of conclusions (xii) (xiii) 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. 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; (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) (xv) (xvi) 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. 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. We emphasize that these changes in the legal conditions of tenure cannot be conferred without at the same time 3
Review of Clergy Terms of Service 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. (xix) (xx) (xxi) (xxii) All clergy should be required to participate in a diocesan ministerial review scheme and to take appropriate advantage of Continuing Ministerial Education. All diocesan bishops should be required to ensure that diocesan ministerial review schemes are in place and are properly followed. 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. 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. 4
Summary of conclusions (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. 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. 5
Review of Clergy Terms of Service 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. 6
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. 7
Review of Clergy Terms of Service But any model needs to be compatible with the Church s underlying understanding of Christian ministry. 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 8
Introduction 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: (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 9
Review of Clergy Terms of Service 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. 10
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. 11
Review of Clergy Terms of Service 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 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 12
Section 23 rights 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 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. 13
Review of Clergy Terms of Service 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 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 14
Section 23 rights 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 Ordermaking power under that section 15