Not many of us have the opportunity to offer advice to ministers of religion. However, the latest case about their employment status to reach the UK’s highest court can perhaps give an indication of the general direction of travel on this important topic.
In President of the Methodist Conference v Preston the majority of the Supreme Court has decided that Ms Preston was not an employee after all. In doing so it has overturned the decisions of the Court of Appeal and the Employment Appeal Tribunal to the opposite effect. So what was the reason for this change in direction?
One clue can be derived from the way the majority interpreted Percy v Church of Scotland, which, prior to Preston, was the most recent case involving the status of ministers of religion to reach the UK’s highest court. In Percy, the claimant was ultimately given the green light to commence sex discrimination proceedings against the church in which she served. Like all cases of this nature, the decision was specific to her particular circumstances, but it has been highly influential in persuading the lower courts to give individuals on the border-line of employment or worker status the benefit of the doubt.
Now the Supreme Court is saying that Percy has been interpreted too broadly. It did establish an important point of principle – that holding an office in a religious organisation is not necessarily incompatible with employment or worker status – but it is still necessary in each case to establish the way in which the minister is engaged, and the character of the rules or terms governing his or her service. After a very detailed analysis of Methodism’s rule book, the majority concluded that Ms Preston did not have employment status.
That left Lady Hale in the dissenting minority. She pointed out that “everything about this arrangement looks contractual, as did everything about the relationship in the Percy case”. So once again we have a contrast between judges who give primacy to the minutiae of the written arrangements, and those who concentrate on the “look and feel” of the relationship. Arguably, a similar dynamic was in play at the end of last year when the Court of Appeal overturned an EAT decision that a lap-dancer was an employee of the club where she worked.
Of course these two approaches are not polar opposites, and both need to be brought to bear in varying proportions when deciding on employment status. But for now at least the pendulum seems to be swinging back towards a more orthodox, document-based analysis. At the risk of oversimplification, that could be described as the more employer-friendly approach.