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Greater job security recommended for clergy without the freehold

A new report recommends that Church legislation is brought in to provide greater job security for clergy without the freehold and to clarify their duties. A review chaired by Professor David McClean CBE QC (Professor of Law at Sheffield University) recommends retaining the office-holder status of clergy and conferring a new package of rights and responsibilities on clergy without the freehold.

In July 2002, the Department of Trade and Industry asked for comments on the Secretary of State for Trade and Industry's powers, under section 23 of the Employment Relations Act 1999, to confer some employment rights on 'atypical workers', people who are not technically employees. In the Church of England's response, the Archbishops' Council accepted that 'for some clergy, the present arrangements do not provide sufficient safeguard against injustice'. The response stated that 'The Church of England firmly believes that the clergy ... are entitled to terms and conditions of service which adequately protect their rights, recognise their responsibilities and provide proper accountability arrangements.'

The Council set up the Clergy Terms of Service Review Group to address these issues in December 2002.

The Review Group's report on the first phase of its work, concentrating on clergy without the freehold, will be debated at the February General Synod. Synod will be invited to welcome the recommendations in the report, to commend the report and invite comments by July 2004.

Mrs Anne Sloman, a member of the Review Group and of the Archbishops' Council, said: "Our recommendations are intended to give greater job security to clergy without the freehold, and bring their rights and responsibilities more closely into line with those in other occupations. Clarifying the responsibilities of clergy in the way we suggest will give them greater confidence, as they will know more clearly where they stand."

The main recommendations (see Annex B) include:

- a new package of rights and responsibilities for clergy, including:
- access to Employment Tribunals to claim unfair dismissal (which does not require clergy to be made employees) (iv);
- giving clergy legal entitlement to the other rights contained in section 23 (except for the right not to work on Sundays), which include the right to time off for certain purposes, maternity and parental leave; a detailed pay statement; and a detailed statement of terms and conditions of service (i);
- a new form of tenure, known as 'common tenure', under which appointments for clergy without the freehold would normally be made until retirement age (ix);
- restricting the use of fixed term appointments to training posts or posts related to a particular project or dependent on special funding that is only available for a limited period (xiii);
- new Clergy Terms of Service Regulations, which would clarify the responsibilities of clergy on a national basis (xviii);
- a capability procedure to be invoked where clergy are failing to reach minimum standards (xxiv);
- a requirement on clergy to participate in diocesan ministerial review (xix) schemes and on bishops to ensure that these reviews are properly carried out (xx);

- putting 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 (xxiii);

- retaining the office-holder status of clergy and conferring the appropriate rights and responsibilities by means of Church legislation (xxx).

The Revd Canon Bob Baker, also a member of the Group, commented: "The relationship between an employee and a manager makes certain assumptions about exerting control, giving orders, directing work on a daily basis and setting targets. The relationships clergy have with their congregations and their bishop are not like that, and allow clergy a degree of distinctive autonomy. Terms of Service Regulations and retaining the office holder status of the clergy will be the most effective way of delivering the clarity and flexibility that the clergy need. "
ends

Note

In July 2002, the DTI published a discussion document, Employment Status in relation to Statutory Employment Rights, which asked for comments on the Secretary of State for Trade and Industry'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).

Atypical workers include office holders (most clergy and ministers of religion fit into this category) homeworkers, agency workers and casual workers. There is no suggestion that atypical workers should be made employees, only that they should have access to many of the rights that employees already have.

The main right to be conferred by section 23 is the right to appeal to an Employment Tribunal and claim unfair dismissal. The majority of stipendiary clergy (some 5,500, including archbishops, bishops, deans, most cathedral canons, archdeacons and many parish clergy) hold freehold office. This already gives them a very high degree of security of tenure. However, a smaller number (currently around 3,500) do not hold freehold office, but are licensed by the diocesan bishop, and may, at present be summarily removed from office.

In the Church of England's response to the DTI, the Archbishops' Council accepted that 'for some clergy, the present arrangements do not provide sufficient safeguard against injustice'. At the end of 2002, the Council set up a review group, under Professor David McClean CBE QC (Professor of Law at Sheffield University) to address this and other related issues. The Review Group's terms of reference require it:

To review the terms under which the clergy hold office to ensure a proper balance between rights and responsibilities, and clear procedures for resolving disputes which afford full protection against possible injustice; and

to consider in this context the future of the freehold and the position of the clergy in relation to statutory employment rights.

In the review, 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's membership is attached as Annex A.

The Review Group produced an interim report (GS 1518) which was debated at the General Synod last July. That report identified seven provisional conclusions which have informed this report:

1. The rights conferred by section 23 of the Employment Relations Act 1999 are seen as good practice and should be granted to clergy (except in a very few cases where the rights are not applicable, such as the right not to work on Sunday).
2. Clergy should have the rights conferred by section 23 not just in practice but in law.
3. Clergy should have access to Employment Tribunals in order to claim unfair dismissal or a breach of 'section 23 rights' rather than the Church attempting to set up its own equivalent.
4. Whatever mechanism the Church uses for conferring section 23 rights on clergy, it is important to ensure that both clergy and laity have access to material which clearly sets out the responsibilities of clergy as well as their rights.
5. Giving clergy section 23 rights - including access to Employment Tribunals - does not necessarily require them to have contracts of employment, which would be going further than could be required by section 23. Other possible models need to be considered.
6. Whatever model is adopted by the Church will require substantial legal and cultural change. The Church will need to have proper mechanisms in place to encourage good practice, such as taking professional human resources advice and providing appropriate training for bishops and archdeacons. This will result in additional costs.
7. Giving clergy section 23 rights in law should be done either by means of Church legislation or through contracts of employment and not by requesting the Government to make an order under section 23.

ANNEX A

THE CLERGY TERMS OF SERVICE REVIEW GROUP

MEMBERSHIP

Professor David McClean CBE QC (Chairman) Professor of Law, Sheffield University Chairman of the Legal Advisory Commission and member of General Synod

The Revd Canon Bob Baker, Rector of Brundall with Braydeston and Postwick, Prolocutor of the Lower House of the Convocation of Canterbury and member of the Archbishops' Council
The Revd David Houlding, Vicar of Hampstead St Stephen with All Hallows, and member of General Synod
Mr Andrew Howard, Diocesan Secretary of Winchester
The Rt Revd Michael Langrish, Bishop of Exeter
The Revd Canon Cathy Rowling, Dean of Women's Ministry and Co-Director of Ordinands, York Diocese
Mrs Anne Sloman, member of the Archbishops' Council

Assessors:
Miss Judith Egar, Legal Division
The Ven Dr Gordon Kuhrt, Director of Ministry
Mrs Su Morgan, Director of Human Resources
Mr Stephen Slack, Chief Legal Adviser to the Archbishops' Council and the General Synod

Secretariat:
Mr Kevin Diamond
Margaret Jeffery
Mr Patrick Shorrock

TERMS OF REFERENCE

To review the terms under which the clergy hold office to ensure a proper balance between rights and responsibilities, and clear procedures for resolving disputes which afford full protection against possible injustice; and

to consider in this context the future of the freehold and the position of the clergy in relation to statutory employment rights.

In the review, 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.

ANNEX B
REVIEW OF CLERGY TERMS OF SERVICE:
REPORT ON THE FIRST PHASE OF THE WORK
SUMMARY OF CONCLUSIONS

Section 23 rights
(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).
(ii) 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.
Employment Tribunals
(iv) 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.
(v) 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.
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.
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.
(viii) Clergy appointments should in general continue to be made to specific posts rather than to a diocese.
Our preferred approach
(ix) Future appointments of clergy without the freehold should be made on a new basis to be called common tenure. 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.
(x) 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.
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.
(xii) 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.
(xiii) 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) 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.
(xv) 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.
(xvi) We emphasize that these changes in the legal conditions of tenure cannot be conferred without at the same time clarifying the responsibilities of clergy. They should therefore be seen as conditional on what we say below about clergy responsibilities and accountability.
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) All clergy should be required to participate in a diocesan ministerial review scheme and to take appropriate advantage of Continuing Ministerial Education.
(xx) All diocesan bishops should be required to ensure that diocesan ministerial review schemes are in place and are properly followed.
(xxi) 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.
(xxii) 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.
(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.
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 should be introduced for clergy. Clergy who are dismissed following the capability procedure would have the right to appeal to an Employment Tribunal.
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.
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.