(back to preceding text)

    This is a 9 hour commitment per week to chaplaincy responsibilities within the prison.

    8. Pulpit Supply: The Associate shall not without the prior consent of the Parish Minister agree to conduct public worship outwith the charge. Any fees arising from such occasional supply shall be set against the cost of funding the Associateship and shall not be deemed income for tax purposes.

    9. Chaplaincy Payments: Any payments made by virtue of Chaplaincy work shall be set against the cost of funding, excepting payments made during the six weeks of the Associate Minister's holiday entitlement. Such payments shall be made to whoever provides holiday cover for Chaplaincy work for the Associate Minister."

    98.  In June 1997 an allegation of improper conduct was made against the appellant. The facts have yet to be determined, and I prefer not to say anything about the circumstances that gave rise to it. On 16 June 1997 the appellant wrote to the Rev Nicol at the Department of National Mission asking him to accept her resignation from her associateship. Her resignation was accepted by the Committee on Parish Re-appraisal of the Board of National Mission on 17 June 1997. On 20 June 1997 the Rev Nicol wrote to the appellant on the committee's behalf enclosing an ex gratia payment which had been made to her by the committee for the period after the date of its acceptance of her resignation. On 23 June 1997 the appellant wrote to the Rev Nicol telling him that she had had time to seek legal advice, that her solicitor had withdrawn her resignation form the presbytery and that he had told her to withdraw her resignation from employment by the Department of National Mission.

    99.  On 1 July 1997 the Rev Nicol replied to the appellant's letter of 23 June 1997 in these terms:

"I write further to my letter of 25 June 1997 to respond to your request to withdraw your letter of resignation from employment by the Department of National Mission. In doing so I also acknowledge receipt of your letter with the returned cheque and medical line which arrived at our office on 30 June 1997.

While not accepting that there is any legal obligation on the Board to permit you to withdraw your resignation we have noted the advice that you had been given that you had been 'over hasty' in submitting the letter. In the light of that we agree to reinstate your employment from 17 June 1997.

In view of the fact, however, that the Presbytery of Angus has appointed a Committee on Enquiry to investigate claims made against you I have to intimate that from 25 June 1997 until further notice you are suspended from duty on full salary. This means that you cannot perform duties as Associate Minister nor as Chaplain to Noranside Prison."

On 2 December 1997 the Presbytery of Angus accepted an offer by the appellant to demit her status to seek appropriate counselling. It decided to conclude its investigation into the allegations that had been made against her.

    100.  On 17 February 1998 the appellant applied to an employment tribunal complaining of unfair dismissal and discrimination under the 1975 Act. Her complaint of discrimination was in these terms:

… the respondents have discriminated against the applicant in terms of section 6 of the Sex Discrimination Act 1975. The allegations made against the applicant are similar to allegations of misconduct which have been brought to the attention of the respondent in respect of a number of other employees of theirs. The respondents have not taken similar action against male ministers who are known to have had/are still having extra marital sexual relationships. In the circumstances the applicant has been treated differently from male colleagues on the basis of her gender and has been unlawfully discriminated against. If the applicant had been treated on a similar basis to her male colleagues she would still be in employment with the respondents.

    On 16 March 1998 the respondents entered a notice of appearance in response to her complaint in which they submitted that the matters raised by the applicant fell outside the jurisdiction of the civil courts and that the application was incompetent. They also denied that the applicant was an employee of theirs or that there was any intention to enter into such a contract, as her appointment was as the holder of an office and it had been made by the Parish Re-appraisal Committee in pursuance of the Church's exclusive jurisdiction in terms of article IV of the Declaratory Articles.

    101.  Miss O'Brien accepted, as I have said, that the appellant did not have a contract of employment within the meaning of section 230(2) of the Employment rights Act 1996 as her contract was not one of service or apprenticeship. Her argument was that she had a contract of "employment" within the meaning of section 82(1) of the 1975 Act because she had entered into a contract personally with the respondents to execute work and labour in the parish as an associate minister. In the Court of Session the Lord President acknowledged at 2001 SC 757, 763B that there were differences between the offices of a parish minister and an associate minister, perhaps the starkest of which lay in the way in which a minister enters into the two offices. At p 763D-E he said that it should not too readily be assumed that the two positions fell to be treated in the same way for present purposes:

"More particularly, the fact that a parish minister holds a public office and is not 'employed' by anyone does not necessarily justify the conclusion that an associate minister is likewise not 'employed' by the respondents who appoint her."

    102.  Rejecting the argument that the agreement between the appellant and the respondents comprised a contract of employment for the purposes of the 1975 Act, however, the Lord President said at p 763H that properly construed the agreement was one for the appellant to perform the duties of a minister of the Church along with the parish minister in the new charge. Such duties were, in their very essence, spiritual. It was entirely possible for someone who was employed as a servant or as an independent contractor to carry out spiritual duties. But he would, as he explained at p 765A:

"start from the presumption - rebuttable, of course - that, where the appointment was being made to a recognised form of ministry within the Church and where the duties of that ministry would be essentially spiritual, there would be no intention that the arrangements made with minister would give rise to obligations enforceable in civil law."

    103.  It will be appreciated at once that this approach was strongly influenced by the Lord President's appreciation of the context in which the agreement was entered into. As he went on to say at p 765C-H, in another context the formality of the documents might readily support the inference that the appellant sought to draw from them. The procedures of the Church courts were replete with terminology which was familiar to practitioners of Scots law. None the less, despite their appearance, the laws of the Church operated only within the Church and the formality of the documents did not disclose an intention to create relationships under the civil law which would be enforceable in the civil courts. The Lord President also drew upon the way in which similar questions had been dealt with in the English authorities.

    104.  In In re National Insurance Act 1911 [1912] 2 Ch 563, 568-569 Parker J said that the position of an assistant curate was not in the position of a person whose rights and duties were defined by contract at all. In President of the Methodist Conference v Parfitt [1984] ICR 176, 183 Dillon LJ said that he had no hesitation in concluding that the relationship between a church and a minister of religion was not apt, in the absence of clear indications to the contrary in the document, to be regulated by a contract of service. In Davies v Presbyterian Church of Wales [1986] ICR 280, 290C-E Lord Templeman said that duties owed by the church to the pastor were not contractual. In Diocese of Southwark v Coker [1998] ICR 140, 147A-D Mummery LJ summarised the position in this way:

"Although not explicitly analysed in these terms in the authorities, the simple reason, in my view, for the absence of a contract between the church and a minister of religion is the lack of an intention to create a contractual relationship. If that is so, then it is unnecessary to ask whether the contract is one of service or some other kind of contract… In my judgment, the legal position is as follows.

(1)  Not every agreement constitutes a binding contract. Offer, acceptance and consideration must be accompanied by an intention to create a contractual relationship giving rise to legally enforceable obligations.

(2)  That intention is to be objectively ascertained. In the case of an ordinary commercial transaction, it will be for the person who contends that there was no contract to establish that the intention to create a contract binding contract has been negatived.

(3)  In some cases, however, there is no contract, unless it is positively established by the person contending for a contract that there was an intention to create a binding contractual relationship. This is such a case. Special features of the appointment and the removal of a Church of England priest as an assistant curate and the source and scope of his duties preclude the creation of a contract, unless a clear intention to the contrary is expressed."

    105.  In Diocese of Southwark v Coke the applicant held a stipendiary position as an assistant curate. His complaint was that he had been unfairly dismissed. Mummery LJ said that the legal implications of the appointment of an assistant curate had to be considered in the context of the pre-existing legal framework of a church, an ecclesiastical hierarchy established by law, of spiritual duties defined by public law rather than by public contract and of ecclesiastical courts with jurisdiction over discipline of the clergy. In that context, the law required clear evidence of an intention to create a contractual relationship in addition to the pre-existing framework. The Lord President based himself on these observations when he said at p 765A that he would start with the presumption - rebuttable, of course - that, where the appointment was to a recognised form of ministry within the Church and where the duties of that ministry were essentially spiritual, there would be no intention that the arrangements with the minister would give rise to obligations enforceable in civil law.

    106.  This case, however, is not a case about unfair dismissal. It is a case about discrimination on the ground of sex. It is a fundamental rule of sex discrimination law that it is not possible to contract out of it. This rule finds its expression in section 77 of the 1975 Act: see also section 72 of the Race Relations Act 1976. Section 77(1)(c) of the 1975 Act provides that a term of a contract is void where it provides for the doing of an act which would be rendered unlawful by that Act. Section 77(3) states that a term in a contract which purports to exclude or limit any provision of the Act is unenforceable by any person in whose favour the terms would operate apart from that subsection. Section 6(2)(b) of the Act provides that it is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her by dismissing her, or subjecting her to any other detriment. The terms and conditions of the appellant's appointment did not, of course, contain a provision stating in so many words that the provisions of the 1975 Act did not apply to her appointment. But if it had done, the provision would have been unenforceable by the respondents.

    107.  By invoking the proposition that it must be positively established that there was an intention to create a binding contractual relationship enforceable in civil law - that there is a presumption that there was no such intention, in other words - the respondents are seeking to achieve the same result by another route. Miss O'Brien indicated that she wished to lead evidence from the appellant that it was her intention to enter into such a relationship. But the parties' intention when they entered into the agreement can only be established objectively, as Mummery LJ observed in Coker at p 147C - by clear indications of a contrary indication in the document, as Dillon LJ said in Parfitt at p 183. There is ample authority in Scots law too for the proposition that, as a general rule, extrinsic evidence of the parties' intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible: Bell, Commentaries, vol I, p 457; Stewart v Kennedy (1890) 17 R (HL) 25, per Lord Watson at p 30. The only way the presumption could have been rebutted therefore, according to this argument, would have been by including an express term in the agreement that it was intended to give rise to obligations enforceable in civil law.

    108.  This would, in effect, be placing the onus on the appellant to ask for the inclusion of a term in the agreement that the provisions about discrimination in the employment field in Part II of the 1975 Act were to apply to it. Since both sides would have to agree to its inclusion, the respondents would be in the position of having a veto in response to her request. This is so contrary to the approach that must be taken to the effect of contracts in the field of employment in discrimination cases that a fresh approach to the problems raised by this case seems to me to be unavoidable. In my opinion it is necessary to treat the question whether this is a case of "employment" within the meaning of section 82(1) of the 1975 Act ("the contract issue") as a separate issue from the question whether, assuming that this is a case of "employment" as so defined, the appellant's complaint is excluded from the jurisdiction of the civil courts because it is a matter spiritual within the meaning of article IV of the Declaratory Articles ("the jurisdiction issue").

    109.  According to Stair's classification, the law of contract belongs to the law of obligations. An obligation is a legal tie, whereby the debtor may be obliged to pay or perform something by his own consent and engagement: Stair, Institutions of the Law of Scotland, I, 1, 22. As Gloag on Contract (2nd ed), p 8 puts it, a contract is an agreement constituted by an offer and an acceptance which creates, or is intended to create, a legal obligation between the parties to it. The agreement must, as Gloag accepts later on the same page, be concerned with matters of which the courts will take cognisance. An agreement for purely social purposes is not capable of being enforced by any legal process. As a general rule, where the agreement is with a voluntary association such as a church, some patrimonial interest must be involved before a court will accept that it has jurisdiction to enforce it. Where there is such an interest, the court will provide a legal remedy. Two cases mentioned by Gloag at pp 9-10, illustrate this distinction.

    110.  In McMillan v Free Church of Scotland (1861) 23 D 1314, a clergyman complained of the loss of his benefice. It was held that a patrimonial interest was involved and that the court would protect it. Lord President McNeill said at p 1329 that, while the court might not have the power to restore the pursuer to the ministry, it did not follow that he was unable to prosecute his civil rights and interests, whatever they might be. In Forbes v Eden (1865) 4 M 143, affd (1867) 5 M (HL) 36, on the other hand the contrary view was taken where clergyman's complaint was merely of a change in the doctrinal standards of the church and not that he had been deprived of his status as a minister. But Lord Justice-Clerk Inglis's observation (1865) 4 M at p 157 that the possession of a particular status, meaning by that term the capacity to perform certain functions or to hold certain offices, is a thing which the law recognises as a patrimonial interest, and that no one could be deprived of its possession by the unlawful act of another without having a legal remedy was approved by Lord Chancellor Chelmsford in the House of Lords (1867) 5 M (HL) at p 47.

    111.  It is worth noting, too, Lord McLaren's observation in Skerret v Oliver (1896) 23 R 468, 491, that it is indisputable that the governing bodies of voluntary churches or religious associations are responsible for non-fulfilment of their obligations towards their members in the same degree as the directors of associations constituted on a secular basis are responsible. His use of the word "voluntary" was no doubt chosen to distinguish the situation in that case, which arose from the suspension of the pursuer from his office as a licentiate of the United Presbyterian Church (for having met privately and walked with a member of his congregation who was a young lady), from that of the Church of Scotland, the established church, whose position is regulated by statute. But the point that he was making is relevant to this part of the appellant's argument. In the same case Lord President Robertson at p 490 repeated the point made in the earlier cases that courts of law take no concern with the resolutions of voluntary associations except in so far as they affect civil rights, but that if there is a claim for an invasion of patrimonial rights the court will provide a remedy.

    112.  I turn then to the agreement which the appellant and the respondents entered into, taking that background as my starting point. That there was an agreement there is no doubt. The respondents made an offer to the appellant of appointment as an associate minister on the terms and conditions which had been sent to her on 22 April 1994, and by her letter of 26 April 1994 she accepted it. There can be no doubt either that a patrimonial interest was involved in this case. The appointment was to a position which would entitle the appellant to a salary, to reimbursement of her travelling expenses and to a manse for her to occupy: see condition 3. She was to be entitled to the status of an associate minister, with a seat on the presbytery: see condition 4. Payments made to her for conducting worship outwith the charge and for her Chaplaincy work were to be set against the cost to the respondents of funding the Associateship: see conditions 8 and 9. I leave aside for the moment all questions as to whether, having regard to its subject matter, the agreement was so exclusively concerned with matters spiritual that it would be contrary to section 3 of the 1921 Act for the civil courts to seek to exercise jurisdiction over it. Looking for the moment only at the agreement, it seems to me that it has all the ingredients that would be needed for it to be treated by the courts as intended to create legal obligations between the parties and enforceable in the event of a breach of it so as to provide, in the words of Lord Justice-Clerk Inglis in Forbes v Eden (1865) 4 M 143, 157, a legal remedy.

    113.  Then there is the question whether the position which the appellant was to enjoy under it was "employment" within the meaning of section 82(1) of the 1975 Act. This is, of course, a different question than that which has to be answered in unfair dismissal cases. We are not looking to see whether there was a contract of service here, but whether this was a contract under which the appellant undertook personally to execute any work or labour. To fall within this definition there first needs to be a contract of some sort. The agreement must be looked at as a whole and, if the contract is not one of service, the obligation by a contracting party must be an obligation personally to carry out work or labour. And the personal obligation to execute work or labour must be the dominant purpose of the contract: Mirror Group Newspapers Ltd v Gunning [1986] 1 WLR 546, paras 13, 36, per Oliver LJ; Patterson v Legal Services Commission [2003] EWCA Civ 1558, [2004] ICR 312, para 21, per Clarke LJ; Mingeley v Pennock and Ivory, t/a Amber Cars [2004] EWCA Civ 328, [2004] ICR 727.

    114.  Here too the terms and conditions seem to me to provide what is needed for this definition to be satisfied. Under the heading "Aims and Duties", condition 6 states that areas of service in which the Associate Minister was to be expected to work were assisting the Minister of the parish and as Chaplain to the Prison at Noranside. This was what the appellant was to do in return for the payment of her salary and the other benefits which were to go with her status as an Associate Minister. By accepting this offer she undertook by her contract to work as an Associate Minister on the terms and conditions on which the post had been offered to her. Of course it can be said, as Lord Hoffmann points out, that the duties which she was to perform were the duties of an office. But they were duties which she was bound by her contract with respondents to perform. In order to perform them she required to execute work and labour. The dominant purpose of the contract was to secure her appointment to the office so that she could perform those duties personally in the parish as its Associate Minister. In return the contract gave her a right to enforce the respondents' undertaking to provide her, with her salary and the other benefits.

    115.  I would hold, in agreement with Lord Nicholls, that these aspects of the agreement were sufficient to bring it within the scope of the protection that the 1975 Act gives to those whose work is in the field of employment. The respondents' response in their letter of 1 July 1997 to the appellant request on 16 June 1997 to withdraw her letter of resignation, when they agreed to reinstate "your employment" is entirely consistent with this analysis.

    116.  Before I leave this part of the case however I wish to make it clear that in my opinion the contract which the appellant entered into was a contract with the respondents, the Church of Scotland Board of National Mission, and not with the Angus Presbytery. The distinction between these two emanations of the Church is a vitally important one for present purposes. Miss O'Brien said several times that the appellant's complaint was directed at the Church as a whole, not at any particular part of it. That indeed is how the complaint was presented in her application on Form IT1, where the name of the employer as given as "The Church of Scotland". But I do not think that this broad approach can be right.

    117.  The Church is not a body that has been incorporated by statute. It has, of course, its own distinctive identity and its own Constitution, the lawfulness of which was declared by the 1921 Act. But its status in law is that of a voluntary association, of which its adherents, whether they be elders, communicants or baptised persons, are all members. As such, it does not have the capacity in its own name to own any property, whether heritable or moveable, or to enter into contracts in its own name. It conducts its operations through a variety of other means. Its properties and endowments are vested in the Church of Scotland General Trustees, which were incorporated as a body corporate by the Church of Scotland (General Trustees) Order Confirmation Act 1921. In matters spiritual it handles its affairs in the manner set forth in the Declaratory Articles. But it also has to deal with matters which are within the jurisdiction of the civil courts. How it chooses to do this is, of course, a matter for the Church itself to decide. The practice has always been for the court to give effect to the choice that a voluntary association makes as to the body in whose name it enters into agreements: see Maclaren, Court of Session Practice, p 253 and the many authorities there cited. Examples of how the Church of Scotland may sue and be sued are given at p 251. In each case, whether it be in the name of the General Assembly, or kirk sessions or presbyteries, it is the bodies in whose name the matter at issue has been conducted that determines the body that is to sue or be sued in respect of it.

    118.  The Church has delegated to the respondents, the Board of National Mission, with their constituent committees the responsibility for planning and co-ordinating the Church's strategy and provision for the fulfilment of its mission as the National Church. It was in the discharge of that remit that the respondents assumed the responsibility for the recruitment and appointment of the appellant as an Associate Minister to assist the minister of the linked charge. It was with the respondents that her contract was entered into. In my opinion it is to the actings of the respondents in the performance of that contract that her complaint of discrimination must be directed.

    119.  As the Lord President recognised at p 768H, the 1975 Act contains no section which specifically disapplies it in the case of the Church of Scotland, nor is it disapplied in the case of churches generally. On the contrary, section 19(1) provides that nothing in Part II of the Act applies to employment for purposes of an organised religion where the employment is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers. I respectfully agree with his conclusion at p 769I that this provision shows that the relevant provisions of the Act do indeed apply to a religious body such as the Church of Scotland, which has no such limitation on employment to one sex. The Act anent Admission of Women to the Ministry of 22 May 1968 provides that women are eligible for ordination to the ministry on the same terms and conditions as are applicable to men. In any event contracts of employment are entered into on behalf of the Church with many people outside the ministry, in whose case it will without doubt be bound by the 1975 Act. In Hastie v McMurtrie (1889) 16 R 715, for example, the pursuer had been appointed a foreign missionary of the Church of Scotland in India. He was held that he had not been appointed to an office in the church but had an ordinary contract of service which was terminable by notice in the usual way.

    120.  The Lord President said at p 769B-C that in reality the respondents' argument was not so much concerned with the application of the 1975 Act as with the interplay between that Act and the 1921 Act. That too seems to me to be so. It is right too to note his observation at p 769I-770 that, without deciding the point, he saw force in the argument that, if the appellant and the respondents had indeed entered into a contract of employment binding under the civil law, then they would have deliberately left the sphere of matters spiritual in which the courts of the Church had jurisdiction and would have put themselves within the jurisdiction of the civil courts. This demonstrates, in view of the conclusion that I have already reached on the contract issue, how narrow this issue has now become.