Case - Allan J MacDonald v. Free Presbyterian Church of Scotland

LTL 29/3/2010, Employment Appeal Tribunal Scotland - Ian Truscott QC
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An employment tribunal had correctly concluded that a minister of the Free Presbyterian Church of Scotland was an office holder and not an employee on the basis that the facts pointed to an absence of an intention to create a legal relationship. Although the tribunal's reasons had been economically stated, its decision was not fatally flawed as it contained the essential minimum requirements.

The appellant minister (M) appealed against a decision of an employment judge that he was not an employee of the respondent church (F) and thus was not entitled to bring a statutory claim for unfair dismissal. M was a minister of the Free Presbyterian Church of Scotland. Though he received a salary from which tax and national insurance were deducted through the PAYE system, he had no contract of employment and no statement of terms and conditions. A document entitled "The Manual and Practice of the Free Presbyterian Church" set out the duties of a minister and made provision for dealing with misconduct. Neither the manual nor any other document stipulated his hours of work or his entitlement to leave or to sick pay. M's claim for unfair dismissal was dismissed after the judge concluded that he was an office holder and not an employee on the basis that there was no contractual relationship between he and F. M submitted that the judge's decision did not accord with the principles set out in Meek v Birmingham DC (1987) IRLR 250 CA (Civ Div) in that the tribunal had failed to set out material findings of fact, had failed to set out the relevant legal principles and had failed to set out reasoning or justification for its conclusions.

HELD: (1) The duty to give reasons set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.30(6) required the tribunal to give a basic outline of the facts, a summary of its conclusions and a statement of the reasons for those conclusion. An incomplete judgment which contained those basic requirements would not be categorised as fatally flawed. Having concluded at an early stage that there was no contractual relationship between the parties, the judge had proceeded to consider the facts that could point to M being an employee. The facts pointed almost exclusively to an absence of control in the relationship between M and F and the independence of F from the state and the Civil Magistrate, particularly in matters of discipline over its ministers. Accordingly, although the tribunal's decision was economically stated, it nevertheless met the minimum requirements and was therefore not flawed, Meek followed. (2) The primary question for consideration was whether the parties intended to enter into a legally binding relationship. M had failed to establish such an intention and had therefore failed to prove the existence of a contractual relationship. A person who was an office holder was not, by virtue of holding that office, an employee; on the other hand, a worker who was an office holder could also be an employee. The payment of a salary to a worker was not determinative of his status and was often an incident of an office. There was no conclusive rule pertaining to the employment status of ministers and the main documentary evidence, the church's manual, was not like an employee handbook; it covered the position of office holders such as deacons and elders and the governance of the whole church, neither of which would be apt for inclusion in an employee handbook. The manual presented a picture of ministers being office holders, and M's commitment to the church's system under which probationary ministers became ordained supported the conclusion that the parties' mutual intention was that ministers should be office holders.

Appeal dismissed.

Counsel for the respondent: Ian Truscott QC leading D Campbell.
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