This post is reproduced with kind permission of David Wood and was originally posted to the Facebook UK Methodists Page.
I offer this as a summing up of my thoughts on the Supreme Court verdict. It adds little to my many contributions on the topic already, but tries to bring them, and many points others have raised, together as a coherent whole.
I hope it may be a useful starting point for those who want to explore the Preston decision without ploughing through hundreds of comments in our existing threads. I pray that it assists prayerful discernment.
THE PRESTON RULING
On 15 May 2013, the UK Supreme Court held in The President of the Methodist Conference v Preston  UKSC 29 that Methodist ministers are not employees merely because they have been stationed by the Conference. Only those ministers with explicit contracts of employment, such as certain chaplains, are employees.
The judgment can be found at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0015_Judgment.pdf .
Parfitt, a 1984 Court of Appeal case about the status of a Methodist minister, determined that a Methodist minister was not an employee.
Percy, a 2006 House of Lords case, set out that “special arrangements” appointing a minister – essentially an agreement to provide specific services for specific remuneration – could create a contract of employment. Percy was about a Church of Scotland minister.
In Parfitt the Court of Appeal found that elements of the Full Connexion relationship of Methodist ministers was incompatible with a contract of employment. However, the 2006 House of Lords ruling in Percy threw this understanding into doubt. Only a Supreme Court ruling could resolve the apparent conflict between these two authorities.
I believe the Supreme Court ruling in Preston has now brought clarity, not just for Methodist ministers, but for religious personnel of every denomination and faith. If they are employed on a contract, they are employees. Being engaged on Percy-style “special arrangements” (specific duties for specific remuneration) is not conclusive of being an employee – the minister cannot be an employee when the existence of an employment contract is contradicted by the rules and beliefs of the religious organisation. It’s the second part about rules and beliefs that is the key part of the Preston Supreme Court ruling. Parfitt makes it clear that the rules and beliefs of the Methodist Church contradict ministers being employees.
Most commentators agree with my interpretation, including John Bowers QC at http://www.littletonchambers.com/latest-comments/jb-in-the-supreme-court-15.05.13.aspx .
However, I’ve read one commentator suggesting that the Supreme Court distinguished Percy (a legal term meaning it didn’t apply to the facts) in Preston on the basis that Percy was about sexual discrimination, which, at that time, used a wider definition of employment than that used for unfair dismissal. I disagree with this interpretation, as I don’t find that argument anywhere in the Supreme Court judgment and believe it is incompatible with the use made of Percy in  of the Supreme Court judgment. This commentary is found at http://www.lawandreligionuk.com/2013/05/15/supreme-court-holds-that-methodist-ministers-are-office-holders-not-employees/ .
FINALITY OF THE PRESTON RULING
The Preston ruling is now final – no further appeal is possible in the domestic courts.
Any EU law matters would have had to be raised before the domestic courts. Had any EU law matters been raised before the Supreme Court, they would have had to be referred to the Court of Justice of the European Union for a ruling under the ‘reference procedure’ (Article 267 Treaty on the Functioning of the European Union) because no further domestic appeals were available. It is not possible for a litigant to raise an EU law matter outside a domestic court case, and I can’t think of any EU law points that are relevant to the case.
It would have been possible to raise European Convention on Human Rights arguments before the courts using the Human Rights Act 1998, but Ms Preston raised no such arguments before the Supreme Court.
Ms Preston theoretically has a right of individual petition to the European Court of Human Rights if she believes the legal processes or UK law breached her human rights. Going down this route seems most unlikely considering the many opportunities she has had to raise human rights arguments already and the apparent lack of Convention breaches.
Any European Court of Human Rights case would be against the UK, not the Methodist Church. The only way such a case could bring the Preston verdict into doubt is if the European Court of Human Rights found UK law breached Ms Preston’s human rights, which seems a remote prospect. Such a finding would put pressure on Parliament to change the law, but until that happened, the Preston ruling would remain in place.
There is no evidence that the government is planning to change the law in a way that would make ministers employees.
I would have expected any organisation with a view on the employment status of ministers of religion to have sought permission to intervene in the Preston Supreme Court hearing. I don’t know if any applications to intervene were made, but there were no interveners. I would be most surprised if a case on similar facts to Preston came before the Supreme Court for many years. It is possible that a minister from another denomination or faith community will go to the courts alleging the facts of their situation are sufficiently different from the Methodist scenario to make the Preston ruling inapplicable to their case.
I expect that the Preston position will remain unchanged for a long time, certainly so far as Methodist ministers are concerned.
THE EFFECTS IF METHODIST MINISTERS WERE EMPLOYEES
The Full Connexion and stationing arrangements have a long history. I’m no Methodist constitutional historian, but I’m fairly certain they date back to Methodist union in the 1930s and were also followed by the predecessor Methodist churches. They embody John Wesley’s idea of itinerant preachers under the control of the Conference. Had ministers been found to be employees, it would either have changed the nature of the Full Connexion relationship from primarily covenantal to primarily contractual (if the Conference was found to be the employer), or would have set a contract in potential contradiction with the covenantal Full Connexion relationship (if the circuit or another group was found to be the employer).
The most the Supreme Court would have resolved, if they had found ministers were employees, was who the employer was and when the contract came into existence. The terms of employment would almost certainly have been those in the circuit invitation committee’s appointment plus those in Methodist Constitutional Practice and Discipline, so the “in-house” disciplinary systems would not have changed. However, a finding that ministers were employees would have given the right of recourse to employment tribunals.
I don’t believe the Methodist Church took the Preston case all the way to the Supreme Court with the primary aim of blocking access to employment tribunals.
In the UK’s adversarial legal system, the church had to argue that Ms Preston was not an employee in order to test the position. I believe the church’s primary aims in going to the Supreme Court were to take advantage of a likely once in a generation opportunity to clarify the status of Methodist ministers, also to uphold the traditional Methodist understanding of Full Connexion. Employment law has gradually been moving towards findings that more people are employees, and since the Percy ruling in 2006 there was no clarity about Methodist ministers. The Court of Appeal ruling in Preston found ministers were employees, but gave no clarity on when the contract came into existence and who the employer was. Those matters needed resolving.
The employment tribunals would have given a robust external system of holding the employer to account, but they have their limits. They follow the UK adversarial tradition rather than the inquisitorial approach of many European legal systems, so test the evidence in front of them, but cannot make their own enquiries into what went wrong. Whilst an award of compensation would certainly focus attention on a circuit or church, it wouldn’t resolve the underlying issues – at best it would show publicly that there is a problem with that station.
A key limitation of the tribunals is that since 6 April 2012 there is no right to sue for unfair dismissal for the first two years of a job (previously it was the first year). Had each new appointment been found to be a new contract, the minister would have had limited rights during arguably the most vulnerable period of settling in and discovering the reality of the station. It may even have intensified bullying – “if we can force him/her out in two years, he/she can’t claim unfair dismissal at tribunal”.
Once a case goes to the employment tribunal, the relationship between employer and employee is usually fatally wounded. Though tribunals can order reinstatement, they are well aware that this is often impractical because all trust has gone. Being a legal process, any admissions will be limited to those required by law – being more open than you have to can prejudice your case. The encouragement is to settle ‘out of court’ whenever possible in the interests of efficient justice. Often a pre-tribunal settlement has a confidentiality clause attached, not least because the settlement is ‘without fault’ and confidentiality helps preclude further legal action by making the agreement inadmissible in court. The negative effect of confidentiality is that it keeps matters secret that maybe should be aired publicly.
In terms of ensuring good relationships between employer and employee, it is arguably the threat of an employment tribunal that is most helpful, rather than actual tribunal proceedings. However, the threat of a tribunal can be used against the employer by a vexatious employee: as there are no costs awards in the employment tribunals, there is no financial disincentive to an employee bringing a false or vexatious claim. An employer faced with such a claim faces a difficult choice. If the employer chooses to fight the allegation, it will be at a public hearing where they either have to pay for legal representation or represent themselves against an employee who is likely legally represented. The other alternative is agreeing a confidential no fault settlement, which brings a end to the matter out of the public gaze but can cost a lot of money and may encourage others to try similar claims.
It is far more likely a minister is being bullied than is bullying, but claims that are questionable do take place. In the days when the full Conference heard the final stage of disciplinary appeals in closed session, I was privy to a couple of appeals where ministers made what I felt were quite remarkable and unsustainable arguments. I’m bound by confidentiality to say no more about those instances, other than observing that as the ministers had the right of appeal all the way to full Conference (these days most appeals to Conference are heard by a sub-committee of Conference members), they were entitled to pursue their claim all the way. If they were appealing against a decision of removal from Full Connexion or being placed without station until some kind of reconciliation process took place, the minister had nothing to lose by using all their appeals, especially as there were no legal costs involved.
Another problem with the employment tribunals having jurisdiction over ministers is that the Conference is the final arbiter of Methodist doctrinal matters under both the law (section 3(2) Methodist Church Act 1976) and the Methodist constitution (clause 5 Deed of Union). Any employment matter with a doctrinal element would have had the doctrinal matters remitted to the Conference or, more likely, a body appointed by Conference, for disposition.
I understand the disappointment of those who wanted ministers to have access to employment tribunals, but I believe they have their drawbacks.
OTHER CONSEQUENCES HAD MINISTERS BEEN EMPLOYEES
There would have been various legal consequences of ministers being found to be employees. I can think of possible changes in tax and pension matters, also there may well have been immigration changes that particularly affected incoming foreign exchange ministers. The Working Time Directive might have caused particular problems.
However, the biggest change had ministers been found to be employees may well have been in their management and accountability arrangements. Under the covenantal arrangements, a minister has considerable discretion in how they use their time to best effect in fulfilment of their duties. This allows ministers a fair amount of latitude to resist those churches and circuits that feel the minister’s role is primarily to be inward looking, spending their time at church events and with church members, by reminding them they are appointed to witness and work in a particular place. This gives ministers the ability to fulfil their missiological calling to look outwards, also discretion to keep confidential those uses of their time that cannot be discussed for pastoral reasons. (I know this is rather simplistic view, as there’s still issues around managing expectations, but it is sufficient to appreciate the distinction).
Had ministers been found to be employees, this would have emboldened some people to attempt to micro-manage “their” minister, especially if the Supreme Court had determined the employer was a local body rather than the Conference.
WHAT SHOULD THE CHURCH DO NOW?
I firmly believe that the Methodist Church must change in the light of the Preston ruling. With fresh confidence that it is responsible for the management and care of its ministers, it has a responsibility to develop its rules and practices.
If the Methodist Church adopts a “do nothing because we won” stance, I believe that betrays the hurt and pain that lies behind Preston. Even if you agree that the Supreme Court was right to uphold the Methodist Church’s contention that its relationship with its ministers is covenantal, not contractual, the fact remains that Ms Preston faced a breakdown in her relationship with the church that was so severe she felt the only answer was redress from outside the church.
There is now no way for Ms Preston to seek redress at an Employment Tribunal. It is possible that she may try court action for negligence, alleging that she was owed a duty of care in the context of her covenant relationship, which was breached by the events that took place.
Ms Preston has already had her resignation from Full Connexion accepted by a previous Conference. I believe it is a tragedy that her relationship with the Methodist Church was so wounded that she resigned from Full Connexion only a few years after being received into it.
There is much praying and reflecting still to do, but I can think of three areas that are worth attention.
TAKING INSPIRATION FROM MODERN EMPLOYMENT PRACTICE
Though ministers are not employees, there is nothing stopping the church from implementing ideas from employment practice.
The Methodist Church cannot go down the route the Church of England have taken as part of Common Tenure. The Church of England has been able to open access to employment tribunals for their clergy, who are not employees, because of the unique status of Church of England Measures as part of the law of the land. Methodism would need an Act of Parliament to implement this approach.
However, it would go some way to addressing the concerns of those who wanted access to Employment Tribunals if Methodism gave access to binding independent alternative dispute resolution, such as mediation or arbitration, at least as an appeal route. A way would have to be found to reserve decisions on doctrinal matters to a Conference appointed body, as is legally required, but this does not seem insurmountable.
Another idea worth consideration would be appointing expert non-Methodist members to discipline panels. Though these members would be in a minority, they would provide an authoritative external voice.
TAKING ACTION AGAINST PROBLEM CHURCHES AND CIRCUITS
The uncomfortable reality is that circuits, churches and individuals can act to impose their will in ways that are not open, loving, honest and in line with mission objectives. It is too easy for committees to be dominated by one or two voices. The minister can be in the difficult position of chairing a meeting discussing issues that have a profound effect on their ministry and wellbeing.
It is also possible for people, who may have no elected power, to use threats, including threats to leave or to split the congregation, in an attempt to get their way.
The disciplinary sanctions available for issues arising in churches and circuits are weak. Individual members can be stripped of their membership, but this does not preclude them from participation in a church, just from holding formal office. Unless someone is a local preacher or worship leader, being stripped of membership may have little effect on the individual concerned, who may continue to exert a powerful influence over a church despite a bar from formal office.
The District Chair is stuck between their primary responsibility to pastor the pastors and the desire to hold the church or circuit together. If a minister is pushed out, it takes courage for those involved in stationing to do something more than hope for the best, say little and station another minister. Sadly, there are too many examples of issues not being resolved and the next minister being subjected to the same treatment as their predecessor.
TAKING ACTION ON BULLYING
Bullying is wrong. It is a stain on our collective life, an abuse of power, and a violation of others whom we believe are made in the image of God.
Sadly, there are many stories of bullying within the church, especially bullying against ministers. Bullying of ministers is a breach of the moral duty of care the church owes those in a covenant relationship, and possibly a breach of the legal duty of care (in which case it is potentially negligence).
Paul Beard’s “A Handbook for Church Bullies” is well worth reading, as it points out the many ways the people manipulate and use the system. It can be read athttps://www.facebook.com/download/preview/574842582549925
It will not be easy to challenge bullying, but each one of us can start by praying and reflecting on our own behaviour.
There is much praying and reflecting still to do. The Methodist Council have set up a process for consideration of the verdict that will bring a report to Council in October 2013. Realistically, the verdict has arrived too close to Conference 2013 for any meaningful response there.
In due course, there will likely be various proposals, reports, motions and memorials. Each deserves careful attention, because each will relate to the covenant relationships we have with God and within the church. Most of all, each of us needs to open our hearts and minds to change, rejecting the temptation to bully others, learning to listen and compromise, and striving to care for each other in love.