A matter of faith

MacDonald v Free Presbyterian Church of Scotland

The law states that only employees (as opposed to workers) can make a claim for unfair dismissal. In MacDonald v Free Presbyterian Church of Scotland, the Employment Appeal Tribunal (EAT) said that a minister was an office holder, not an employee, because it was clear the parties did not intend to create a legal relationship.

Basic facts

Ministers in the Free Presbyterian Church of Scotland have to answer a series of questions (which include agreeing that the church has its own government, distinct from civil society) contained in an historical “Manual” and sign a document called a “formula” before being “called” by a congregation.

Mr MacDonald signed the formula in September 2001 and joined a congregation in Farr, near Inverness, as their Minister, but was not supervised or monitored in any way by them.

He did not receive a written contract nor did he receive a statement of terms and conditions but the congregation provided him with a manse, paid his national insurance contributions, gave him an interest free furnishing loan, paid his contents insurance premium, gave him a car loan and paid his council tax.

In January 2007 he was suspended and in May 2008 was dismissed from his ministerial post. He claimed unfair dismissal.

Tribunal decision

The tribunal said that Mr MacDonald’s ministerial obligations were to his congregation and not to the church. He did not enter into a contract of employment with the congregation and was not under their control.

It therefore concluded that: “His rights and duties are defined by the office he holds and not by any contract. He is not an employee of the Respondents.” Instead he was an office holder.

Mr MacDonald appealed, arguing that the tribunal had failed to comply with the requirements in Meek v City of Birmingham District Council. Namely, that tribunals must provide an outline of the complaint along with a summary of its conclusions and its reasons for reaching those conclusions.

EAT decision

The EAT upheld the tribunal’s judgement, saying that although it was “economically stated”, it met the minimum requirements in Meek. In its view, it was enough “if an ordinary picture is painted; a "painting by numbers" picture will do even if incomplete so long as it has the main colours and the onlooker can tell what it is a picture of. It does not need to have the detail, subtlety and qualities of, say, Michaelangelo's "Last Judgment".

It made clear there was no rule that ministers are automatically employees, just because the Court of Appeal found in favour of the claimant in New Testament Church of God v Stewart. Instead each case has to be considered on its own facts.

In this case, in terms of the facts identified by the tribunal, the EAT said that they did not, when objectively tested, indicate “that the parties intended to create a legal relationship”.

Firstly, the manual covered the position of deacons and elders (both office holders) as well as the governance of the whole church.

Secondly, the questions and the formula represented a commitment to a system which “does not admit of legally enforceable relationships being created between the Respondents and its Ministers nor does it admit of submission to the jurisdiction of the Civil Magistrate”.

Thirdly, the formula was only signed by the Minister, not the congregation and was simply a statement of belief. It concluded therefore that none of the documents showed contractual intention and Mr MacDonald was not an employee. He could not therefore claim unfair dismissal.