Scottish Human Rights Law Group

Percy v Church of Scotland Board of National Mission concerned a claim by an associate minister in a parish of the Church of Scotland that she had suffered unlawful sex discrimination in the handling of an allegation of misconduct made against her, namely that she allegedly had an affair with a married elder in the parish.  The employment tribunal dismissed the application for want of jurisdiction. On appeal, the Employment Appeal Tribunal held that the claim to have suffered sex discrimination constituted a “spiritual matter” under the Church of Scotland Act 1921 , and that Parliament had allowed the Church an exclusive jurisdiction to deal with such matters. The Employment Appeal Tribunal also held that the arrangement between the Minister and her Church was not a contract for work and labour as defined in section. 82(1) of the Sex Discrimination Act 1975.    The Court of Session upheld that decision and the matter was further appealed to the House of Lords before which the legal issues were: first, whether the Minister’s relationship with the Church constituted “employment” as defined in section 82(1) of the 1975 Act; and secondly, whether the Minister’s sex discrimination claim constituted a “spiritual matter” within the terms of Section 3 of the 1921 Act and, as such, was within the exclusive jurisdiction of the courts of the Church of Scotland.   Their Lordships held by a 4:1 majority that notwithstanding the religious nature of the services the Ministers was engaged to provide, she was to be held as employed by the Church under a contract personally to execute work within the meaning of section 82(1) of the 1975 Act on the basis that employment arrangements between a church and its ministers were not to be taken lightly as intended to have no legal effect and, in consequence, its ministers denied the protection of the civil law.   On the second issue their Lordships noted that the expression “matters spiritual” was nowhere defined in the Church of Scotland Act 1921 but that on any ordinary understanding of that expression, where the church authorities entered into a contract of employment with one of its ministers, the exercise of statutory rights attached to the contract would not be regarded as a spiritual matter. A sex discrimination claim would not be regarded as a spiritual matter as the foundation of the claim was a contract and the rights and obligations created by such a contract were, of their nature, not spiritual matters, they were matters of a civil nature as envisaged by section 3 of the 1921 Act. In respect of such matters, the jurisdiction of the civil courts remained untouched.   Despite the impact of the decision on the manner in which the Church might organise its affairs, little or no consideration was given in this judgment to the question of the Church’s own Article 9 ECHR rights particularly as read in the light of Article 11 ECHR, to freedom from interference by the State in the internal affairs of a religious community particularly in matters touching on leadership of and ministry within the community.