TUESDAY LAW REPORT: Tribunal Can Hear Minister's Sex Discrimination Claim ; 20 DECEMBER 2005 Percy V Church of Scotland Board of National Mission ( UKHL 73) House of Lords (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote and Baroness Hale of Richmond) 15 December 2005
Kate O'Hanlon, Barrister, The Independent (London, England)
An associate minister of the Church of Scotland had a contract of employment within s 82(1) of the Sex Discrimination Act 1975, and accordingly an employment tribunal had jurisdiction to hear her complaint of sex discrimination against the Church of Scotland Board of National Mission.
The House of Lords (Lord Hoffmann dissenting) allowed the appeal of Helen Percy against a decision that she could not bring a sex discrimination claim before an employment tribunal.
Ms Percy, an ordained minister of the Church of Scotland, was appointed to the position of associate minister in a Church of Scotland parish. She was sent a copy of the terms and conditions, which included that the appointment was to be for five years, that the salary would be at the level of the minimum stipend, that a manse would be provided and that travelling expenses would be met.
An allegation of misconduct was made against her, namely that she had had an affair with a married elder of the parish. She resigned as an ordained minister of the church, which necessarily brought to an end her appointment as associate minister, and initiated proceedings before an employment tribunal, alleging unfair dismissal and unlawful sex discrimination.
The essence of her discrimination claim was that in similar circumstances the Church had not taken similar action against male ministers known to have had extra-marital sexual relationships. The employment tribunal dismissed the application for want of jurisdiction, holding that both complaints comprised 'matters spiritual' and fell within the exclusive jurisdiction of the courts of the Church of Scotland as provided by the Church of Scotland Act 1921.
Ms Percy appealed against the decision relating to her claim for sex discrimination. The Employment Appeal Tribunal dismissed the appeal. The Court of Session dismissed Ms Percy's appeal against that decision, holding that where an appointment was made to a recognised form of ministry within the Church of Scotland, and where the duties of that ministry were essentially spiritual, it was to be presumed there was no intention that the arrangements made with the minister would give rise to obligations enforceable in the civil law. …