Common Tenure

Introducing The Review of Clergy Terms of Service: Part Two

Readers of this publication and members of General Synod will have been struggling to keep up with all the recent publications on the many important topics facing the Church of England today. Both the Rochester Report (on women bishops) and the Windsor Report (on gay bishops) were published in the Autumn of 2004. But at least their publication before Christmas gave some chance for people to begin to come to terms with their contents, before they were debated in General Synod in February. Not so with the Review of Clergy Service: Part Two. Report of the second phase of the work (GS 1564). This was published on 24 January, just three weeks before it was debated at Synod on 15 February.

Employment rights

It is necessary to understand some of the background to the report. The Church of England (in common with other religious organisations) was in discussion with the government about whether it ought to give to its ministers certain rights, which are enjoyed by employees, but are not enjoyed by ministers of religion because they are office holders rather than employees. These rights can be granted to office holders and other ‘atypical workers’ by section 23 of the Employment Protection Act 1999.

In response to a discussion document issued by the Department for Trade and Industry in July 2002, the Archbishops’ Council made a statement about the rights and responsibilities of the clergy:

The Church of England firmly believes that the clergy are entitled to terms and conditions of service which adequately protect their rights, recognize their responsibilities and provide proper accountability arrangements.

The Council then set up the Review Group to consider the implications of section 23 rights for clergy, and also other related issues such as clergy freehold. The Group’s first report was published in 2003 and focussed mainly on clergy without the freehold. It recommended that those clergy who hold a bishop’s licence (curates, team vicars and some team rectors) should be granted section 23 rights.

No fixed term

It further recommended that fixed-term appointments should not be used for clergy (except in the case of training posts and other special cases), but that all new appointments for clergy without the freehold should be on the basis of ‘common tenure’. Clergy holding posts on common tenure would be able to remain in them until retirement age, subject to removal on grounds of discipline, redundancy or incapacity, or after a new form of ‘capability procedure’ that would be invoked where a post-holder failed to reach minimum standards.

The Group then turned its mind to the issue of the freehold and concluded in its second report that it would be unfair to have two different ways in which clergy held office in the Church of England. Since its proposals for ‘common tenure’ for non-freeholders had met with a good response, this should be the way forward for all freeholders in future – be they incumbents, cathedral canons, archdeacons or bishops. Henceforth all these clergy should hold their office on ‘common tenure’.

As Philip Petchey observed in a paper delivered to the Ecclesiastical Law Society at Bath six days after the Second Report was published,

It is ironic that proposals to remove the freehold – namely the most copper-bottomed job protection that anybody in England enjoys – should have sprung directly from concern about another section of the clergy; and the Machiavellian will sense a plot.

I will address issues raised by ‘common tenure’ and the abolition of freehold itself in a future article, but for now I turn to section 23 rights. It is not necessary to create ‘common tenure’ in order to give clergy section 23 rights. This could be done simply by granting those rights. But are section 23 rights compatible with a priest’s calling in any case?

Paternity leave

If a priest is to have section 23 rights, he is entitled to a statement setting out in detail his terms and conditions of employment. What are his terms of work and to whom is he responsible? To whom should he direct a grievance? What are his hours of work? It is going to cost the Church of England a great deal of time and money in advising people how to draft these statements. It will be difficult because we will be trying to mix concepts from modern employment law, with its emphasis on rights, with the priestly concept of sacrifice and service.

The right to time off is quite generous. In addition to maternity leave, either parent is entitled to take up to thirteen weeks unpaid leave in respect of each child (though not more than four weeks can be taken in any one year). It is envisaged that detailed arrangements will be negotiated locally, but where this is not done a fall-back scheme applies whereby just 21 days notice must be given.

This raises the question of with whom will the cleric negotiate? Presumably the priest needs to negotiate with whoever will be responsible for arranging cover while he is taking his parental leave. For he has a right to take the leave and has no responsibility in law for what happens while he is taking it. Never mind the fact that he has freely and willingly taken on himself the cure of souls of his parishioners. The dead must bury their dead while he is enjoying his employment rights.

 

Paul Benfield is the Vicar

of St Nicholas, Fleetwood

 

KEY RECOMMENDATIONS OF THE SYNOD REPORT

All clergy (including those appointed to offices now held on freehold) should have section 23 rights (under the Employment Protection Act 1999) granted to them as soon as possible.

The principal section 23 rights are

The right for time off for certain purposes;

The right to maternity, paternity, adoption and parental leave;

The right to an itemised pay statement;

The right to a written detailed statement of terms and conditions of work;

The right to apply to an Employment Tribunal in case of breach of any of the above or for redress against unfair dismissal.

Appointments to offices which are now freehold should in future be made on common tenure.

All clergy should be subject to capability procedures.

Parsonage houses should be vested in the Diocesan Board of Finance.

Churches and churchyards should be vested in the Diocesan Board of Finance.

National and local human resources should be provided at an estimated extra cost of £1m to £1·5m per annum.

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