When it comes to legal rights and redress, clergy and religious workers have often found themselves between a rock and a hard place. This is nothing new. In many cases it is the result of secular legal systems’ attempts to bridge the divide between law and religion; between the desired autonomy of faith bodies and affording legal rights and responsibilities to individuals. As was observed by Evans and Hood:
Employees rely on their rights to equality, non-discrimination, fair processes and other employment rights to protect them from unfair treatment in the workplace. Religious employers, however, argue that undue regulation of religious workplaces leads to the undermining of religious freedom and religious autonomy.Footnote 1
It is against this background that John Duddington has sought to delve into the legal status of clergy and religious workers, with a clear goal of suggesting legal solutions to afford such workers greater protection in the employment law sphere, whilst avoiding an infringement on the autonomy of faith bodies.
Duddington’s The Church and Employment Law charters a tale of the barriers faced in carving out clear rights for clergy and religious workers, which they can enforce against faith bodies when matters go wrong in their working relationship. The book begins with an analysis of the legal status of religious workers who are not necessarily clergy or ministers of religion. Duddington starts by acknowledging the statutory rights conferred on volunteers, such as in relation to health, safety and safeguarding. He encourages the practical step of faith bodies making volunteers aware of their legal rights.
Duddington goes onto consider ‘religious workers’ more generally, applying a wide definition for this term and conducting a comparative analysis of how the rights of religious workers have been approached in neighbouring jurisdictions. The consequent conclusions are centred on an argued lack of consistency in legal provision for religious workers, which in Duddington’s view gives rise to inequity in the treatment of such workers.
Much time is devoted to the term ‘minister of religion’. Duddington examines UK cases where the title of ‘minister’ has been paramount to someone’s legal rights, including during the time of mandatory military conscription. Discussion follows on the case of Guy v Mackenna Footnote 2 , where Lord Anderson held that ‘a regular minister is one whose sole occupation is ministering to the religious needs of his flock’.
Duddington described the courts as having taken a functional-based approach to this term, likening this to the US methodology. In suggesting his own definition of a ‘minister of religion’, Duddington draws these threads together and considers how broadness would look in different faith bodies’ ecclesiology. His consideration of the different pathways for ministerial work, founding his critique of the UK’s previous focus on ‘full time’ spiritual functions, is to be commended.
Duddington’s treatment of clergy within the employment law sphere is comprehensive and addresses difficulties arising on both ends of the clergy–church relationship. For example, Duddington emphasises the lack of legal personality in many faith bodies posing difficulty in keeping them accountable to their clergy. So much is clear from the comments of Lord Nicholls of Birkenhead in the case of Percy v Church of Scotland Board of National Mission Footnote 3 that ‘This internal fragmentation ought not to stand in the way of otherwise well-founded claims’.
For clergy, Duddington expends much energy on the importance of a contract which has been reinforced by UK courts. Interestingly, the ‘irreducible minimum’ criteria frequently used to examine employment relationships in England and Wales,Footnote 4 were not brought into the discussion until much later. The desire of faith bodies to have autonomy is factored into this discussion, and Duddington argues that there has been an avoidance by the courts of interfering with the operations of religious bodies where possible.
Ultimately, Duddington’s focus is on the lack of formal employee status for clergy under the Employment Rights Act 1996, which he argues is critical for employees in England and Wales in light of the rights and causes of action afforded to them.
As part of this, Duddington considers how the employment status of religious workers was commented on by the DTI Discussion Document on Employment Status in Relation to Statutory Employment Rights (2002 DTI URN 02/1058). It is not, however, until the end of his work when the nexus is considered between this document and the Ecclesiastical Offices (Terms of Service) Regulations 2009, conferring rights on certain clergy including the right not to be unfairly dismissed. This was surprising. Perhaps a more accessible chronology of these developments might have been achieved if these were addressed together.
At the end of his book, Duddington makes suggestions for change in the law. He suggests a wider-reaching scheme that is attractive to religious bodies but which, he argues, would help clergy and religious workers have clearer rights and modes of redress.
It is clear from his analysis that Duddington considers the state of law, particularly in the UK, to leave religious workers divested of important work-related rights. He reaches this conclusion using a thorough, forensic analysis of case law developments in the UK context. Moreover, Duddington is not afraid to scratch beneath the surface when describing important constitutional concepts and their interplay with the role of clergy in employment law. One critical such example is Duddington’s commentary on the established nature of the Church of England in the England and Wales jurisdiction.
Duddington’s approach is evidently from a Christian standpoint. So much is clear from his discourse on the recommendations of scripture in resolving legal disputes (citing Matthew 5:25). This standpoint has stood Duddington in good stead for understanding the struggles of Christian clergy in particular. His comments regarding the exercise of clergy ministry shows a mature understanding of clerical vocation.
This Christian focus, however, is not without its drawbacks. While Duddington’s comparative analysis of such other jurisdictions as the US and Germany is solid and compelling, there was a notable lack of time spent on wider ranging (particularly non-Western) jurisdictions. The opportunity here would have been to consider how countries with differing faith-based legal systems might shed light on the problems which he argues face clergy and religious workers.
This is not a practitioners’ text. Readers hoping for easily identifiable threads of argument in employment litigation will probably be left wanting. This is an understandable result of Duddington’s focus on detailing the chronology of the legal barriers which have historically faced clergy and religious workers. However, this has meant that many of Duddington’s conclusions and suggestions for change appear rushed. It has also led to a perhaps greater focus on historic ‘problems’ than on informed suggestions for change. More detailed reasoning of his practical suggestions, peppered into his overall discussions throughout the book, would have been welcome.
To conclude, whilst there will inevitably be more to investigate in this area, Duddington’s book offers a rigorous and considerate analysis of where clergy and religious workers have stood in employment law. An empathy is shown to the difficulties of such individuals when compared with secular workers, underpinned by comprehensive research and a well-rounded understanding of comparative approaches. Many of these legal lacunas remain, and practical responses to them are eagerly awaited. Duddington points out the need for such responses with a crucial contribution to the debate of how best to balance the autonomy of faith bodies with the rights of individuals working within them.
