Legal Status Of Church Organists, Good News for C of E Organists Options

[Barry Williams]

A recent Empolyment Tribunal decision cofmrims that organists are employees. The effect of this is to give church roganists int he C of E access to the Employment Tribuanl in cases of unfair dismissal.

The Press Release is below.

I hope it will be of assistance.

Barry Williams


Organist Publications Ltd
19 Chestnut Avenue, Ewell, Epsom, Surrey KT19 0SY.
Telephone: 020 8224 5695
E-mail: robert.leach1@btinternet.com


PRESS RELEASE 1 from Organist Publications Limited

15 February 2008

A church organist is an employee

An employment tribunal has ruled that a church organist is an employee.

This means that organists in the Church of England have full employment rights. After a year, they may bring a claim for unfair dismissal against the vicar and PCC if sacked without good reason. Although it has long been believed that church organists are employees, this is the first known case where such a decision has been given by an Employment Tribunal.

The case concerned an eminent and well-qualified organist and choirmaster in the north of England who was dismissed. He brought a claim for unfair dismissal. As a preliminary point, the church authorities said that he was not an employee. This matter was addressed in two hearings over three days last November and December. The decision has just been made public.

The case can now proceed to hearing the substantive issue of whether the organist’s dismissal was fair. An Order has been made which prevents publication of any material that can identify either the organist or church. Accordingly this preliminary decision has been issued as A v B and C [2008].

In the decision, the judge paid particular attention to the amount of control exercised by a vicar under Canon B20. Strictly, this decision only applies to the contract, which applied for this one organist, but the terms of the judgment are such that the ruling will apply to almost all organists in the Church of England.

Organist Publications Ltd director Robert Leach appeared as an expert witness at the tribunal for the organist. Leach says, “This is a landmark decision which should greatly help to improve the working relationship between organists and church authorities. It is estimated that about two-thirds of qualified organists are no longer prepared to accept an appointment in the church. Problems in working with vicars are one of the most quoted reasons. Establishing that an organist is an employee will help ensure that the relations are now properly governed by employment law.”


Notes to editors
1 The appointment of organists in the Church of England is governed by a mixture of canon law, contract law and employment law. There is no single test for when someone is an employee. The matter is decided by considering indicia for employment and indicia for self-employment. In this case, the indicia were clearly in favour of employment status.

2 The vicar and PCC have the right to appeal against this decision, though the clear and decisive wording of this judgment would seem to make the chances of success unlikely.

3 An employment tribunal does not establish a binding precedent under English law, but this decision does establish a persuasive decision that may be quoted in any future dispute relating to an organist.

4 At the tribunal, the church authorities argued that the organist was self-employed because he agreed to be paid gross without any deduction under the PAYE system. The judge accepted that the tax treatment of an individual is irrelevant in determining employment status. There is, anyway, a special “religious centre exemption” scheme which allows organists and other church employees to be paid gross without having PAYE deducted, provided that there is no PAYE scheme in existence and the sums paid do not exceed the PAYE threshold.

5 Organist Publications Ltd was established in 2005 to provide assistance, advice and other resources for church organists. Barry Williams, a lawyer, and Robert Leach, a chartered accountant, run it. They deal with at least one new organist dispute every week. They work closely with the Royal School of Church Music and other church music bodies. They wrote and published Everything Else an Organist Should Know, which has become the standard reference book on legal and financial issues relating to organists. The book was authoritatively quoted at the tribunal. Robert Leach appeared as an expert witness for the organist.

[primrose]

2 The vicar and PCC have the right to appeal against this decision, though the clear and decisive wording of this judgment would seem to make the chances of success unlikely.

Eh? The prospects of a successful appeal obviously depend on whether the reasoning is sound, not on how confident the tribunal was that it was right.

[Barry Williams]

I have been asked to speak on Radio 4 (religious programme at about 7am) on Sunday morning about this matter.

Whilst the decision relates only to one case, it looks as though it will be quite persuasive - unless there is an appeal.

Barry Williams

[Barry Williams]

Hi Folks,

In the event the broadcast got switched to Mike Rimmer's programme - BBC WM.

It seems that unless the judgment is appealled, organists will get these rights:


six weeks' paid holiday a year
redundancy pay
maternity and sick pay
national minimum wage (£5.52 per hour)
parental leave
protection from age discrimination
after one year in post, access to the Employment Tribunal in cases of alleged unfair dismissal

Some of these rights are already available to self employed workers. The implication for the majority of churches is nil, as they invariably afford organists these rights, albeit informally. The real feature is the construing of Canon B 20 so as to give a master and servant relationship - something that I have never doubted - and with it the access to the Employment Tribunal for alleged unfair dismissal.

I am sure we will hear more about this. Churches may need to be re-assured about not operating PAYE (unless the organist is paid over the PAYE limit or there are already other PAYE employees:

http://www.hmrc.gov.uk/manuals/pommanual/paye23030.htm (Go the LRC Guide to PAYE)

Barry Williams

[Barry Williams]

Just a note to say that since my last post there have been two more Tribunal decisions, one last Autumn and the other in March this year. Both held that each Applicant (the church organist) was an employee.

In the first case the organist had a self-employed contract. The Tribunal looked at the facts, rather than the words of the contract, and decided that he was an employee, notwithstanding the contract's declaration to the contrary). The organist was awarded significant compensation for unfair dismissal, though there was a 30% reduction in the award for his own contribution to the situation.

The second case has so far only gone as far as the status hearing. (i.e. Deciding whether or not the organist was an employee or self-employed.) There was no written contact, for the draft contract was not signed. The Tribunal worked out the terms of the oral contract from the facts and the evidence. It held that the organist was an employee. This case will now go to a 'Merits Hearing' unless the parties are able to come to an agreement.

All of the cases so far show that Employment Tribunals prefer to construe organists as being employees. The Employment Appeals Tribunal case of Alan Green versus St Nicholas, Sutton, is usually distinguished, as the facts in that case were rather unusual. (The situation appeared to have been arranged by the parties to get a particular status result, possibly for tax reasons.)

It seems quite likely that Tribunals will ordinarily hold that church organists in the Church of England are employees. This is excellent news for organists, as it gives a secular right of appeal in cases of unfair/wrongful dismissal.

Barry Williams

[jod]

Does this mean that if a Church Warden decided to discriminate against me due to a "disability" - physical or mental and suggested I could not be hired as an occasional organist even though the Church Insurance would cover me, that I might have a case under employment law for discrimination given I work as a musician and the current organist was happy using me, and the PCC had previously hired me, and I had done nothing that would warrant misconduct?

[Vox Humana]

Thank you for that, Barry, That is good news.

[Barry Williams]

Does this mean that if a Church Warden decided to discriminate against me due to a "disability" - physical or mental and suggested I could not be hired as an occasional organist even though the Church Insurance would cover me, that I might have a case under employment law for discrimination given I work as a musician and the current organist was happy using me, and the PCC had previously hired me, and I had done nothing that would warrant misconduct?

There are several disparate issues here. I may need further information to advise.

I will send a PM.

Barry Williams