In a Lighter Vein - United States v Kuch

 At the end of a year when the Supreme Court has had to grapple with the, not always straight forward, question "What is a Religion" I thought it might be interesting to look back at the case of UNITED STATES of America v. Judith H. KUCH 288 F. Supp. 439; 1968 U.S. Dist. LEXIS 11703; 35 A.L.R.3d 922 where an American Federal Judge had to grapple with the same question though in rather more "interesting" circumstances

The flavour of the case can be derived from the facts set out in the judgment

"Judith H. Kuch, who avers she is an "ordained minister of the Neo-American Church", stands indicted in a seven-count indictment for unlawfully obtaining and transferring marihuana and for the unlawful sale, delivery and possession of LSD.......

Defendant by her motions to dismiss contends that the criminal penalties provided for violation of these Acts may not be applied as to her for several reasons relating in various ways to her basic contention that the laws impinge on her constitutional right in the free exercise of her alleged religion. A hearing was held and testimony and exhibits received in support of Kuch's religious claims........

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area,,,,,,,

A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested..... 

 the church officially states in its so-called "Catechism and Handbook" .......... "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." ......

The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years.......

Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience...... Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them ........

Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. 

The Church symbol is a three-eyed toad. 
Its bulletin is the "Divine Toad Sweat." 
The Church key is, of course, the bottle opener. 
The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." 

In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions.  There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. ....... 

The official seal of the Church is available on flags, pillow cases, shoulder patches, pill boxes, sweat shirts, rings, portable "communion sets" with chalice and cup, pipes for "sacramental use," and the like. The seal has the three-eyed toad in the center. The name of the Church is at the top of the seal and across the bottom is the Church motto: "Victory over Horseshit!".

The Court finds this helpful in declining to rule that the Church is a religion within the meaning of the First Amendment."

A Happy Christmas and New Year to my Reader(s)  

Quotations from Lawrence v Texas

I was not aware until recently of the details of the case of Lawrence v Texas referred to my previous Blogpost but reading the decision I was struck by the prescience and accuracy of the dissenting opinion of Justice Scalia in that case.  I was also impressed by his ability, unfortunately not shared by many Judges today, of recognising the proper limits on Judicial power.  For that reason I put below some extracts from his judgment.  In reading what he says I hope readers will try to make the distinction he makes between personal views on the rightness or wrongness of laws and their constitutionality and legality.  I particularly endorse his final remark judgments are to be made by the people, and not imposed by a governing caste that knows best.



"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, estiality, and obscenity are likewise sustainable only in light of [Bowers v. Hardwick 478 U. S. 186 (1986)] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision;"

"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation."

"Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct."

"The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “ ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ ” ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. "

"One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. "
 
"It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens,later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Polygamy, Cohabitation And Sodomy Laws interact

Back in August I digressed to look at the history of Mormon Polygamy and its implications for the historic legal definition of marriage as being between a man and a woman.  

In the case of  Brown et al v. Herbert et al 2:11-cv-00652 a US District Court Judge has also had to consider the history of Anti Mormon Polygamy Laws in Utah.  In a complicated decision the Court struck down elements of a Utah Law which prohibited multiple, ie polyamorous, cohabitation and which also prohibited entering into a second or more "marriage" ceremony even if the second or other marriages were never legally registered.  The purpose of the Statute as was accepted was to prevent members of minor, Mormon, Polygamous groups conducting religious, but not legally valid, plural marriages.

The Judge struck down the law using a famous US Supreme Court decision Lawrence v. Texas - 539 U.S. 558 (2003) where the US Supreme Court had struck down a Texas Anti-Sodomy statute which had criminalised consensual homosexual conduct.  The Supreme Court had held that such a statute interfered with a right to privacy and the Utah Court held that the same principle applied to consensual polyamory

Scientology is a Religion - Hodkin v Registrar-General

The Supreme Court in Hodkin v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 has decided that Scientology is to be regarded as a Religion and that its Chapels can be registered under the Places of Worship Registration Act 1855.  The relevance of the 1855 Act is that premises registered under it can then be registered to perform Marriages under the Marriage Act 1949

The Claimants are Scientologists who wanted to be Married in the Scientology Chapel in London which was not however registered under either the 1855 or 1949 Acts.  This was because of the 1970 case of R v Registrar General, ex parte Segerdal [1970] 2 QB 697 where the Court of Appeal had held that Scientology was not a Religion and its Chapels were not places of Religious Worship.  In Segerdal Lord Denning had memorably said of the definition of Religion and the concept of Religious Worship

'place of meeting for religious worship' as used in the Act of 1855. It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words 'place of meeting for religious worship' is that it should be a place for the worship of God.

"Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church. … When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God."

whilst Buckley LJ had said
"Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession."

English Courts and the Registrar General were therefore bound by this definition until the Hodkin case came before the Supreme Court since only the Supreme Court has the power to overule a decision of the Court of Appeal.  

In considering the 1970 Segerdal case and its relevance in the rather different cultural and legal environment of 2013 the Supreme Court noted that the rather narrow definitions used in Segerdal had been rejected by the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) , by the US Courts in the case of Malnak v Yogi 592 F.2d 197 (1979) and, to a rather more limited extent by the European Court of Human Rights in Kimlya  v. Russia

Lord Toulson gave the Judgment of the Supreme Court and noted the problems with the Segerdal definition

 51: Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today's society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism. The evidence in the present case shows that, among others, Jains, Theosophists and Buddhists have registered places of worship in England. Lord Denning in Segerdal [1970] 2 QB 697, 707 acknowledged that Buddhist temples were "properly described as places of meeting for religious worship" but he referred to them as "exceptional cases" without offering any further explanation. The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule.

52: Further, to confine religion to a religion which involves belief in a "supreme deity" leads into difficult theological territory. On the evidence of Mrs Wilks, Scientologists do believe in a supreme deity of a kind, but of an abstract and impersonal nature. Ideas about the nature of God are the stuff of theological debate.
 

 In Para 57 of the judgment Lord Toulson laid down what will undoubtedly now become the standard definition of religion in UK Law, despite his caveat at the end, 

57:  I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind's place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word "supernatural" to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind's nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

 The decision of the Supreme Court to recognise Scientology as a Religion for the purposes of the 1855 Act will undoubtedly lead to Scientology being recognised as a Religion for the purposes of Charity Law and also clearly for Discrimination Claims under the Equality Act 2010 

What is also interesting in both this case and last weeks case of Mba v Merton Council the Courts have accepted that they should not allow themselves to be drawn into detailed theological arguments.  Personally I welcome the decision, even though the Church of Scientology is a controversial organisation I would be concerned at any attempt by legislature or Courts to determine what are "acceptable"  and "not acceptable" religions

Mba v Merton Council - Christians and Working on Sunday - Part 2

The Court of Appeal has issued its judgment in MBA v London Borough of Merton [2013] EWCA Civ 1562 which is an Appeal from the Employment Appeals Tribunal judgment MBA v London Borough of Merton  [2012] UKEAT 0332_12_1312.

I blogged about the case on 11 January 2013 and whilst I was not surprised that Mrs Mba lost her case on the facts I was extremely concerned at the legal reasoning of the EAT and for that reason I am extremely relieved by the Court of Appeal decision, Mrs Mba still lost her case on the facts but an an entirely different legal basis.

Ms Mba was a care worker at a registered children’s home which, not surprisingly,  was open 7 days a week, 24 hours a day and requires full staffing at all times.  Mrs Mba however is a Christian who believes that it is wrong to work on Sunday.  When she was eventually rostered to work on a Sunday she did not attend work on the Sundays she was rostered and disciplinary action followed. Eventually she resigned alleging "indirect" religious discrimination.

On the facts of her employment I have to say that I cannot see that there could be any question of Mrs Mba ever winning her case.  The Children in the home had to be fed and cared for on a Sunday just as much as on any other day and personally I would see that as performing a Christian act however that is of course merely a personal view

 In the case the Employment Tribunal and the EAT had considered a witness statement that had been put in on behalf of Ms Mba by Bishop Nazir Ali which said.

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

In deciding allegations of Indirect Discrimination, as occurred in this case, a Tribunal was supposed to be satisfied that a "group" of people are affected by the alleged Discriminatory practice and the evidence from Bishop Nazir Ali did this by stating that "some Christians will not work on the Sabbath".  The EAT however turned this around by deciding that because  "some Christians will work on the Sabbath" that meant that because only a minority of Christians would refuse to work therefore it was permissible to require Christians to work because only a minority of them would be affected.

I stated at the time that the EAT had  "seriously misunderstood discrimination law." and I am glad to see that the Court of Appeal agreed. 

In the decision Lord Justice Maurice Kay held that what mattered was whether Mrs Mba had a sincere belief which was held by some Christians.  He went back and reemphasised the fundamental test laid down by Lord Nichols at para 22 of Williamson v. Secretary of State for Education [2005] UKHL 15 where he said

 "When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of the Jacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Anselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief on the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Jacobucci J also noted, at p.28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising."

 Lord Justice Maurice Kay emphasised that there may be legitimate differences of belief within religions at para 14 when he said.

This sensitivity to the diversity of beliefs between and within religions is something which flows from the respect that is accorded to the range of sincerely held religious beliefs.

 Paradoxically the fact that her belief was a minority one made it easier to accommodate her.

Lord Justices Elias and Vos went further and applied Article 9 of the European Convention on Human Rights to the issue of Religious Discrimination.  They decided that it was wrong to even look at whether the Appellants beliefs were shared what mattered was whether they were sincere. 

Para 37 Elias:  in my view, it is the Article 9 dimension of this case which made it inappropriate for the Employment Tribunal, when assessing justification, to weigh in the employer's favour the fact that the appellant's religious belief was not a core belief of her religion so that any group impact was limited.

para 41 Vos:  The question of whether Mrs Mba's belief was widely held might, in theory and absent Article 9, be relevant to the proportionality question for the reasons I have given. But there is no reason why regulation 3(1)(b)(iii) cannot be equally well read to exclude such a consideration on the ground that Article 9 does not require any test of group disadvantage, and concentrates only on the religious freedom of the individual concerned.

 
The decision, though it does not help Mrs Mba will certainly make it easier to bring and to win claims of Religious Discrimination.  The disgraceful decision by the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 that Mrs Ladele's belief in the sanctity of marriage was not a 'core' part of her religion has now been finally put to rest.  This should avoid Courts and Tribunals in the future being driven into arguments about theology which the House of Lords in Williamson had accepted are outside the competence of secular courts

Anglican Vicar May be an Employee

The employment status of a Church of England Minister has come before the Employment Appeals Tribunal in Sharpe v The Worcester Diocesan Board Of Finance [2013] UKEAT 0243_12_281.  The case follows on from the decision by the Supreme Court in President of the Methodist Conference v Preston [2013] UKSC 29 which decided that a Methodist Minister was not an employee.  (My Blog on that case is HERE)

Reverend Sharpe, the Claimant, is an ordained minister in the Church of England and from 2005-2009 was working as Rector in a Benefice in the Diocese of Worcester. (NB: Throughout the EAT judgment he is referred to as a 'Minister' rather than a 'Priest' so I adopt that title)

In two ET claims Rev Sharpe complained of detriment, as a result of having made public interest disclosures, and that subsequently of constructive unfair dismissal. At a pre-hearing review in February 2012 the ET Judge held that he was neither an employee of the Respondents nor a “worker” within the meaning of s.43K and s.230 of the Employment Rights Act 1996 and as such the ET had no jurisdiction to determine the claim.  When he appealed to the EAT the appeal was stayed pending the Supreme Court decision in 'Preston'.

Much of the EAT judgment deals with the formalities as to how the Rector was appointed and the authority exercised over him buy his Bishop and from that point of view is factually interesting though it does not make riveting reading.  The Claimant essentially submitted that he was under the direction and management of the Bishop whilst the Diocese described the Bishop as having a pastoral rather than a managerial role.  In relation to correspondence relied on by the Claimant as demonstrating management of him by the Bishop, during their dispute, the Judge found that the correspondence did demonstrate an attempt by the Bishop to manage the problems in his diocese.  However, it was clear that any solutions he could propose required the Claimant’s consent and the Bishop was not in a position to impose anything without that consent

On the evidence the ET  Judge found that the Bishop of Worcester was “not in the practice of issuing instructions”. This was because it was known both to him and to the priests of his Diocese that he had no right to issue instructions in the same way that an employer or a line manager would issue instructions, which a subordinate would be contractually obliged to obey. 

The EAT stated that after the Supreme Court decision in Preston the legal position for Employment claims by Ministers of Religion was that cases depend on their own particular facts. There is no longer any presumption that a minister and a church do not intend to enter into legal relations.  If the relationship between church and minister has many of the characteristics of a contract of employment, in terms of rights and obligations, these cannot be ignored simply because the minister’s duties are of a religious nature.  The precise nature of the legal relationship will depend on the facts having regard primarily to the manner in which the minister was engaged, and to the particular rules and practices of the Church which govern his or her service.

In this case the EAT accepted that what matters is whether there is “residual control”, rather than the frequency, or infrequency, with which that control may be exercised in practice.  The question was not how often the Bishop used the powers he had, but whether there were powers available to him to use.

In addition there was a significant factual difference to the Preston case in that once in post Rev Preston continued to receive her stipend even in the event of sickness or injury but in the case of Rev Sharpe by contrast if he was absent through sickness his stipend reduced to half after a period of 28 weeks and ceased altogether after 52 weeks meaning that that the stipend stopped when the job was not being done, so implying an employment relationship.  Another significant difference to Preston was that whilst a Methodist minister has no unilateral right to resign a rector in the Church of England can voluntarily resign his benefice.

These differences were not sufficiently analysed by the ET Judge, who in fairness was working on the, often contradictory, pre-Preston  legal cases.  The claim was remitted back to a fresh ET so as to allow a careful factual analysis of the rules and practices of the Church of England, the manner in which the Claimant was engaged and the particular arrangements made with him, as revealed by all the relevant documentation in order to determine whether, properly analysed, they were characteristic of a contract and, if so, whether it was a contract of employment.

The EAT also rejected the idea that the Claimant’s relationship with the Bishop was defined exclusively by ecclesiastical law even allowing for the fact that the Canon Law of the Church of England is, uniquely, also part of the Law of England.

The case seems destined to be one that "runs and runs" and will probably be back in the EAT in due course whatever the ET eventually decides.

One interesting comment by the Judge in para 13 of the judgment is worth quoting

Despite its central position in society as the established Church, the Church of England has no legal personality.  It can neither sue nor be sued.  The piecemeal approach of legislation over the years has resulted in the title “Church of England”, denoting an amalgam of an infinite number of bodies with no clear picture as to how the various parts interact with each other.  Ultimate authority lies with the Church’s Parliament, the General Synod, subject to the approval of the Westminster Parliament.

B&B Owners and Sexual Orientation - The Final Chapter

The Supreme Court has issued its decision in the case of Bull v Hall [2013] UKSC 73 which involves a couple, Mr & Mrs Bull, who owned a B&B in Cornwall and who refused to provide a double bedded room to a Gay couple who were in a Civil Partnership.  They justified this on the basis that they only provided double bedded rooms to Heterosexual Married couples.  They were then successfully sued for breach of the Sexual Orientation Regulations 2007, which are now incorporated in the Equality Act 2010

The Bulls had originally lost their case in the Court of Appeal Bull v Hall [2012] EWCA Civ 83 which I blogged about HERE where they had been found to have engaged in Direct as Opposed to Indirect discrimination.  In the Supreme Court 3 all the Judges agreed that the Bulls had engaged in unlawful Discrimination but 3 held it was Direct Discrimination and 2 held it was Indirect Discrimination.   The decision by the Supreme Court also has the effect of overriding the decision of the Court of Appeal in Black v Wilkinson [2013] EWCA Civ 820 where a similar situation to that of the Bulls was considered by the Court of Appeal to be Indirect Discrimination.  The fact that so many eminent Judges can disagree on so fundamental a legal issue hardly inspires confidence in the legal drafting behind the Equality Act 2010

That said the decision by the Supreme Court was predictable and follows the logic of similar decisions in Canada  Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247 and in the USA  Elane Photography v Vanessa Willock New Mexico Supreme Court August 22, 2013 and the decision re Lillian Ladelle in the European Court of Human Rights all of which I have previously blogged about.  Article 9 of the European Convention of Human Rights was here, as so often before, shown to be a toothless Human Right 

The summation of the present legal situation and the philosophy behind it was put by Lady Hale who did the lead judgment in the case


52.Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

53. Heterosexuals have known this about themselves and been able to fulfil themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.

54. There is no question of (as Rafferty LJ put it) replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” (para 56). If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

The point I would ask is what sort of legal system or society needs to punish a couple who run a small B&B merely because they disagree with  the, now overwhelming, consensus ?  Why on earth can society not accommodate them, what ever happened to the idea of human freedom ?

Also as regards the fatuous comparison Lady Hale made in para 54 surely the point would be why the Preddy and Hall were denying the room to the Bulls ?  Lady Hale simply did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point

The Coronation Oath - A Legal Challenge ??!!

It has been reported that the National Secular Society is instructing Lawyers to consider the possibility of making a legal challenge to the Coronation Oath in particular that part where the Monarch promises to maintain the Protestant Religion

 Archbishop. Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

Queen. All this I promise to do.

The NSS apparently wants to ensure that this part of the Oath is changed before the next Coronation.  Now leaving aside the fact that talking about the wording of the Oath for the next Coronation whilst the present Queen is alive and in good health is in exceedingly bad taste the idea that there could be a legal challenge to the Coronation Oath using the Human Rights Act 1998 is simply legal fairyland. 

To begin with neither the NSS nor anyone in it has legal standing to bring a claim since s7 of the Act says (my emphasis)

 7(1) (1)    A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a)    bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b)    rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act
and therefore the only person who could claim to be a "victim" of the wording of the Coronation Oath is Prince Charles who will, in all probability, be taking the Oath at some unspecified time in the future. The simple legal, as well as political question is, 
"If Prince Charles does not object to taking the Oath what right has anyone else got to object on his behalf ?" 

The fact that the (miniscule) membership of the NSS may object to the wording of the Oath is irrelevant. Lord Diplock noted in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617   the need
"to prevent the time of the court being wasted by busybodies with misguided or trivial complaints" 

After all if the NSS could legally object to the wording of the Coronation Oath because they found it "objectionable" then by the same logic any group which objected the existance of the Monarchy itself could equally object to a Coronation itself on the basis that they found that "objectionable"

Finally as was noted by the Canadian Courts in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC) and 2005 CanLII 6369 (ON SC)  which dealt with the position of Queen Elizabeth II as Queen of Canada the Monarchy of the United Kingdom is a Monarchy that is shared with Fifteen other Commonwealth Realms and any changes to the Coronation Oath or the rules relating to eligibility to the Throne cannot be imposed unilaterally by the Government, Parliaments or Courts of any of individual realm but have to be agreed by all the Realms.  In short any attempted legal challenge to the Coronation Oath in the Courts of the UK would be an attempt to interfere in the Government and Constitutions of fifteen other Nations

The NSS will I am sure be aware that the entire story is nonsense and no legal challenge would ever get off the ground however they have got their publicity which is I suspect all they ever really wanted

My other Blogs re the Monarchy

A Catholic Monarch ? The Act of Settlement 1701

Myths about Catholics and the Monarchy

Beekeeping, God and Taxes - Blackburn v HMRC

A couple of staunchly religious beekeepers who said their beliefs meant they could not meet HMRC’s requirement to file their Value Added Tax (VAT|) returns online have won their case in the Tax Chamber of the First Tier Tribunal case of Blackburn v HM Revenue & Customs [2013] UKFTT 525 (TC)

From the 1st April 2010 HMRC have required all businesses to serve VAT returns via the Internet. However Reg 25A(6) of the VAT Regulations states that

 A person who the Commissioners are satisfied is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications, is not required to make a return required by regulation 25 using an electronic return system.

 Graham and Abigail Blackburn, who run Cornish Moorland Honey, in Bodmin, are both devout members of the Seventh Day Adventist Church and view the internet as an intrusion of 'worldliness' into their lives of 'righteousness'. They said that they should be allowed to continue with paper tax submissions, as they had before the new regulations came into force in April.

Graham Blackburn told the FTT that he and wife renounced the use of computers, the internet, televisions and mobile phones in their home. In para 14 of the judgment it was noted that the couple


" have chosen to entirely shun computers and television.  They do not possess a computer or television.  They do not use them.  Mr Blackburn gave unchallenged evidence that he would regard it as incompatible with his beliefs to go to the library to use a computer to make a VAT return or to ask someone (such as an agent) to make his online VAT return on his behalf.  They will not use computers nor have someone use them on their behalf."
However HMRC lawyers argued that the couple's stance was 'really a personal preference and not part of their religion.' It noted that the Seventh Day Adventist Church does not ban its members from using the internet , although it does require its members to avoid 'unwholesome' or 'sordid' influences in the mass media. The church does, for example, run its own website.



The Judge found therefore that the religious society of which Mr & Mrs Blackburn were members, the Seventh-day Adventist Church, did not consider its beliefs to be incompatible with the use of electronic communications and so her conclusion was that Regulation 25A(6) in relation to the Blackburns, if seen purely as a question of the normal rules of construction and without reference to the effect of the Human Rights Act 1998 (“HRA”), menat that the Blackburns were not entitled to the religious exemption from liability to file online contained within the Regulation

The Tribunal Judge however rejected this argument and ruled that by refusing to exempt the Blackburns from online filing, HMRC had breached their right to freely manifest their religion, as laid down in Article 9 of the European Convention on Human Rights.

The judge said: ‘I find that, by entirely shunning computers, the Blackburns considered they were acting, as the Bible required them to do, in accordance with their religious conscience. They were manifesting their religious beliefs by refusing to use computers.’

The judge described the justifications put forward by HMRC for refusing to exempt the couple as 'clearly insufficient' and noted that for there to be a breach of Artcle 9 there was no requirement that the particular religious belief had to be a mandatory requirement of the particular religion all that was required was that the person was acting in accordance with a religious belief.  Once that was established HMRC had not put forward any argument that would justify overriding the religious beliefs of the Blackburn family and so insisting on them using the Internet to file their VAT returns was a breach of Article 9 and therefore unlawful under sections 3 & 6 of the Human Rights Act 1998 

In general terms this is a decision very much on its own facts but to be welcomed as much as anything else because Government Departments should not be able to boss everyone around.  Getting VAT returns via the Internet is undoubtedly convenient to HMRC but there is no reason why a person who, for whatever reason, prefers not to use the Internet should be forced to do so

Gay and Lesbian Clergy v Bishop of Auckland

There has been an interesting case in New Zealand before their Human Rights Review Tribunal which deals with alleged breaches of the New Zealand Human Rights Act 1993 which is an Anti-Discrimination Statute similar to the British Equality Act 2010.  It could have some relevance if a similar case is brought in Britain

In the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT 36 the Claimant who wanted to study to be a Clergyman in the Anglican Church in New Zealand sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin. The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry.  The Claimant alleged that this constituted unlawful Discrimination contrary to the Human Rights Act 1993 alleging Discrimination on the basis of his Sexual Orientation. 

The New Zealand Act makes it unlawful to Discriminate on the grounds of Sexual Orinentation but provides an exemption in s39 which says

 39 Exceptions in relation to qualifying bodies
(1) Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

this provision is very similar to the exemptions given to religious organisations in Britain by Schedule 9 Part 1(2) of the Equality Act 2010 where exemptions are given 

so as to comply with the doctrines of the religion..... so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.

In the New Zealand case reference was made to the recently passed New Zealand  Marriage (Definition of Marriage) Amendment Act 2013 which like the British Marriage (Same Sex Couples) Act 2013 changed the legal definition of Marriage so as to permit Marriage between Same-Sex couples.  The Tribunal however held that this change did not affect the case before them nor did it assist the Claimant in his argument with the Anglican Church 

19. The purpose of [ the Marriage (Definition of Marriage) Amendment Act 2013 ] was to amend the Marriage Act 1955 by clarifying that for the purpose of New Zealand secular law, a marriage is between two people regardless of their sex, sexual orientation, or gender identity. The Amendment Act did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church

In the case the Bishop of Auckland gave evidence about the Christian doctrine on  Marriage as understood in the Anglican [and indeed all mainstream Christian] Churches as being between a Man and a Woman and that sexual relationships could only be approved of within such a marriage; therefore the relationship that the Claimant was in was incompatible with the doctrines of the Church.  He stated that the, admitted, fact that some Bishops had made ordination decisions inconsistent with the doctrines of the Anglican Church did not change the doctrine of the Church.  


There was some "evidence" from activists disputing this view of Anglican Doctrine but the Tribunal refused to be drawn into this noting 

 [33.3] Only Archbishop Richardson and Bishop Bay can speak for the Anglican Church. They spoke not just as experts, but as spokespersons for the Church and their evidence must be accepted. The separation of church and state must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute.
 Para 42 of the Judgment is also worth quoting in its entirety as a very fine analysis of the nature of Religious Liberty

[42] The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”:

Religious group autonomy is the freedom asserted by religious communities as groups. This freedom is not merely a “compound” or “aggregation” of individual members’ freedoms; it is the right the group asserts to its own religious exercise, separate and distinct from the rights and interests of its members. If religious groups are merely a combination of individual interests, a means to enhance personal autonomy, then this implies that these groups “are presumptively entitled to constitutional protection only to the extent that they do, in fact, enhance individual liberty”. This in turn implies greater vulnerability to state intervention into the internal affairs of such groups since the focus would be on vindicating individuals and their interests, not the group and its interests. In our view, this characteristically liberal and atomistic way of viewing religious groups (an aggregation of individuals contingently linked by religious preferences) seriously undermines religious freedom.

Religion is seldom if ever solely an individual matter. While a lone individual may clearly follow his or her own unique chosen path in matters of belief, worship, and practice, the vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs. It requires a religious “infrastructure”.

The Judgment is of a high standard and considers European, American and British Judgments relating to the nature of religious freedom.  As with all cases it ultimately relies on its own facts and its own National Legislation but it will undoubtedly be a valuable persuasive precedent in any future cases brought in Britain which challenge employment or similar decisions made by Churches in particular decisions by Churches refusing to offer or participate in Same-Sex Marriage ceremonies.

An Imam as an Employee

In my Blog on 17 May 2013 I discussed the case of  President of the Methodist Conference v Preston [2013] UKSC 29 where the Supreme Court decided that, on the facts, a Methodist Minister was not an employee but was an office holder.  I had noted at the time

 "On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."

This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."

I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque  [2012] UKEAT 0117_12_1008 where  it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.

In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are.  The article looks at a an Employment Tribunal case Hasan v  Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee.  He could bring a claim for unfair dismissal though he lost on the facts.

In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).

Hasan v  Redcoat Community Centre , the East London Employment Tribunal - See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.e2XVWQs2.dpuf

The Article reads (c) Nabila Mallick

"An Imam performs the duty of offering prayer for  the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]

Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.  

Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]

The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.

Recently the in  Hasan v  Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.

In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of  Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.

 In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.

The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]

The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of  Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :

1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service

2. he agrees expressly or impliedly that in the performance of his duties he  will be subject to control.

3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of  delegation may not be.

Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community,  provide and assist leisure facilities for the Young and to promote understanding of religion in the local community.   In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.

The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.

There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.

Conclusion

Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.

[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court

[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.

[3] Hadith are sayings of the Prophet.

[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service. 

[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435

[6] Employment status in relation to statutory rights - December 2002

[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12

[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.

[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "

An Imam performs the duty of offering prayer for  the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13^th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.  
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in  Hasan v  Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of  Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
 In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of  Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he  will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of  delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community,  provide and assist leisure facilities for the Young and to promote understanding of religion in the local community.   In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.

Please click here to view Nabila Mallick's profile.

 

---

[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court

[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.

[3] Hadith are sayings of the Prophet.

[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service. 

[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435

[6] Employment status in relation to statutory rights - December 2002

[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12

[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.

[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. 

- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf

An Imam performs the duty of offering prayer for  the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13^th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.  
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in  Hasan v  Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of  Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
 In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of  Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he  will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of  delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community,  provide and assist leisure facilities for the Young and to promote understanding of religion in the local community.   In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.

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[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court

[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.

[3] Hadith are sayings of the Prophet.

[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service. 

[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435

[6] Employment status in relation to statutory rights - December 2002

[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12

[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.

[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. 

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