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