IF A clergyman is sacked, he has no legal redress. Clergy are considered to be office-holders answerable to God rather than any terrestrial authority. This spiritual, instead of temporal, relationship means that they cannot take their employers to court.

But now the Church of England is considering granting the rights enjoyed by most other employers to its clergy. If accepted by the Government this would mean ministers becoming entitled to redundancy payments, holidays and protection from unfair dismissal and having access to employment tribunals to resolve disputes.

Amicus, the union that represents clergy and other church workers, has been considering their plight for some time and has welcomed the proposals. A survey last year found that almost a third of the clergy thought that their jobs were under threat, and more than four fifths knew of a colleague who had been “treated unacceptably”.

The cudgels had already been taken up by the Rev Ray Owen, formerly team rector in the parish of Hanley in Staffordshire. When his seven-year term under a bishop’s licence was not renewed in 1999, Mr Owen took his case to the High Court and the Court of Appeal. He was unsuccessful. He was denied permission to appeal to the House of Lords and so presented his case to the European Parliament’s petitions committee in 2001. He claimed that his treatment by his diocese, and his lack of protection under English law, amounted to discrimination on the basis of religion, nationality and the country of work.

The European Parliament found that the UK had broken no laws but in a 2002 report by the Committee on Employment and Social Affairs said: “There is a clear case for ensuring that the clergy are not at a disadvantage by comparison with other workers where employment rights . . . are concerned.”

This was hailed as a victory by Mr Owen’s supporters, but the European Parliament’s judgment has no direct impact on our law. The Church did, however, rehire him as pastoral auxiliary to the Bishop of Stafford.

The proposal to bring the clergy within the employment fold raises interesting issues. Laws introduced in December prevent discrimination on the ground of sexual orientation. The issue of clergy who are practising homosexuals is already a hot topic. Where the employment is “for the purposes of an organised religion”, the new laws do allow discrimination on the ground of sexual orientation to avoid conflicting with the strongly held religious convictions of a significant number of the faith’s followers. The Church will now have to satisfy these criteria if it seeks to justify discrimination against homosexual applicants.

What about the Working Time Regulations? Although workers are permitted to opt out of the maximum 48-hour working week, the European Commission proposes withdrawing this opt-out. Indeed, how are the weekly working hours of a parish priest to be measured? A recent case found that time spent sleeping by a doctor on call should count as working time. How will this affect vicars required to minister to their flock day and night?

Another interesting issue is performance management. To dismiss an employee fairly an employer must demonstrate one of five permissible “fair reasons” for dismissal. “Capability” is one such reason, usually meaning poor performance. Employment tribunals expect employers to “performance-manage” staff before dismissing them. Will the Church be required to performance-manage priests? How will it judge performance? What targets will have to be set before fairly dismissing a vicar who is considered to be underperforming?

If the individual is answerable to God, but His representatives on Earth are answerable to the employment tribunal, the European Commission’s influence is reaching far indeed.

James Baker is a solicitor and Tony Thompson a partner with the City law firm Macfarlanes

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