Saturday, May 25, 2013

Office Work

Usually topics on this blog do not dwell on  day time work or office matters.

 However  as The Supreme Court having handed down the judgment last week  in the first case there that I have been involved with  in 40+ years and only the second  that the firm has been involved with in 65+ years, a break with previous maytrees blog  practice seems more than  justified.

The case in what was then called the House of Lords in 1947/8 was that of Gilmour v Coates. Most Law students even today learn about that case and its outcome. Then their Lorships were asked to consider whether  the work of  Carmelite catholic sisters, whose time is largely spent in enclosure praying for the salvation of the rest of us, couldf be classed as charitable. Charities in England benefit from some tax and property rates reliefs not applicable to  those like yours truly whose work is largely geared to profit and  providing a personal income.

 In the  judgment then, their lordships essentially concluded that as one cannot prove that god exists, the nuns' work and  prayer hugely good though it and they are, could not be proved to be for charitable objects hence that interesting case was dismissed.

Since then I believe that some Carmelites have created charitable companies with objects which are undoubtedly charitable - for example altar bread and communion wine making and distribution - so are  able to seek charitable  relief for those of their works which are provably (in human  terms) charitable.

Supreme Court cases in C21 are often  incredibly expensive so that £1/4m, doubtless plus VAT (20%) might be budgeted for; thus not too many litigious cases go that far especially as for the losing party (or its  insurers) which  often has to pay most of the successful party's costs, those figures can be doubled

The recent Supreme Court judgment concerns an issue which arose in Truro Cornwall in 2009. The question essentially then was whether a minister of the Methodist Church is a servant of god so in human terms' self employed' or whether she is  a servant of man, in which case in human terms, she would be an ordinary employee.

The Truro Employment Judge  agreed with my view that the minister was not an employee. The case was decided in a couple of  days after the evidence from  witnesses on both sides as to what it means to be a practising minister  the nature of her work, financial support  and housing provided by the church were carefully considered.

 Sadly however  a union with a political agenda may have became involved at some point thereafter although this is supposition on my part. In any event barristers were then  briefed by all concerned and   the case was  taken to the Employment Appeal Tribunal and Court of  Appeal which overturned the judgment of the Employment Judge, concluding that the former minister was  an ordinary  employee.  The Court of Appeal also refused leave to appeal to the Supreme Court which negativism  I felt to result from a quasi political approach.

After giving the matter considerable thought and following  much internal discussion,  the Methodists decided to seek leave of the Supreme Court to appeal to that court - a brave decision which ultimately hugely rewarded them.

Nearly all cases in C21 about employment, involving christian churches, have been decided by judges  against the churches, with the courts  saying that they concerned  mere employees, rather than servants of god.. Possibly this C21 trend arises from  what alas appears to be the fact of our all becoming much more secular and materialistic than was the case for some years after WWII. Sadly in my view some  judges  in their decision making seem to be following this trend.  If my view is correct, there is a considerable risk of law developing in some respects as certain judges would like to see it develop, rather than as Common Law principles should determine or as may be amended or  updated in Parliament by our elected MPs.

Having said that I do well recall that many of the judgments of the late Lord Denning seemed like radical changes from previously apparently well entrenched legal precedents and that these were well received by many including yours truly at the time so  the tradition of judge made legal  development in England and Wales does have its place.

By the time the case was heard at the Supreme Court, both sides had 3 counsel adding to the the research and arguments as well as sadly to the expense. In the event the case was won as their Lordships concluded by a 4 to 1 majority that the Employment Judge in Truro had been right all along and restored his decision to that effect so  that (even) under the secular law, ministers are servants of god rather than of man.

My own reflection is that although the judgment of the predominantly male supreme court is correct   and excellent, there remains a need for more female supreme court judges.

Perhaps  ironically however, the single  dissenting voice in the their lordships' 4-1 judgment came from the one lady judge involved.

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