Are priests employed by the Church? The High Court of England and Wales is soon to rule on this important matter

According to yesterday's Guardian, the Catholic Church's liability for the criminal actions of priests is currently being tested in a High Court hearing "that could have a significant impact on clerical sexual abuse cases." This should be an interesting case, as it basically (from what I understand) involves the rights of the Church not to be held vicariously accountable under employment law for the actions of its ordained minsters. Many commentators will probably view this case cynically, seeing it as an attempt by the Church to shirk responsibility for abusive priests. But is it just that the Church be held responsible, as an employer, for the actions of men that it has never entered into employment contracts with?

Although many seem to believe that priests are employed by their diocese, the reality is that the priesthood is a voluntary state of life, entered into on behalf of the Church by free men. Instead of being employees, priests are more like "voluntary associates", who freely accept their bishop's authority and wish to co-operate with him. Of course, the bishop acts for the Church in his diocese by ordaining men into this state and by overseeing their ministry, a ministry which is actually his (for priests are his "co-workers"). But, neither religious orders nor dioceses normally employ priests. Although these organisations provide them with food, pocket money and accommodation, priests are fundamentally servants of the Church, freely giving themselves to the people of God and their bishop. Their only special duties, as priests, involve the celebration of the sacraments - specifically the celebration of Mass and the absolution of sins. Having said that, different dioceses throughout the world seem to have various polices in this area, so that there are some examples where the individual priest seems to have entered a contract of employment with the local Church - receiving a salary instead of a stipend, for example.

Here are the specifics of the current case, as reported in the Guardian, with comments in parenthesis by me:

Mr Justice MacDuff has been asked to decide if the relationship between a bishop and a priest is similar to that between employers and their staff.

The case has arisen after a woman, known as JGE, brought a case against the diocese of Portsmouth, alleging that one of its priests had abused her while she was a resident at a Catholic children's home, The Firs, in Waterlooville, Hampshire. The three-day hearing, which started yesterday, will not focus on the abuse claims but on the issue of corporate liability.

She claims Father Wilfrid Baldwin was able to gain access to The Firs and have contact with its residents through his work as a priest. According to her lawyers, Baldwin's duties establish a connection between the church and the priest.

"In effect, priests are carrying out their working assigned to them by their bishop and furthering the cause of the diocese," Elizabeth-Anne Gumbel QC, counsel for the woman, argued. "As the correspondence between Father Baldwin and his bishop demonstrates, he was dependent on the bishop to assign him a post and to control when he moved from one post to another and even to control when he was permitted to retire. The degree of control was, if anything, in excess of that in the typical employer/employee relationship." [Exactly: the fact that the relationship between a priest and bishop is in excess of that which is typical in a employer/employee relationship shows that this is a relationship of voluntary association - whereby one man freely chooses to obey another as an act of faith or spiritual benefit, as opposed to merely being employed to work].

Like many within British society, a society with little knowledge of ecclesiastical matters, it seems that the media [see Channel 4 News "Catholic church denies legal responsibility for abuse"] is convinced that the Church acts as an employer. Ample evidence of this misguided way of thinking can be found in the way press reports always refer to priests being "sacked", as opposed to being "laicised". The fact that the priesthood is a state of being, not a nine-to-five job, escapes many in today's western world.

It is also a historically legal fact that in the UK that priests from all traditions (but, especially in the Church of England) have been seen as office-holders rather than as employees. The status of clergy has traditionally been regulated by the internal canonical rules of the denomination concerned, rather than by the secular courts or employment tribunals. According to the Churches' Legislation Advisory Service (CLAS), English courts have traditionally held "that the functions of a minister of religion are vocational and spiritual in nature and therefore incompatible with the existence of a contract – on this view ministerial functions arise by way of a religious act such as ordination, not as the result of a contractual agreement between parties." In other words, there are legal precedents that point to the acceptance by British courts of the special nature of religious ministry, especially within the ordained priesthood.

The Guardian reports, though, that lawyers for the alleged victim say that this week's case represents the first time a court has been asked to rule on whether the "relationship between a Catholic priest and his bishop is akin to an employment relationship." I would beg to differ, though, as there have been cases in British courts in the past where the employment status of Catholic priests has been questioned and resolved. For example, in Buckley v Cahal Daly [1990] NIJB, a Catholic priest in Northern Ireland sought a declaration in the civil courts that he had been removed unlawfully from his position by Cardinal Cahal Daly. According to CLAS, the court judged that since the Roman Catholic Church was a voluntary association its canon law relating to the status of clergy existed as the terms of a contract. The judge applying Canons 265 to 275 (on incardination) of the Codex Iuris Canonici 1983, concluded that: “[t]here is no direct power in the courts to decide whether A or B holds a particular station according to the rules of a voluntary association.”

It would seem, then, that there is ample precedent in law for accepting the fact that priests are not employed by the bishop or the Church - let alone, as some misguided secularists seem to believe, "the Vatican". It would be quite shocking, then, if a court effectively ruled that priests were employees of the Church and that, therefore, individual dioceses are liable for the criminal actions of clergymen. If this were to happen, one would have to ask "when does a priest 'clock off'?" For surely, even if a secular court rules that priests are employed by their bishop, it cannot be expected that employers are responsible for the actions of their staff outside working hours.

I believe the courts should rule that in general priests are not employed by particular dioceses, even if, as the lawyer for the alleged victim alarmingly put it, there would be "no circumstances where the Roman Catholic church is liable for the actions of one of its priests whether deliberate or careless and however closely connected those actions were to the role of priest." However, we must remember that the bond between a priest and his bishop is a deeper one than that which exists between an employer and his employee - for the priest is deeply connected to his Ordinary's ministry. In that sense, then, and outside the exact nature of employment law, bishops should be held accountable for any reckless or criminal action committed by priests who were merely "obeying orders" or had been asked to minister in inappropriate ways or circumstances.

It must be pointed out that the hearing this week will not deal with the allegations of abuse brought against the dead (Baldwin died in 2006) Portsmouth priest, but will concentrate only on whether the Church has any 'corporate responsibility' in abuse or employment related cases. Of course, the status of lay people and certain priests who are directly employed by the Church, and who have entered into a contract of employment with a diocese or religious order, won't be under consideration at this hearing.

Although many liberal commentators might not understand the complexities of this case, and will assume that priests are employed by the Church, it remains important that justice reflects the reality of the situation. Many of the her enemies might not like to hear it, but the plain fact of the matter is that the Church's relationship with many of her priests is often nothing akin to that of an employer and an employee. Legally it might be a lesser relationship, morally and spiritually, though, it is a much deeper one.