Part 2 (of 3) of our analysis of new CofE legal opinion on organists and parish music
Part 1 of our analysis considered the Church of England’s updated legal advice Parish Music: organists and choirmasters and church musicians (*the Opinion”), focusing on the issues relating to organists (and “all musicians in similar positions”), music and the clergy. Part 3 will focus on the application of the guidance. Here we comment the employment issues addressed in the document and consider in more detail the cases referred to in the Opinion: Sholl v PCC of St Michael’s with St James, Croydon, paragraph 12, and three German cases before the ECtHR – Obst, Schüth and Siebenhaar, paragraph 18. For completeness, additional material on of Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance and Neary v Dean of Westminster has also been included. Specific references to the canon law of the Church of England apart, much of the advice is relevant to other religious communities.
Recruitment, appointment and termination
The appointment process for any organist must follow all “safer recruitment” procedures applicable in the diocese and parish concerned for the safeguarding of children and vulnerable adults. With the exception of cathedral or collegiate churches or chapels, the formal appointment of an organist to any church or chapel must be by the minister, which may be subject to the terms of any contract entered into subsequently. However, the appointment must be with the agreement of the PCC (Canon B 20, paragraph 1), whether or not the organist is to be employed under a contract of employment; the resolution should be formally minuted, and the minister, if chairing the meeting, has a casting vote: Church Representation Rules 2017, Appendix II, Paragraph 11.
“As a consequence of recent developments in employment law, it is important that the actual contract of employment is entered into between the PCC and the organist” [paragraph 9 and reference 3]; “this is so in spite of the difficulties that may be caused if the archdeacon exercises his or her discretion to dispense with the PCC’s agreement to termination under Canon B 20, paragraph 2 [scroll down].
If, during a vacancy in the benefice or the suspension of the minister, the PCC or other person or persons purports to appoint an organist or arranges for the services of an organist to be provided, the arrangement should specifically state that it will terminate upon the filling of the vacancy or suspension. A purported appointment other than by the minister (such as by an archdeacon, churchwarden or the PCC) is ultra vires. Nevertheless, “a legally enforceable unwritten contract may thereafter arise by conduct if the minister and PCC thereafter go along with such a purported appointment”: paragraph 11.
Any agreement between the PCC and the organist [“the Agreement”] will in nearly all circumstances constitute a contract of employment [Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance]. It is therefore essential in every instance that the Agreement is reduced to writing and signed by both parties. Oral agreements or agreements by conduct should in every case be avoided. It is good practice expressly to include in that the Agreement reference to the provisions of Canon B 20 and Canon B 35, although it is the Commission’s view that the provisions of those Canons are in any event included by operation of law. It is a well-established principle that “the labels parties attach to the arrangement are not determinative of employment status” (see Sholl v PCC of St Michael’s with St James, Croydon, below), i.e. there may be a contract of employment even though the parties may have expressly said that they do not intend that there should be one or the word “employment” is never used.
Content of the Agreement
Paragraph 9 of the Opinion states that a draft contract of employment can be obtained from the Guild of Church Musicians. [The Guild has been working, with the Royal College of Organists (RCO), Incorporated Society of Musicians (ISM) and Royal School of Church Music (RSCM), and His Honour The Reverend and Worshipful Dr Rupert Bursell QC, on a new model contract for church organists.] The Opinion stresses “although care must be taken to ensure that the terms of any contract finally agreed are consistent with the provisions of Canons and incorporate all the terms suitable to the church…and are agreed to by both parties”. Paragraph 13 lists the components of an Agreement which should always be included, inter alia:
(a) the names of the parties entering into the contract;
(b) a recital of the PCC’s agreement to the appointment of the organist by the minister;
(c) the date on which it begins;
(d) the amount of remuneration (or other recompense) on appointment [reference 5: including the payment of fees (if any) for occasional services such as weddings and funerals] (if any) and when it is payable;
(e) a clause that the termination of the Agreement is exercisable by the minister with the agreement of the rest of the PCC except that, if the archdeacon of the archdeaconry in which the parish is situated considers that the circumstances are such that the requirement of the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly (see Canon B 20, paragraph 1);
(f) the length of notice required to be given by either the minister or the organist to terminate the appointment under the terms of the Agreement in the absence of conduct amounting to gross misconduct or other repudiatory breach of contract (this should be the same period for both sides of the agreement);
(g) a term that, although the minister of the parish must pay attention to the views of the organist in relation to the choice of music on any given occasion, (i) the final decision on all such matters rests with that minister alone (see Canon B 20, paragraph 3, and Canon B 35, paragraph 5); and (ii) the minister conducting the service has the final decision whether the worship (including the playing and singing of any music) offers glory to God and edifies the people (see Canon B 1, paragraph 2);
(h) a term setting out the duties of the organist or choir director, including preforming at any occasional services;
(i) an appropriate, and carefully worded, condition making it clear what conduct is to be regarded as gross misconduct and what behaviour will amount to a repudiatory breach of the Agreement, for example, in relation to DBS certification or its equivalent and safeguarding (see below);
(j) a pre-condition insisting both on the organist providing a satisfactory DBS certification (or any similar statutory requirement) prior to his or her taking up the post of organist and thereafter taking part in ongoing safeguarding training. A failure to undergo such training and/or to provide evidence of having done is to be regarded as serious misconduct; and
(k) a term recognising that the PCC is bound to pay due regard to the House of Bishops’ guidance on the safeguarding of children and vulnerable adults (see section 5 of the Safeguarding and Clergy Discipline Measure 2016).
Since the contract will in almost all circumstances constitute a contract of employment, supra, there are a number of obligations imposed by statute upon the PCC as the employer. These are detailed in the Appendix; further assistance can be found diocesan websites, such as the London which has a useful FAQs section.
Duties of the organist
The Opinion includes two options in paragraphs 19 and 20, the latter relating to situations in which the organist is also the choirmaster or choir director; these should be included in the written agreement. In the latter case the duties include:
(a) the training of the choir;
(b) the conduct of suitable practices as specified in the written agreement; and
(c) generally, the advancement of the interests of the church in musical matters.
and notes that none may be admitted to, or dismissed from, the choir save with the approval of the minister of the parish [paragraph 20]. Holidays and maternity/paternity leave, and other absences are dealt with in paragraphs 22 and 23, respectively.
Subject to the general provisions of employment law, the contract may be terminated either by the organist or (with the agreement of the PCC) by the minister. However, Canon B 20, paragraph 1 provides that the archdeacon may direct that the required agreement of the PCC should be dispensed with. [The PCC’s agreement was introduced as in 1988 to prohibit “shot-gun” dismissals or summary dismissal by the minister acting solely on his or her own initiative].
If the organist has been employed for two or more years, the minister must be satisfied before terminating the employment that any dismissal is a “fair dismissal” for the purposes of the applicable employment law. Before dismissing the organist the minister should therefore obtain legal advice as necessary.
Where the minister is of the opinion that there cannot be a proper discussion or fair hearing of the matter in the PCC then the minister may ask the archdeacon to consider dispensing with the PCC’s agreement. If the PCC’s agreement is dispensed with, the decision is solely that of the minister. However, an employment tribunal will look at each case of dismissal on its own facts and an organist’s immoral or scandalous conduct may not be sufficient grounds for dismissal (See Obst, Schüth and Siebenhaar). It is therefore essential to include in the Agreement an appropriate, and carefully worded, condition making it clear what conduct is to be regarded as gross misconduct and what behaviour will amount to a repudiatory breach of the agreement, for example, in relation to DBS certification or its equivalent and safeguarding (Neary v Dean of Westminster, below). Nevertheless, no condition may be contrary to the general laws against discrimination.
Holidays, maternity/paternity leave and other absences
The Agreement should make provision for holidays to statutory requirements, as a minimum. During these, the organist should be required to find a suitable deputy to be paid, if required, by the PCC. If the organist is absent on any other occasions in the year, apart from illness and maternity/paternity leave, the organist must find (and make appropriate payment to) a deputy approved by the minister.
If the organist is absent through illness or maternity/paternity leave, the organist should (unless prevented by illness) assist in finding a deputy acceptable to the minister. The remuneration of such a deputy is a matter for decision between the deputy and the PCC.
If the organist is absent for any other reason, he/she must assist in finding a suitable deputy approved by the minister (or, during a vacancy, by the churchwardens). Where the organist is employed and the deputy requires remuneration, the deputy should be paid by the PCC which should in turn be reimbursed by the organist.
Use of the organ
The use of the organ should not be granted to anybody other than the organist (or a deputy in the case of holiday, illness and maternity/paternity leave), except by joint permission of the minister and the organist. The use of the organ should be granted to the organist for the purposes of:
(a) the organist’s own private practice;
(b) the occasional practice of the organist’s friends; and
(c) the instruction of the organist’s pupil or pupils.
although care must be taken by the organist and the PCC to ensure that proper safeguarding requirements are in place at all times.
Weddings and other occasional offices present specific contractual and other issues, a number of which were addressed in our post Celebrity Marriages (and others). Of these, the scope of the Agreement with the organist and issues of copyright are of major importance. The use of the organ at weddings, funerals and other services of a similar character is subject to the approval of the minister.
Subject to the terms of the Agreement, the organist may have the right to play at occasional offices where “live” organ music is required and is entitled to be paid the remuneration or fees set by the PCC for such occasions. With regard to the ecclesiastical fees charged, these are regarded as “extras” [See our post Church weddings, increased fees and “extras”]. Should the organist not wish to perform these duties on any particular occasion, then another suitable organist, who is chosen by the organist with the approval of the minister, may play; in these circumstances, any remuneration should be agreed between the organist and the substitute organist.
If for any reason, those for whom such a service is held desire that the organ be played by a relative or friend rather than by the organist of the church, this is subject to the agreement of both the latter and the minister; in these circumstances the organist of the church is still due the normal fee. [Paragraph 29 adds; “[s]imilarly, if there is any such agreement, the organist is still entitled to the normal remuneration or fee whenever any music is played or performed at any such service, including the playing of any CD or other recorded music”. However, this appears to contradict the explanation of paragraph 28 in footnote 10 on the right to play, which states “[t]here is no such entitlement if a CD is to be used or a string quartet (or similar) is to be provided apart from the organist”].
With regard to copyright &c,”the organist is entitled to a composer’s fees if his or her musical works are publically performed at an occasional service. The Performing Rights Society (PRS) has the right to collect these fees on behalf of those composers who are members of the PRS but has decided not to exercise that right in respect of divine worship (including weddings and funerals) in the United Kingdom. Similarly, the playing of recorded music during divine worship falls within the purview of the Mechanical Copyright Protection Society, and the MCPS in practice makes a similar concession”.
No videos or recordings should be made without the agreement of the minister taking the service and no video or recording may be made while the organ is being played without the consent of the organist; the taking of any video without such consent would be an infringement of s 182(1) Copyright, Designs and Patents Act 1988. The Opinion on Celebrity Marriages states:
“The organist may make his or her consent contingent upon the payment of remuneration or fees although in practice the organist often agrees in his or her written agreement specifically to include the payment of such monies either within his or her ordinary remuneration or within the calculation of the PCC’s fees for such occasions. However, an exclusivity agreement is likely to require that all photographs and videos of the ceremony are the exclusive right of the magazine or media involved. However, the agreement is only binding upon the parties to that agreement and can in no way bind non-parties, such as the minister and organist”.
Children and safeguarding, (paragraphs 32 and 33)
For the purposes of the provisions of the Children and Young Persons Acts 1933 and 1963 and any subsidiary legislation or regulation made under them relating to the employment of children, a chorister taking part in a religious service, or in a choir practice for a religious service, is not deemed to be employed whether or not the chorister receives any reward: s 30(1) Children and Young Persons Act 1933, in which: [t]he expression “child” means: (a) in relation to England and Wales, a person who is not over compulsory school age (construed in accordance with s 8 Education Act 1996).
With regard to safeguarding,
“It is of fundamental importance that, before being appointed, all organists and choir directors (whether they are employed or not) are required to apply for a DBS check (or any similar statutory requirement) at the appropriate level and to provide the requisite certificate; thereafter they must undergo ongoing training approved by the diocese in accordance with any guidance from the House of Bishops on safeguarding; in addition the organist must apply for updated DBS checks at the intervals required by the safeguarding policy as well as providing certificates to show that they have done so.
The written contract should provide for any such subsequent training to be paid for by the PCC. Failure to comply with these requirements must be treated as misconduct rendering the organist liable to dismissal. Each diocese has established a procedure for carrying out these checks, and for conducting risk assessments where necessary.
The PCC must pay due regard to any such House of Bishops’ guidance and comply with its own parish safeguarding policy as well as seek guidance from the diocesan safeguarding officer as needed. Failure to carry out such checks, and to put in place reasonable steps to manage any risk, could expose the PCC to legal liability if a child or an adult at risk is harmed”.
Notes on case law referred to in the Opinion
The Opinion notes that, in light of Sholl v PCC of St Michael’s with St James, Croydon  ET/2330072/2010, there may be a contract of employment even though the parties may have expressly said that they do not intend that there should be one or the word “employment” is never used.
Sholl is a classic case of a misunderstanding about what constitutes a contract of employment. Dr Sholl was appointed Director of Music. At his interview, he was told that the appointment was for a minimum of five years at an annual stipend of £14,000. A draft contract was drawn up which included provisos:
- that “There being no master and servant relationship [and] no part of this Agreement shall be deemed to constitute a contract of employment”;
- that “The Director of Music shall be responsible for his own income tax and National Insurance arrangements”;
- that “subject to the general direction of the Vicar the Director of Music shall be responsible for the care, control and general oversight of all the music in the Church”; and
- that the agreement was subject to the provisions of Canon B20.
He never signed the contract – but the Tribunal nevertheless concluded that, on the facts, Â there were several factors consistent with a verbal contract of employment between the parties: Dr Sholl was paid monthly in arrears, that payment “clearly had the character of a contractual remuneration”, he had no financial risk, he was not required to provide equipment, materials or premises, there was a package of rights to holiday pay, sick pay, notice and grievance provisions and the second respondent, the Vicar, had himself described Dr Sholl’s status as “employed”. On the other hand, several factors weighed against the presumption: he had been informed that he was self-employed, he paid his own income tax and National Insurance, he delegated work to others outside the terms of the agreement, he did not obtain advance authorisation for annual leave and he received a separate fee for playing at weddings and funerals.
The Tribunal reminded itself of well-established common law that the labels parties attach to the arrangement are not determinative of employed status and, on balance, concluded that the factors in favour of employment status outweighed those against. The Tribunal ruled that the matter should proceed to a full merits hearing; in the end, however, it was settled.
Quite apart from the specific issue of the engagement of musicians, Sholl points up a much wider issue: the need for churches – and not just C of E ones – to take great care over the terms of engagement when they pay anyone to do anything.
Obst, Siebenhaar and Schüth v Germany
The Guidance also makes reference to three cases in which issues of lay employees and church discipline has come before the European Court of Human Rights â€“ with differing results.
In Obst v Germany ECHR No. 425/03 it was held that the dismissal by the Church of Jesus Christ of Latter-day Saints of its Director of Public Relations for Europe on grounds of adultery had not breached Article 8 ECHR (private and family life) because the German labour courts had taken careful account of all the relevant interests involved and had conducted the necessary balancing exercise. Besides, having grown up as a Mormon, the claimant should have been aware of the importance of marital fidelity for his employer and of the incompatibility of his extramarital relationship with his position in the Church.
In Siebenhaar v Germany  ECHR No. 18136/02, the applicant – perhaps surprisingly, a Roman Catholic – was a childcare assistant in a day nursery run by a Protestant parish in Pforzheim. She was dismissed without notice after getting involved with the “Church Universal / Brotherhood of Mankind”, whose teachings were deemed by her employer to be incompatible with those of the Evangelische Kirche in Deutschland. The ECtHR held that there had been no breach of Article 9 taken with Article 11 (assembly and association): partly because Germany had a system of labour courts whose decisions were reviewable by a constitutional court and had therefore complied with its positive obligations under the ECHR â€“ and partly because she should have been aware, when signing her employment contract â€¦ that her membership in the Universal Church and her activities in support of it were inconsistent with her commitment to the Protestant Church” .
In Schüth v Germany  ECHR No 425/03, the claimant, a Roman Catholic parish and deanery organist and choirmaster, was sacked for leaving his wife for a new partner with whom he had a child, on the grounds that his functions were so closely connected to the proclamatory mission of the Church that the parish could not continue employing him without losing credibility. The Court held that the dismissal had breached his rights under Article 8 ECHR (private and family life). The German labour courts that had considered his original case had ignored the legal protection afforded to his de facto family life with his new partner and child; and while his duty of loyalty towards the Church limited his right to respect for his private life to some degree, his signature on the contract could not be interpreted as an unequivocal commitment to celibacy in the event of separation or divorce.
Obst and Schüth were both decided by the Fifth Section and the judgments were handed down on the same day. What seemed to distinguish the two in the minds of the judges were the relative public profiles of the two men: Obst was a national officer of the LDS while Schüth was an obscure church musician. But it is difficult to derive any consistent principle from the three cases. If Ms Siebenhaar should have known that membership of the Universal Church was incompatible with working for a day nursery run by the Evangelischen Kirche in DeutschlandÂ and Mr Obst that the LDS did not look kindly on adultery then, equally, Mr Schüth must have been aware of his Church’s disapproval of adulterous relationships. Moreover, the justification in Siebenhaar that the German system of labour courts complied with its obligations under the ECHR does not help us, given that exactly the same system of labour courts was in place in the cases of Mr Obst and Mr Schüth.
The differences between Obst and Schüth, on the one hand, and Siebenhaar, on the other, seem to be these. The first two involved a conflict between the right to private and family life under Article 8 ECHR and the religious autonomy of the two Churches in question. In Siebenhaar, however, the issue for both parties to the dispute was the right to freedom to manifest: the EKD was claiming the Article 9 right to organise itself in accordance with its own ecclesiology, while Ms Siebenhaar was arguing that her dismissal had breached her Article 9 right to her own beliefs, irrespective of those of her employer.
Reference 4 of the Opinion explains: “In the case of Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance  1 All ER 433 the court provided that “A contract of employment exists if these three conditions are fulfilled: (i) the servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master; (ii) he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master; (iii) the other provisions of the contract are consistent with it being a contract of service.”
In Ecclesiastical Law (3rd Edn. OUP, Oxford, 2007), Mark Hill observes that “the much publicized dismissal of the organist at Westminster Abbey has important lessons for organists and their employers, [Neary v Dean of Westminster (1998) 5 Ecc LJ 303 (not 1985 as in reference 9)]. The lack of openness by the organist in financial matters and the deriving of secret profits were, in the words of Lord Jauncey of Tullichettle, ‘such as fatally undermined the relationship of trust and confidence which should have subsisted between [the organist] and the Abbey’ [Transcript at 50]. He had previously held that ‘the character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-à-vis the employer must all be considered in determining the extent of the duty and the seriousness of the breach thereof [Transcript at 11].”
We should like to express our thanks to Barry Williams for his advice in relation to this post.
David Pocklington and Frank Cranmer
Cite this article as: David Pocklington and Frank Cranmer, “Parish Music Guidance: employment issues” in Law & Religion UK, 30 May 2017, http://wp.me/p2e0q6-9xe