Wednesday, November 09, 2011

Not Shepherds but Employees

Yesterday the High Court has ruled the Roman Catholic Church can be held liable for the wrongdoings of its priests. In  effect it says priests are employed by a diocese.


Fr Mildew says
Status of the clergy in civil law BBC Radio 4 carried an announcement of a court that effectively considers that all clergy in a diocese are counted as employees of the diocese. In canon law this is not the case, the clergy are self employed (or employed by God ?) The case refers to a lady claiming abuse by a priest now dead, who (presumably) failing to get compensation, applied for a ruling on whether she could sue the diocese as the person responsible for the actions of that priest and received an affirmative reply. This would of course open the door for other similar cases to apply if insufficient compensation was offered. What I would like to know however is whether such a judgement making us employees, would mean we could at least in theory sue the diocese in the case of possible wrongful dismissal, (or even receiving insufficient remuneration !) At present in some but not all dioceses, priests obtain an income from Christmas and Easter Offerings plus Mass stipends and stole fees for marriages, funerals etc. All that is of course taxable. If we were to be employed persons, presumably the diocese would in all cases have to pay a salary ? Perhaps some canonist might like to respond ?
There are lots of other implications of being an employee: pensions, trade unions, minimum wages, working hours, legislation regarding promotion, discrimination... the mind boggles.
But then is every Catholic an employee of the Church?

43 comments:

GOR said...

It would appear, Father, that the UK is following in the footsteps of the US – or at least the lawyers are. Here, it is the diocese that has had to stump up – and sometimes end up in bankruptcy - to pay off the outrageous settlements crafted by the lawyers and those profiting from the system.

While incidents of abuse have been far more prevalent in other entities – education, for example - no other entity in the US has had such settlements visited upon it, for the simple reason that the Church is seen as the only one with ‘deep pockets’. There are legal limits on settlements from bodies such as the education system, which explains why lawyers are less likely to take on such claims.

What is lost on many people is that the money exacted from the Church – i.e. the dioceses – comes from the contributions of all of the faithful. While dioceses may claim that the money paid out doesn’t come from the Sunday parish collections – rather, from investments, insurance and property sales – the money for those assets came from previous collections and even previous generations of the faithful.

So the faithful are paying for this twice – once in their hard earned contributions and again due to the acts of omission or commission of a minority in the Church. Of course here the lawyers have now gone a step further in trying to bring the Vatican into the ‘payment system’. A sign of things to come?

nickbris said...

Mr Justice McDuff has simply done a Pontius Pilate.

He has just passed on the problem for wider debate to the Appeal Court.

All these cases from half a century ago have been brought about by the greed of Ambulance Chasing charlatans.Another group that are making bundles because of the deregulation like the financial services that are all dragging us down to unforeseen depths of greed and EVIL.

The only threat to these greedy spivs is the Catholic Church so it will be constantly attacked and marginalised by any every means possible.

Alan Harrison said...

I may not make myself popular by saying that I can see cogent reasons why a church should be held responsible for the acts of its priests or ministers. If I had the misfortune to be injured by the reckless behaviour of a bus driver, I would certainly sue the bus company as well as the driver, because the company is "worth suing" and better placed than the moderately waged driver to compensate me for my injuries. I can't see any reason why the same reasoning should not apply to a priest/minister and his/her church.

If the ruling does indeed make priests employees, the issues raised by Fr Mildew certainly arise. However, I'm not quite sure that employee status necessarily follows from the ruling, nor that the absence of employee status makes a church any less responsible for the actions of a priest/minister. If my hypothetical bus driver worked on a bogus self-employed contract for a less reputable bus firm, I would still be able to sue the company.

Richard Greenstuff said...

The answer to Fr Mildew's question is a flat "no". The court has not held that priests are employees of the bishop, or anyone, for all purposes - certainly not for the purposes of employment law properly so-called, and the judgment specifically said that.
In fact it did not hold that the priest was an employee at all. It held that the relationship between priest and bishop was sufficient for the principles of vicarious liability - traditionally held to apply only to contracts of employment - can actually apply there too by analogy, which can, yes, be interpreted as meaning that for the purposes of vicarious liability, and those purposes only, a priest is the same thing as an employee.
There are certainly weak points in the judgment, which repays reading carefully: it isn't that long and it is here: http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html and the crucial paragraphs are 35-37. See also para 30-31 and 27 on the original point.
One of the things that puzzles me is the evidence about the lack of control a bishop has (or had? Query if it's relevant that this was in the early 70s, prior to the 1983 CCL) over a priest: I thought he had more authority than that. Particularly "Within the bounds of canon law, a priest is free to conduct his ministry as he sees fit, with little or no interference from the bishop, whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. Although I was told that a parish visit would be every five years, it could have been more frequent. The bishop had no power of dismissal. Dismissal from office would have to be effected through the church in Rome." Or is that a slightly confused reference to the requirement of canonical process?

I think the point will almost certainly go to the Court of Appeal (they already have permission to appeal) and maybe the Supreme Court.

Saint Michael Come To Our Defense said...

What do you expect from Society when, after Vatican Council II, Cardinals, Bishops, Priests, Nuns, and Religious abandoned the Faith?

The glue that binds them together is Liberalism and Feminism.

"We have to build, while the others are demolishing. The crumbled citadels have to be rebuilt, the bastions of Faith have to be reconstructed; firstly the holy sacrifice of the Mass of all times, which forms saints; then our chapels, our monasteries, our large families, our enterprises faithful to the social politics of the Church, our politicians determined to make the politics of Jesus Christ – this is a whole tissue of Christian social life, Christian customs, Christian reflexes, which we have to restore."

*

Crux Fidelis said...

Fr Ray: You say "we could at least in theory sue the diocese in the case of possible wrongful dismissal".

Isn't it the case in Canon Law that anyone who takes his ordinary to the civil courts is aurtomatically excommunicated?

Shandon Belle said...

Dear Father, maybe your readers would be interested in the pictures and reports from the recent Pontifical Low Mass in St. Peter's and the FIUV General Assembly.

http://catholicheritage.blogspot.com/2011/11/fiuv-2011-three-traditional-masses-in.html

http://catholicheritage.blogspot.com/search/label/IFUV

God bless you!

Maeve

Alex Benziger G said...

Sir,
Roman Catholic Church can be held liable for the wrongdoings of its priests. In effect it says priests are employed by a diocese. OK. Then, a staff of the Government committed wrongdoings is also held responsible in all the matters.Is it possible? This judges back ground must be verified

Donum Vitae said...

So if a staff member of a Government department is found guilty of child abuse, can they then sue the Government department?

nickbris said...

Don't forget it is about Fr Baldwin's ALLEGED wrongdoings,the poor man is dead God rest his Soul.

If he was alive the Charlatans would stay well clear.

Physiocrat said...

This decision opens up a legal minefield, with all sorts of implications, for example concerning tax and national insurance contributions.

But it is not altogether a new one. Who would be liable if, for instance, someone was injured whilst on church premises? Are priests required to have personal indemnity insurance against such claims, for example for negligence, failing to comply with Health and Safety regulations, etc?

This is a question that does not need a public answer - it is just posed for consideration.

Carmel Ruparelia said...

I totally agree with the ruling. Any diocesan priest is appointed to his parish by the bishop and it is the bishop who removes him from that appointment. Canon law is clear that the bishop has supervisory oversight of his priest - priests do not work autonomously.

In the case of abuse claims, it is clear that systemic and procedural deficiencies have been a significant factor in allowing abuse to go undetected or continue unabated after it had been detected. The church is indeed vicariously liable eg the recent Ealing Abbey & School case where the Benedictine community over-ruled the school governors and put back an abusing priest.

In the short-term, this ruling may hit the local church's
finances like the US. In the longer-term, it will mean the institutional church pays sufficient attention putting into practice their abuse and safeguarding policies.

Michael Petek said...

The key paragraph is paragraph 24 where the case of Police v Rabie 1986 (1) S.A. 117 is mentioned.

The reason for the decision - the principle on which the correctness of the decision is correct - is that the priest, like the police officer in the South African case, committed an act under colour of authority and so engaged the international responsibility of the Church.

This is the case even if he exceeded his authority or acted in disobedience.

Such an act would attract state immunity but for the fact that the act caused injury to the person and was committed on the territory of the United Kingdom.

georgem said...

I agree with points made by Alan Harrison.
In the News of the World phone hacking scandal, it has been deemed that News Corp is culpable, and it has paid out compensation, where freelance journalists and investigators have erred. The excuse that executives were ignorant of what was going on has not proved to be exculpatory.

Physiocrat said...

Is it possible that the bishop was personally liable?

If this was going to be tested, the argument would be that the bishop had been negligent in carrying out is duties and that any costs should not be met from diocesan funds that were held in trust on behalf of all members of the parishes in that diocese.

But who in fact is the legal owner of church property?

As I suggested earlier, this cold be a legal minefield.

Michael1 said...

The judgment in this case is very clear, and is somewhat misrepresented in the Blog. The judge nowhere says that the abuser was 'employed' by the diocese, as I read it: the point is that he was appointed by the diocese and in that sense there was a relationship 'akin' to employment. Had the diocese not appointed him to the position, he would not have held it, for that is how Catholic secular clergy have their posts. The judge pays close attantion to the fact that priests are not paid employees, and does not claim that they are employees. But the Church has the responsibility of appointment.

If I appoint a known paedophile to run a voluntary youth group in a parish, he is not an employee, as I pay him no money and have given him no formal contract. But if he misbehaves, I cannot say I have no responsibility. He is not an employee, but, as the judge says, there is something analogous to employment.

Even if I change the terms and say I appointed, without very careful investigation,someone about whom there were suggestions of paedophilia, I would have little defence in law, and none morally. Too often in recent years the Church has placed itself in that latter position, and it is such a position to which the judgment refers.

Anonymous said...

For the leading Australian case, decided differently on relevantly similar facts, see:

Trustees of Roman Catholic Church v Ellis
Citation: 70 NSWLR 565[PDF], 63 ACSR 346, [2007] NSWCA 117

Court: New South Wales Court of Appeal (NSW)
Judges: Mason, Ipp, McColl
Judgment Date: 24/5/2007

+ Wolsey

Sharon said...

What evidence is acceptable in criminal cases to prove that long dead priests, and presumably witnesses, are guilty of abuse?

In Australia priests are paid by the diocese.

Lynda said...

It appears that some of the commenters are confusing actual liability such as negligence on the part of the relevant Bishop, say, with vicarious liability which does not raise the issue of any wrongdoing by act or omission on the part of the "employer". For the purposes of vicarious liability, I do not see that the relationship between the priest and the Bishop is analogous to the employer/employee relationship. Furthermore, vicarious liability does not apply where the alleged injury was caused by, for instance, an alleged act which would amount to a criminal offence, as such an act would have nothing to do with the the "employment" which forms the nexus between the "employer" and "employee". Clearly, an alleged assault of any kind cannot come within the parameters of the "employment". The court, in this instance, appears to have broken new ground by extending the concept of "in the course of his employment" to situations where a person's apparent and actual status, in this instance as a priest, was such as to be sufficient as to invoke vicarious liability. I think the court is on shaky ground here - certainly if the relevant priest was known to be a priest by the plaintiff, then that would have relevance as regards the extent of liability of the priest, but I don't think it follows that it is applicable to vicarious liability. I am not familiar with the facts of the case, but it is hard to see how the priest's status as priest having a bearing on the assault(s) could be proven where the priest is dead. All in all, a most dangerous new departure, which I hope will be found to be erroneous on appeal. Lynda

Richard said...

Carmel Ruparelia said...
"I totally agree with the ruling. Any diocesan priest is appointed to his parish by the bishop and it is the bishop who removes him from that appointment."

No - in this case it was specifically said that the bishop could not remove the priest once appointed.

Richard said...

Michael1, the allegation here is not that the bishop was negligent in appointing the priest.

It is vicarious liability - in other words the bishop can be entirely free from blame, and no reason to suspect the priest. But under vicarious liability the bishop (and hence the diocese) can still be liabile.

Vicarious liability used to be very narrow - if I told my employee to do something, and that something injured someone else, I was liable for my employee's action as if I had done it myself.

That gives two legs of the test - was the person an employee, and was the damage caused in the course of his employment.

Both of those tests are being widened to make the diocese liable - the priest wasn't an employee, and the connection between the priest's duties and the harm done is extremely tenuous.

Richard said...

Donum Vitae said...
"So if a staff member of a Government department is found guilty of child abuse, can they then sue the Government department?"

When I studied law, no, you couldn't, because the child abuse was not part of the employee's duties (I'm simplifying a bit here).

But recent decisions have not required as clear a link between the employment duties and the injury.

So yes, it seems that someone abused in a government care home by the care staff would now be able to sue the government as employer.

(the government gave up its immunity from being sued decades ago)

Richard said...

Physiocrat said...
"Is it possible that the bishop was personally liable? ... Who in fact is the legal owner of church property?"

Church property is legally owned by the diocesan trustees, to be used for diocesan purposes.

It is those trustees, i.e. effectively the diocese, who are being sued in this case.

Your question about liability between the bishop and the diocese is the same as the question between the priest and the bishop - if the bishop is legally liable for the actions of the priest, then the diocese is certainly legally liable for the actions of the bishop.

It's about roles. If the bishop goes out to play golf and his ball hits someone, the diocese won't be liable (unless it was a diocesan golf day), because playing golf was not part of his role as bishop. But if the bishop accidentally hits someone with his crozier whilst doing a confirmation, the diocese could be liable.

The old position (see above) was that the diocese wasn't responsible for priests' child abuse because child abuse was a personal activity, not part of his role of a priest (indeed his role as a priest specifically forbids it).

However the courts' newer approach is to say that the opportunity for child abuse came from his role or authority as a priest, and that that is enough to make the diocese liable.

Michael1 said...

To Richard

Thank you for the clarification. I was simply trying to clarify the judgment and perhaps conflated two points. Undoubtedly there have been negligent appointments, but it does not mean that in this case the appointment was negligent: that would have to be demonstrated.

If I read the judgment aright, it does not seem to me to say that a diocese is necessarily liable in each case, but that it could be liable - am I correct?

My point that the judgment is about appointment, not employee status seems correct, however.

santoeusebio said...

Some very erudite posts! Plainly this is a legal minefield in respect of which there is a long way to go. I suggest that we all pray that the superior courts will rule with wisdom and justice.

Nicolas Bellord

Crouchback said...

Richard.....

Does it follow then, that the plaintiff should get massive damages paid for by parishioners who built the churches maybe hundreds of years before the abusing priest was born..??

Shouldn't the diocese be offering "shares" of churches and other assets to protect these resources for the good of the community...and for generations yet to be born...???

Maybe parishes should be converted into co-operatives

Kinga Grzeczynska said...

Fr Ray: This case is very interesting. It has been granted an Appeal to the Court of Appeal. It should be heard soon. The professional relationship betwwen Ordinary(the Bishop)and the Priest is the crux of the matter. There is a chain of responsibilty between the two individuals. Once this is established by Counsel,then the Court can hear submissions with regards to liabilty. Then, this will then establish the standard of liability. A Priest is not an 'employee' of the Diocese as such. However, clearly, there has to be sufficient binding between the two parties, which is established in Canon Law Codes and rarely understood by Priests themselves. I think that the Court Of Appeal will find this a complex matter. We lawyers will find this to be so very interesting. Fathers, this could end up as the opening of the 'Floodgates'. Responsibility has a way of catching up with the person holding 'The Office'.
Kinga Grzeczynska.

santoeusebio said...

Crouchbank raises an important point about funds contributed as charitable donations being used to compensate for injuries done by a priest. The Charity Commission used to be restrictive on this and not allow such payments in respect of what lawyers call "a private frolic" by a priest. I would hope that this point is borne in mind by the Courts.

The situation in the UK is somewhat different from the USA where there is no Charity Commission to oversee what charities can and cannot spend their money on. The only protection for charities rests with the local Attorney General.

Not entirely relevant but in my day a priest, for tax purposes, was not an employee but the holder of an office which meant he was taxed in the same way as a self-employed person. I do not think this has changed.

Nicolas Bellord

P.S. And is not the front page of The Times to-day depressing.

Carmel Ruparelia said...

Vicarious liability has wider implications than the very narrow examples given above. If the bishop/ diocese appoints a pries t to a post/role but fails in it's duty of care to undertake proper safety checks eg CRB clearance / proper risk assessment or does not have sufficiently robust safeguarding policies in place then they would indeed be vicariously liable - as in the case arising from this court judgement. The priest's contact with those abused arise from his official role regardless of whether abusing those in his is part of his job description or not.

Anonymous said...

All you solicitors and barristers,
READ the Australian case!

+ Wolsey.

P.S. In Australia, it was said that vicarious liability applied if the employee/agent/subordinate was "off on a frolic of his own".

Richard said...

Crouchback - I wasn't saying what should happen, but merely what will happen unless this court decision is overturned on appeal.

Personally I regard this as a pernicious extension of legal liability, but that is the way the law seems to have been going.

Richard said...

Wolsey, although the Australian case is no doubt interesting, it will be irrelevant once the Court of Appeal (or possibly the Supreme Court) makes a decision.

roma locuta est and all that.

Anonymous said...

No, by the principle of judicial comity, it could well be applied in the appeal.

Perhaps it could be decisive.

+ Wolsey

Kinga Grzeczynska said...

Good afternoon Fr Ray: Let us remember that every Catholic Priest is a visible Advocate of The Lord Himself. A Priest is also the Administrator of the Holy Sacraments. This puts a Priest in a position of trust and privilage and responsibility. A Priest is an Ordained Soul 24/7 and in all seasons. Unless the Codes of Canon Law apply, there is no period, say during a week, when the Priest can take off his collar and become a Soul who has 'hung up his Consecrated Status' for a period of time. The same applies to his position of trust, privilage and responsibility. These are with him at all times awake or asleep. Therefore, a Priest is answerable to his Ordinary at all times. Governance, work placement, discipline, apprasals, leadership and implementing of standards are the responsibility of the Ordinary. There is your professional relationship between Ordinary and diocesan Priest. The Ordinary has a greater duty of care to Rome, his Priests and his pastroral flock. The Ordinary has also a duty to the Law of England and Wales. His position gives him authority and an ability to correct with immidiate effect, a situation which gives concerns about a Priest in his diocese. If the Ordinary fails to implement actions which safeguard the people in his diocese - then he is negligent and should be held accountable not only to Rome but in Court also. If a Court convicts a Priest of sexually abusing a minor/vunerable adult or physical or mental cruelty to a minor/vunerable adult, the conduct of the Ordinary must be fully examined. This is 2011. Priests who think that they can get away with any form of abuse - wake up smell the coffee. The Law will get you. If by some chance you think that you have got away with it - then think again. You will be answerable to The Lord Himself at the hour of your judgement.
Remember - 'You are a Priest like Melchizedek of Old'
As for Priests who have commited these offences and are now dead. The diocese has some responsibility depends on individual cases. One does not change one's occupation in heaven. So the same applies to the unproven offending dead Priest. And so you shall be judged. As we all will.
Kinga Grzeczynska

Physiocrat said...

I do not like the idea of the pennies of the poor being used to pay out compensation to victims of crimes committed by clergy or negligence of bishops who were appointed from above.

Personal liability of negligent bishop found to have been negligent would sent the right signal.

Lynda said...

Negligence or wrongdoing on the part of the relevant Bishop has not arisen in this case. The issue is purely the preliminary one of whether vicarious liability can apply to the bishop-priest relationship.

Solent Rambler said...

There are obviously lawyers posting. So if this is the case,I'd be grateful if one can advise how the law deals with an abuse allegation years after it was alleged to have occurred. And when the alleged culprit is dead?

I can understand why an adult might take years to speak up about what genuinely happened to them as child. If abuse occurred, then there is something very unfair about the culprit getting away with it.

But equally, the accused have rights too. And how can a dead man defend himself?

If one of you has the time, I'd be grateful for your thoughts. There are a lot of puzzled parishioners like me in the Portsmouth Diocese.

Whatever occurred, my heart goes out to + Crispian, soon to retire and an ill man.

John Ryan Manchester said...

Can I find out how much our Diocese has paid out in compensation and costs - no way. It's our money but as usual, spent secretly.

lawyeratwork.com said...

Solent Rambler: I will try to assist you as much as I can. You give very little information and this site is not the place when the diocese is or may have been disclosed. Can I suggest that you make an appointment with your Safeguarding Lead at the Curia. There should also be a VG who has not been involved with this matter at all. Go to him please and give the VG and the Safeguarding Lead all the information that you have, if you can. Should you be in the position that you have been told matters in the Confessional than obviously you cannot reveal anything that would allow the two people to be identified. However, your diocese should have a nominated Priest who can hear confessions refered from a Priest, and advise on grave sins. If the person who has been allegedly abused could go to confession to that Priest, than that may be helpful. Permission from the penitent to discuss matters in strict confidence could be available. Dead men cannot defend themselves unless they have left some evidence which would be accepted in Court. Allegations of this type made after the individual has died are too late. It is highly unlikely that the CPS would run a case in the Crown Court. Whoever the person is, that has made the allegations, needs counselling and lots of prayers. I sincerely hope that this assists. Of course, there is always the point to remember that the allegation may be untrue.
I think that you need a Hail Mary (or 10).
lawyeratwork.com

BT said...

Fr Blake: John Ryan in Manchester.
The finances of a diocese are one of the secrets of the world. Its our money as you rightly say. Write in and request an answer Does the Freedom of Information Act come in here somewhere?
BT

Nicolas Bellord said...

BT and John Ryan: Dioceses as charities have to file accounts with the Charity Commission. These are then available on-line and downloadable from the Charity Commission website. Generally speaking each diocese will have a trust entitled e.g. Westminster Roman Catholic Diocese Trustee.

Whether these accounts will enlighten you or answer your questions is another matter! Accountants can be clever at hiding things.

I find the contrast with Portugal interesting. I do not know what their legal obligations are but often you will find an income and expenditure account pinned up on the Church notice board. If you go to High Mass at Fatima at Pentecost (I think) they actually have the accountant read out the accounts during Mass! They seem always to have a good surplus – so perhaps transparency pays off – UK clergy please note.

My local parish priest in Portugal told me that in the adjoining parish which he took over the previous incumbent would also put up a notice on the church door with suggestions as to what he thought each family in the parish should pay. I have had occasion to offer donations to priests in Portugal but they have always refused.

Solent Rambler said...

Lawyeratwork.com

Sorry if I was not sufficiently clear. There is no question that, for me, this is a confessional matter. I wrote in haste. Sorry!

My poorly put question was prompted because I live in the Portsmouth Diocese where, last Sunday, our PP gave us a letter from Bishop Hollis– doubtless carefully legalled – about the matter raised by Fr Ray.

The bishop said that the priest “was at the other end of the diocese”. (The bishop also makes the very fair point that while the accuser is protected by initials, the dead priest is named.)

You reassure me by saying that allegations about dead priests are too late unless they’ve left evidence that would be accepted in Court. That’s what I hoped I’d hear.

While there are clearly proven cases of abuse, I’m sufficiently world weary to wonder if some accusations are prompted by malice or attention seeking or bounty hunting or whatever.

Thank you for taking the time and trouble to reply.

lawyeratwork.com said...

Solent Rambler: Yes I am now aware of the case. Complex matters. It does concern me that the name of the alleged abuser - a Priest of the Diocese who has died, is named fully and not protected at all. If his family are still alive and in the area - then it must be very distressing for them. There is very little protection for dead people who have been publically accused of commiting a criminal offence. He/ In this case she /who asserts must prove!! Prove it or keep your tongue behind your teeth.
Please don't be too upset Solent Rambler. Remember, Jesus I Trust in Thee.
Lawyeratwork.com