Ms M Tether, Counsel For the v Respondent — 2020

At the preliminary hearing in Southampton on 21-24 September 2020, Employment Judge Rayner considered whether J, a Church of England priest and freehold incumbent until his retirement at 70 on 8 May 2019, could bring an age discrimination claim arising from compulsory retirement under the Ecclesiastical Offices (Age Limit) Measure 1975 and the Ecclesiastical Offices (Terms of Service) Regulations 2009. The correct respondent was held to be the Bishop of W (K1), and the second respondent was dismissed from the proceedings.

The tribunal held that J was not a personal office holder within s.49 Equality Act 2010. It found that his functions were not discharged personally under the direction of another person: the Canons and Measures gave him a broad framework, a wide measure of autonomy, and powers of delegation; the Bishop did not have practical power to direct how, when, or where J carried out his functions; and the disciplinary and removal powers relied on by the parties were exercised through statutory processes rather than by the Bishop personally. The tribunal also held, applying s.49(10), that the relevant concept of direction is not limited to when and where, but that no sufficient direction existed on the facts.

The tribunal further held that J was not within the scope of the EU Framework Directive or the Charter for these purposes, applying the Allonby/Lawrie-Blum worker formulation and concluding that he did not perform services for and under the direction of another person. It rejected the argument that there was any freestanding EU or Charter right to age discrimination protection outside that scope, and said that, in any event, the compulsory retirement regime would fall within Schedule 22 Equality Act 2010 because the statutory provisions required the Bishop to give effect to retirement at 70 unless a limited discretion to extend was exercised. The age discrimination claim was therefore dismissed.