The President of the Methodist Conference v Preston

The respondent was ordained as a Minister (or, to use the correct terms, received into full connexion with) the Methodist Church in 2003, following a period of time as a Probationer Minister. In 2006 she was appointed to the post of Superintendant Minister to the Redruth Circuit in Cornwall. On 10 June 2009 she submitted a letter of resignation. On 9 September 2009 she commenced proceedings in the Employment Tribunal (ET) alleging unfair constructive dismissal. Her claim raised a preliminary issue: was she an employee of the Church within the meaning of section 230 of the Employment Rights Act 1996? Section 230 provides:

“(1)

In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2)

In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”

The respondent faced an obvious difficulty. In President of the Methodist Conference v Parfitt [1984] ICR 176 the Court of Appeal had held (and I quote the headnote):

“… a correct appreciation of the spiritual nature of the relationship between a minister and the Methodist Church showed that the arrangements between the minister and the Church in relation to his stationing throughout his ministry, and the spiritual discipline which the Church was entitled to exercise over the minister in relation to his cases, were non-contractual; … therefore, the applicant was not employed by the Church under a contract of service and, accordingly, the industrial tribunal had no jurisdiction to consider the applicant’s claim of unfair dismissal.”

The current arrangements between a Minister and the Church are not precisely the same as pertained at the time of Parfitt but they are substantially similar.

On 16 December 2009, at a pre-hearing review, the ET considered the section 230 point as a preliminary issue. It considered itself to be bound by Parfitt, which it could not distinguish on the facts. It held that the respondent was not an employee of the Church and it dismissed her claim.

The respondent appealed to the Employment Appeal Tribunal (EAT) which, in a judgment handed down on 15 March 2011, UKEAT/0219/10/DM, allowed the appeal, concluding that the ET had been wrong simply to follow Parfitt in the light of the more recent decision of the House of Lords in Percy v Board of National Mission of the Church of Scotland [2006] 2 AC 28. Underhill J (President of the EAT) stated (at paragraph 54):

“… we do not believe that the reasoning of Parfitt can be sustained in the light of Percy, even on the same facts.”

Although Percy was concerned with the position of a Minister in a different Church, the Appellate Committee gave close attention to Parfitt. It did not expressly overrule it. Essentially, the decision of the EAT in the present case was that Percy had impliedly overruled Parfitt and, in this Court, the respondent’s case is that we are no longer bound by Parfitt because, by reference to the second limb of Young v Bristol Aeroplane Co [1944] KB 718, per Lord Greene MR giving the judgment of the Court (at page 729):

“The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.”

In the present case, there were preliminary skirmishes around the question whether the EAT ought to have undertaken the task of considering whether Parfitt has been impliedly overruled rather than leaving that question to this Court. However, we heard no argument about that and the status of Parfitt is now fairly and squarely before us.

I say at the outset that the judgment of Underhill J contains a masterly and detailed analysis of the authorities. I agree with it and with the conclusion to which it led. I do not feel able to improve on it. For this reason I shall explain why I consider that this appeal should be dismissed in a shorter judgment than might otherwise have been necessary.

When Parfitt had passed through the Industrial Tribunal and the EAT, the lay members of both tribunals had found in favour of Mr Parfitt, with the chairman of the Industrial Tribunal and Waterhouse J in the EAT dissenting. As the judgment of Waterhouse J received approval in the Court of Appeal, it is necessary to set out the following passages:

“I consider that the starting point of any consideration of the relationship between the Methodist Church and its ministers must be an examination of the faith and doctrine to which they subscribe and they seek to further. The concept of a minister as a person called by God, a servant of God and the pastor of His local church members seems to me to be the central relationship … I am unable to accept that either party to the present proceedings intended to create a contractual relationship … The submission by the Methodist Church that a minister is, in effect, a person licensed by the Methodist Conference to perform the work of a minister in accordance with the doctrine of the church and subject to its discipline is, in my judgment, the most persuasive description of his status and role.”

In the Court of Appeal, Dillon and May LJJ each gave substantive judgments, with both of which Sir John Donaldson MR simply agreed. Dillon LJ expressed agreement with Waterhouse J “for the reasons which he gave” (p.184E). His own judgment included the following passages:

“… in my judgment, the spiritual nature of the functions of the minister, the spiritual nature of the act of ordination by the imposition of hands and the doctrinal standards of the Methodist Church which are so fundamental to that church and to the position of every minister in it make it impossible to conclude that any contract, let alone a contract of service, came into being between the newly ordained minister and the Methodist Church when the minister was received into full connection. The nature of the stipend supports this view. In the spiritual sense, the minister sets out to serve God as his master; I do not think that it is right to say that in the legal sense he is at the point of ordination undertaking by contract to serve the church or the conference as his master throughout the years of ministry.

Equally, I do not think it is right to say that any contract, let alone a contract of service, comes into being between the church and the minister when the minister accepts an invitation from a circuit steward to become a minister on a particular circuit … the arrangements between the minister and the church in relation to his stationing throughout his ministry and the spiritual discipline which the church is entitled to exercise over the minister in relation to his career remain non-contractual.” (Pages 182G – 183C)

…

… the courts have repeatedly recognised what is and what is not a contract of service and I have no hesitation in concluding that the relationship between a church and a minister of religion is not apt, in the absence of clear indications of a contrary intention in the document, to be regulated by a contract of service.” (Page 183H)

It is plain from the passage I have emphasised that Dillon LJ was not confining his approach to the Methodist Church and that he was postulating a rebuttable presumption of an absence of intention to create legal relations. Moreover, he contemplated the probability of binding contractual obligations in relation to other aspects of a Minister’s position which he described as “ancillary matters”, such as the entitlement of the Minister under the superannuation scheme and his obligation to repay a proportion of training costs in the event of departure within ten years (page 184A). He ended his judgment by saying that he saw no good reason why “modern economic conditions or the development of social security and employment protection should lead to a different conclusion now”. (Page 185B)

May LJ considered that

“… in the particular circumstances of this case the important consideration is whether the parties intended to create legal relations between them so as to make the agreement … enforceable in the courts.” (Page 185F)

He set out a lengthy extract from the judgment of Waterhouse J and expressed agreement with it (page 187C). He then went on to conclude, obiter, that if there was a contract, it was not a contract of service.

In Percy a female Minister of the Church of Scotland commenced proceedings in the ET. Her claim was not one of unfair dismissal but was for sex discrimination. Protection under the Sex Discrimination Act 1975 is wider than unfair dismissal protection in that it extends beyond employment under a contract of service and applies also to “a contract personally to execute any work or labour”: section 82(1). Nevertheless, both forms of protection are predicated upon the existence of a contractual relationship. The House of Lords held that Ms Percy had “a contract personally to execute … work”. The speeches of their Lordships included copious references to Parfitt and other previous authorities. However, they cannot be said to have coalesced upon the basis of an express overruling of Parfitt.

On the question of an intention to create legal relations, Lord Nicholls said (at paragraphs 23 to 26):

“There are indeed many arrangements or happenings in Church matters where, viewed objectively on ordinary principles, the parties cannot be taken to have intended to enter into a legally binding contract. The matters relied upon by Mr Parfitt … are a good example of this … The rebuttable presumption enunciated by the Lord President in the present case … may have a place. Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally binding relationship.

But this principle should not be carried too far. It cannot be carried into arrangements which on their face are to be expected to give rise to legally bindings obligations. The offer and acceptance of a Church post for a specific period, with specific provision for the appointee’s duties and remuneration and travelling expenses and holidays and accommodation, seems to me to fall firmly within this latter category.

Further, in this regard there seems to be no cogent reason today to draw a distinction between a post whose duties are primarily religious and a post within the Church where this is not so. In President of the Methodist Conference v Parfitt … Dillon LJ noted that a binding contract of service can be made between a Minister and his Church. This was echoed by Lord Templeman … in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, 329. Lord Templeman said ‘It is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual’.

The context in which these issues normally arise today is statutory protection for employees. Given this context, in my view it is time to recognise that employment arrangements between a Church and its Ministers should not lightly be taken as intended to have no legal effect and, in consequence, its Ministers denied this protection.”

Lord Scott and Baroness Hale (to whose speeches I shall return) each expressed agreement with the reasoning of Lord Nicholls.

Lord Hope, too, appears to reject the application of a presumption. He said (at paragraph 112):

“Looking for the moment only at the agreement, it seems to me that it has all the ingredients that would be needed for it to be treated by the courts as intended to create legal obligations between the parties and enforceable in the event of a breach of it so as to provide … a legal remedy.”

He added (at paragraph 115):

“I would hold, in agreement with Lord Nicholls, that these aspects of the agreement were sufficient to bring it within the scope of the protection that the 1975 Act gives to those whose work is in the field of employment.”

Lord Scott expressed agreement with Lord Nicholls, Lord Hope and Baroness Hale and specifically expressed his agreement (at paragraph 137) that

“The agreement between the appellant and the Church of Scotland Board of National Mission, whereunder in return for salary, accommodation and other benefits the appellant undertook to perform the duties of an associate Minister, was an agreement which created legal obligations between the parties.”

Baroness Hale (at paragraph 148) found it “impossible to conclude that there was no intent to enter into legal relations”. She added:

“I have difficulty in understanding why there should be any presumption against such an intention.”

And added:

“Ms Percy would clearly have been able to bring legal proceedings had her salary not been duly paid or had she been wrongly deprived of the occupation of her manse. The consideration for these benefits must have been the performance of the duties she had undertaken. In this day and age, the notion that her ‘salary’, modest though it was, was simply to meet her basic subsistence needs while she devoted herself to her religious and pastoral duties is unrealistic.”

Turning to the earlier authorities, including Parfitt, she first distinguished them on the basis that their context required the Minister to have been working under “a contract of service”. She added (at paragraph 151):

“But in so far as those authorities may be explained by a presumed lack of intent to create legal relations between the clergy and their church, I cannot accept that there is any general presumption to that effect. The nature of many professionals’ duties these days is such that they must serve higher principles and values than those determined by their employers. But usually there is no conflict between them, because their employers have engaged them in order that they should serve those very principles and values. I find it difficult to discern any difference in principle between the duties of the clergy appointed to minister to our spiritual needs, of the doctors appointed to minister to our bodily needs, and of the judges appointed to administer the law, in this respect.”

Lord Hoffmann dissented but on the basis that Ms Percy was an office holder rather than an employee even in the wider sense predicated by the Sex Discrimination Act. However, he said (at paragraph 66):

“If the ministry had not been an office and the relationship between Ms Percy and the body who appointed her had been contractual, it would plainly have been a contract of service. It would have had all the characteristics of a contract of service. The reason why it is not a contract of service is because Ms Percy’s duties were not contractual at all. They were the duties of her office.”

In other words, he did not consider the relationship to be without legal obligation. It was just that, in his view, the obligation was not contractual. For my part, I have to say that, like Lord Nicholls, I see no reason why an office holder should not also be an employee (paragraph 20).

In New Testament Church of God v Stewart [2008] ICR 282the significance of Percy was considered by the Court of Appeal. Pill LJ said (at paragraphs 35 to 36):

“What Percy’s case does, however, is establish that the fact-finding tribunal is no longer required to approach its consideration of the nature of the relationship between a Minister and his Church with the presumption that there was no intention to create legal relations. The earlier cases, as explained, do not exclude that possibility; strong statements in Percy’s case leave it open to employment tribunals to find, provided of course a careful and conscientious scrutiny of the evidence justifies such a finding, that there is an intention to create legal relations between a Church and one of its Ministers … The Chairman was not bound by authority to reach a different conclusion. It is recognised that a spiritual motivation in working for a Church does not necessarily preclude an intention to create legal relations.

The guidance to be followed is, in my view, that stated by Lord Nicholls, at paragraphs 23 to 26 of his speech … It was found that there was in Percy’s case an intention to create a legally binding relationship but the earlier authorities were not overruled. As Dillon LJ stated in Parfitt’s case … ‘The spiritual nature of the work and the spiritual discipline under which it is performed must be very relevant considerations when it has to be decided whether or not there is a contractual relationship’. That remains, in my view, a principle of the law of England and Wales.”

Pill LJ then went on to consider the possible relevance of Article 9 of the European Convention on Human Rights and Fundamental Freedoms. I shall return to that later. He concluded that, in the circumstances of that case, the ET had been entitled to find an intention to create legal relations and a contract of employment.

Arden LJ (at paragraph 63) considered that in Percy Lord Hope, Lord Scott and Baroness Hale had rejected any presumption of an absence of intention to create legal relations. She added (at paragraph 64):

“In my judgment, the existence of spiritual duties is certainly a matter to be taken into account but the weight to be given to them must depend on the overall assessment of the evidence … Lord Nicholls and Baroness Hale in particular, with whom Lord Scott agrees, consider that ministers of religion should in appropriate cases have the benefit of modern employment legislation … In this respect the decision in Percy’s case is an instance of the courts fulfilling their time-honoured role of updating the common law and making it more suitable for modern circumstances.”

She then addressed “the exceptional situation in which the finding of a contract … would offend a religious belief”.

Lawrence Collins LJ (at paragraph 66) agreed that religious beliefs may throw light on the relationship between a religious institution and its ministers. He said:

“If there is a religious belief that there is no enforceable contractual relationship, then that is a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract.”

It seems to me that Parfitt and some of the other earlier cases were decided on the basis that, at the very least, ministers of religion were appointed on the basis of a rebuttable presumption that, viewed objectively, there was an absence of an intention to create legal relations. That was expressed most clearly by Dillon LJ in Parfitt itself (at page 183H). I say “at the very least” because some judgments expressed the proposition virtually as a rule of law. The judgment of Waterhouse J in the EAT in Parfitt is an example. So, perhaps, is the speech of Lord Templeman in Davies v Presbyterian Church of Wales (at page 289D). Its language is not that of simple presumption. Although there may be difficulties of interpretation in the speeches in Percy, one thing is abundantly clear. Abandonment of the rebuttable presumption is part of the ratio. That has already been established by this Court in Stewart and it is further explained in the judgment of Underhill J in the EAT in the present case, at paragraph 50. As he went on to say (at paragraph 51), the difficulty is where that leaves Parfitt, which was decided by reference to the presumption but which was not expressly overruled in Percy.

In the EAT, Underhill J analysed the effect of Percy in this way (at paragraph 52):

“The conclusion of Dillon and May LJJ in Parfitt and of Waterhouse J whose reasoning they endorsed, was based essentially on the spiritual nature of a minister’s role: such other specific points as they made (eg in relation to a minister’s stipend) were merely supportive of that general point. But the spiritual nature of a minister’s role is the basis also of the presumption against intention to create legal relations which was disapproved in Percy. If it is illegitimate to rely on the spiritual nature of the role as a basis of a general presumption, it must equally, it seems to us, be illegitimate to rely on it without more as the basis of a specific finding. It comes to the same thing: in other words, we can see no difference in substance between saying ‘because of the minister’s spiritual role there is a presumption against any intention to create legal relations and that presumption has not been rebutted’ and saying ‘because of the minister’s spiritual role (and nothing else) we find that there was no intention to create legal relations’. It seems to us that Lord Nicholls and Lady Hale meant to hold that the spiritual role of a minister could not by itself justify denying contractual effect to an arrangement which otherwise had the indicia of a contract: thus Percy has not simply disapproved the erection of any general principle on the basis of Parfitt but has undermined its actual reasoning, at least as regards whether stationing – as opposed simply to ordination – gives rise to a contract.”

I agree with this analysis.

To reach that conclusion, it is necessary to take a fine toothcomb, particularly to the speech of Lord Nicholls. It contains a degree of ambivalence. Paragraph 23 (from which the first of the citation at paragraph 15 of this judgment is taken) exhibits a tolerance of Parfitt and other cases to like effect which is not easy to reconcile with the passages which follow it. Like Underhill J, I have come to the conclusion that it is the latter passages which contain his essential reasoning. In paragraph 24, he said that “this principle” – viz the one set out in paragraph 23 – “should not be carried too far. It cannot be carried into arrangements which on their face are to be expected to give rise to legally binding obligations”. He then added:

“The offer and acceptance of a church post for a specified period, with specific provision for the appointee’s duties and remuneration and travelling expenses and holidays and accommodation, seems to me to fall fairly within this latter category.”

Moreover, his subsequent language is redolent with an awareness of legal change. In paragraph 25 he said that there “seems to be no cogent reason today to draw a distinction” and in paragraph 26 he said that “it is time to recognise” that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect “and, in consequence, its ministers denied [statutory] protection”.

In the light of Baroness Hale’s exposition, it can only have been with this part of Lord Nicholls’ speech that she was expressly agreeing “for essentially the same reasons” (paragraph 140). Lord Scott expressly agreed with Lord Nicholls and Baroness Hale (paragraph 137) and also with Lord Hope, who had firmly rejected the presumption approach (at paragraph 121). Moreover, as I observed earlier, although Lord Hoffmann dissented, nothing in his speech assists analysis against legal relations – quite the contrary.

It seems to me that although most of the speeches in Percy are characterised by a linguistic gentleness in their approach to Parfitt, that does not disguise the fact that they caused the tectonic plates to move. As Arden LJ said in Stewart (paragraph 64) Percy is an example of the courts “fulfilling their time-honoured role of updating the common law and making it more suitable for modern circumstances”. It seems to me that, if that were not the case, Ms Percy and Mr Stewart would not have succeeded in establishing the contractual basis of their appointments. For all these reasons, I conclude that the EAT was correct in law to find the relationship in the present case to be contractual.

It is not surprising that, having concluded that the present case was governed by Parfitt, the ET then confined itself to the question whether there was any factual distinction between the two cases. It concluded that there was not. Indeed, the EAT also took the view that, despite slight differences, the cases are factually indistinguishable (paragraph 54). It further observed that the ET had not really addressed the distinction between a contract of service and a contract for services and that its reasoning at this point had become “short”, “not very clear” and flawed. However, it did not consider it necessary to remit the case to the ET. It had all the relevant material before it and the case is not one turning on the credibility of witnesses. It proceeded to determine the issue itself on conventional principles. In so doing, it adverted to the spiritual role of the Minister and considered a point made on behalf of the Church that the stipend did not equate to remuneration in the everyday sense but existed to free Ministers from basic financial concerns which might otherwise interfere with the performance of their spiritual duties. The EAT was also concerned to confine itself to the stationing in Redruth which, according to the agreed facts, was an appointment that began on 1 September 2006 and was for an initial period of five years.

Having considered these matters, the EAT concluded (at paragraph 63):

“In our view the Claimant’s contract was one of service. Once it is accepted that there is nothing in the Claimant’s spiritual role which is inconsistent with her being an employee and once the question whether there was anything special about the nature of the Claimant’s remuneration is decided all the indications point one way. She received regular remuneration, including an entitlement to sick pay. She was given accommodation. She was required to engage in an appraisal process, was subject to at least a degree of supervision from the Church and was liable to a disciplinary procedure. Although she did not have to work set hours, there was a clear concept of working time, when she was at the disposal of the Church, and holiday, when she was not. Of course, like any professional she had a great deal of discretion as to how she did her work, but that is in no way inconsistent with a contract of service. Again, we see close parallels with the facts in Stewart …”

Of course, Stewart was concerned with a different appointment in a different Church. Mr Hyams submits that, in the present case, the EAT fell into legal error, in particular by failing to carry out a proper analysis of the role of the Methodist Conference. I do not agree. I am satisfied that the EAT, in short order, demonstrated in paragraph 63 and in earlier passages of the judgment that it had carefully considered all relevant matters. I detect no legal error in its approach or its conclusion. It reached the correct result by an application of well known principles.

In Percy, the House of Lords made no reference to Article 9 of the ECHR. However, Mr Hyams seeks to rely on it in the present case. Article 9 provides:

“(1)

Everyone has the right to freedom of thought, conscience and religion; this includes the freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2)

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morale, or for the protection of the rights and freedoms of others.”

What, it may be asked rhetorically, has this to do with the domestic law of unfair dismissal?

Mr Hyams takes his cue from Pill LJ in Stewart. However, it does not seem to me that Article 9 was material to the ratio of that case. The passage devoted to it by Pill LJ in his judgment came after the passages to which I referred earlier and in which he sought to distil the ratio of Percy. Having identified what he considered to be “a principle of the law of England and Wales” he then added (at paragraph 36):

“It is a reflection of the principles stated in Article 9 …”

He then emphasised the importance of Article 9 in domestic law by reference to its treatment in section 13(1) of the Human Rights Act 1998 which provides:

“”If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”

Pill LJ then referred to Kokkinakis v Greece (1993) 17 EHRR 397 in which the Strasbourg Court found Article 9 to have been breached by the prosecution and conviction of a man for an offence of proselytisation. He relied on that authority and no other for the proposition that the principles stated in it

“apply equally in my view to a consideration of the relationship between a church and its ministers and whether it may be enforced in the courts of the state.” (Paragraph 44)

However, this did not divert him from the conclusion that the ET had committed no legal error in finding Mr Stewart was an employee of his Church.

In my judgment, the potential role of Article 9 in cases such as this is far more modest. Indeed, in Stewart, Arden LJ took a less expansive approach (at paragraph 62):

“… the fact that in an employment dispute one party to the litigation is a religious body or that the other party is a minister of religion does not of itself engage Article 9. There must be religious beliefs that are contrary to or inconsistent with the implication of the contract or a contract of employment. It follows that the implication of a contract of employment is not automatically an interference with religious beliefs.”

Lawrence Collins LJ added (at paragraph 66):

“If, contrary to the belief of one of the parties that there is, or should be, no contract, the court gives the other party contractual or statutory remedies, I am doubtful whether that could be regarded as a limitation or, an interference with, the right to freedom of thought, conscience and religion under Article 9.”

So am I.

In the present case, Mr Hyams endeavoured in his skeleton argument to imbue the dispute between the parties with a doctrinal element by referring to clause 4 of the Deed of Union which provides:

“Christ’s ministers in the church are stewards in the household of God and shepherds of his flock. Some are called and ordained to this sole occupation and have a principal and directing part in these great duties but they hold no priesthood differing in kind from that which is common to all the Lord’s people and they have no exclusive title to the preaching of the gospel or the care of souls. These ministries are shared with them by others to whom also the Spirit divides his gifts severally as he wills.

It is the universal conviction of Methodist people that the office of the Christian ministry depends on the call of God who bestows the gifts of the Spirit the grace and the fruit which indicate those whom He has chosen.”

This reflects “the priesthood of all believers” but it surely does not embrace a doctrinal belief that a Minister who is treated with unfairness or discrimination must be denied common legal redress.

When asked to explain how the existence of a contract of employment might interfere with the right of Methodists to manifest their religious belief, Mr Hyams referred only to the implications of accountability in an ET and the financial cost involved. I am sorry to say that, to my mind, this only serves to emphasise the unattractiveness and moral poverty of the attempted invocation of Article 9 in this case. The EAT concluded (at paragraph 61) that it is not a case where the evidence establishes that the existence of a contract of employment between the Church and a Minister is contrary to its tenets and it could not conceive that any claim within the jurisdiction of the ET would require it to determine disputed issues of doctrine. I entirely agree.

Finally, I record that Mr Hyams also advances as a free-standing ground of appeal reliance on Davies and, in particular, the comment of Lord Templeman (at page 289E) that

“an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.”

Davies, like Parfitt, was the subject of discussion in Percy. It is true that the Appellate Committee in Percy did not say that it was departing from its own previous decision in Davies. However, it did not need to because in Lord Templeman’s speech an earlier passage (at page 289C) had accepted that

“it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual.”

In other words, a Minister of religion may be an employee. If he is, he is an eligible applicant in relation to unfair dismissal and it will be for the ET, upon consideration of the facts of a particular case, to decide whether the statutory criteria of unfairness are satisfied (assuming that dismissal is established). In my view, this free-standing ground of appeal adds nothing to the general consideration of Percy.

It follows from what I have said that I would dismiss this appeal.

I agree.

I also agree.