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Good Legal News For Organists In C Of E

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Guest Barry Williams

I have good news. An Employment Tribunal has ruled that an organist is an employee under Canon B20.

 

This is a preliminary ruling and I do not yet have full details. However, the importance of this is that organists acquire employment rights under the Employment Rights Act 1996 giving them access to the Employment Tribunal in cases of dismissal, constructive dismissal, discrimination, etc.

 

I will post further information here as soon as I have it, but details will appear shortly on this Website:

 

http://www.organistpublications.co.uk/Index.html

 

Barry Williams

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Thank you, Barry. As you say, this has to be good news. Do you know whether this ruling applies equally to all organists with a church job, even if their main employment is some Monday-to-Friday job outside music altogether? One would hope that the principle applies across the board.

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Guest Barry Williams
Thank you, Barry. As you say, this has to be good news. Do you know whether this ruling applies equally to all organists with a church job, even if their main employment is some Monday-to-Friday job outside music altogether? One would hope that the principle applies across the board.

 

 

At present we do not know the exact nature of the ruling. However, in general terms, an engagement is usually judged on the facts of that particular job, rather than of what someone might do for the rest of the week. (I am referring to employment law, not VAT.) My view is that all organists in the Church of England are almost certainly employees. This has been the first chance to test the issues properly.

 

Whilst the ruling is unlikely to be a precedent, (which has a particular legal meaning) it will have significant persuasive value, for it relates in this instance to a place of some status.

 

For obvious reasons, I ask that Board members do not post speculative suggestions as to where case this might be. There is to be another Hearing about the substantive issue. All available information will be posted on the Organist Publications Website.

 

Barry Williams

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I have good news. An Employment Tribunal has ruled that an organist is an employee under Canon B20.

 

This is a preliminary ruling and I do not yet have full details. However, the importance of this is that organists acquire employment rights under the Employment Rights Act 1996 giving them access to the Employment Tribunal in cases of dismissal, constructive dismissal, discrimination, etc.

 

I will post further information here as soon as I have it, but details will appear shortly on this Website:

 

http://www.organistpublications.co.uk/Index.html

As always, thanks to Barry for his professional expertise in this area. As much as improvements in organists' rights are to be welcomed is it certain that every organist will welcome the ruling? Is it possible that a mainly freelance self-employed musician might prefer his organist work to be on the same basis as the rest of his work? I know, Barry, you have posted that an organist's travel expenses to his regular place of employment (ie his church) have been ruled to be ineligible for legitimate business expenses under Schedule D but would, for example, similar reasoning hold true for a church minister in a joint benefice of several outlying churches? And therefore were an organist to have jobs at several churches could that situation be construed similarly?

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Just out of interest, does this ruling cover things like working temperatures, minimum wages and so on?

B):wacko::(

 

Not a chance, I'm sure! Porcine creatures will aviate long before then.

 

If this ruling did cover such things, I can see churches up and down the country having to install karaoke machines, or keyboards playing midi files....

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Guest Barry Williams

Thank you.

 

1. The Clergy have different, specific and beneficial tax rules from other workers. (There are good reasons for this.)

 

2. Multiple employments do not amount to self-employment. (There is case law on this.)

 

3. There is no benefit to an organist to be treated as self-employed for a multiple benefice job. Specific travelling expenses that will not rank as taxable can be set up under a Dispensation.

 

4. Much will depend on the terms of the engagement.

 

5. All workers, including many who would be treated as self-employed for tax purposes, are entitled to minimum standards of wage and conditions of work, including temperature, safety, etc. This is not optional. It is the law.

 

There is much information in 'Everything Else an Organist Should Know' and an update to the book downloadable for free from the Website, but I will try to answer any queries here that may help.

 

If this does not address your concerns, please post again.

 

Barry Williams

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Guest Barry Williams

John Mander has kindly consented to my posting the Press Release.

 

If anyone would like it in the original format please send a prviate email with your email address and I will forward a copy.

 

I understand that Robert Leach may be interviwed about this on the Radio 4 religious programme at 7am this Sunday.

 

Barry Williams

 

John: Thank you for permitting this to be published on the Board.

 

PRESS RELEASE 1 From Organists Publications Limited

 

 

 

15 February 2008

 

 

 

A church organist is an employee

 

 

 

An employment tribunal has ruled that a church organist is an employee.

 

 

 

This means that organists in the Church of England have full employment rights. After a year, they may bring a claim for unfair dismissal against the vicar and PCC if sacked without good reason. Although it has long been believed that church organists are employees, this is the first known case where such a decision has been given by an Employment Tribunal.

 

 

 

The case concerned an eminent and well-qualified organist and choirmaster in the north of England who was dismissed. He brought a claim for unfair dismissal. As a preliminary point, the church authorities said that he was not an employee. This matter was addressed in two hearings over three days last November and December. The decision has just been made public.

 

 

 

The case can now proceed to hearing the substantive issue of whether the organist’s dismissal was fair. An Order has been made which prevents publication of any material that can identify either the organist or church. Accordingly this preliminary decision has been issued as A v B and C [2008].

 

 

 

In the decision, the judge paid particular attention to the amount of control exercised by a vicar under Canon B20. Strictly, this decision only applies to the contract, which applied for this one organist, but the terms of the judgment are such that the ruling will apply to almost all organists in the Church of England.

 

 

 

Organist Publications Ltd director Robert Leach appeared as an expert witness at the tribunal for the organist. Leach says, “This is a landmark decision which should greatly help to improve the working relationship between organists and church authorities. It is estimated that about two-thirds of qualified organists are no longer prepared to accept an appointment in the church. Problems in working with vicars are one of the most quoted reasons. Establishing that an organist is an employee will help ensure that the relations are now properly governed by employment law.”

 

 

 

 

 

Notes to editors

 

1 The appointment of organists in the Church of England is governed by a mixture of canon law, contract law and employment law. There is no single test for when someone is an employee. The matter is decided by considering indicia for employment and indicia for self-employment. In this case, the indicia were clearly in favour of employment status.

 

 

 

2 The vicar and PCC have the right to appeal against this decision, though the clear and decisive wording of this judgment would seem to make the chances of success unlikely.

 

 

 

3 An employment tribunal does not establish a binding precedent under English law, but this decision does establish a persuasive decision that may be quoted in any future dispute relating to an organist.

 

 

 

4 At the tribunal, the church authorities argued that the organist was self-employed because he agreed to be paid gross without any deduction under the PAYE system. The judge accepted that the tax treatment of an individual is irrelevant in determining employment status. There is, anyway, a special “religious centre exemption” scheme which allows organists and other church employees to be paid gross without having PAYE deducted, provided that there is no PAYE scheme in existence and the sums paid do not exceed the PAYE threshold.

 

 

 

5 Organist Publications Ltd was established in 2005 to provide assistance, advice and other resources for church organists. Barry Williams, a lawyer, and Robert Leach, a chartered accountant, run it. They deal with at least one new organist dispute every week. They work closely with the Royal School of Church Music and other church music bodies. They wrote and published Everything Else an Organist Should Know, which has become the standard reference book on legal and financial issues relating to organists. The book was authoritatively quoted at the tribunal. Robert Leach appeared as an expert witness for the organist.

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Guest Cynic
John Mander has kindly consented to my posting the Press Release.

 

If anyone would like it in the original format please send a prviate email with your email address and I will forward a copy.

 

I understand that Robert Leach may be interviwed about this on the Radio 4 religious programme at 7am this Sunday.

 

Barry Williams

 

John: Thank you for permitting this to be published on the Board.

 

PRESS RELEASE 1 From Organists Publications Limited

 

 

 

15 February 2008

 

 

 

A church organist is an employee

 

 

 

An employment tribunal has ruled that a church organist is an employee.

 

 

 

This means that organists in the Church of England have full employment rights. After a year, they may bring a claim for unfair dismissal against the vicar and PCC if sacked without good reason. Although it has long been believed that church organists are employees, this is the first known case where such a decision has been given by an Employment Tribunal.

 

 

 

The case concerned an eminent and well-qualified organist and choirmaster in the north of England who was dismissed. He brought a claim for unfair dismissal. As a preliminary point, the church authorities said that he was not an employee. This matter was addressed in two hearings over three days last November and December. The decision has just been made public.

 

 

 

The case can now proceed to hearing the substantive issue of whether the organist’s dismissal was fair. An Order has been made which prevents publication of any material that can identify either the organist or church. Accordingly this preliminary decision has been issued as A v B and C [2008].

 

 

 

In the decision, the judge paid particular attention to the amount of control exercised by a vicar under Canon B20. Strictly, this decision only applies to the contract, which applied for this one organist, but the terms of the judgment are such that the ruling will apply to almost all organists in the Church of England.

 

 

 

Organist Publications Ltd director Robert Leach appeared as an expert witness at the tribunal for the organist. Leach says, “This is a landmark decision which should greatly help to improve the working relationship between organists and church authorities. It is estimated that about two-thirds of qualified organists are no longer prepared to accept an appointment in the church. Problems in working with vicars are one of the most quoted reasons. Establishing that an organist is an employee will help ensure that the relations are now properly governed by employment law.”

 

 

 

 

 

Notes to editors

 

1 The appointment of organists in the Church of England is governed by a mixture of canon law, contract law and employment law. There is no single test for when someone is an employee. The matter is decided by considering indicia for employment and indicia for self-employment. In this case, the indicia were clearly in favour of employment status.

 

 

 

2 The vicar and PCC have the right to appeal against this decision, though the clear and decisive wording of this judgment would seem to make the chances of success unlikely.

 

 

 

3 An employment tribunal does not establish a binding precedent under English law, but this decision does establish a persuasive decision that may be quoted in any future dispute relating to an organist.

 

 

 

4 At the tribunal, the church authorities argued that the organist was self-employed because he agreed to be paid gross without any deduction under the PAYE system. The judge accepted that the tax treatment of an individual is irrelevant in determining employment status. There is, anyway, a special “religious centre exemption” scheme which allows organists and other church employees to be paid gross without having PAYE deducted, provided that there is no PAYE scheme in existence and the sums paid do not exceed the PAYE threshold.

 

 

 

5 Organist Publications Ltd was established in 2005 to provide assistance, advice and other resources for church organists. Barry Williams, a lawyer, and Robert Leach, a chartered accountant, run it. They deal with at least one new organist dispute every week. They work closely with the Royal School of Church Music and other church music bodies. They wrote and published Everything Else an Organist Should Know, which has become the standard reference book on legal and financial issues relating to organists. The book was authoritatively quoted at the tribunal. Robert Leach appeared as an expert witness for the organist.

 

I strongly welcome this decision and congratulate Robert and Barry for taking up the cudgels in such an effective way on behalf of fellow organists throughout the UK. I hope that this case sets a precedent which will make for better, more professional dealings between vicars and organists in the future. I accept that it 'takes two to quarrel', but the balance of power/authority has so long weighed particularly heavily against church musicians and many of us have seen occasions where the real loser has been the church which all should be trying to serve.

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It seems right and proper that professional musicians, such as the many who reside in this list, should have recourse to the law when their livlihood is under threat, or subject to unfairness. One imagines that such recourse woud in any case be a 'last resort' thing.

 

My particular concern however, is for the matters which attend this issue from Her Majesty's requirement for seemingly endless amounts of revenue, from those least able to afford it. Existing as I do at the lowest strata of our common fascination with with matters organistic, I suspect that 'there may be problems ahead' for me, and that large number like me.

 

On Sundays, I toddle along to my church at 9am, a voluntary, a bit of improv on the first hymn, five hymns, a bit of wallpaper during Communion, and some fun with the last hymn tune to close. I pack up my bits, and scurry off to our other church for 10.45am and do it over again.

I am not a very good organist, certainly not qualified, but can find my way around the instrument, albeit with a pedal technique that has novelty value if nothing else. At my level, I place myself in the same 'category' as the wardens, the sidespersons, verger and flower arrangers etc., etc.. Whilst embarrassed at what I do for music, I love what I do for the church. I accept no payment for ordinary liturgical work at the organ nor do I claim expenses. I do this because I am able to do so both financially and within my life style.

 

I accept without reservation that most church musicians, even (especially?) down at my end of the game, do require the income appropriate to their work, or at least, the amount that the parish sees fit to offer. And I do not suggest for one second that organists should as a matter of course serve voluntarily.

 

A lot of us do serve voluntarily though, and therein lies what may be a problem. For non- liturgical stuff, weddings, funerals and so forth, I accept the offered fees. These fees are (and have been for many years), declared within my tax return as a self- employed carpenter.

 

'Does the panel think' that I am now to be classed as employed by the parish for its liturgical music requirements, even though I only have expenses with no income ? Can anyone hazard a definition of the legal/official source of funeral and wedding fees? Does the fact that they are gathered from marriage couples, funeral families, or funeral directors by the parish, and then handed on to me mean that I am to be regarded as employed in that regard? Did Bach get it right - taking a tranche of his income in firewood and fish? And will the ghost of the clot who took the Dulciana off my Forster and Andrews, to replace it with a screeching Mixture, please stand up where I can see you and stamp you back into the ground.

 

With thanks to you all for being one of the most fascinating places on the net, I return now to comfortable obscurity.

 

Chris Baker

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Guest Barry Williams

If you are paid genuine expenses only (i.e. actual reimbursement of travelling cost, etc) then you will not be liable to tax.

Please see the point about Local Religious Centres on the Website: http://www.organistpublications.co.uk/Index.ht

It is under News and updates; chapter seven.

 

It is not clear at this point whether an Employment Tribunal would consider the payments of expenses only as constituting sufficient remuneration to create an employment contract. I doubt it, but it has never been tested.

 

The fact that you are paid by families/wedding couples has no effect on the taxable receipt of the fees. There is much case law on this. For example, the hairdresser's tips are paid by the client, not the employer, but nevertheless arise from the employment and are thus taxable along with the salary, even though PAYE cannot be operated on them. The same applies to wedding and funeral fees for organists.

 

I hope this is helpful, but please do another post if you need further guidance.

 

Barry Williams

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It seems right and proper that professional musicians, such as the many who reside in this list, should have recourse to the law when their livlihood is under threat, or subject to unfairness. One imagines that such recourse woud in any case be a 'last resort' thing.

 

My particular concern however, is for the matters which attend this issue from Her Majesty's requirement for seemingly endless amounts of revenue, from those least able to afford it. Existing as I do at the lowest strata of our common fascination with with matters organistic, I suspect that 'there may be problems ahead' for me, and that large number like me.

 

A lot of us do serve voluntarily though, and therein lies what may be a problem. For non- liturgical stuff, weddings, funerals and so forth, I accept the offered fees. These fees are (and have been for many years), declared within my tax return as a self- employed carpenter.

 

Did Bach get it right - taking a tranche of his income in firewood and fish? And will the ghost of the clot who took the Dulciana off my Forster and Andrews, to replace it with a screeching Mixture, please stand up where I can see you and stamp you back into the ground.

 

With thanks to you all for being one of the most fascinating places on the net, I return now to comfortable obscurity.

 

Chris Baker

 

 

Hi Chris,

 

Barry is the acknowledged expert on all this stuff but I do not think you need to lose too much sleep over "problems down the road". While there are obvious practical relationships between employment status and tax liability, the basic rule of thumb is that your employment status is not the thing that determines your tax liability but the size of your taxable income! If the law makes income liable to tax, then it makes no difference to the basic need to pay what you owe whether you derived the income from paid employment or as a self employed person. Of course when and how you have to pay, what allowances you can claim etc etc do differ which is why the self -employed usually have accountants.

 

Employees have "employment rights" derived from a variety of statutes eg the right not to be unfairly dismissed which the self-employed do not have (though they can always sue for breach of the contract under which their services were provided).

 

Most health, safety and welfare type provisions are made to apply to "anyone employed or working on the premises...." so that they apply irrespective of whether a person is an employee or a self-employed contractor.

 

My understanding is that you cannot avoid your tax liability by taking benefits in kind though HMRC will want the financial value of their share of the firewood rather than a percentage of the sticks !!

 

At the end of the day income tax is normally meant to be levied on the taxable income you actually have (or in cases where measures to combat tax avoidance schemes are in play are to be treated as having - is this really likely to apply to you ?) and you are not usually expected to pay tax on income you have not (and never will) receive.

 

I would agree with you about the Dulciana. Hope you find the culprit.

 

Brian Childs

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Guest Barry Williams

Thank you Brian.

 

One of the common problems is that HMRC do not know someone is self-employed and therefore are unaware of the need to send out a tax return form every year.

 

If you do start to receive taxable income, please, do contact your tax office and give them written notice of the fact. This is most important. Not surprisingly, there are penalties for failing to notify that one has a new source of taxable income. The style of HMRC is very 'user friendly' and you will be treated as a welcome customer.

 

Barry Williams

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Barry and Brian, thank you for your replies.

Overall I am fairly untroubled by matters financial relating to my church work. I have always maintained a good relationship with Her Majesty's lucre-looters, and my latest return scooted through fairly sweetly.

 

I am interested though that my parish might be required to regard me as employed from a legal point of view, albeit without the inconvenience of financial consideration. I intend however to waste no sleeping time over it. I will though send off directly for a copy of your book Barry.

( and it had better be a good read - otherwise there's a wobble on my organ bench that needs wedging :( )

 

Thanks again,

Chris Baker

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And will the ghost of the clot who took the Dulciana off my Forster and Andrews, to replace it with a screeching Mixture, please stand up where I can see you and stamp you back into the ground.

 

With thanks to you all for being one of the most fascinating places on the net, I return now to comfortable obscurity.

 

Chris Baker

 

I play an unaltered 1891 Forster and Andrews most weeks, complete with Dulciana! You are most welcome to come and play it anytime, to see (hear) what you are missing! :)

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I play an unaltered 1891 Forster and Andrews most weeks, complete with Dulciana! You are most welcome to come and play it anytime, to see (hear) what you are missing! :D

 

My eyesight seems to have suddenly deteriorated - I think you are inviting me to come and take the Dulciana from your instrument and pop it into mine. A very generous gesture indeed and I'll be round there directly with newspapers and bubblewrap . ;)

 

It looks as if your F&A was planted about five years after mine (npor N12175). I don't understand why H & H supported the tonal modification, or more to the point why the DOA agreed it. When you look at the rest of the spec., the last thing it needed was more 'on top'. AND it's got no strings. Fortunately the OpenD on the swell is a bit narrow and rattly, so with the sub coupler I can get a semblance of atmospheric disturbance effect. But it's mostly in my head.

 

I just can't understand why I enjoy playing it so much. :)

 

Onwards and ........one way or another

regards,

 

Chris Baker

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This case - and Organist Publications - is featured in the Lunchtime O'Boulez column in this week's edition of Private Eye, not, I'm afraid, very flatteringly.

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Guest Barry Williams
This case - and Organist Publications - is featured in the Lunchtime O'Boulez column in this week's edition of Private Eye, not, I'm afraid, very flatteringly.

 

 

It was an excellent account. We were delighted with the coverage.

 

Barry Williams

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The last paragraph of said item was the most worrying piece really.

 

(Interesting how many on here subscribe to private eye.)

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Guest Barry Williams
The last paragraph of said item was the most worrying piece really.

 

(Interesting how many on here subscribe to private eye.)

 

The passage in question referred to applause because the pipe organ was not working.

 

I noticed that the quote referred to the 'audience' rather than the 'congregation' . It has the regrettable tone of the bishop (thankfully now retired, but then the principal of a theological college,) who, when the ASB came in, encouraged his students to hold a funeral service for the Book of Common Prayer. It shows a total lack of respect for others. Genuine criticism is always acceptable. Mocking is not.

 

Happily, the vast majority of the clergy treat their organists extremely well. As in all legal matters, including divorces, the bad cases hit the headlines.

 

Barry Williams

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