Lord Jauncey of Tullichettle as Special Commissioner, December 1998
On 22 April 1998, following a disciplinary hearing preceded by a period of suspension, Dr Martin Neary was dismissed as organist and master of the choristers at Westminster Abbey. He petitioned the Queen who appointed Lord Jauncey as her commissioner for the purpose of exercising her visitatorial jurisdiction. With the consent of the parties, Lord Jauncey also acted as arbitrator in a like dispute concerning Dr Neary's wife, Penelope, who had been similarly dismissed from her job as part-time concert secretary. The following matters of law were determined:
(1) that the procedure would be by way of a hearing de novo and not an appeal against the decision to dismiss;
(2) that as between master and servant, it was long settled that there existed a fiduciary relationship of trust and confidence. The employee must act in good faith and not make a profit out of his trust;
(3) that the extent of the duty of fidelity depends on the facts of each case;
(4) that, contrary to the contention of counsel for the Nearys, the character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-a-vis the employer must all be considered in determining the extent of the duty and the seriousness of any breach thereof;
(5) that whether misconduct justifies summary dismissal is a question of fact;
(6) that, again contrary to the contention of counsel for the Nearys, dishonesty or deceit were not necessary preconditions to a finding of such misconduct;
(7) that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.
On the facts. Lord Jauncey found that the setting up of a separate bank account was indicative of a lack of openness on the part of Dr Neary but, as the abbey conceded, did not of itself amount to gross misconduct. He further found that charging 'fixing' fees for the choir's salaried duties 'neither accorded with the prior practice at the abbey nor with the usual practice in similar ecclesiastical institutions'. On the question of notional "fixing' fees, Dr Neary's evidence was considered 'somewhat speculative and unreliable'. Lord Jauncey concluded that Dr and Mrs Neary for some three and a half years ran a business whose principal income earning assets were the lay vicars and the choristers. They derived profits from this business in the shape of fees and surpluses on events involving the choir. They did not tell anybody in the abbey what they were doing. This lack of openness and the deriving of secret profits 'was such as fatally undermined the relationship of trust and confidence which should have subsisted between [the Nearys] and the abbey'. Lord Jauncey was satisfied that the Dean and Chapter were justified in summarily dismissing them and he so reported to Her Majesty.
(1999) 5 Ecc LJ 303