EAT Contract of Employment : Whether Established – PRACTICE AND PROCEDURE – The Claimant was a relief Registrar of Births, Deaths and Marriages, who worked for Somerset County Council. He did so under arrangements which imposed on him no obligation to accept work if offered, nor on the council to offer any. The Employment Judge found that the control necessary to define any contract as being one of employment was lacking. However, the Claimant gave evidence that he had worked during each of the last 52 weeks of his employment save 3, for which he said he had had notified the Council he was taking annual leave. When he claimed he had been unfairly dismissed, the Employment Tribunal determined employment status as a preliminary issue, and concluded that because of a lack of mutuality and absence of control he was not an employee, and that it was therefore unnecessary to consider the impact of the continuity of employment provisions in the ERA 1996. He appealed on the ground that a statutory provision required anyone functioning as a registrar to be an employee; and that in any event the Employment Judge should have considered the effect of s.212(3) ERA (continuity of employment, accepting annual leave as a custom or arrangement within (c)). The statutory argument was rejected on a proper interpretation and application of the relevant provisions, and the ‘continuity’ point because there had been no appeal against the findings of an absence of mutuality and (more importantly) control (rejecting an application to amend, applying Khudados v Leggate). A further ground, that the Employment Judge should have heard the Claimant orally before determining to reject his application to strike out the Respondents’ Answer, was rejected. Though it would have been advisable for the Employment Judge to have done so, it was not obligatory and the prejudice on which the Claimant relied could have been the subject of an application by him to adjourn the hearing, which he did not make.
Langstaff P J
[2014] UKEAT 0121 – 14 – 1607
Bailii
England and Wales
Employment
Updated: 21 December 2021; Ref: scu.536694