Smith v Avon County Council [1994] UKEAT 748_94_2410

EAT
Smith v Avon County Council
[1994] UKEAT 748_94_2410 · 1994-10-24
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Chairman of the Industrial Tribunal held at Bristol on 5 July 1994. The Chairman, sitting alone, decided that the application brought by Mrs Smith against the Avon County Council should be dismissed. Her application, in the form of an Originating Application presented on 7 May 1994, was for unfair dismissal from her position as Deputy Registrar of Births, Deaths and Marriages. Her complaint related to her dismissal from that position on 12 October 1981 , a position she had held since June 1976. The basis of her complaint so many years after the event was that she now understood that part-time workers enjoyed rights under the employment legislation as a result of the decision given by the House of Lords in March this year in Regina v Department of Employment (ex parte Equal Opportunities Commission . The Chairman noted the point that the application was substantially out of time, referred to the decision mentioned and went on to decide Mrs Smith's application on the basis of a preliminary point as to whether she was an employee entitled to the protection of the Employment Protection (Consolidation) Act 1978 . He stated in paragraph 5 of his decision that he had been referred by the Avon County Council, the Respondents, to various statutory and other authorities in support of the argument that a deputy registrar is an office holder, not an employee. He referred to those statutory provisions. He referred to a decision of the House of Lords in Miles v Wakefield MDC . He appears to have thought, in paragraph 8 of his decision, that one effect of that decision was that a superintendent registrar was not an employee. He could see no distinction between the case of a superintendent registrar and the case of a deputy.Having referred to submissions made by Mr Smith on behalf of his wife to the effect that she was an employee, he concluded in paragraph 11 of the decision that Mrs Smith's position was that of an office holder, not an employee, a position which he thought was established by statute and by authority. He concluded that, if she was an office holder, she was outside the protection of the 1978 Act and therefore there was no jurisdiction to entertain her claim. He reached that conclusion on that basis alone. He did not reach any conclusions on the fact that the application appeared prima facie to be out of time under section 67(2) of the 1978 Act and he decided nothing as to whether Mrs Smith could rely on article 119 of the Treaty of Rome.At this preliminary hearing we have to decide whether or not there is an arguable point of law on the appeal. We have decided that there is because it appears to us, on the material at present available, that the Chairman of the Industrial Tribunal may have wrongly concluded that the case of Miles v Wakefield prevented him from finding that Mrs Smith was an employee. The important point to notice about the decision of the House of Lords in Miles v Wakefield is that, as noted by Lord Oliver in his speech at page 1103H, it was accepted for the purposes of the appeal to the House of Lords in that case that there was no contractual nexus existing between the registrar and the council. But Lord Oliver said this, relevant to Mrs Smith's position:
"I question whether the mere fact that the plaintiff was appointed to his office under the provisions of the 1953 Act necessarily precludes the existence of a parallel contract between him and the council for the carrying out of his statutory duties..."
The position in Miles v Wakefield was that there was a concession that there was no contract. Lord Oliver expressly recognised that, in principle, it was possible for a person both to have an office under an act of Parliament and for there to exist a parallel contract to carry out the statutory duties. The possible error of law made by the Chairman in this case was to think that the holding of an office inevitably precluded the existence of such a parallel contract.We shall therefore allow this appeal to continue to a full hearing. The reason for departing from the normal practice not to give a judgment in allowing an appeal to continue is this; we think that Mrs Smith should give serious consideration to seeking legal assistance for her appeal. The point raised is not an easy point of law. It is one this Tribunal would certainly find it helpful to have legal assistance. We would point out to Mrs Smith that it is possible to apply for legal aid for appeals to this Tribunal. If she were able to show a transcript of this judgment to the Legal Aid Authorities, that might assist her in obtaining legal aid. If, for some reason, she is refused legal aid or is not eligible for it, it is possible to obtain legal assistance through the Free Representation Unit and the details of the address of that can be supplied by this Tribunal to Mr and Mrs Smith. The Free Representation Unit often appears here with Counsel presenting points of law on behalf of Appellants who are unable or unwilling to present the cases themselves.So for these reasons we allow the appeal to continue and would urge Mr and Mrs Smith to seek legal assistance, either through the Legal Aid Fund or through the Free Representation Unit.