1) LINCOLNSHIRE COUNTY COUNCIL 2) REGISTRAR GENERAL (BIRTHS MARRIAGES & DEATHS) v MRS S HOPPER [2002] UKEAT 819_01_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 819_01_2405Case No Appeal No. EAT/819/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) LINCOLNSHIRE COUNTY COUNCIL 2) REGISTRAR GENERAL (BIRTHS MARRIAGES & DEATHS)APPELLANTMRS S HOPPERRESPONDENT
Before
Mr Justice Wall Miss C Holroyd Mrs M T ProsserDate 24 May 2002
[1]APPEARANCES For the Appellants MR A CHOUDHURY (of Counsel) Instructed by: Lincolnshire County Council Chief Solicitors Office PO Box 152 County Offices Newland Lincoln LN1 1YP MR C SHELDON (of Counsel) Instructed by: Dept of Health Office of the Solicitor New Court 48 Carey Street London WC2A 2LS For the Respondent MR C BOURNE (of Counsel) Instructed by: Messrs Chattertons Solicitors Horncastle Lincolnshire LN9 6DS MR JUSTICE WALL This is an appeal by the Lincolnshire County Council (the Appellant) against the Reserved Decision of the Employment Tribunal sitting at Lincoln on 12 March 2001 and at Nottingham on 30 March 2001, and promulgated on 17 May 2001. The Decision was that Mrs Susan Hopper, the Applicant before the Tribunal was the employee of the Appellant.[2]The appeal raises a point of general importance. Mrs Hopper was a Registrar of Births, Marriages and Deaths. On 29 November 2000 she issued a form IT1 claiming unfair dismissal against the Appellant which she identified as her employer. Her case was that she had been constructively dismissed consequent upon what she alleged was a fundamental breach of her contract of employment.[3]In its Notice of Appearance, the Appellant took the point that it was not Mrs Hopper's employer for the purposes of this application, and argued that, as a consequence, the Tribunal did not have jurisdiction to entertain her claim. Its argument was that Registration staff are not local authority employees, but holders of office under the Crown. It argued that the provisions of the Registration Service Act 1953 in particular made it clear that such officers were subject to the oversight of the Registrar General. The Appellant acknowledged that whilst it had a statutory responsibility "to appoint and effect the provision" of Registrars, it did not have the power to dismiss them. That power rested in the Registrar General alone.[4]The consequence of the Appellant's argument, if correct, is that Registrars of Births, Marriages and Deaths, (along with other substantial groups of persons such as Justices' Clerks) are prohibited from making applications under the Employment Rights Act 1996 to Employment Tribunals for relief. In the instant case, of course, the Tribunal found that Mrs Hopper was the Appellant's employee. Other Tribunals however, as this judgment will demonstrate, have held to the contrary. This is, we were told, the first time that the point had reached the Employment Appeal Tribunal.[5]For the reasons which we will set out in some detail, we have been reluctantly driven to the conclusion that the Appellant's argument in the instant case must be upheld, and that as a matter of law, Mrs Hopper is not the Appellant's employee. She is, accordingly, unable to invoke the jurisdiction of the Employment Tribunal to adjudicate upon her claim for unfair dismissal.[6]We are of the view that this state of affairs is highly unsatisfactory. As this judgment will, we think, make clear, Mrs Hopper was, to all intents and purposes, the employee of the Appellant. It appointed her. It fixed her rate of remuneration. It determined her hours of work, and the general terms and conditions of her employment, including her leave entitlement. The post was pensionable under the Local Government Pension Scheme. The Appellant provided a code of conduct and a grievance procedure. The only thing it could not do was to dismiss her.[7]As we understand it, the historical reason for granting the status of "office holder" to a person in Mrs Hopper's position was to ensure that the office holder is free from improper pressure or influence in relation to the exercise of his or her statutory duties. However, nobody is suggesting in this case that there was any interference in the manner in which Mrs Hopper conducted civil marriage ceremonies or registered births or deaths. The dispute in this case relates to the terms and conditions of her employment.[8]In January 2002, the Government published a White Paper entitled " Civil Registration: Vital Change - Birth, Marriage and Death Registration in the Twenty First Century." (CM 5355). In paragraph 9.11 of the White Paper, the following statement is made:
"The current statutory office status of registration officers means they do not have an employer. The employer's normal responsibilities are split between the local authority and the Registrar General which is an anachronism."
And paragraph 9.13 of the Government White Paper begins with the following sentence:
"The Government believes that making local person to person registration services a duty of existing local authorities and making registration officers local authority officers provides the best option from which the service can evolve."
[9]It is, of course, no part of our function to comment upon the organisation of the Registration Service. However, we entirely agree with the proposition that the present system whereby Registration Officers are not employees and thus unable to invoke the provisions of the Employment Rights Act 1996 is anachronistic. We would go further. In our view, the current system perpetrates an injustice. It is, we think, unacceptable in the twenty first century that a person in Mrs Hopper's position should be denied access to an Employment Tribunal for the determination of her allegation that she had been unfairly dismissed.[10]In the instant case, the Registrar General of Births, Marriages and Deaths was given permission to intervene in the proceedings, and appeared by counsel, Mr Clive Sheldon, for whose clear and frank submissions we are grateful. Mr. Sheldon readily acknowledged both the anomaly and the potential injustice of the present position He submitted, however, that Mrs Hopper was not entirely without remedy since any decision by a public authority (the Appellant or the Registrar General) relating to her employment which she considered unlawful could be the subject of judicial review. We were not impressed with this argument. Judicial review is the process whereby, on well-known but restricted grounds, the courts review the lawfulness of decisions, actions or failures to act by public bodies in relation to the exercise of their public functions. In our view, judicial review is quite inapt to deal with individual employment issues arising out of what are, essentially, contracts of employment. This is particularly the case where, as here, Mrs. Hopper's case relies on a course of conduct - a series of decisions - which, in Mrs Hopper's view, resulted in a fundamental breach of contract.[11]We accept Mr. Sheldon's argument that reform in this area of the law was a matter for Parliament, not for this Tribunal or the courts. However, in allowing this appeal, as we must, we express the hope that the Government will act swiftly on the views which we have identified in the White Paper. To that end we propose to send a copy of this judgment to the Minister for the Office for National Statistics. The facts[12]We now turn to explain how we reach the conclusion that Mrs Hopper is not an employee of the Appellant. We propose to set out the facts in some detail, since in our view they both demonstrate the artificiality of the concept that Mrs Hopper is not employed by the Appellant and explain why, in our view, Mrs Hopper was led to believe that she was indeed the Appellant's employee.[13]As the Tribunal found, Mrs Hopper was offered an appointment as Deputy Registrar in the Horncastle office on 20 October 1997. The letter offering her employment was signed by Mrs Francis for the Proper Officer for Registration in Lincolnshire. The letter was written on the Appellant's notepaper and the post was offered on specific terms and conditions.[14]It is common ground that as a Deputy Registrar Mrs Hopper was indeed employed by the local authority. The Tribunal, in its extended reasons, set out in considerable detail the terms and conditions of Mrs Hopper's employment as a Deputy Registrar. We do not feel it necessary for us to do the same. What, however, is striking is that when on 1 January 2000 Mrs Hopper was appointed to the post of Registrar, and ceased to be a Deputy, the documentation which was sent to her was very similar to that which she had received on her appointment to the post of Deputy Registrar. The letter of offer was written on the Appellant's notepaper, and signed for the Proper Officer for Registration in Lincolnshire. As we stated in paragraph 6, the employment was subject to the Scheme of Conditions of Service as recommended from time to time by the National Joint Council for Local Authorities' Administrative, Professional, Technical and Clerical Services, as adopted by the Appellant. It was also subject to the Local Scheme of Conditions of Service. The appointment was superannuable, under the Local Government Superannuation Scheme. Details of salary, hours of work, annual leave, sickness payment, disciplinary and grievance procedure were all given. Under the heading "Termination of Employment". Mrs Hopper was told:
"Conditions of service relating to termination of employment, including the notice period that you and the County Council are required to give, are detailed in the local Scheme. Otherwise your appointment will terminate on the day preceding your 65 th birthday."
Mrs Hopper was also told that she wish to resign her appointment she should do so in writing to the Proper Officer, Lincolnshire County Council, Social Services Department.[15]Paragraph 10, relating to the membership of a trade union, began with the phrase:
"This Authority, as your employer, supports the system of collective bargaining in every way ……"
Under the heading "Continuous Service", Mrs Hopper was told that:
"Lincolnshire County Council recognises continuous service with it and its predecessor authorities for the purpose of your continuous period of employment in accordance with the provisions of the Employment Protection (Consolidation) Act 1978."
[16]It is true, as Mr Sheldon pointed out, that Mrs Hopper's duties and responsibilities were stated in the letter of offer to be in accordance with the instructions of the Handbook for Registration Officers and the Lincolnshire Registration Scheme 1987, a copy of which she was sent. It is the case also that tucked away within that document (the final sentence of paragraph 28) is this sentence:- "Principal registration officers do not themselves come within the definition of "employee" and there is no obligation under the Act to provide them with statements of their conditions of service." Paragraph 32 of the same document states that:
"Any principal or deputy officer may be dismissed at any time by the Registrar General if he wilfully fails to carry out any instruction of the Registrar General relating to his duties, or if his services or conduct are in any other way unsatisfactory."
[17]It follows, however, from what we have set out above that the language of Mrs Hopper's appointment is very largely the language of employment as a local authority officer, and we have no difficulty in accepting that Mrs Hopper believed herself to be an employee of the local authority. The Law[18]Why is she not such an employee? Mr Sheldon's argument was very simple, and stripped of any embellishment boiled down to one proposition. Mrs. Hopper held office "during the pleasure of the Registrar General" pursuant to section 6(4) of the Registration Service Act 1953 . It followed that only the Registrar General could remove her from office. The Appellant could not do so, nor could anybody else. If the Appellant could not dismiss Mrs Hopper, it could not be said to be her employer.[19]Mr. Sheldon helpfully took us through the legislation, the relevant portions of which, for convenience we will set out in one block. The Marriage Act 1949, the Registration Service Act 1953 , the Births and Deaths Registration Act 1953. provided, he submitted, a legislative framework for the registration service. His argument started with sections 5, 6, 8 and 13 of the Registration Service Act 1953 , which are in the following terms: - "5 Districts and sub-districts(1) For the purposes of the Registration Acts, in every non-metropolitan county and metropolitan district there shall be one or more districts and in every district there shall be one or more sub-districts.(2) Without prejudice to any provision of the local scheme as to additional officers, for each district there shall be a superintendent registrar of births, deaths and marriages, and for each sub-district there shall be a registrar of births and deaths, and any registrar of births and deaths upon whom the functions of a registrar of marriages are conferred by the local scheme shall also be deemed to be a registrar of marriages within the district for the purposes of the Marriage Act 1949. 6. Superintendent registrars and registrars of births and deaths (1) Every superintendent registrar and every registrar of births and deaths shall be appointed by the council of the [non-metropolitan district] in which his district or sub-district is situated …. (2) No person shall be appointed as superintendent registrar or as registrar of births and deaths unless he is qualified in accordance with the prescribed conditions.(3) Every superintendent registrar and every registrar of births and deaths shall be a salaried officer paid by the council of the [non-metropolitan county or metropolitan district] in which his district or sub-district is situated and shall - (a) at such times and in such manner as may be prescribed account to the Registrar General for all fees received by or payable to him in respect of the execution of his duties under the Registration Acts; and (b) upon the direction of the Registrar General pay to the council aforesaid such sum as the Registrar General may certify to be due to the council in respect of those fees.(4) Every superintendent registrar and every registrar of births and deaths shall hold office during the pleasure of the Registrar General. 8. Deputy superintendent registrars and registrars (1) Subject to the provisions of the local scheme, every superintendent registrar and every registrar of births and deaths shall, and any registrar of marriages may, from time to time by writing under his hand appoint, subject to the approval of the Registrar General, one or more fit persons to act as his deputy in the case of his illness or unavoidable absence or in any prescribed case, and any person so appointed shall while so acting have all the powers and duties of a superintendent registrar or, as the case may be, a registrar of births and deaths or a registrar of marriages. (2) Subject as aforesaid, a superintendent registrar or registrar shall be civilly responsible for any act or omission of his deputy, who shall hold office during the pleasure of the officer by whom he was appointed but be removable by the Registrar General. 13 Local Schemes of organisation (1) There shall be in force for each [non-metropolitan county and metropolitan district] a scheme or schemes (in this Act referred to as "the local scheme") prepared and made in accordance with the next following section. (2) Provision shall be made by the local scheme for - (e) fixing, subject to such power of revision as may be provided by the scheme, the salary and other remuneration, if any, to be provided by the scheme, the salary and other remuneration if any, to be attached to each office, and the allowances if any to be paid for travelling, for the provision of office accommodation and for other expenses; (f) fixing, subject to such power of revision as may be provided by the scheme, the conditions on which an office is to be held, so, however, that nothing in the scheme shall affect the power of the Registrar General to remove from office an officer in any case in which the Registrar General is satisfied that the officer has been guilty of the serious default in the performance of the duties imposed on him by the Registration Acts or any regulations made hereunder …. (h) conferring on the [proper office] powers with respect to - (i) the fixing of hours of attendance of officers; (ii) the distribution of business between officers; (iii) the transfer of superintendent registrars and registrars of births and deaths within or between districts."[20]Mr Sheldon submitted that the effect of these provisions was as follows. Superintendent Registrars and Registrars were appointed by the appropriate local authority (the Appellant in this case (section 6(1)). They were paid by the Appellant (section 6(3)). However, and of the most critical importance, they hold office "during the pleasure of the Registrar General" (section 6(4)). In other words, only the Registrar General had the power to remove an officer from office.[21]Superintendent Registrars and Registrars can appoint Deputy Registrars subject to the Registrar General's approval (Section 8(1)), and such deputies hold office during the pleasure of the officer that appointed them (section 8(2)). Deputies, however, are at all time removable by the Registrar General (ibid). This, Mr. Sheldon submitted, is in sharp contrast to the position of Registrars who can only be removed by the Registrar General.[22]Mr Sheldon next submitted that local schemes determine salary and remuneration and the conditions on which an office is to be held (section 13) and the Council's Proper Officer has the power to determine the hours of work, the distribution of duties and the place of work. However, the Registrar General at all times retains the power to remove an officer from office. The Tribunal's Reasoning[23]This is set out in paragraphs 9 - 12 of the Extended Reasons:
"9 The Tribunal decided the applicant became an employee of the Respondent when she accepted the offer of appointment of deputy registrar. The 1953 Act made it clear that deputies held office during the pleasure of the officer by whom he was appointed. Paragraph 16 of the Handbook demonstrated the Registrar General's opinion that deputies are employed by councils. Paragraph 28 set out advice on the supply of a statement of terms and conditions of employment. By virtue of paragraph 34 the principal officer must dismiss a deputy whose designation has been withdrawn. Section 13(2)(b) of the 1953 Act provided for the local scheme to give the proper officer general powers of supervision and Article 14(1)(b) of the local scheme emphasised the role of the Proper Officer. The applicant was paid a salary fixed in accordance with the national scheme. She was accountable to the proper officer who exercised close control such as hours and place of work. All these factors pointed to the existence of a contract of employment. 10 The Tribunal then considered the effect of the applicant's appointment to the post of registrar. Again in Johnson v Ryan [2000] ICR 236 at paragraph 22 Morison J said:- "
It has been the approach of the appeal courts in recent years that an inclusive and purposive approach should be adopted in relation to employee protection." The Tribunal decided that there was nothing in the 1953 Act which precluded the possibility of a registrar being an employee. Section 13(2)(f) of the Act expressly provided for a local scheme to fix conditions on which an office is to be held subject to the proviso that the Registrar General's power to remove the officer from office is unaffected. Under the local scheme the respondent has power to discipline and to dismiss. Although it may choose not to exercise those powers in relation to a registrar, that does not mean that the powers do exist. The Tribunal was able to envisage situations where the respondent might dismiss a registrar who continued to hold the office notwithstanding the dismissal. In such situations the registrar would continue to hold the office "during the pleasure of the Registrar General" and the principle enshrined in Section 6(4) of the 1953 Act would remain intact. 11 The Tribunal decided that the applicant held an office of registrar and was the employee of the respondent. The proper officer exercised a supervisory role over the applicant in relation to the performance of her duties. He had the power to dismiss. As when she had been a deputy, she was paid a salary fixed in accordance with the National Scheme. The Tribunal accepted the applicant's evidence that she regarded the respondent as her employer. The respondent did nothing to disabuse the applicant of that belief. The Tribunal considered that it would be most unfair for the applicant to lose her statutory protection as an employee when appointed to the post of registrar. As in Johnson v Ryan the contract which the applicant signed as registrar was in similar terms to those she had signed as deputy registrar. 12 Accordingly, the Tribunal decided that the applicant was an employee of the respondent and ordered that the matter be listed for a hearing."[24]As we have already made clear, it is common ground that as a Deputy Registrar, Mrs Hopper was employed by the local authority. The Tribunal clearly found, however, that in her capacity as Registrar she was an employee of the Appellant, and that whilst the Appellant might not choose to exercise its powers to dismiss Mrs Hopper, that did not mean that the powers themselves did not exist.[25]Mr Sheldon submitted that this conclusion was plainly wrong in law. His primary submission was that it was an essential ingredient of the concept of a contract of employment that the employer had the power to dismiss. Proceedings for unfair dismissal could not be brought before an Employment Tribunal unless there had been a dismissal by an employer with the power to dismiss. Since Mrs Hopper's office was the creature of statute and since, by statute, she held that office during the pleasure of the Registrar General, the Appellant simply had no power to dismiss.[26]Mr Sheldon sought support for his argument from the Redundancy Payments (Office Holder) Regulations 1965 which deem Registration Officers to be "employees" of the local authority for the purposes of redundancy. He argued that if Registrars were employees, this provision would not be necessary. In addition, the Local Government Pension Scheme Regulations 1997 also treat a Registration Officer as being in employment with the local authority who made the scheme for the district in which he acts. Once again, Mr Sheldon argued there would be no need for these deeming provisions if the Registration Officer was otherwise an employee for the purposes of the various schemes. Case Law[27]In relation to case law, Mr Sheldon referred us firstly to Miles -v- Wakefield Metropolitan Council [1985] 1 WLR 822 (CA) and [1987] 1 AC 539 (HL) . Mr Miles was a Superintendent Registrar of Births, Deaths and Marriages appointed by the local authority under section 6 of Registration Services Act 1953 . The local authority was responsible for paying his salary. During the summer of 1981, Mr Miles' trade union instructed all Superintendent Registrars to take industrial action. This involved Mr. Miles, with effect from May 1981, refusing to accept any fresh bookings for weddings on Saturday morning. Furthermore, after the August bookings had been completed, Mr Miles refused to conduct any Saturday morning weddings, although he attended his office and worked normally on matters unconnected with the celebration of marriages. The local authority warned Mr Miles that they intended to make appropriate deductions from his salary unless he resumed conducting weddings on Saturday mornings. The industrial action continued until October 1982, when the dispute was settled. A deduction of three thirty sevenths was made by the local authority from Mr Miles' pay, the denominator being the total number of hours worked per week and the numerator being the three hours appertaining to Saturday mornings, which, for the whole period, totalled £774.[28]Mr Miles sued the local authority for the sum of £774. At first instance, the judge dismissed his claim, holding that Mr Miles' failure to fulfil his statutory duty entitled the local authority to make the deduction of three thirty sevenths on the basis that he was to be assimilated with local government officials, and only entitled to be paid for work done.[29]By a majority, the Court of Appeal reversed the judge's decision taking the view that under the provision of the Registration Services Act 1953 Mr Miles was appointed as a salaried holder of an office by the local authority who, although it was not his employer and did not have any contractual relationship with him, was under a statutory obligation to pay his salary whilst he remained in that office. The majority held that the holder of such an office was not liable to have any part of his salary withheld for being in breach of his statutory obligations, the only remedy for any such breaches being dismissal from office by the Registrar General. Accordingly, notwithstanding admitted breaches by Mr Miles of his statutory obligation, the local authority had acted unlawfully in making the deduction.[30]In the Court of Appeal, there are various statements by the majority in favour of the proposition that a Registrar is an office holder not an employee. Parker LJ, having reviewed the statutory provisions, stated that they appeared to him to point strongly to the conclusion that all officers in the Registration Service are statutory office holders, and are not in contractual relationship with the relevant council. Parker LJ regarded the contrary as unarguable:- see [1985] 1 WLR F829. Fox LJ was of the same opinion:- at [1985] 1 WLR 833 he said:- "In my opinion, a superintendent registrar is the holder of an office and is not employed by the local authority. It is true that the local authority will, normally, appoint him and will pay him and will provide the premises in which he works. But he holds office not at the will of the local authority but of the Registrar General. Further, his duties may be prescribed by the Registrar General with the consent of the minister. He has the power, with the consent of the Registrar General, of appointing provisional registrars of marriage who hold office during the pleasure but removable by the Registrar General: and the position as to the appointment of deputy superintendent registrars is similar. All these provisions seem to me to point against the degree of control one would expect to belong to the local authority if a master and servant relationship existed. I do not think that the relationship of a superintendent registrar with the local authority is contractual at all. It seems to me that the superintendent registrars are part of a national service, at the head of which is a person quite independent of the local authorities and that, although the service has in some respects a close contact with the local authorities, it is designedly kept at a distance from them in other, and important, respects. In general, I think that the respective obligations of the local authority and the superintendent registrar are wholly statutory in their origin and they can be given full effect to without imputing any contractual basis at all. I do not find assistance in the fact that the statute provides that the registrar shall be a "salaried officer". I think that is merely a formal recognition of the fact that superintendent registrars under the Act are not remunerated out of fees as were their statutory predecessors."[31]The decision of the Court of Appeal was reversed in the House of Lords. The House held that although Mr Miles was not a servant of the local authority under a contract of employment but the holder of an office, his position was similar to that of an employee and for the purposes of the appeal there was no logical distinction between them. Mr Miles' salary was not an honorarium for the mere tenure of an office, and his right to remuneration depended on his doing or being willing to do the work that he was employed to do. If he declined to do it, the employer need not pay him. Accordingly the local authority had been entitled to deduct the sums in question from his salary. In other words, the relationship between Mr Miles and the local authority was treated as being analogous to that of an employee employed by the local authority under a contract of service.[32]Whilst the House of Lords did not dissent from the view of the Court of Appeal that a Superintendent Registrar was an office holder and not an employee, Lord Oliver of Aylmerton raised the possibility of a contract of employment existing parallel with the status of office holder. He said [1987] 1 AC 567:- "I question whether the mere fact that the plaintiff was appointed to his office under the provisions of the Act of 1953 necessarily precludes the existence of a parallel contract between him and the council for the carrying out of his statutory duties, it has been accepted for the purposes of the present appeal that no contractual nexus exists between him and the council. Nevertheless, the nature of his remuneration and the terms of his tenure of office are so closely analogous to those of a contract of employment that any claim by him to salary payable pursuant to the statutory provisions and the local scheme made hereunder ought, in my judgment, to be approached in the same way as a claim to salary or wages under such a contract. The relationship between the council and the plaintiff has all the incidents which one would expect from a contract of employment save that the power of dismissal is vested in the Registrar General and not in the appointing authority which has the responsibility for paying the plaintiff, providing him with premises, and regulating his hours of work."[33]Mr Sheldon also referred us to a series of cases in Employment Tribunals in which Registrars have been held not to be employees:- see Morgan, Langham, Bruce -v-(1) City of Newcastle upon Tyne(2) the Registrar General (Industrial Tribunal held at Newcastle and decision promulgated on 24 March 1998): St John -v- (1) London Borough of Hackney; (2) Registrar General , a decision of the Employment Tribunal held at Stratford and promulgated on 20 December 2000: Phillips -v- (1) Liverpool City Council; (2) the Registrar General , a decision of the Liverpool Employment Tribunal, promulgated on 4 April 2002. The latter decision includes an examination of a number of European authorities and Article 6 of the European Convention on Human Rights.[34]Finally, Mr. Sheldon referred us to the decision of the Employment Appeal Tribunal in Johnson -v- Ryan [2000] ICR 236 . This case concerned a rent officer, who brought a complaint of unfair dismissal against the Chief Rent Officer, the Local Authority and the Secretary of State. An Industrial Tribunal, on a preliminary issue as to jurisdiction, dismissed the complaint on the ground that a rent officer was an office holder appointed under section 63 of the Rent Act 1977 , and as such was not an employee employed under a contract of employment as defined in section 230(2) of the Employment Rights Act 1996.[35]The Employment Appeal Tribunal allowed the applicant's appeal holding that some office holders were also employees and that, in determining whether an office holder was an employee, the factual circumstances were relevant. In particular, important factors were whether or not there was a payment of salary and whether it was fixed; whether the workers' duties were subject to close control by the employer or whether the worker worked independently. The provisions of section 63 of the Rent Act 1977 Act, the EAT found, did not exclude the possibility of a rent officer being also an employee and accordingly, adopting a purposive approach in relation to the protection of employees, and holding that it would be inequitable for the applicant to lose the statutory protection to which she had been entitled in her previous positions with the local authority, the EAT found, on the facts, that she was both an office holder and an employee.[36]Giving the judgment of the EAT, Morison J at [2000] ICR 242 (paragraphs 22 and 23) said: - "22 It has been the approach of the appeal courts in recent years that an inclusive and purposive approach should be adopted in relation to employee protection. We do not consider that the presence of the statutory provisions exclude the possibility of a rent officer being both an office holder and an employee. We accept Mr McMullen's submission that the deeming provisions would act as an interpretative tool in the absence of any statutory or contractual statement to the contrary and should not be construed in a manner which would give rise to injustice. As there is no clear authority on this point any doubt should be resolved in the applicant's favour as the Employment Rights Act 1996 is protective legislation and, as we have said, it is to be construed in a wide, inclusive fashion. We therefore consider that it would be a most inequitable position for the applicant to lose the statutory protection to which she was entitled when she was a clerical assistant and a property reference/administrative officer, when she was promoted to rent officer. The unfairness would be compounded given the fact that the applicant signed a contract as a rent officer which was in similar terms to those she had previously signed. On the facts of this particular case we consider that the tribunal in this case erred in law in holding that the applicant was an office holder only and not entitled to bring a claim of unfair dismissal. The question that the tribunal should have asked itself was whether she was an employee, on the basis that she was also an office holder. It was an error to concentrate solely on whether the applicant was an office holder. On the basis of the facts, she was in the position of being both an office holder and an employee of the local authority. 23. We accept that the applicant was an employee and her employer was the local authority for the following reasons. The local authority was a party to the contractual documents signed by the applicant, upon which we find that she was an employee. The local authority's proper officer had the power to dismiss or suspend, and performed a supervisory role in relation to, rent officers. The local authority was also responsible for remuneration and the provision of accommodation and clerical assistance."[37]Mr Sheldon initially sought to distinguish Johnson -v- Ryan from the facts of the instant case on the basis that in the former, the local authority had the power to dismiss the Rent Officer. On closer examination, however, it appears that the power to dismiss contained within section 63 of the Rent Act 1977 provided that the local scheme: "shall prohibit the dismissal of a rent officer …… except by the proper officer of the local authority on the direction, with the consent, of the Secretary of State".[38]On the basis that the EAT was in error in Johnson -v- Ryan in thinking that the local authority's proper officer had an unqualified power to dismiss the rent officer, Mr Sheldon submitted that Johnson -v- Ryan was wrongly decided. The Proper Officer's power to dismiss was dependent upon either a direction from the Secretary of State or the latter's consent.[39]In any event, Mr Sheldon submitted, the power to dismiss simply did not exist in the present case. That, he said, was the crucial point. There simply could not be a contract of employment which did not contain a power of dismissal.[40]Mr Choudhury, for the Appellant, not surprisingly supported and adopted Mr Sheldon's submissions. He sought to explain the similarity between the documentation sent to Mrs Hopper on the occasion of her appointment as Deputy Registrar and later as Registrar by reference to the Appellant's computer which, he said, produced similar documentation for each appointment. We were singularly unimpressed with this argument. The computer is the servant of its operator, not its master and if nothing else, we hope that the process of this litigation will result in the Appellant revising the documentation which it sends to Registrars on appointment, so that until such time as the law is changed, all those appointed as Registrars are clearly informed that they are office holders and have no rights to invoke the jurisdiction of the Employment Tribunal under the Employment Rights Act 1996 .[41]Against the barrage of argument and authority, Mr Colin Bourne for Mrs Hopper, strove manfully to uphold the Tribunal's decision. Not surprisingly, Mr Bourne relied on the dicta of Lord Oliver of Aylmerton in Miles -v- Wakefield Metropolitan District Council , and on the decision of the Employment Appeal Tribunal in Johnson -v- Ryan . He also relied on the Tribunal's findings in relation to the factors which pointed to the existence of a contract of employment, including the fact that Mrs Hopper was paid a salary fixed in accordance with a national scheme, and was accountable to the Proper Officer who exercised close control such as hours and place of work. He also relied on the fact that the conditions of service made it clear that Mrs Hopper was subject to the disciplinary procedures adopted by the Appellant for its employees, and that her appointment was subject to terms and conditions imposed by the Appellant. He pointed out that the booklet "Disciplinary Procedures A Guide For Employees" dealt with both disciplinary and dismissal procedures, and argued that Mrs Hopper's promotion from Deputy Registrar to Registrar did not change her status as an employee. He pointed out that the offer of appointment as Registrar was, with minor differences, identical to the terms offered to her when she became a Deputy Registrar. In particular at clause 12 of the offer, the local authority recognised continuous service with it and its predecessor authorities for the purpose of the continuous period of employment in accordance with the provisions of the Employment Protection (Consolidation) Act 1978.[42]Mr Bourne accepted that the Registrar General's submissions provided strong support for the view that a Registrar is an office holder and not an employee. However, his submission was that a contract of employment could exist along side a person's status as an office holder: see Miles -v- Wakefield Metropolitan District Council (supra – per Lord Oliver). Johnson v Ryan was, he submitted, correctly decided, and Morison J's approach in that case should be followed[43]Mr Bourne concluded his written submissions with the powerful argument that if the Appellant and the Registrar General in this case succeed, the consequence would be that Mrs Hopper may be penalised by either of the Appellants in this case for the non performance of her obligations as a Registrar but, at the same time, she would be denied any remedy in respect of any breaches of the obligations towards her of which she complains in her Originating Application. The consequence, Mr Bourne submitted, is that she cannot complain against the local authority despite the local authority's obligation to provide her with the means by which she carries out her statutory function; and she cannot claim against the Registrar General because the Registrar General does not regulate the matters of which she complains. This, he submitted, was plainly unjust.[44]We would very much have liked to be able to accept Mr Bourne's submissions. In our view, they accord with both justice and common sense. However, it seems to us that the arguments all shatter against the unanswerable proposition that Parliament has provided by section 6(4) of the Registration Services Act 1953 that:
"Every Registrar of Births and Deaths shall hold office during the pleasure of the Registrar General."
[45]In our view, this must inevitably mean that the local authority, whilst the paymaster of a Registrar and responsible for most of his or her terms of conditions of employment, is unable to exercise the power to dismiss. That can only be done by the Registrar General. As we indicated earlier in this judgment, we agree with Mr. Sheldon that it must inevitably be a necessary term of any contract of employment that the employer has the right to dismiss the employee. We cannot find anywhere in the documentation before us any provision which empowers the Appellant in this case to dismiss Mrs Hopper. The only power in that regard lies in section 6(4) of the Registration Service Act 1953.[46]We are, of course, bound by the majority decision of the Court of Appeal in Miles -v- Wakefield Metropolitan District Council on this point, supported as it was in the House of Lords. We do not, with respect, think that Lord Oliver's dictum can be elevated into a principle which we can apply in the instant case.[47]We do not think it either appropriate or necessary to take a view one way or the other on whether Johnson -v- Ryan was correctly decided. The reasoning in that case is, in our view, very powerful. On the basis that there was power to dismiss a rent officer, however, the case is plainly distinguishable, and even if the power to dismiss in that case did not exist, we are in the instant case dealing with the categorical terms of section 6(4) of the 1953 Act, which are in quite different terms to those of section 63 of the Rent Act 1977 .[48]Whilst we sympathise with the reasoning of the Employment Tribunal in the instant case, we are unable to agree with the sentences in paragraph 10 which, for ease of reference, we will repeat::
"Under the local scheme the [Appellant] has power to discipline and dismiss. Although it may choose not to exercise those power in relation to a registrar, that does not mean that the powers do not exist. The Tribunal was able to envisage situations where the [Appellant] might dismiss a registrar who continued to hold the office notwithstanding the dismissal. In such situations the registrar would continue to hold the office "during the pleasure of the Registrar General" and the principle enshrined in section 6(4) of the 1953 Act would remain intact."
[49]With great respect to the Tribunal, we regret to say that we think that the first sentence in the extract just quoted is simply wrong, and it follows that the second sentence must also be wrong. Plainly, on any construction of section 6(4) of the Registration Service Act 1953, if a Local Authority purported to "dismiss" a Registrar, that Registrar would continue to hold office unless and until removed from office by the Registrar General. But in this situation the word "dismissed" is clearly inappropriate. A person is not "dismissed" if he or she remains in office. We find ourselves unable to envisage situations in which a local authority "dismissed" a Registrar who continued to hold the office notwithstanding the "dismissal", and the Tribunal does not provide any examples. We are, therefore, unable to accept the Tribunal's reasoning in this extract.[50]It is, accordingly, for all these reasons that we are reluctantly driven to the conclusion that the Employment Tribunal erred in law in this case. It follows that the appeal must be allowed and Mrs Hopper's claim dismissed.