Woods v Somerset County Council

A person engaged for casual work may acquire unfair-dismissal rights either under an umbrella contract or through a succession of individual contracts of employment whose continuity is preserved by statute. Those routes remain distinct. Continuity provisions cannot assist where no individual engagement was a contract of employment.

Whether a registrar is an employee remains governed by the ordinary contractual test. The statutory reforms concerning registration officers did not require every future registrar to be employed by the local authority. On an appeal, a late amendment challenging central factual findings may properly be refused where it causes remediable prejudice requiring an adjournment. A procedural default does not require strike-out unless the Tribunal concludes that a fair hearing is no longer possible.

The claimant was engaged as a relief registration officer by the respondent county council. The arrangements imposed no obligation on the council to offer work or on him to accept it, and permitted substitution by another qualified registrar. He claimed unfair dismissal and detriment for a protected disclosure after the council ceased offering work.

The Employment Tribunal determined his status as a preliminary issue. It found insufficient mutuality and control for a contract of employment, rejected a statutory argument that a registrar had necessarily to be an employee, and refused to strike out the response for breach of case-management directions. It later refused review. The claimant appealed, relying on continuity of employment, the registration legislation, and the handling of his strike-out application.

1. Appeal dismissed. The Tribunal’s unchallenged conclusion was that none of the engagements under which the claimant actually worked was a contract of employment. Although mutual obligations ordinarily arise while work is performed for payment, insufficient contractual control prevented the engagements from being contracts of employment.
2. The two potential routes for a casual worker were distinct. An umbrella contract could connect intermittent work throughout its duration. Alternatively, a succession of individual contracts of employment could satisfy the continuity provisions in Part XIV of the Employment Rights Act 1996. Since the claimant had not established a contract of employment on any occasion, section 212 could not arise. His late application to challenge the findings on mutuality and control was properly refused. It raised a substantial factual and legal challenge after undue delay, and fairness to the respondent would have required an adjournment which the claimant would not accept.
3. The statutory reforms did not make every person performing registrar functions an employee of the local authority. Section 69 of the Statistics and Registration Service Act 2007 transferred specified existing office-holders into local-authority employment. The amendments made by section 70 did not impose that status on future appointees. The ordinary contractual analysis therefore remained applicable.
4. The Employment Judge should have invited oral submissions on the unresolved strike-out application. However, that omission did not establish material prejudice or an error of law. The claimant did not seek an adjournment, which was the proportionate response to his asserted lack of preparation time, and he had a further opportunity to address the matter on review. The refusal to strike out the response therefore stood.

• Employment Appeal Tribunal: appeal dismissed: [2014] UKEAT 0121_14_1607.
• Employment Tribunal, Exeter: Employment Judge Carstairs, on 10 February 2014, held that the claimant was not an employee and refused to strike out the response; review was refused on 28 February 2014.