1. The appeal takes three points. The first is that the Tribunal failed to consider section 212(3)(c) of the 1996 Act as relevant despite, it is said by the Claimant, having accepted that in general the only reason the Appellant declined work was to take holiday leave. There is, so far as I can see, no actual finding to that effect.

1. Secondly, it was argued that the Judge was wrong to conclude as he did in respect of the effect of the Statistics and Registration Act 2007.

1. Thirdly, it is argued that the Tribunal failed to ensure that the overriding objective was applied when it failed to carry out its own directions. This was a complaint that the Respondent's Answer should have been struck out because of the failure procedurally of the Respondent to agree a bundle in the time required by a case management order of 10 December. I shall say more about this shortly.

1. I shall deal with each of the grounds in turn. The first ground met the response from Mr Dawson, in his Skeleton Argument, as follows, which seems to me to encapsulate the argument:

"The difficulty the Claimant's argument runs into, however, is that a lack of continuity was not the reason that Employment Judge Carstairs found that he was not an employee. The Employment Judge did not base his decision on qualifying service or on a break in the continuity of employment; rather he found that the relationship between the Claimant and the Respondent had neither mutuality of obligation nor sufficient control for it to be a contract of employment."

1. Later, at paragraph 29 of his Skeleton, he observed that the Claimant had not challenged the central plank of the judgment, namely that there was insufficient mutuality of obligation or control for a contract of employment to exist.

1. I read the decision of the Judge in the same way as, plainly, does Mr Dawson, that the Judge was saying that it was unnecessary to consider any question of continuity of employment. The matter simply did not arise. That is because none of the work which the Claimant did was, in his view, work under a contract of employment. That was because, in his view, there was neither mutuality of obligation nor was there a sufficiency of control to make it so. It is a fact that there was no ground of appeal which attacked either of those findings.

1. Prompted by recognition of this and early exchanges during this hearing, the Claimant, who appears in person as he has done throughout, made a written application to amend the appeal. This was by way of addition to the existing grounds. The written application reads as follows:

"(1) The Appellant would wish to amend the appeal to include the Tribunal's failure to fully explore the correct interpretation of 'mutuality of obligation' and 'control'.

(2) The Respondent acted as an employer when the Respondent provided office accommodation, salary and holiday pay. The Respondent also organised the appointments that the Appellant completed on any one day, and the Respondent decided which Registration Officer would attend which wedding ceremony.

(3) The Respondent would ask the EAT to permit this amendment.

(4) Additionally the EAT would recognise there was no option of 'substitution' other than with another qualified Registration Officer."

1. I gave a little time for Mr Woods to formulate those grounds, and in the light of observations made from the Bench, for Mr Dawson to consider the Respondent's position.

1. The application was resisted. Mr Dawson referred me to one of the Employment Appeal Tribunal's familiar authorities, Khudados v Leggate [2005] ICR 1013. At paragraph 86 that sets out the general principles by which an amendment proposed at appeal should be determined. The principal factors to which the Appeal Tribunal drew attention were whether the applicant had made the application as soon as the need for amendment was known. The observation was made that that was of considerable importance:

"The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals",

observing at (b) that an extension of time was an indulgence. Mr Dawson submitted that here the Appellant had been given full notice, ever since the decision was reached by Judge Carstairs, that he reached it based upon the twin pillars of mutuality of obligation and control. Each was therefore in issue. That was plain from the paragraphs I have cited from the Judgment on review. It was made abundantly clear at the very latest 14 days before this hearing in the Skeleton Argument produced by Mr Dawson, the last paragraph of which I have already cited from.

1. Secondly, he said that there had been no acceptable explanation for the delay in making the application. The third factor is the extent to which, if any, a proposed amendment if allowed would cause any delay. In Khudados this is said:

"Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original Notice of Appeal."

1. (d) is whether allowing the amendment would cause prejudice to the opposite party. The observation is made that in some cases it might be necessary to consider the merits of the proposed amendments, (e), and at (f) that regard must be had to the public interest in ensuring that business in the Appeal Tribunal is conducted expeditiously and its resources used efficiently.

1. All of those points remain as valid now as they were in 2005 when the Appeal Tribunal gave voice to them. We would emphasise, in particular, the question of prejudice.

1. Here Mr Dawson complained not only of the fact that the application had been made very much at the last limit and that there had been no good reason for it save the form the argument took this morning, a fact which the Claimant, in effect, recognises by his submission in response that the reason for the delay was the intricacy of the point and he had not fully made himself familiar with it before today.

1. Mr Dawson argued that he had been placed somewhat on the back foot, having assumed, because of the clarity of the point as a reason for the Judge's decision, that it had not been taken and, in particular, in respect of the finding of fact as to control, that there had been no hint that there was any challenge to that by the legal cases to which he had been referred by the Tribunal. He referred, in particular, to [White & Anr v Troutbeck SA ]()[2013] EWCA Civ 1171 and [Dakin v Brighton Marina Residential Management Co Ltd ]()UKEAT/0380/12/SM, a decision of 26 April 2013 (Langstaff J, see paragraphs 32 and 33) to the effect that what is important in dealing with the question of control is not whether control is exercised as a matter of fact but whether as a matter of contractual entitlement the employer has a right to direct the employee and to exercise control in that sense. Following from the classic exposition in Zuijs v Wirth Bros Pty Ltd [1955] 93 CLR 561 and the observations of Dixon J in Humberstone v Northern Timber Mills [1949] 79 CLR 389, which was cited by MacKenna J in the well-known Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, he argued that he would have wished to conduct further research, both into the available factual material but more particularly into the legal authorities, of which there are a considerable number in this area, which may not entirely speak with one voice. He noted that he was at some disadvantage, therefore, albeit able to an extent to respond.

1. I accepted from what he said that fairness would require that he should be entitled to an adjournment if the amendment were to be permitted. When I asked Mr Woods whether he wished there to be an adjournment, he frankly told me that he did not. I indicated that if there were to be one, it would be necessarily at his expense, because of the way in which the amendment had been made late in the day and there had been no reasonable opportunity for the Respondent to prepare for it. This he was not prepared to countenance. I fully understand that position, but it has this consequence, that there is prejudice to the Respondent which can be remedied by an adjournment, but adjournment would itself cause prejudice to the Claimant. I take it very much into account in deciding whether I should in this case exercise my discretion to permit the amendment.

1. As Mr Dawson would, if pushed to the extreme, tend to admit, there are some hints and nudges in the papers that mutuality of obligation might be arguable. It was referred to by Lady Stacey in her comments on the sift, even though it did not become part of any ground of appeal. There is no such reference, however, to control and it is the absence of that that seems to me problematic. I am, and would have been, prepared to hold that it would be painfully obvious that any person providing services for money as a Registrar would during the time they actually provided those services be providing them personally under a contract with the Council in the expectation of reward. There would be, to that limited extent, mutuality of obligation. In this I see entirely eye to eye with that which Elias J expressed in Stephenson.

1. But the issue of control is not so easily resolved. There are substantial grounds, as it seems to me, for not so readily supposing that an office holder, acting in a capacity such as a Registrar, as to which there may be a considerable degree of independence, is subject to direct control in the same way as other employees might be. The obligations in respect of control, if they are not spelled out in the contract, and if there has been no argument as to the features of the contract which lead one to suppose that there is such a right, can only be derived from that which the parties do as indicating that which they had earlier agreed. Here the Judge demonstrated the considerable paucity of such evidence.

1. I have, in the upshot, come to the conclusion that, despite the fact that the Claimant is a litigant in person, the same principles must apply, appropriately modified, as do between those who are professionally represented. A Notice of Appeal is an important document. It focuses the minds of the parties. It is that to which a Respondent – whether professionally represented or not – responds. An amendment may be made to it. But the factors mentioned in paragraph 86 of Khudados apply, in particular time, the nature of the explanation, prejudice, the effect that an adjournment would have if there were to be one upon other business in the courts, and the fact that in this case, it seems to me, Mr Woods is well capable of presenting an argument, even though not a qualified lawyer. He was well equipped to identify that he did not accept (if he did not) that there was the lack of control to which the Judge drew direct attention.

1. For those reasons, I have been persuaded to the conclusion, somewhat against my earlier instincts, to refuse this application for amendment.

1. That done, the decision made by the Judge was that there was no contract of employment on any of the occasions when the Claimant actually worked providing Registrar services. There was no sufficient control to make it a contract of employment even if contract it was. The net result is that there was no possibility here of the continuity of employment provisions becoming relevant. Accordingly I accept Mr Dawson's submissions that ground 1 must be rejected.

1. Ground 2 deals with the effect of the Statistics and Registration Act 2007. I have already expressed my view that the form of the Act was not such as to require that any Registrar, whether temporary, deputy or superintendent must necessarily be an employee of the Council. I see no reason to suppose that the arrangements by which some workers are engaged from time to time under arrangements which are not contractual, but convenient, for them to do such work should not apply to Registrar services as they do elsewhere in the employment world. It was open to the Judge to find that the Claimant was an employee, but critically for this ground of appeal, in my view, he did not have to.

1. The third ground of appeal is essentially procedural. The Judge did not hear submissions, as indeed in effect he recorded in the Judgment, before making a ruling upon that upon which there had been written submissions, namely the question of striking out the response. The Claimant argues that he should have been given an opportunity to put his case to the Judge. He complains, more centrally, as he would see it, that the Judge had an application to strike out the response, which logically he should have dealt with before he considered the question of employment status.

1. That is because, if the Response was struck out, then it would simply be for him, the Claimant, to establish his case, which would be considerably easier. The application to strike out was made on 27 January 2014. It related to an order made on 10 December 2013, part of which provided that a combined set of relevant documents should be agreed and exchanged not less than 14 days before the hearing, with witness statements to be prepared and exchanged not less than seven days before the hearing. The Claimant had sought to honour this Order. He complained about a failure by the Respondent to ensure that the bundle was agreed before 17 January, which was the scheduled date. He had attended the Respondent's offices on 14 January to deliver his documents to be included in the bundle. He had been given only a misleading snapshot of the schedule of the hours which he worked instead of a full schedule, which it was necessary to argue the continuity of employment points which at that stage it was thought would arise. The situation at the time of his application four days before the hearing was that the bundle had been neither completed not exchanged. Witness statements had not had their references to the bundle updated nor had they been exchanged. As he put it:

"The Claimant is left with no bundle, no Respondent witness statements and no time to properly prepare for the hearing."

1. He asked, therefore, that the Response be struck out. He complains before me that, when he got the bundle, which was in fact four days before the hearing, it contained some 39 additional pages of material. It contained a number of e-mails, which were he thought selectively chosen so as to demonstrate the Respondent's points, without giving him the opportunity to see what material the Respondents had which might support his case, particularly as to control and mutuality of obligation.

1. These matters, he argued, should have been dealt with before the hearing began, but virtually as soon as he came into the Tribunal chamber the Judge invited him to take the witness stand and to give evidence upon the first of the points in the order in which the Judge had prescribed them.

1. The response to this by Mr Dawson is to refer to the points of principle set out by the Appeal Tribunal in Weir Valves and Controls v Armitage [2004] ICR 371, which explored the principles upon which an Employment Tribunal should act in deciding whether to strike out a case where there has been a breach of direction (see paragraphs 13-18). The Appeal Tribunal observed:

"17...it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience."

At paragraph 27 it reiterated the importance of judging whether a fair hearing was possible, observing:

"What the Employment Tribunal must do is address its mind to the issues in the case, address its mind to the fairness of allowing the case to proceed in the face of the default and reach an objective decision as to whether a fair trial is possible."

At 33:

"If some unfairness had accrued from one or more of the Appellant's witness statements being served at the last moment, or taking unfair advantage of the failure to exchange, we consider that the Employment Tribunal would have had a remedy short of the sanctions remedy. It would have had the power, by combination of Rule 4 and Rule 16 [those being references to the then existing Rules] to exclude all or part of such a witness statement if it was proportionate to do so having regard to the default and to the overriding objective."

1. I would observe that that last paragraph is by reference to the particular facts of the appeal. Normally, where there is a default which the passage of more time may remedy, a proportionate sanction will usually be to permit an adjournment if requested by a party. Despite the difficulty which the Claimant here asserts, he did not ask for an adjournment. The application to strike out the Respondent's notice is essentially a complaint that he did not have sufficient time to prepare properly for the hearing. It is precisely that type of complaint which the grant of more time by a responsive Tribunal is likely to remedy. But a Tribunal can only be expected to do so if asked. And it is not a failure in law of a Tribunal not to offer an adjournment.

1. Here, the essential question, as it seems to me, is whether there is any clear evidence that the position of the Claimant was prejudiced by the failures of the Respondent. As to that, first it seems to me that the procedure which the Judge adopted was not one which should be followed by other Tribunals in similar circumstances. There was here an application made on paper which had not been resolved prior to the hearing. The hearing was a hearing at which the Claimant attended in person. The Judge had specified at the outset that there would be two issues, one of which was this. He would have been better to have asked the Claimant for submissions specifically addressed to the issue raised by his application.

1. I reject the point made by Mr Woods that he had to decide the question of strike-out prior to the hearing as a matter of necessary law. Logically, I see the force of it. But it is not so overwhelming as to make me think that he must necessarily have exercised the discretion conferred by Rule 41 of the Rules improperly. That rule gives a wide latitude.

1. Having set the order in which the two issues were to be heard, and the Claimant being there, and - assuming that he was before the Tribunal as he has appeared to me today, able to put arguments and keen to do so - the Judge in my view should have invited him to add anything which he wished to orally. Had he done so, he would have advanced to the Judge those matters which he advanced to me today, I have little doubt. What he said was that he should have had more time, that he was prejudiced in that he had not been given full disclosure but had been provided with some e-mails only, and others should have been found if they advanced or denied the Respondent's case, and that he was prejudiced all the way through the hearing by the late addition of the papers. He likened it to being ambushed by the Respondent. He had no opportunity to see a solicitor before entering the hearing.

1. Mr Dawson responds that Mr.Wood's witness statements, when disclosed, show a considerable cross-referencing with a bundle which consisted of more than the 90 pages of the original bundle. Although some references are given with "X" as a reference, those relate to timesheets or records of time worked. Other references appear to be specific. He was thus able within the time he had to attend to this detailed work.

1. Ultimately I have concluded that the prejudice asserted is essentially that of not having sufficient time to deal with the material produced by the Respondent. As I have indicated, a response to that could have been an application for adjournment. As to whether the lack of preparation timer caused prejudice in the actual conduct of the hearing, the Judge gave his view in paragraph 5.3.2 that there was no evidence of it.

1. The result of the hearing was to dismiss any claim based upon the Claimant's status as employee. It left untouched any argument which he had in respect of public interest disclosure. The Judge thought that relevant to the issue of prejudice. It is not suggested it was not.

1. Ultimately, though I consider, as I have indicated, that the Judge should in fairness have given the Claimant an express invitation to exercise his right to address him on the issue (he was not, I emphasise, denied the opportunity to ask to do so), given the nature of the prejudice asserted and the Judge's observations, and given what was said later in respect of the application for review, when the Claimant had a further opportunity to persuade the Judge, albeit on paper, I have concluded there is no such evidence here of prejudice to the Claimant as would persuade me that this ground of appeal should succeed.

1. With those reservations, and for those reasons, I therefore dismiss this appeal. I am grateful to Mr Woods for his careful explanation of the points he wished to make and for the interest of them, and I have already paid tribute to the argument of Mr Dawson. I am sorry to both parties that we have more than used up the court day, and I hope that has caused no particular inconvenience to anyone.