Miles v Wakefield Metropolitan District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE FOX,SIR EDWARD EVELEIGH |
| Judgment Date | 08 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0208-1 |
| Docket Number | 85/0045 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 1985 |
[1985] EWCA Civ J0208-1
Lord Justice Fox
Lord Justice Parker
Sir Edward Eveleigh
85/0045
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE NICHOLLS)
Royal Courts of Justice
MR. S. J. SEDLEY Q.C. (instructed by Miss P. Grant, 1 Mabledon Place, London, W.C.1) appeared for the Appellant.
MR. A. M. IRVINE Q.C. and MR. M. R. TAYLOR (instructed by L. A. Tawn Esq., Town Hall, Wakefield) appeared for the Respondents.
The appellant Mr. Miles is, and at all material times was, a superintendent registrar of births, deaths and marriages, appointed and entitled to be paid by the respondent Council pursuant to the provisions of the Registration Service Act 1953 ("The Act"). His normal hours of work per week were thirty-seven, three of which were from 9.00 a.m. to 12.00 a.m. on Saturdays. His functions included the performance of marriage ceremonies. Saturday mornings were the most popular times with the public for the performance of this particular function and, until about August 1981, the appellant regularly performed a number of such ceremonies at those times. From August 1981 to October 1982, however, the appellant refused to carry out this particular function on Saturday mornings. He did so on the instructions of his Union with the deliberate intention, as part of industrial action, of causing inconvenience to the public. Such action was aimed at securing increased remuneration and it was no doubt hoped that, in order to avoid the inconvenience, the public would exert pressure on the respondents and others in a like position to accord such increased remuneration. The respondents' response to the appellant's refusal to perform marriage ceremonies on Saturday mornings was to withhold three-thirty-sevenths of his salary, that is to say not to pay him at all for Saturday mornings, notwithstanding that on such mornings he carried out other of his functions. The total amount withheld was £774.06. It is now accepted that, in refusing to perform his marriage function on Saturday mornings, the appellant was in breach of his obligations. His claim to recover the amount withheld was instituted in the County Court but was rightly transferred to the High Court, where it was dismissed by Nicholls J. From that dismissal he now appeals.
With regard to the appellant's conduct the judge found as
follows:
"Throughout the period of industrial action Mr. Miles continued to attend his office and work during his normal hours of work each week, the only difference being in the pattern in which he chose to discharge his various functions over a weekly period. He refused to conduct any marriage ceremonies on Saturday mornings, but on that morning he undertook other work instead. He continued to conduct weddings for all those who wished to avail themselves of his services, but only from Monday to Friday."
For present purposes it is unnecessary to go further into the facts. As to the basis upon which the appellant's claim was dismissed, the position may also be stated very shortly. Section 5 of the Act provides that, for the purposes of the Registration Acts, there is to be, in every county and county borough, one or more districts and that for each district there is to be a superintendent registrar. Section 6 provides that every superintendent registrar shall (subject to a proviso to be mentioned later) be appointed by the council of the county or county borough in which his district is situated and shall be a salaried officer paid by such Council.
The respondents were thus under a statutory obligation to appoint and to pay the appellant. As to the statutory obligation to pay, the learned judge said:
"In my view, it is implicit in the Wakefield Council's obligation to pay Mr. Miles that the Council is so obliged only when Mr. Miles is duly carrying out his statutory obligations. If he declines to carry out all or a part of his obligations, he cannot require the Council to pay all or an appropriate part of his salary."
He then concluded that the deduction or withholding of threethirtysevenths of the appellant's salary was appropriate and
"was a fair measure of the extent to which Mr. Miles was failing to carry out his statutory obligations week by week".
For the appellant Mr. Sedley's principal contention was that the appellant was the holder of an office and that his salary was a reward for the tenure of that office and not for the carrying out of the functions of that office. Hence, no matter that he was in breach of his duties or even that he wrongfully refused to work, he was entitled to be paid in full, the only remedy for misconduct lying in the power of the Registrar General to remove him from office.
For the respondents Mr. Irvine's argument amounted in substance to no more than the assertion that Parliament cannot, when imposing on Councils the obligation to pay, have intended that such obligation was unqualified and required them to pay full salary irrespective of wilful refusal by a superintendent registrar to perform all or part of his functions for any period however long so long as he was not removed from office by the Registrar General.
The arguments on both sides expanded during the course of the hearing partly because, although (1) it was not alleged in the pleadings that the appellant was an employee of the respondents, (2) it was common ground before the judge that the appellant was not such an employee, (3) there was no cross notice seeking to raise any such point and (4) both the relevant statutes and the documents indicated that, although superintendent registrars were appointed and paid by the relevant Councils, they were not employees of such Councils, Mr. Irvine sought leave to contend that the appellant was both the holder of an office under the Crown or statute and an employee of the respondents under a contract of employment. The development of the arguments was also in part due to the fact that it appeared to us that it was or might be material when considering the construction of the statute to know what would have been the position had the appellant been employed under a contract of employment.
There can, in my opinion, be no doubt that it is much too late to permit the respondents to contend that the appellant was employed by the respondents under a contract of employment, or indeed was in any contractual relationship with the respondents such as by a contract for services. There was, for example, no investigation before the judge concerning the circumstances of the appellant's initial appointment which would, if a contract was being asserted, have been essential. Mr. Sedley submitted that leave to take the point should also be refused on the simple ground that, having regard to the provisions of the Act, it was unarguable. For reasons which will presently appear, this submission is, in my judgment, well founded. Accordingly, this case must be determined on the basis that there is and was no contractual relationship between the parties.
The Statutory Provision
Nicholls J. having proceeded on the basis that the matter turned upon the construction of the Act, it is convenient to consider next the relevant provisions. It is first necessary to note that the Registration Service is by sections 1 to 4 headed by a Registrar General who is appointed by Her Majesty, who holds office during Her Majesty's pleasure and who is paid out of moneys provided by Parliament. The Act then provides by sections 5 to 12 for the general organisation of the service.
In general terms this is to be by superintendent registrars in districts and by registrars in sub-districts. These officers are to be, in general, appointed and paid by the relevant Councils but by section 6(4) it is provided that they shall hold office during the pleasure of the Registrar General. However, if a vacancy occurs in either office and the relevant Council refuses to fill the vacancy or fails, after notice given by the Registrar General, to do so within the time specified in the notice, the Registrar General is to make the necessary appointment. In such a case, the relevant Council, although it will neither have appointed nor have any power of dismissal, will still be obliged to pay the salary.
Although at present we are directly concerned only with superintendent registrars, it is necessary to consider also certain other officers. By section 7 the Registrar General and a superintendent registrar, with the approval of the Registrar General, may from time to time appoint additional registrars of marriages. Such persons will hold office during the pleasure of the Registrar General if appointed by him. If appointed by a superintendent registrar they will hold office during his pleasure but will also be removable by the Registrar General. However appointed, such additional registrars are entitled to retain fees received by or payable to them under the Marriage Act 1949, subject to the proviso that at such times and in such manner as may be prescribed they must pay to the relevant Council so much of the total sums received or payable to them such amount as the Registrar General may certify to be equal to one-third of such total sums less any amount that the Registrar General may allow as remuneration for the trouble and expense of collecting and accounting for such third parts.
The Council's interest in the case of additional registrars is thus only in the receipt of one-third of the fees. They neither appoint nor pay nor dismiss. Nevertheless, any refusal on the part of any additional registrar to perform marriages may...
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