United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs H Hogan (In Person)
For the Respondent	Mr J Horan (of Counsel) Ms K Tripp Cambridgeshire County Council Shire Hall Castle Hill Cambridge CB3 0AP


 


JUDGE PETER CLARK: This is an appeal by Mrs Hogan against certain orders made by a Chairman, Mr B G Mitchell at a directions hearing held at Bury St. Edmunds Industrial Tribunal on 26 January 1998 in Case No. 1500929/97, a complaint of unfair dismissal and breach of contract made by the Appellant against her former employers Cambridge County Council and presented to Industrial Tribunal on 2 May 1997.

There is something of a background, in that the Appellant has made four separate complaints against the Respondent. One of the matters raised in this appeal is a challenge to the Chairman's observation, in paragraph 2 of his reasons dated 12 February 1998, that her Case No. 58675/95 had been struck out for want of prosecution on 14 July 1997. We have seen that order, made by the same Chairman, Mr Mitchell. On 24 September 1997, Mrs Hogan submitted, that that striking out order was set aside by a different Chairman, Mr D R Crowe. In fact Mr Crowe's order on that day reads as follows. It was an order made in case no. 1500929/97, that is the instant case:

"The application is adjourned generally pending the outcome of the appeal by the applicant to the Employment Appeal Tribunal in Case 48657/95. "

In the event, there has been no appeal to this appeal tribunal against the strike-out order of 14 July 1997. Other appeals in relation to cases numbered 9952/95 and 33254/96, have each been dismissed by this appeal tribunal as being out of time. We therefore conclude that Mr Mitchell was entitled to refuse the Appellant's application for case no. 48657/95 to be set down for hearing, it having been struck out on the 14 July 1997 and that order not having been altered in any way.

The second, and main point in this appeal relates to Mr Mitchell's direction as to witness orders. He ruled that the application by Mrs Hogan for a witness order in respect of Mr Bill Smith, who was the income manager in the Council and a person for whom she spent, she tells us, 95% of her time collecting monies on his behalf from Council tenants.

The basis on which she apparently applied for a witness order below was that Mr Smith could give evidence as to what she describes as her residual contingent personal liability as a result of being the person named she says as debtor on certain computer held lists of debtors. Having heard the way she puts the matter and the account given on behalf of the Respondent by Mr Horan we think it highly unlikely that she has personal liability, as she fears. The Council have, through Counsel, unequivocally stated that it has no claim against her. We record that statement in this judgment in case it is of comfort to Mrs Hogan in the future. Moreover, we are quite satisfied that any such real or imagined debt has no bearing on the issues in this case.

The Council's answer to these claims of unfair dismissal and breach of contract is that there was, in law, no dismissal; the contract was frustrated by the long-term illness of the Appellant; the contract ended by operation of law. There is no alternative plea that if there was a dismissal, it was fair by reason of capability, conduct or any other prescribed reason.

That also deals with the alternative basis now advanced as to the relevance of Mr Smith's evidence, that is, that it goes to the Appellant's capability. Again the question of the Appellant's capability is not an issue in the case as pleaded.

In these circumstances it seems to us that the Chairman was entitled to rule against the Appellant's application for a witness order in respect of Mr Smith on the grounds that he could not give evidence relevant to the issues in the case. Those being the matters that are pursued by way of appeal, the appeal must therefore be dismissed.

Following our adjudication in this appeal, Mr Horan applied for costs.

However, its clear on the authorities and its our practice to take into account the means of the party against whom the application for costs is made. It is common ground that Mrs Hogan is currently in receipt of incapacity benefit which she tells us amounts to £100 per fortnight, and we also understand that she is in receipt of a student grant of some £800 per term.

In the circumstances, we shall not on this occasion make any order for costs. Had we done so it would have been for a fairly nominal amount, but she should not think that in future, her impercuniousity will necessarily save her from a cost order if she does pursue either appeals here or cases in the Industrial Tribunal which are found to be improper in the sense that they are unnecessary, unreasonable, vexatious or frivolous. We bear in mind as Mr Horan points out, that the Respondent here is a publicly funded body and it is the local taxpayers of Cambridgeshire who are having to pay for the defence in this case.

That having been said we shall refuse the application.