Appeal No.	 EAT/563/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR A D TUFFIN CBE
MRS R A VICKERS

MRS M I WALL	APPELLANT

TRINITY AND ALL SAINTS COLLEGE	RESPONDENT

Transcript of Proceedings

FULL HEARING

					INTERLOCTUTORY
Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED. 	
For the Respondent	MISS P PATEL
Solicitor
Instructed by: 
Messrs Dibb Lipton Alsop
Solicitors
117 The Headrow
Leeds LS1 5JX.	

JUDGE P CLARK: 

1.	This case is proceeding in the Leeds Employment Tribunal.  The Applicant, Mrs Wall, was employed by the Respondent College from 28 May 1980 until her dismissal effective on 7 November 1999.  She brings claims of disability discrimination, unfair dismissal, breach of contract and unauthorised deductions from her wages.  Those claims are resisted by the Respondent.  The matter is listed for a substantive hearing on 24 May.  We have before us an appeal by the Applicant against interlocutory order made by a Chairman relating to (a) witness orders requested by the Applicant and (b) discovery.  

2.	Witness Orders
By a letter dated 27 April 2000 the Applicant applied to the Tribunal for witness orders in relation to 8 named individuals, shortly summarising to what matters each could speak.  On 5 May the Employment Tribunal wrote to the Applicant, stating that a Chairman had given this direction: 
“Please inform the Tribunal if you have asked the Respondent if it intends to call any of these witnesses.”
By letter dated 9 January the Applicant replied, stating that she had been advised the Respondent could not call the same witnesses as herself and repeated her request.  

3.	Discovery
By letter dated 28 April the Applicant applied to the Employment Tribunal for discovery of the APTC (Local Government) terms and conditions of employment (the purple book) from 1990 on the grounds that those terms and conditions were incorporated into her contract of employment.  She contended that such discovery was necessary for the determination of her complaint of unauthorised deductions from wages.  That request was refused by the Employment Tribunal’s letter of 5 May on the grounds that a request for production of the whole purple book was unreasonable.  The Applicant renewed her application by her letter of 9 May, inviting the Employment Tribunal to limit discovery to the “relevant sections (Gradings and Promotions). 

4.	Employment Tribunal Order
By a letter dated 10 May the Chairman indicated that he had nothing to add to his previous directions in relation both to the question of witness orders and discovery.  

5.	The Appeal
The Applicant does not appear before us today, she tells us because she is disabled.  She has submitted written representations by a letter dated 13 May with enclosures.  The Court of Appeal has recently affirmed the principle that it will only be open to the EAT to interfere with interlocutory orders made by Employment Tribunals or a Chairman on 
“Wednesbury grounds, that is, that the Chairman exercised his discretion under a mistake of law or disregard of principle or under a misapprehension as to the facts or took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was perverse.” 
See Noorani v Merseyside TEC Ltd [1999] IRLR 184.

As to the appeal in relation to witness orders, Miss Patel who appears today on behalf of the Respondent advances no positive case in respect of this part of the appeal.  However, at our request she has taken instructions from the partner in the Respondents solicitors firm dealing with matter, Mr Hills and she tells us that the Applicant has disclosed witness statements in respect of 7 of the 8 potential witnesses referred to in her application of 27 April.  The Respondent has given the names of 4 prospective witnesses, who it intends to call, none of whom appear on the Applicant’s list.  She has not in terms asked the Respondent’s solicitor whether the Respondent intends to call any of those witnesses on her list.  In these circumstances it seems to us that the Applicant has strictly failed to comply with the Chairman’s direction to enquire of the Respondent whether they intend to call any of her named witnesses.  The Chairman has still not strictly ruled on her application for witness order.  Thus there is no order refusing her application against which she can appeal.  Lest that appears to be an unnecessarily restrictive view for us to take, we would further observe that there are 2 matters on which the Employment Tribunal Chairman needs to be satisfied before issuing a witness order: 
1)	Whether the witness can give evidence which is on the face of it relevant to the matters in dispute and necessary for the fair disposal of the proceedings and
2)	That the proposed witness is unwilling to attend the Employment Tribunal hearing without an order being made.  

By her letter of 27 April the Applicant has attempted to show what evidence each proposed witness can give, although there is no indication that witness statements have been served by her on the Employment Tribunal as opposed to the Respondent.  Further, there is no indication that any of those witnesses are unwilling to attend the Employment Tribunal hearing without any order being made.  In these circumstances, this being an interlocutory matter, we shall formally dismiss this part of the appeal; it being open to the applicant to renew her application, either in writing or at the hearing on 24 May, bearing in mind the two-fold requirement set out above.  Turning to the discovery part of the appeal, we are told by Miss Patel that the Respondent’s solicitors were not asked by the Employment Tribunal to comment on this application.  Had the Respondent been asked for their views they would have submitted that the purple book is not a relevant document, since by letter dated 20 March 1989, signed as accepted by the applicant on 10 April 1989, her then terms and conditions of employment were varied so as to provide that her conditions of service were no longer to be determined by outside bodies, but by the College Governors.  This point having been raised by the Respondent’s solicitors with the Applicant after the Chairman’s order of 5 May had been communicated to them and in their answer to this appeal, the Applicant has responded by her letter to the Employment Appeal Tribunal dated 13 May in which she submits that by referring to APTC scales in a letter to the applicant dated 17 November 1994 Mr Redding of the Respondent was there accepting that the purple book terms and conditions applied to the applicant.  That is not how we read that letter as a whole; which refers on 2 occasions to the Governors Grading and Regrading Procedures for Support Staff.  The impression we have for the purposes of this interlocutory appeal only is that the Governors have a discretion to either follow the APTC scales or to depart from them.  In these circumstances we are not persuaded that the Chairman erred in law in refusing the application for discovery but we are persuaded in any event to affirm his order on the basis of the material now before us and the submissions made by Miss Patel.  Accordingly this appeal is dismissed.

6.	Costs
After delivering judgment in this appeal, Miss Patel made an application for the Respondent’s costs in the appeal which in round terms, she estimates at about £1,000.  She has referred to r.34 (1).  The Respondent is concerned only with that part of the appeal which relates to the order for discovery application.  The difficulty with Miss Patel’s submission is that the principal ground on which we have rejected this part of the appeal is on the basis that subsequent to the Chairman’s order, the dispute as to the relevance of the purple book then became clear for the first time, there having been no request by the Employment Tribunal for the Respondent’s comments on that application.  However, even if we were to conclude that this part of the appeal was unnecessary for the purpose of r.34 (1), we have to take into account the Applicant’s means in deciding whether or not to exercise our discretion in favour of making an order for costs.  We have no clear evidence before us as to her means, save for paragraph 35 of her amended Originating Application in which she says this: 
35. “I am now suffering a marked loss of mobility with pain and I receive disability living allowance and industrial injury, and I am now entitled to incapacity benefit and I am diagnosed with a prolapsed intervertebral disc.”
From this we deduce that the Applicant is living on benefits and not working.  In these circumstances, although it has often been said that impecuniosity is not of itself an answer to an application for cost before this Tribunal we shall make no order for costs in the appeal.