Appeal No.	 EAT/382/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P A L PARKER CBE
MR N D WILLIS

MS H HOGAN	APPELLANT

CAMBRIDGESHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T N HOGAN
(Husband)	
For the Respondents	MR T HORAN
(of Counsel)
Instructed by
Solicitor to Council Respondents
Mailbox Res 1001
Shire Hall
Castle Hill
Cambridge  CB3 0AP	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us by way of a preliminary hearing the appeal of Mrs H Hogan in the matter Hogan v Cambridgeshire County Council.  Unusually, because this is only a preliminary hearing, Cambridgeshire County Council have been represented and we have heard from them briefly.  The unanimous decision of the Tribunal was that Mrs Hogan’s application for unfair dismissal and from breach of contract were each dismissed.  That was the result of a hearing on 18, 19 and 20 January and the decision was sent to the parties on 21 January of this year.  

1	The Employment Tribunal proceeded on the basis that if there had been no frustration of Mrs Hogan’s employment contract then there was automatically, so to speak, unfair dismissal.  The Chairman’s notes, which we already have, show, at our page 16, the Respondent saying:

“Relies on frustration.
Otherwise not a fair dismissal.
The issue is very narrow.”

and, at our page 18, the Chairman as saying:

“In EAT said that if this is dismissal, it is unfair.”

2	The Tribunal held in their paragraph 10 as follows:

“The Tribunal has taken account of the documents submitted by both sides and the submissions which have been made and it is the view of the Tribunal that the applicant was not dismissed from her employment with the respondent but that the performance of the contract was frustrated by the events which we have described and the other submissions in the case so that by 4 February 1997 the contract of employment no longer existed.  Through no fault of either of the parties, circumstances unprovided for in the contract of employment, unforeseen, had arisen, that is to say the applicant’s long term incapacity, which rendered performance of the contract impossible.  In those circumstances the claim for unfair dismissal must fail.”

If there was here a frustration in that technical sense, it may be, looking at the decision of the Employment Tribunal as a whole, that the frustration was, at any rate in part, self-induced because one of the events which the Tribunal seems to have relied on, as part of the events that caused the frustration, was Mrs Hogan’s application to go on a degree course.  Frustration of contracts of employment is never an easy subject and it is made even more difficult where there arise questions of how far the frustration was self-induced and whether the person who has thus in part at least caused it can rely upon it as an issue.  It is a vexed and difficult area (see for example, Harveys Volume 1 paragraph 821-825).  

3	This particular area, without us identifying it as one which definitely contains within it an arguable point of law, is an area so difficult that it would not be reasonable to expect Mr Hogan arguing on his wife’s behalf in person (he has no legal training) to deal with it.  We think it is right that that question should go forward to a full hearing where we can have the benefit of full citation of authority from Cambridgeshire and where it is to be hoped Mrs or Mr Hogan may have been able to find support by way of legal aid or by way, for example, of the ELAAS service.  

4	There are very many other documents and complaints that are made before us by Mr Hogan on his wife’s behalf.  Doing the best we can, we have failed to identify arguable points of law in the rest of the case.  Mr Hogan takes the view that he will be guided by us and recognises that already a number of Mrs Hogan’s other complaints are ventilated in quite different jurisdictions.  Nothing that we say, of course, stops any taking up of her case in other areas.  But, looking at the papers as a whole, we have seen the only point proper to go forward to a full hearing to be the frustration of contract points.  More accurately framed, the question is whether there was any, and if so, what, error of law in the Tribunal’s conclusion that by 4 February 1997 Mrs Hogan’s contract of employment no longer existed and, secondly, if there was such error, what, if any, remedy should the EAT have ordered?  

5	Those are the only matters which we permit to go forward to a full hearing.  It will be necessary for Mrs Hogan or her advisers to amend the Notice of Appeal so as to frame those issues and no other.  We do give whatever blessing we can and whatever encouragement we can to Mrs Hogan obtaining professional assistance and, if it does help her to obtain that, we are very willing to add that it does seem to us to be a case where full argument on the Appellant’s behalf is a matter that will require professional assistance and that the Tribunal would very much welcome her case being developed with some professional assistance.  That apart, we will give leave to amend the Notice of Appeal within 21 days after the receipt by Mrs Hogan of the transcript of this judgment.  But it is to be clear that it is only the points which we have identified, the frustration points, that are to go forward to the full hearing.