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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hammond v Inland Revenue [1998] UKEAT 343_97_2007 (20 July 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/343_97_2007.html Cite as: [1998] UKEAT 343_97_2007

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by an employee from the decisions of the Industrial Tribunal at London (North) on 20th January 1997 and 3rd February 1998. By the earlier of those two decisions the tribunal struck out the Originating Application of Mr Hammond which was one brought under the provisions of the Race Relations Act 1976. By the second of those decisions the Industrial Tribunal dismissed an application for a review and ordered the payment by Mr Hammond of £250 towards the costs of the respondent.

By his first Originating Application made in June 1994 Mr Hammond complained of discrimination under the Act and the particulars of his complaint were that his manager had failed to recommend him for selection and promotion to the appropriate grade. Mr Hammond said that that had been done on racial grounds. By the second Originating Application in September 1996 there was a further complaint under the Act concerning what were said to be continuing acts of less favourable treatment within the meaning of the Act, thus, supporting his previous application currently being dealt with.

These matters came on for hearing on 20th January 1997. The appellant, Mr Hammond, did not attend. The tribunal reflected in their extended reasons for dismissing the Originating Application that two applications for an adjournment had been refused; that there had been a history of interlocutory hearings; on two occasions, questions of discovery had been addressed; that the appellant, Mr Hammond, had maintained that important documents had been kept concealed by the respondents. The tribunal considered a communication from the Commission for Racial Equality; and the tribunal considered Mr Hammond's state of health. The tribunal was told that Mr Hammond had not been at work since 8th January and had sent in a sick note, the reason of his absence being given as debility. The tribunal heard evidence from Mr Hammond's line manager. It said in its extended reasons that he had sent no evidence to the tribunal about his health. The tribunal having considered all those matters, it struck out the application.

One of the matters that Mr Hammond urges upon us today is that he had in fact sent in, by recorded delivery, a medical certificate, and he submits that that tribunal staff were in error in not placing that before the Chairman. That, indeed, was one of the grounds upon which he sought a review of the hearing, that being a ground under Rule 11(1)(a) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993.

We have been shown a photocopy medical certificate dated 15th January 1997 excusing Mr Hammond from work until 27th January 1997 with a diagnosis of debility. There is also in the bundle before us some contemporaneous correspondence and a document apparently demonstrating delivery of that medical certificate to the Industrial Tribunal in time.

At the review hearing, however, the tribunal recorded these words:

"3 ... In early January he signed himself off from work due to stress related problems and on 15 January applied to his GP for further medical certificates. He was issued with a certificate until 27 January. The reason given was debility."

The tribunal plainly had in mind that that was the certified state of the appellant's health at the time of the hearing on 20th January 1997.

During the review hearing the Industrial Tribunal heard evidence from Mr Hammond and had a medical report signed by a Dr Allred. The tribunal also heard evidence from Dr Lavanchy, who was called on behalf of the respondents.

Mr Hammond tells us today, and it is another ground upon which he seeks to rely, that, according to his research, Dr Lavanchy is a muscle specialist and therefore not a specialist in the field of Mr Hammond's ailment which was related to asthma.

We note that Dr Lavanchy himself speaks of his position as an independent accredited specialist in Occupational Medicine, and that at the foot of his report after his signature he calls himself a Senior Occupational Health Physician.

There does not seem to us to be any foundation upon which we can impugn the decision of the Industrial Tribunal at the review on the basis of any point about Dr Lavanchy's qualifications. Mr Hammond was there and Mr Hammond was able to ask such questions as he wanted of Dr Lavanchy.

Mr Hammond makes two other points on this preliminary hearing.

The first is that the respondents' Notice of Appearance to his Originating Application was out of time, and he had hoped to take that point at the review. Mr Hammond feels that the Chairman would not let him do that.

We understand why that might have been. The review was a review of the decision, not on the merits of the case as a whole, or on the range of procedural matters that had led up to the hearing in January 1997, but review of the decision to strike out in the absence of Mr Hammond at that hearing.

So, really what concerned the tribunal hearing the review in February 1998, was the material relevant to its decision to strike out and to that decision alone, and any point about the date of the Notice of Appearance of the respondents was not relevant to that decision.

The second matter Mr Hammond raises is to do with a paper that came to his attention after the January 1997 hearing which, he says, is a spoof newspaper article making fun of him in an offensive fashion. That was apparently something he wanted to raise at the review and raises before us. He says that is new evidence and thus falls within Rule 11(1)d) of the 1993 Regulations.

Whilst it appears to us from a decision of another tribunal in other proceedings that that document may have relevance in other proceedings, it does not seem to us to go to the question of the striking out of the Originating Application in the absence of Mr Hammond.

Accordingly, we have had to look today at the decision to strike out and the review of that decision.

On this preliminary hearing our business is to see whether Mr Hammond has shown to us that he has an arguable point of law to go forward to a full inter partes hearing. An appeal to the Employment Appeal Tribunal lies on a point of law alone. In some exceptional instances, a decision of fact can be regarded as a point of law simply because the decision of a fact is made in the absence of evidence upon which to found it. This is not such a case.

The Industrial Tribunal made the decision it did in January 1997. It reviewed it in February 1998. It reached a conclusion of fact on the evidence before it.

Mr Hammond has failed to demonstrate to us that the tribunal made an error of law such as to invalidate or potentially invalidate the decision that it reached. The consequence of that is that this appeal is dismissed at this preliminary stage.