Appeal No.	 EAT/1109/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR D G DAVIES CBE
MISS S M WILSON

MR M HAMM	APPELLANT

WEAR VALLEY DISTRICT COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D O'DEMPSEY
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	JUDGE PETER CLARK:     This is an appeal by Mr Hamm against a decision of the Newcastle Industrial Tribunal sitting on 1 and 2 July 1996, dismissing his complaint of racial discrimination against the Respondent Council.  Extended Reasons for that decision are dated 16 July 1996.  

	The basis of the Appellant’s claim before the Tribunal was that on 14 September 1994 he had not been short-listed for a potential post as a Leisure Attendant in the Council’s employment.  He says that omission was on the basis of his Welsh nationality.

	This is something of a long-running saga and the Industrial Tribunal found that in April/May 1989 the Appellant attended a fitness leader course run by the Respondents at two of their leisure centres.  During the course of that two-month period, the Activities Organiser, Mr Bishop, received complaints from female members on the course alleging sexual harassment by the Appellant.  He vigorously denied those allegations, but what appears to have followed is a campaign by the Appellant designed to clear his name of these accusations.

	In the course of that campaign, so the Tribunal found as a fact, he bombarded Council Officers and Councillors with correspondence, vilifying the officers concerned and made accusations against the Council’s Head of Administration, among other people.  He visited Councillors’ homes without appointment, resulting in complaints to the Police and to the Council about him.  He admits that on an occasion at a Citizens Advice Bureau annual meeting he took hold of a Councillor, Mr Groves, purporting to make a citizens arrest and spat at a Mrs Ashness when being asked to leave the civic centre.  As a result of his behaviour, in the course of what is described as “his campaign”, the Council, at a meeting of its Policy and Finance Committee held on 12 February 1992, resolved not to enter into any further correspondence with him.  

	That is the background to his job application in September 1994, he having made a number of earlier unsuccessful applications for employment with the Council.

	The Respondents case before the Tribunal in a nutshell was that the reason why they would not consider employing him was not because they had formed a view about the original allegations of sexual harassment going back to 1989, but simply on the basis that his behaviour in pursuing his grievance revealed to them that he was not a suitable person for employment.

	The Tribunal accepted that explanation for his not being short-listed for the relevant post and dismissed his complaint.

	This is a Preliminary Hearing held to determine whether or not the appeal raises any arguable point or points of law which ought to go to a full hearing before the Appeal Tribunal.  Mr Hamm is represented today by Mr O’Dempsey of Counsel under the ELAAS scheme and we are grateful to him for his assistance in this case.  He principally submits that the Industrial Tribunal hearing this complaint erred in refusing an application by the Appellant for an adjournment so that he could ensure the attendance of two witnesses in respect of whom another Chairman had earlier granted witness orders.  The way it is put by Mr O’Dempsey is that a decision having been made by the first Chairman, at the very least the reasons for that decision ought to have been considered by the full Industrial Tribunal which refused the application for an adjournment and that Tribunal itself ought to have given reasons for its decision not to adjourn the hearing.  

	We cannot accept that submission.  Witness orders are themselves interlocutory orders.  There is no requirement under the Rules of Procedure for reasons to be given for such orders.  Similarly, there is no requirement under the rules for a Tribunal to give reasons for its refusal to grant an adjournment.  

	However, we have looked at the merits of the point by reference to what those witnesses would have said, and we see that summarised from the proposed amended grounds of appeal put in by Mr O’Dempsey.  

	The first witness, Archer, was apparently a witness of fact relating to an alleged incident of sexual assault.  The second witness, Hehir, was present when the Appellant was ordered off the premises.

	It seems to us that the full Industrial Tribunal were perfectly entitled to take the view that these witnesses’ evidence was not relevant to the issues before the Industrial Tribunal.  We certainly cannot say that such a conclusion was perverse and we can see no arguable point of law raised in that ground of appeal.

	Further grounds are advanced.  In particular, that following on from the first point a reasonable observer would gain the impression of potential bias on the part of the Tribunal.  Again, we reject that proposition.

	The point is also made that in the course of the Reasons, the Industrial Tribunal erroneously say that in the application for the post there is no reference to nationality, where in fact the application form asked for the nationality of the Applicant and he inserted “Welsh”.  We accept that that is an error on the part of the Tribunal, but looking at the matter overall, we cannot see that it is material to their final conclusion.

	In all the circumstances, in our judgment, this appeal raises no arguable point of law and it must be dismissed.