Hammond v International Network Services (UK) Ltd & Anor [2005] EWCA Civ 1186

Case No A2/2005/1463[2005] EWCA Civ 1186
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HHJ MCMULLEN QC)
Venue Royal Courts of JusticeDate Thursday, 15th September 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
Between
ERIC HAMMONDAppellant-v-
Between
INTERNATIONAL NETWORK SERVICES (UK) LTDRespondentTHOMAS KIMRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPLICANT APPEARED IN PERSON for in person for THE RESPONDENTS DID NOT ATTEND AND WERE NOT REPRESENTED
J U D G M E N TThursday, 15th September 2005
[1]MR JUSTICE MAURICE KAY: This is an application made by Mr Eric Hammond, in person, for permission to appeal a decision of the Employment Appeal Tribunal given as long ago as 21st October 2002. On that occasion the Employment Appeal Tribunal dismissed Mr Hammond's appeal against a decision of the Employment Tribunal that had been made on 23rd May 2002.[2]It is plain from what I have already said, that the application to this court, which was filed on 12th July this year, was enormously out of time and that Mr Hammond would require an extension of time if this matter were to proceed further.[3]The background to the case is that Mr Hammond, who is black, has qualifications in computer systems and mathematics. In April 2000 he was employed by International Network Services (UK) Ltd, the first respondent, as an Associate Network Systems Engineer (ANSE). He spent some of the early period of that employment working in Dublin where the second respondent, Mr Kim, was also employed. It is not necessary for me to rehearse the detailed facts. It is sufficient to say that the case for Mr Hammond was that he did not get on with Mr Kim and that he was badly treated by Mr Kim in a manner that was racially discriminatory.[4]In any event, by the autumn of 2000, Mr Hammond had returned to this country where he was deployed, in a team led by a Mr Page, which was working on a project forCable & Wireless. He was placed under the supervision of a Mr Mark Sims. A point came where Mr Hammond applied to attend a training course in the Netherlands, but Mr Page refused this request because he did not consider the course to have any relevance to the task that Mr Hammond was then performing.[5]Mr Hammond divided his time between what might be referred to as billable hours and training. There was evidence that between September 2000 and May 2001 he worked 1,300 recorded hours, 800 of which were spent on training related activities and 554 hours were recorded as billable client work. That was not a proportion with which the employer was happy. Nevertheless, Mr Hammond continued to request additional training and promotion. Mr Page considered him unready for promotion in the light of reports and so the relationship continued.[6]In April 2001 Mr Page requested a written report on Mr Hammond's performance. Mr Sims provided that on 1st May. It was very critical of Mr Hammond's performance and referred to a lack of self motivation, a lack of initiative, a lack of understanding basic skills and concepts and an inability to work without supervision. However, it is said that he had become more technically confident since joining the team and there was scope for further improvement.[7]There was some discussion between Mr Page and the Human Resources Department about putting Mr Hammond on a Personal Improvement Plan. Mr Page met with Mr Hammond who agreed to be transferred to the Swindon office. However, before he could be placed on a Personal Improvement Plan, at the end of 2001 the American parent company of the respondent announced a worldwide restructuring of the business which would involve large scale redundancies.[8]Mr Page and others completed staff assessments, measuring staff against six criteria. Five marks were allocated to each criterion and staff were judged by their performance over the previous six months. Of the 30 maximum marks available Mr Hammond scored 8.[9]All the relevant assessments were considered by a respective management team and were referred to something called the Total Management Team which consisted of line managers, managing principals, vice presidents and the managing director. They considered the assessments of some 200 employees. Mr Hammond's score was the second lowest of the 200. Of those at the relevant meeting no one contended for his retention and unfortunately he became one of the 19 employees selected for redundancy. He was informed of that on 5th June 2000. He was advised that day of the start of a two week period of consultation and told that the company would help him to find alternative work.[10]On 6th June Mr Hammond made a complaint about his treatment to the relevant management consultant who invited him to a meeting to discuss his grievances. He was unable to attend that meeting but his complaint was discussed on the telephone. At that stage he did not suggest that he had been ill-treated as a result of any race discrimination. On 13th June Mr Matthew told Mr Hammond that his allegations of lack of training and lack of opportunity were ill-founded. He was eventually dismissed by reason of redundancy.[11]Mr Hammond appealed to the managing director. On 14th June 2001 the managing director considered the appeal. It seems that by this time Mr Hammond had accepted the decision to make him redundant, but he was seeking more time to find alternative employment because of his illness about which I shall say more.[12]I do not go into further detail about the chronology of events, suffice it to say that the dismissal materialised. Mr Hammond complained to the Employment Tribunal claiming unfair dismissal and race discrimination. There was a two-day hearing in April 2002 and in a decision promulgated on 23rd May 2002 the Employment Tribunal dismissed the complaints of unfair dismissal and race discrimination against the company and dismissed a complaint of race discrimination against Mr Kim.[13]There was then an appeal to the Employment Appeal Tribunal which considered the matter on 21st October 2002. The ground upon which Mr Hammond appealed was an allegation of bias on the part of the tribunal. In accordance with the practice direction he swore an affidavit setting out his allegations of bias and the chairman of the tribunal was invited to, and did, respond to that affidavit.[14]The matter was then considered by the Employment Appeal Tribunal presided over by His Honour Judge McMullen QC. It seems that the main point sought to be made by Mr Hammond was that the chairman of the Employment Tribunal had not allowed him to cross-examine Mr Page about certain matters. That is how Mr Hammond saw it. The chairman's response was that there had been no prohibition on cross-examination about particular matters, he could ask such relevant questions as he wished, but what had concerned the chairman was repeated suggestions of untruthfulness on the part of the witness without any supportive material.[15]The second complaint was that one of the lay members had manifested bias by shouting at Mr Hammond and asking him to take notes of the evidence. The response of the chairman was that that could only refer to a stage at which the lay member had suggested that Mr Hammond take notes of the evidence, but that the suggestion had been delivered in a moderate tone.[16]At the hearing before the Employment Appeal Tribunal a third allegation was made by Mr Hammond, this allegation being made on that occasion for the first time, that the second lay member of the Employment Tribunal had not listened to the case, had been distracted, and had shown an indifference to the proceedings. That third allegation deserves no more attention because, as I have said, it was being raised for the first time before the Employment Appeal Tribunal on the day of the hearing and had not been dealt with in accordance with the practice direction previously. As to the two criticisms that had been dealt with through the correct procedure, the Employment Appeal Tribunal said this:
“These are very strong allegations. We have listened carefully to what the Applicant told us this morning and of course to the way in which he presented his arguments which have been made forcefully and have been repeated on a number of occasions. An allegation of actual bias is that the judicial officer showed actual favour to one party or disfavour of another and had a predetermination in his or her mind as to the decision which would be made, regardless of the merits. “We are in terms dealing with an allegation not of appearance of bias but of actual bias.”
[17]Suffice it to say that the Employment Appeal Tribunal, having considered what Mr Hammond said and what the chairman had said by way of response in writing, rejected the allegation of bias and rejected the repeated allegation that the chairman had lied in his comments to the Employment Appeal Tribunal. It put its reasoning in this way:
“It seems to us that the Applicant is unable to distinguish between extremes. As he put it this morning, there is nothing in between the truth and the lie but of course there is. There is the appreciation between different honest people of what is happening in front of them. There is room for mistake. There is room for misunderstanding. There is room for exaggeration. None of these constitutes lying but do produce different results in the eyes of the beholders. We consider that the Applicant has misunderstood the assistance which was being given to him by the Chairman and by a lay member and has mistaken good intentions towards him in the presentation of his case for bias.”
[18]It seems to me that the allegation of actual bias, which was the way in which it was there being put, was wholly unsustainable on the material that was before the Employment Appeal Tribunal. Today Mr Hammond has rather broadened his attack and has referred to apparent rather than actual bias and has referred to the recent authorities on that subject. In my judgment he is no more able to sustain that argument, even if it were timely now to advance it, than he is to sustain the argument about bias.[19]It is appropriate to say something of how this application for permission to appeal has come before this court at this very late stage because, as I indicated at the outset, it would require a very generous extension of time if it were to be permitted to proceed. I accept, and there is supportive medical evidence, that Mr Hammond has had a difficult time with his health going back to about 2001. There is a report from a consultant psychiatrist, Dr Savla, dated 20th November 2004, in the bundle.[20]Mr Hammond maintains that his unfortunate illness prevented him from pursuing this application until July this year. That is a difficult position to maintain because Mr Hammond has frankly told me that in January of this year he commenced proceedings in the Queens Bench Division against International Network Services (UK) Ltd for damages arising out of the period of his employment. He describes his course of action as one of harassment. If he was well enough to commence those proceedings in January of this year, it is difficult to see how he would not have been well enough to make an application to this court for an extension of time in the present matter rather than some six months later.[21]Moreover, the medical report, to which I have referred, is somewhat dated. As I have said, it comes from late 2004 and therefore says nothing of his condition in the first half of this year.[22]Mr Hammond says that the catalyst for this application was a hearing before a Queen's Bench Master on 29th June this year in the other action, when, he says, solicitors acting for International Network Services (UK) Ltd made certain concessions about the unsatisfactory nature of the Employment Tribunal and Employment Appeal Tribunal proceedings. However, what he says is that that concession was a suggestion that the Tribunals had not dealt with the pleaded case. That, of course, is not the subject of the present appeal which is one of bias and I do not understand him to say that the solicitor made any concession about that. Indeed it is difficult to see how he could. Mr Hammond has confirmed that he was not present or involved in the litigation at that time.[23]All this disposes me to the view that whatever the merits of this application Mr Hammond has great difficulties in relation to time. If his application were clearly meritorious then that is something that would weigh in the balance notwithstanding the passage of time. However, it seems to me that the arguments which he wishes to pursue are not sustainable on the material before the court in any event.[24]When one gets to the bottom of what clearly concerns Mr Hammond, it is that the Employment Tribunal made findings of fact that were adverse to him and he contends that those findings of fact were unsupported by the evidence and impermissible on the evidence and material that was before the tribunal.[25]There is absolutely no prospect of persuading this court of that because this court has not seen the witnesses, is not in a position to see the witnesses, and does not even have a transcript of the evidence of what the witnesses said or even the notes of the chairman. In those circumstances Mr Hammond is in the position of many other litigants who, faced with an adverse decision, really try to reargue their case at a higher level in a jurisdiction which is limited to errors of law of which, in my judgment, there were none in the present case.[26]Plainly Mr Hammond feels aggrieved about his period of employment. Plainly he is dissatisfied with the decision of the Employment Tribunal. He has suffered an illness for which he deserves and has the court's sympathy, but in all the circumstances he does not have material to place before this court which would provide him with a real prospect of success in any appeal, which is the test which I must apply. In any event he is extensively out of time in circumstances where there is an explanation proffered, with supporting evidence, but it does not explain his omission to commence this application at least in January of this year. Nor do I read the medical report as meaning that he was utterly unable to do that by himself or with help during the previous period.[27]I am sorry that he feels as he does about the history, which I have recounted at some length, but there is no basis upon which I feel able to grant him permission to appeal. His application is therefore refused.

ORDER

application refused; copy of transcript of judgment to appellant at public expense.