Appeal No. EAT/1068/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 March 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J R CROSBY

	LORD GLADWIN OF CLEE  CBE JP

MR M J HAMM	APPELLANT

WEAR VALLEY DISTRICT COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON

	MR JUSTICE MUMMERY (PRESIDENT):   This is the preliminary hearing of an appeal brought by Mr Hamm in proceedings against the Wear Valley District Council by an originating application presented to the Industrial Tribunal on 1 October 1993 complaining of unlawful sex discrimination and victimisation.  The Council defended the case by a Notice of Appearance dated 11 July 1994.  The matter came before the Chairman, Mr Charlesworth, at Newcastle upon Tyne, on 23 September 1993 for a pre-hearing review.  

	A pre-hearing review took place under Rule 7 of the Industrial Tribunal's Constitution and Rules of Procedure Regulations.  That empowers the Tribunal, at any time before the hearing of an originating application, to conduct a pre-hearing review, consisting of a consideration of the contents of the originating application and Notice of Appearance, any representations in writing and any oral argument advanced by or on behalf of a party.  It is provided in Rule 7.4 that, if upon a pre-hearing review, the Tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a Tribunal has no reasonable prospect of success, the Tribunal may make an order against that party, requiring the party to pay a deposit of an amount not exceeding a £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.  Then the final part of the Rule provides that no member of a Tribunal who has conducted a pre-hearing review shall be a member of the Tribunal at the hearing of the originating application.

	At the pre-hearing review Mr Hamm attended and made his representations to the Chairman of the Tribunal.  For summary reasons notified by the Chairman to the parties on 
12 October 1994, he considered that the contentions advanced by Mr Hamm had no reasonable prospects of success, but made no order for the payment of the deposit under 
Rule 7.4.  Mr Hamm disagrees with that assessment.  He appealed against the decision by Notice of Appeal served on 9 November 1994.  His complaint briefly was that the basis on which Mr Charlesworth had proceeded wrongly interpreted and constantly and deliberately attempted to put a false interpretation on his evidence at the review hearing on 23 September. He therefore appealed against his assessment that he had no reasonable prospect of succeeding in his claim and requested that another pre-hearing review be held by a different Chairman.  The Notice of Appeal sets out the detailed points on which Mr Hamm challenges the correctness of the Chairman's assessment.  At the hearing today Mr Hamm has conducted his own case.  He has to satisfy us that he has a reasonably arguable point of law for the matter to proceed to a full hearing at which the Council would be represented.  He faces an initial difficulty.  We explained to him that the case has not actually been decided against him.  There has been no hearing of his originating application.  All that has taken place is a review of his application under Rule 7.  Further, the Tribunal has not, in consequence of the assessment, made any order against him for the payment of the deposit.  So there is nothing to appeal against.

	What Mr Hamm wants us to do is to say that the Chairman was wrong in making the assessment he did, to quash his assessment and send it all back to another Chairman to make a different assessment which Mr Hamm hopes would say that he did have a reasonable prospect of success.  The reason why Mr Hamm is pursuing the matter at this stage, rather than letting the matter go forward to a full hearing, is that he does not want the threat of costs hanging over him.  He is right in appreciating this risk.  If, following this assessment, he goes on to a full hearing of his originating application and fails, the Council respondent might well seek to have an order made by the Tribunal against him for the payment of costs, because he has proceeded with a case, having been warned at an early stage that it was considered that he had no reasonable prospects of success.  

	The only grounds upon which we could possibly act in relation to this assessment is if we concluded that no reasonable Chairman, appreciating the contentions of the parties, could have come to this conclusion.  It is important to remember that the assessment is made without hearing evidence.  The assessment is made on the basis of the submissions that the parties have made and on the basis of their conflicting contentions in the originating application and in the Notice of Appearance.

	In our view, the summary reasons set out in three paragraphs cannot be described as perverse.  The Chairman set out correctly Mr Hamm's complaint, that he was removed from the Community Sports Leader Award course in May 1989 by the Council.  He understands that he was removed as a result of the complaint made by a woman about assaults.  When he spoke to the organiser, the organiser admitted that the allegations were unjustified, but nevertheless required him to give up the course, as the woman was making trouble and it would save the organiser trouble if the applicant were no longer on the course.  The effect of his removal from the course has been that he is black- listed by the Council.  They are not prepared to employ him.  They admit they are not prepared to employ him because he has been removed from the course.  Mr Hamm says that their attitude amounts to sex discrimination.  The Council says that it does not, because they have not refused to employ him because he is a man; they have refused to employ him because he was removed from the course.  They would refuse to employ a woman who had been removed from the course. Therefore there has not been any less favourable treatment of him on the ground of his sex.

	Mr Hamm vigorously challenges the arrangement.  He says that he can produce evidence to show that he has been treated less favourably than a woman in a similar situation was treated or would be treated by the Council.  That is a matter for evidence at the hearing.  
Mr Hamm complains that he may be in some problems about the evidence, because 
Mr Charlesworth (he claims) informed him at the pre-hearing review that he would not be granted the Witness orders, which he said he would be asking for, to compel the attendance of witnesses, including people who are still employed by the Council, to give evidence in support of his case.  Mr Charlesworth has not decided the question of Witness orders.  There has not been an application to him.  If Mr Hamm wants Witness orders, he must make applications naming the witnesses whom he wishes to call and indicating the relevance of their evidence to his case.  Any applications made for Witness orders should be made to a different chairman in view of the fact that, under Rule 7.9, Mr Charlesworth is now disqualified from being a member of the Tribunal which hears the case.  It is obvious, in those circumstances, that he should have nothing more to do with this case, having formed the view that he has about its prospect of success.

	We therefore decide this.  The summary reasons are not perverse.  It is open to Mr Hamm to pursue his case without having to pay a deposit. We are not able to remove the risk that he may be ordered to pay the costs if he loses, but if he wins, as he is convinced he will, he will not be ordered to pay any costs.  As regards Witness orders, nothing has been decided.  It is open to him to make an application to a new Chairman, provided he does so in a proper form and satisfies that Chairman that those witnesses' evidence is relevant to the arguments  that will arise from the case.  For all those reasons this appeal has no reasonable prospect of succeeding at the full hearing of the appeal.  There is no point in having such a hearing.  We will dismiss it now.