Appeal No.	 EAT/900/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS T A MARSLAND
MR R N STRAKER

MR R TYRELL	APPELLANT

TRANSPORT & GENERAL WORKERS UNION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED

		

	MR JUSTICE HOLLAND:		

1.	By a letter, dated 19th July 1998, Mr Tyrell raised a complaint against the Transport and General Workers Union, that complaint was treated by the Employment Tribunal as being established by way of an IT1. Reading the body of the complaint, it was that an official of the union had deliberately: 

“although I wrote to him 3 times (once by Recorded Delivery) withheld from me (my copies have been mislaid) copies of 3 letters I requested from him, which to me are vital evidence in supporting my formal request for a review of Chairman’s decision. I required these copy letters to support my skeleton argument to the EAT which I dispatched on 15th July 1997. I made it known to Mr Davey just how important these copy letters were to me, but he has just ignored my request. I first wrote to him on the 29th June 1998.
My claim is for compensation.”

	Earlier in the letter he had indicated that the complaint amounted to victimisation or discrimination against a disabled person and the letter concludes by identifying the documents that he has in mind. 

2.	That matter first came before the Employment Tribunal on 19th January 1999 for directions. They, so far as is material, were in these terms:

“1.	We cannot order medical reports, what we can say that if medical reports are not prepared to establish the disability then the applicant will lose. If the respondents are not allowed to see the medical reports he will lose because the tribunal will not allow it to be part of the evidence. Similarly if the respondents wish they can ask for the applicant to be seen by their own consultant. If the applicant refuses to co-operate the applicant will almost certainly lose his case.
2.	The first issue to try is was the applicant disabled within the meaning of the Disability Discrimination Act 1995. The second issue is did the respondents know of that Disability? Obviously if it is held he is not disabled within the meaning of the Act that is an end of the case. If he is, then the hearing will consider that second issue of knowledge.”

3.	Next, the matter came before an Employment Tribunal held at Leeds on 17th May 1999. The decision of the tribunal was:

“1.	The applicant does not have a disability for the purposes of the Disability Discrimination Act 1995 section 11 and that his complaint that he was unlawfully discriminated against on the grounds of his disability under case no. 1803229/98 be dismissed.”

4.	Turning to the extended reasons that accompanied that decision, the crucial passage is in paragraph 6:

“The tribunal considered the guidance given by the Employment Appeal Tribunal in Goodwin v The Patent Office [1999] IRLR 4 and Schedule 1 to the 1995 Act. It concluded that the applicant did have an impairment which was mental. However there was no evidence before the tribunal which dealt with the next matter which was whether the impairment affected the applicant’s ability to carry out normal day to day activities in one of the respects set out in Schedule 1 paragraph 4(1) of the 1995 Act nor was there any evidence to indicate whether the impairment had an adverse effect on the applicant’s ability. The applicant was not present to give evidence at the hearing and Dr Morgan’s report did not expressly did not expressly deal with the matters which the tribunal had to determine. In those circumstances and bearing in mind that the onus of proof lay with the applicant, the tribunal decided that the applicant had not shown on the balance of probabilities that he had a disability. Accordingly the tribunal ordered that his claim that he was unlawfully discriminated against on the grounds of his disability under case no. 1803229/98 should be dismissed.”

5.	Against that decision, Mr Tyrell appeals and does so without the benefit of any legal assistance. Amongst the documents that he puts before us is an intimation received by this tribunal on 16th September 1999 that he did not intend to be present at the hearing of his appeal, to that letter he appended the following:

“Mr President
As the issue to be determined is a medical one then I have to rely entirely on my documentary medical evidence, which I have already sent to the tribunal.”

6.	Turning to the material he has sent to the tribunal, it is readily to be acknowledged that that does include medical reports which indicate that, as the tribunal found, he does suffer from an unhappy mental impairment, one consequence of which is that:

“Within the normal range he was preoccupied with his complaints and at times it was difficult to get chronological account of events.”

	As was found by Dr Morgan.

7.	Turning to our task, it is to discern, if we can, a point of law arising out of the decision of this Employment Tribunal such as found an appeal to this Court. If we were able to find such a point of law, then we would adjourn this matter so as to allow an inter partes hearing to take place. If, on the other hand, we cannot discern any point of law, then it is our task to say so and to dismiss the appeal. The dismissal follows because this tribunal only has jurisdiction with respect to points of law.

8.	We have inevitably been concerned about this matter. First, because Mr Tyrell is not present; second, because he has no legal representation; and third, because he does have a mental impairment which goes some way to establishing a disability for the purposes of s.1 of the Disability Discrimination Act 1995. It is for all those reasons that these papers have had very careful attention by the members of this tribunal, but in the event, we find ourselves quite unable to discern any point of law that would found an appeal. As Mr Tyrell himself pointed out in the passage quoted, that the problem is essentially medical, that is it is essentially a matter that relates to fact so as to be outside the ambit of the jurisdiction of this Appeal Tribunal. 

9.	It follows there being no point of law this appeal must be dismissed. We should add that on the occasion of the same hearing before the Employment Tribunal, two other matters of complaint were considered with a view to giving directions. We did consider those to see whether there was any matter which could concern this particular tribunal, in the event, having considered everything put before us, we have to say that we cannot discern any. That said, it is important that Mr Tyrell should know that we did give a careful consideration to everything, that which he raised and that which was put before us.