Hammond v International Network Services (UK) Ltd & Anor

Permission to appeal requires a real prospect of success. An appellate court exercising a jurisdiction confined to errors of law will not entertain an attempt to reargue factual findings where it did not hear the witnesses and lacks the evidence or transcript needed to assess them. A very late application requires an adequate explanation for the whole delay. Illness may be relevant, but the explanation may be insufficient where the applicant was able to pursue related proceedings during the relevant period. Where the proposed grounds are unsustainable on the available material, their lack of merit weighs heavily against both permission and an extension of time.

Mr Hammond, a black employee of International Network Services (UK) Ltd, was selected for redundancy and later dismissed. The Employment Tribunal dismissed his complaints of unfair dismissal and race discrimination against the company, and his race discrimination complaint against Mr Kim.

The Employment Appeal Tribunal dismissed his appeal on allegations that the Employment Tribunal had been actually biased. Mr Hammond applied in person for permission to appeal to the Court of Appeal, nearly three years after the Employment Appeal Tribunal’s decision. He sought to raise both actual and apparent bias and to challenge adverse factual findings. The central issues were whether time should be extended and whether the proposed appeal had a real prospect of success.

The application for permission to appeal was refused.

1. Delay. The application, filed on 12 July 2005 against an Employment Appeal Tribunal decision of 21 October 2002, was enormously out of time and required a very generous extension. The court accepted that Mr Hammond had suffered ill health, but the medical evidence was dated November 2004 and did not explain his failure to apply during the first half of 2005. His commencement of related proceedings in January 2005 also made it difficult to accept that his illness prevented him from pursuing this application. The delay therefore weighed heavily against granting an extension.
2. Bias. The Employment Appeal Tribunal had rejected allegations that the tribunal chairman had prevented relevant cross-examination, that a lay member had shouted at Mr Hammond, and that the chairman had lied in responding to the allegations. The allegations were found to reflect misunderstanding, differences in perception, or mistaken interpretation of assistance given during the hearing, rather than actual bias. Maurice Kay LJ considered the allegation of actual bias wholly unsustainable. Recasting the complaint as apparent bias did not improve its prospects.
3. Factual challenge and permission. Mr Hammond’s underlying complaint was that the Employment Tribunal had made adverse findings of fact unsupported by the evidence. The Court of Appeal had not seen the witnesses and had neither a transcript of the evidence nor the chairman’s notes. The proposed challenge was therefore an impermissible attempt to reargue the facts in an appellate jurisdiction limited to errors of law. There was no real prospect of success, and no basis for permission or an extension of time.

Order: application refused. A copy of the transcript was supplied to the appellant at public expense.

• Court of Appeal (Civil Division): on 15 September 2005, refused the application for permission to appeal and for the necessary extension of time: [2005] EWCA Civ 1186.
• Employment Appeal Tribunal: on 21 October 2002, dismissed Mr Hammond’s appeal based on allegations of bias in the Employment Tribunal.
• Employment Tribunal: on 23 May 2002, dismissed the complaints of unfair dismissal and race discrimination against the company, and the race discrimination complaint against Mr Kim.