England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE SHANKS)

		Royal Courts of Justice Strand London, WC2A 2LL
		8 March 2016

LORD JUSTICE BURNETT:

1. This is the applicant's renewed application for permission to appeal following refusal by Kitchin LJ. The background is this. In November 2011 the applicant issued proceedings in the Employment Tribunal against her employer, the West Yorkshire Probation Trust, alleging bullying, harassment, victimisation, breach of human rights and complaints about health and safety, all arising as a consequence of alleged racism or discrimination on grounds of disability. Additionally, the applicant suggested that her employer had failed to make reasonable adjustments on account of a disability from which she suffered. In the claim form she indicated that she suffered from long-term depression.
2. The applicant was a probation officer who worked in the Together Women's Project within the Probation Trust. The applicant says that she requested a transfer from that small unit in March 2010. The Employment Tribunal, which was presided over by Employment Judge Keevash with lay members Mr T Downes and Mr GH Hopwood, found that the applicant had in fact made the request a month later. By contrast with one of her colleagues, who made a similar request, the tribunal found that the applicant's request was equivocal.
3. The applicant went off sick on 11 June 2010. Alas, she was unable to return to work until 7 March 2011. Her complaints before the tribunal related to some of her dealings with the Probation Trust before she went off sick. However, the main focus of the complaints advanced by the applicant before the tribunal related to the treatment she received while she was off sick and, at the forefront of her complaints, the treatment she received after she returned to work.
4. In its judgment the tribunal set out a very large number of background factual findings relating to the chronology and essential dealings between the applicant and her employers. It then sought to distil, from what was then a diffuse case, the individual elements of the complaint. I should note that the transcript of the reserved judgment eventually given notes that the applicant appeared in person before the tribunal. In describing the complaints as diffuse I intend no discourtesy; it was no doubt an extremely difficult job to pull all of the complaints together.
5. The tribunal discussed nine individual complaints of direct racial discrimination, five of victimisation, three of harassment on grounds of race, 11 of disability discrimination, seven suggesting a failure to make reasonable adjustments and three of harassment on grounds of disability. The same factual complaints appeared as race discrimination, disability discrimination or harassment or victimisation.
6. The way in which the tribunal dealt with the matter was to consider the evidence in support of each complaint, about which in every regard there was a dispute between the applicant, on the one hand, and various other members of the Probation Trust, on the other. Over many pages of the 38 single-spaced typed pages of its judgment, the essential evidence is distilled in respect of each factual complaint.
7. On every occasion the tribunal accepted the evidence of the respondent and its witnesses rather than the evidence of the applicant. It is inescapable that the tribunal did not consider the applicant to be a reliable witness. There was a short section of the judgment which collected together some examples of what the tribunal described as "extraordinary unfounded allegations" which, it said, were made by the applicant in the course of her evidence or her submissions. Its overall conclusion was "the tribunal accepted the evidence of the respondent's witnesses. They were credible and consistent. The claimant clearly viewed each incident, and indeed others, through the prism of discrimination." It went on, perhaps in rather Delphic terms, to say that it would not reach a conclusion about why the applicant had made the allegations. That may well have been out of some sensitivity to her position.
8. The tribunal hearing took up nine days of tribunal time and, as I have indicated, was followed by a reserved judgment which was given on 12 September 2013. The applicant appealed to the Employment Appeal Tribunal. There was a hearing before HHJ Shanks pursuant to rule 3(10) of the Employment Appeal Tribunal Rules 1993, That is an ex parte hearing at which the applicant was, on this occasion, represented. The hearing acts as a filter to enable the Employment Appeal Tribunal to weed out appeals that it considers to have no prospect of success.
9. On 4 February 2015 the judge concluded that there was no question of law that had any reasonable prospect of success raised in the appeal. He noted that the tribunal decision was based on conclusions of fact to which, especially given that it had heard the evidence over such a protracted period, it was entitled to come. The result of his decision was that there was a direction that no further action be taken on the appeal and the appeal was dismissed.
10. The appellant's notice in this case, although a lengthy document, takes three essential points: (1) that, insofar as the case before the tribunal was concerned with discrimination claims, the tribunal failed to identify relevant comparators by which to judge the evidence and so judge the claims; (2) the ET failed to identify the applicant's race or her disability; (3) the tribunal erred in finding that the applicant had not proved her claims because it failed properly to analyse them.
11. The thrust of the submissions advanced by the applicant this afternoon with the help of Mr Wiley, a friend who has been assisting her, has been on the failings of the tribunal to identify race or disability and comparators.
12. The application came before Kitchin LJ on the papers on 29 July 2015. He refused it in these terms:

"The judgment of the tribunal is far from perfect for reasons summarised by His Honour Judge Shanks in the EAT. Nevertheless, the tribunal considered all of the appellant's many complaints and rejected each of them on the facts. There was nothing to suggest the appellant had been discriminated against on the grounds of race or disability. The appellant seeks to challenge many of these findings, but there is no real prospect of this court interfering with the conclusions to which the ET came after hearing many witnesses over nine days. An appeal would not have a real prospect of success and there is no other compelling reason why an appeal should be heard. I am not persuaded that the additional evidence to which the appellant refers in the notice of appeal could not have been obtained with reasonable diligence for use at the original hearing, nor am I persuaded that it would probably have had an important influence on the outcome of the case. It appears that HHJ Shanks was also of the view that it should not be admitted"

13. I should mention that in the papers before me the appellant seeks to rely upon some fresh evidence but, like Kitchin LJ and, inferentially HHJ Shanks, I agree that it does not satisfy the relevant criteria. Both the judge and the Lord Justice made some criticism of the way in which the tribunal structured and crafted its judgment. The applicant is right that it did not in terms identify her race. It did, however, set out in some detail an extract from an occupational health report which identified the nature of her difficulty with depression, stress and anxiety.
14. There was reference at least at one point of the judgment of the tribunal to a comparator, namely a probation officer who had been in the same team and who was away from work for some time. The applicant tells me that that was as a result of pregnancy rather than illness and so it carries the tribunal nowhere in terms of the criticisms that she makes. I note also that the tribunal recited the relevant statutory provisions in full which applied to each of the different categories of complaint made by the applicant.
15. I accept, as did both the judge and Kitchin LJ, that there are technical deficiencies in the reasons given by the tribunal for its decision. However, the question for me is whether there is a reasonable prospect that the Court of Appeal will allow the appeal, or there is some other compelling reason why the appeal should be heard. In my judgment, there is no compelling reason which can be prayed in aid in the event that the appeal lacks the necessary prospects of success. I should note that a supplementary skeleton argument lodged by the applicant provides a good deal of detail about the history of racism, and descriptions of continuing racism in this country. She has drawn to my attention this afternoon a definition of racism which includes a description of ostracisation. In essence, she submits that what happened, at least after her return to work, was that she was ostracised. Mr Wiley made some direct submissions once the applicant had finished which were directed towards the suggestion that this appeal should proceed because of the nature of racism generally in the country, and Ms Brown, another friend of the applicant who is present via the video-link, made similar points, albeit with less moderation.
16. The insuperable difficulty that the applicant faces, in my judgment, is that contrary to her contention the tribunal dealt with her allegations and considered the evidence it had heard during the course of the long hearing. It did not find the applicant to be a reliable witness. In every instance where there was a conflict of evidence the tribunal preferred the account given by the witnesses on behalf of the respondent, Probation Trust. Having read the detailed recital of background facts found filed by the tribunal and its treatment of the many allegations made by the applicant, it is abundantly clear that her illness and return to work created very many difficulties for her. It also created difficulties for those who worked with her. The overall thrust of the judgment of the Employment Tribunal is that those fellow members of staff tried hard to accommodate her requests and to ease her back into her work. I appreciate that the applicant regards those factual conclusions as being ridiculous, but the tribunal's conclusion, reduced to its core, was that the Probation Trust, through its employees, behaved entirely appropriately in dealing with that very difficult situation and that neither her race nor her medical condition led them to discriminate against her.
17. Like the judge and Kitchin LJ, my conclusion is that the applicant's complaint is essentially one of fact and not law. The technical criticisms of the decision she advances are, in my judgment, insufficient to undermine the powerful adverse factual findings. Any suggestion that those findings were not properly open to the tribunal is, in my view, unsustainable. The applicant profoundly disagrees with each and every one of the conclusions reached by the tribunal and maintains that her account is in every respect accurate. She has drawn to my attention during the course of her submissions a number of individual factual features which she suggests support her claim. Her contention is that her colleagues were mistaken, or much worse, lied and engaged in a conspiracy against her. That, contrary to the findings of the tribunal, is not an appropriate basis for an appeal to this court.
18. Disappointing though this decision will be to the applicant, the renewed application for permission to appeal is dismissed.

Order: Application refused