Case No: B3/2009/2469
Neutral Citation Number: [2010] EWCA Civ 543
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 29th April 2010

Before:

LADY JUSTICE SMITH DBE

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Between:

**DR ANNA CAITLIN EVANS (Applicant)

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UNIVERSITY OF OXFORD (Respondent)**

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(DAR Transcript of
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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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JUDGMENT
Approved Judgment

Crown Copyright ©

**Lady Justice Smith:
**1.This is a renewed application for permission to appeal a decision of His Honour Judge Clark made in the Employment Appeal Tribunal ("EAT") on 14th October 2009.  The judge dismissed three applications brought under the Rule 3.10 procedure.  Maurice Kay LJ rejected the application for permission to appeal to this court and the applicant has renewed it this morning.

2.Dr Evans, who acts in person, was employed as a research officer by the Oxford Learning Institute, which is part of Oxford University, under a fixed term contract which began on 11th September 2006 and expired on 7th September 2007.  She began proceedings against the University, making a wide range of allegations, including unfair dismissal and discrimination on the grounds of race (she is of Irish nationality), religion (she is Christian), gender (she is female) and sexual orientation (she is gay.)  She also alleged that she had been victimised in several respects.

3.Her employment had not lasted long enough for her to sustain a complaint of unfair dismissal on ordinary grounds, but she was permitted to amend her claim to allege that her dismissal by non-renewal of her contract had been automatically unfair because, as she alleged, it was related to the fact that she had made protected disclosures.

4.At the hearing in August 2008, the tribunal heard extensive evidence from the applicant and several witnesses called by the University. The evidence revealed that the University had become dissatisfied with several aspects of Dr Evans's work and behaviour and had taken disciplinary proceedings against her in March 2007, which had culminated in her being given an oral warning.  An appeal against that warning failed and the warning was confirmed, I believe, in June 2007.

5.Meanwhile, the applicant had lodged a grievance alleging a variety of complaints about those responsible for her management.  These complaints included bullying and harassment.  It appears that attempts at informal resolution of her grievance failed and at the end of June she was put on special paid leave until the outcome of her grievance was known.  It appears that formal consideration of the grievance began on 3rd July, but by that time the University's personnel services had begun to deal with the issues arising from the forthcoming expiry of the fixed-term contract.

6.Quite apart from its dissatisfaction with Dr Evans's performance and conduct, the University's position on non-renewal was that there was no funding available to support renewal of the contract.  On 17th August, the applicant was told that her contract would not be renewed, but that she could appeal against that decision.  She did not appeal, but indicated that she wished to pursue her grievance.  However, after her contract expired, she commenced proceedings in the employment tribunal.

7.In a long, careful and well-analysed determination, the tribunal, chaired by Employment Judge Byrne, held that the applicant had not made any protected disclosures, that there had been no discrimination or bullying or harassment and that the University had been entitled not to renew her fixed-term contract.  All her claims failed.

8.The tribunal did accept that the applicant had an honest and genuine perception that she had been treated badly by the University and that she had been bullied and harassed and discriminated against, but the tribunal held that, when objectively analysed, there was no basis upon which the University's conduct could be criticised.

9.The applicant sought to appeal the substantive decision to the Employment Appeal Tribunal, but Judge Clark dismissed the appeal saying that the proposed appeal sought to challenge findings of fact and did not give rise to any issue of law which the appeal tribunal could properly consider.

10.Today Dr Evans, in her skeleton argument, has made a number of allegations about the hearing before the tribunal.  In particular, she feels that the whole procedure was unfair because the University had the advantage of a legal team, whereas she was in person.  I am not without sympathy for her position in trying to conduct her claim on her own without the advantage of legal representation, but I regret to say that that is one of the facts of life for employees/claimants who cannot afford to instruct lawyers.  The Government of this country does not provide Legal Aid for employment work and, indeed, never has done since this jurisdiction began in the 1970s.  There is no reason in law why it is required to do so.  In particular, the European Convention on Human Rights does not require the state to provide funding for legal representation. It requires only that litigants should be free to instruct lawyers of their choice and indeed, as Dr Evans accepts, she was entitled to do so.

11.It is clear that the tribunal recognised the difficulties that Dr Evans was experiencing and, so far as I can see, made such allowances as they could for her.  It is clear to me that Dr Evans had a very fair hearing.  The tribunal found against her on the evidence for reasons which they explain with commendable clarity.  Findings of fact cannot be disturbed by this court unless they are shown to have been perverse and these were not.

12.There remain two other aspects of the application.  Dr Evans applied for a review of the tribunal decision, but this was refused by a letter dated 13th January 2009.  She did not appeal that decision but, on 25th February 2009, she wrote to the tribunal enclosing some documents relating to an advertisement of which she had become aware in which the University was seeking to appoint someone to a research position, which she felt she was well qualified to fill.  Her letter to the tribunal enclosing these documents asked that the documents should be supplied to Employment Judge Byrne, as information relating to 'developments relating to her case'.  She added that she had received the tribunal's letter of 13th January refusing her application for a review and she continued:

"Whilst the tribunal may not consider the information attached, I would still request that it is added to the record as evidence of attempts to mitigate my employment losses."

13.The tribunal replied, on Judge Byrne's instruction, that the documents were not required as the proceedings had been concluded.  Dr Evans's complaint is that her letter sending the documents was really a second request for a review.  The documents, she said, were fresh evidence not available at the time of the hearing and were relevant to the question of the availability of funding to renew her contract.  Accordingly, Judge Byrne's dismissal of them as not required was an error of law.

14.I cannot accept that submission.  Dr Evans did not make it plain that she wished to make a second application for a review of the tribunal's decision and I do not see how Employment Judge Byrne could be criticised for failing to see it as such.  In any event, the applicant had already embarked on an appeal to the EAT in which she had not attempted to have the fresh evidence admitted.  But, even if she had done so, there would have been no prospect of its admission.  The funding in question was for research into a completely different project and would not have cast doubt on the University's claim that there was no funding to cover the renewal of her contract.  I regret to say there is no merit in this second point.

15.Dr Evans's third complaint relates to her contention that in addition to discrimination on the grounds of race, religion, sex and sexual orientation, she had also been discriminated against on the ground of her marital status.  She is single.  She claims that this issue had been raised at the hearing and that the judge had ruled that she could not pursue it.  Her point is that she should have been entitled to pursue this issue.  She was not allowed to and, as a result, part of her claim had not been dealt with by the tribunal.  Accordingly, she wrote to the tribunal asking for clarification as to whether an interlocutory ruling relating to this issue had been made on either 18th or 19th August, which were the first two days of the main hearing.  Judge Byrne answered by letter dated 4th September 2009, saying that the reserved judgment set out all the preliminary matters which had been discussed.  No other orders had been made.

16.It is clear from the section of the decision dealing with the preliminary issues that the scope of the hearing was carefully considered.  It would be surprising if the judge had misunderstood the scope of Dr Evans' claim.  When this point was pursued before Judge Clark in the EAT, the judge caused the file to be produced, which contained a document prepared by the applicant herself in which she had summarised her claim.  It was clear that she had not alleged discrimination on the ground of her marital status as a freestanding claim.

17.The applicant wished to pursue this point, although she has not addressed me on it orally.  She raised it in her skeleton argument.  I am afraid it is hopeless.  Quite apart from the fact that the evidence shows that she did not make a separate claim of discrimination on the grounds of marital status, it is clear that if she had done so that claim would have failed for the same reason as all her other claims of discrimination failed.  There had been no treatment of her which could have amounted to discrimination.

18.Dr Evans has addressed me with great courtesy and clarity and I am grateful to her for her submissions, but I regret to say that her proposed grounds are totally without merit and the application must be refused.

Order: Application refused