Case No: A2/2009/1971
Neutral Citation Number: [2010] EWCA Civ 540
IN THE COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 19th February 2010

Before:

LORD JUSTICE ETHERTON

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Between:

**KERSHAW (Appellant)

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HER MAJESTY'S REVENUE AND CUSTOMS (Respondent)**

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( DAR Transcript of
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The Appellant appeared in person.

The Respondent did not appear and was not represented.

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Judgment (As Approved)
Crown Copyright©

Lord Justice Etherton:
1.This is an oral renewal of an application by Mrs Margaret Kershaw ("Mrs Kershaw") for permission to appeal the decision of His Honour Judge Pugsley, who sat with Professor S.R.Corby and Mrs S. Yeboah as judges of the Employment Appeal Tribunal ("Tribunal"), on 7 August 2009.  Mrs Kershaw has represented herself on this hearing.

2.The Tribunal dismissed Mrs Kershaw's appeal against the decision of the Employment Tribunal ("the ET"), sitting in Newcastle, of 4 February 2009 that she had been less favourably treated on grounds of her racial origin or of her sex and that she had been victimised.

3.Mrs Kershaw describes herself as being of Zimbabwean mixed race.  She was employed by HM Revenue and Customs ("HMRC") as a Revenue Officer on a fixed term contract running from 5 September 2005 until 31 March 2006.  This was subsequently extended by agreement.  Under the terms of the employment contract Mrs Kershaw could herself terminate the agreement with three months' notice to HMRC.  Alternatively, HMRC could terminate the agreement with five weeks' paid notice to her.

4.On 5 May 2006 a meeting took place between Mrs Kershaw and Fiona Lowes, a manager at HMRC, following which a probation final report was produced.  Mrs Kershaw scored only two out of three on one of the assessment criteria.  As a result Mrs Kershaw's probation period was extended by a further three months.  A Performance and Development Evaluation ("the PDE") was completed on 9 May 2006.  Mrs Kershaw appealed the appraisal of her work in the PDE.  She stated that she had been told that her output was not as high as others, but she contended that she was performing to the same standards as others who had not been penalised as she had been.  She was referring to a freeze on her salary, when others were awarded a pay rise.  Mrs Christine Suddaby was appointed by HMRC to consider Mrs Kershaw's appeal against the PDE.

5.Between 20 June and 6 July 2006 Mrs Kershaw was monitored by Heidi Collins. The consequence was that on 12 or 13 July 2006 a decision was taken to commence dismissal procedures.  Mrs Kershaw was given a letter expressing concern with the level of her work and inviting her to attend a meeting on 18 July 2006. On 14 July 2006 Mrs Kershaw complained to Nicola Clevedon that she had been discriminated against on the basis of her race.  At the meeting on 18 July 2006 Mrs Kershaw was represented by Vivien Carr, a trade union representative. Mrs Kershaw says that at this meeting she was dismissed and told that her last day of work would be 8 August 2006.

6.Mrs Kershaw returned to work on 19 July 2006.  Steven Wright, another manager at HMRC, physically prevented Mrs Kershaw on that occasion from taking certain documents, forcibly removed them from her, and disposed of them as confidential waste.  Mrs Kershaw claims that Mr Wright shouted across the office that he was going to give her a letter sacking her.

7.At a meeting on 26 July 2006 Mrs Kershaw's pass was taken from her.  She was not required to work a period of notice and was paid five weeks in lieu up to 31 August 2006.

8.On 24 August 2006 Mrs Suddaby wrote to Mrs Kershaw notifying her of the outcome of her appeal against the PDE.  The appeal was not upheld.  The reasons given were as follows:

"The evidence provided by your manager is that the quality and quantity of the work were below the required standard for a Good marking.  The only mark that could be given was 'improvement needed'.  As the job holder you provided no evidence to counter this mark."

9.Mrs Kershaw raised a grievance in a letter dated 12 September 2006 asserting that she had been discriminated against because of her race.  She was told that her grievance would be investigated.  The investigation did not in fact commence until 9 March 2007.  The conclusion, provided on 27 March 2008, was that there was no evidence to support a claim of race discrimination either individually or collectively against any of the seven managers named by Mrs Kershaw.

10.On 22 January 2007 Mrs Kershaw submitted an application to the ET.  She made allegations of direct sex discrimination, direct race discrimination and victimisation on the grounds of race and/or sex.  She sought a declaration that she had been subjected to unlawful discrimination and victimisation on the grounds of her race and sex and sought compensation for the same.  A large number of individual complaints were made.  The principal ones were as follows: (1) The shadowing of Shirley Atkins: Mrs Kershaw said that she was singled out in front of her colleagues and was sent to work shadowing another colleague in another building.  (2) The blackboard:  Mrs Kershaw and another black employee, Hazeinei Musakanya, were moved to sit in a position where a large blackboard was positioned to divide them from her mainly white colleagues.  (3) Meetings between Mrs Kershaw and Pam Morrison in December 2005: Mrs Kershaw was told that she should not perform certain types of work, was criticised for taking up a disproportionate amount of time of the floor walkers, and she was denied overtime work.  (4) The probation meeting of 27 January 2007:  Mrs Kershaw asserted that she should not have scored two for the third of the three criteria, and argued her work standard was at the same level as that of her colleagues.  (5) Retraining:  Mrs Kershaw was requested to take E1 training when she had achieved F status in March 2006. She said that she was the only employee singled out to do so.  (6) Special leave: Mrs Kershaw said that she requested, and was refused, time off for care of a nephew and for leave to see her 80-year old mother depart to Africa.  She also said that she requested five days leave to attend a nephew's funeral, but she was given only two days.  (7) Telephoning Africa:  Mrs Kershaw was told that she could not telephone Africa when she asked if she could make an external telephone call.  (8) Extension of probation:  at the meeting on 5 May 2006 Mrs Kershaw was informed that her probation period would be extended for three months.  She disagreed with the scoring that she had been given.  (9) Not allowed to move desks:  Mrs Kershaw complained that she had to move to a seat where she was subject to draughts from air conditioning, and that, having visited her doctor and been prescribed antibiotics for blocked sinuses, she was refused permission to move desks.

11.In addition to those matters, Mrs Kershaw has also emphasised to me this morning her treatment compared with other people, in particular Joan Gilmore and Siobhan Conroy, who, although they had failed their test, had their pay at the same level of E1 until the commencement of the case before the ET, and again issues relating to victimisation, having to do small tasks, and matters concerning Hazeinei Musakanya and Mr Wright's conduct.

12.The hearing before the ET took place from 3 to 20 November 2008, and its decision was entered on 4 February 2009.  A notice of appeal was filed on 17 March 2009.  Mrs Kershaw appealed on the grounds, among others, that the ET's judgment did not address the difference in treatment in respect of pay and performance;  the judgment failed to address the experience of two non-white colleagues Hazeinei Musakanya and Nobesutha Nadirize; the ET was wrong to conclude that Mr Wright would have been as aggressive with Mrs Kershaw if she had been male; and the ET had failed to address the question of whether there was unwelcome attention from Mr Kevin Tyson due to Mrs Kershaw's gender.

13.On 15 May 2009 the appeal was referred to His Honour Judge Serota QC in accordance with Rule 3(7) of the EAT Rules 2004.  He concluded that parts of the notice of appeal disclosed no reasonable grounds for bringing the appeal. He referred the grounds in paragraphs 1 and 2 of the notice of appeal to a preliminary hearing.  He decided that none of the other grounds qualified for hearing before the Tribunal because they did not raise issues of law or were not arguable. They included the allegation concerning Mr Wright, the question of instruction not to carry out informal calculations, the phoning of Africa, the issue concerning Mr Tyson, performance capability, the awareness of managers of the discrimination claim, and  the standard dismissal procedure.

14.The appeal on the two grounds allowed to go forward was set down for a preliminary hearing in accordance with paragraph 9(7) of the EAT Practice Direction.  That appeal was, as I have said, dismissed on 7 August 2009.  An appellant's notice was lodged with the Court of Appeal on 8 September 2009.

15.The ET considered each of Mrs Kershaw's complaints individually and in the round.  Its findings of fact begin at paragraph 9.1 of the judgment and continue to paragraph 9.27.  They include findings on the method of recruitment and assessment, as well as findings in respect of the allegations which I have mentioned.

16.The general conclusion of ET began at paragraph 10.1 as follows:

"We have found facts and reached conclusions on all matters ascribed up to and including paragraph 9.23.  We have not only looked therein  individually and in isolation but also collectively to see if there can be detected a picture of a continuing course of discriminatory conduct by a single manager or group of managers. We do not consider that there is clear evidence from which we could find that there was collusive conduct.  There is, however, clear evidence of deficiencies in Mrs Kershaw's performance which comes from a number of different sources. We next have to examine closely the matters of factual issues arising from paragraph 9.24 onwards."

17.The ET accepted that HMRC had genuine and sufficient grounds for implementing the dismissal procedure.  The ET concluded, in respect of Mr Wright's treatment of Mrs Kershaw, that his treatment was for the sole reason that he was concerned that she was insisting upon taking confidential taxpayer information off the floor and that, although his actions in some respects were unreasonable, they were not by reason of discrimination or victimisation.  The ET expressed concerns about a number of matters surrounding Mrs Kershaw's subsequent dismissal on 26 July 2006, but the question it had to consider was whether there was evidence from which it could conclude that Mrs Kershaw was so treated on the grounds of her national or racial origins.  It concluded there was no basis for such a finding and that the dismissal did not amount to race victimisation.  As to Mrs Suddaby's dismissal of Mrs Kershaw's appeal, the ET considered there to be ample evidence to support that decision.  So far as concerned delay in dealing with Mrs Kershaw's grievance and the conclusion in the resulting report, the ET concluded that they were not racially motivated.

18.As I said, so far as concerns the Tribunal's decision, the only matter that it had to deal with was whether or not there were arguable grounds for appealing in relation to the first and second of the ten paragraphs in Mrs Kershaw's grounds of appeal.  Those two grounds were that the ET did not address the fact that the treatment which Mrs Kershaw had received in respect of pay and performance was different from the treatment of other white colleagues in the office, and that the ET did not address the racial discrimination experienced by the two other non-white colleagues I have mentioned earlier.

19.In respect of the first of those issues the Tribunal pointed out that the allegation had not been put on the basis that Mrs Kershaw was paid less because of a discriminatory pay scale, but that she was marked down and was therefore not eligible for a pay increase because she did not get the requisite grade on assessment.  The ET had considered the matter extensively at paragraphs 9.24 onwards.  In respect of the second issue the Tribunal recognised that much of what Mrs Kershaw had asserted as evidence from which discrimination on racial grounds could be inferred was not in their view supported by the evidence of the two non-white witnesses on whom Mrs Kershaw relied, namely Hazeinei Musakanya and Nobesuthu Nadirize.  The Tribunal took the view that the two witneses undermined rather than bolstered her case.

20.The Tribunal concluded that it was being asked to reverse findings of fact made by the ET or at least to allow those findings of fact to be queried.  The Tribunal decided that the ET had, within the discretion afforded to a fact-finding body, formed views which it was entitled to do. The appeal was dismissed for that reason.

21.Mrs Kershaw's grounds of appeal to this court comprise some 13 pages, but she has helpfully consolidated the points in a two-and-three-quarter page summary which she has taken me through this morning.  Briefly, those points are as follows.  She says that certain members of staff were treated favourably by HMRC on the basis of race and, in particular,  Jean Gilmore and Siobhan Conroy.  She says that, although they failed the test twice, they continued to be paid without a reduction of salary. She also compares the qualifications of those people with, for example, Mrs Kershaw herself and Hazeinei Musakanya.  She says that Nobesuthu Nadirize was discriminated against on the ground of race, and gives various examples of that, and makes comparisons with Mrs Kershaw's position.  She then complains about sex discrimination manifested by Mr Wright's improper physical handling of her, and Mr Tyson's persistent invitation to her to go on a date, which she refused.  She complains of the managers promoting a general culture in which there was racial discrimination, and she gives particular examples of that.  She complains that her performance was not rated at the standard at which it should have been.  She complains of the delay in carrying out the grievance procedure, the delay of HMRC in providing minutes of meetings and victimisation by requiring her to do small tasks.

22.As I reminded Mrs Kershaw, the appeal to the Court of Appeal is not a rehearing.  She must show that the appeal has a real prospect of success or that there is some other compelling reason for granting permission.  In effect, unless she can show a real prospect of success on the hearing of the appeal that there has been an error of law or some serious error of procedure which undermines the propriety of what took place below, then permission to appeal must be refused.

23.Mrs. Kershaw in her grounds of appeal does say that there are points of law which arise, but the reality is that, however the points on which she relies are dressed up, the appeal rests fundamentally on issues of fact which she says the ET got wrong.  By way of example, in relation to the first point on which Mrs Kershaw dwelt at some length, namely the position of Ms Gilmore and Ms Conroy, Mrs Kershaw drew my attention to some of the correspondence on which she relies.  One was a letter dated 29 August 2007 from HMRC to Ms Gilmore in which the writer of the letter said that she regretted to inform Ms Gilmore that, although she had been downgraded from AO to AA, they had failed to inform Human Resources in time to stop the salary being paid incorrectly and therefore she had been overpaid for the period 31 August 2006 to 8 June 2007.  On the face of it that would run completely contrary to the assertion that, although Ms Gilmore had not passed the test, the continuing payment to her at the old rate was evidence of discrimination on racial grounds.  I say that because the letter was written before the hearing took place in the ET itself. Mrs Kershaw said the date on the letter of 29 August 2007 was false, but that is classically not the sort of matter than can be raised in this Court.  It is a matter of fact to be dealt with by the fact-finding Tribunal and it would be quite impossible, on Mrs Kershaw's surmise that the letter had been manufactured in some way, for this court to say that the Tribunal had erred in law.  In truth, while I do appreciate how important this matter is to Mrs Kershaw, which is why I have given an unusually long and detailed judgment for a permission application, there is nothing in these points of appeal which raises a point of law or some other point which has any real prospect of success were I to permit the appeal to go ahead.  Accordingly, permission to appeal is refused.

Order: Application refused