The applicant had been refused promotion to the grade of administrative officer after he did not receive top marks for an appraisal undertaken by his manager. He disagreed with that decision and so sought an appeal and then an internal safeguard review. That review supported the view of the applicant's manager and the applicant was informed that there were no further rights of review. He therefore initiated these proceedings.

Permission was at first refused by HHJ McKenna as the decision under challenge was "in the nature of a private rather than a public one" and only exceptionally available. In this case there was an alternative remedy available via the ET.  In this renewed application, the applicant argued that a civil servant is not, as a Crown employee, subject to an ordinary contractual relationship and he would be be unable to obtain adequate remedy through reliance on a breach of a contract. Beatson J rejects those submissions partly because he could see no evidence that the applicant had been unfairly treated but more decisively, case law demonstrated that there was a contractual relationship and so the claim could be brought in a tribunal or county court.
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Case No: CO/11593/2009
Neutral Citation Number: [2009] EWHC 3731 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS

Date:  Friday, 4th December 2009

Before:

THE HONOURABLE MR JUSTICE BEATSON

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Between:

**The Queen on the Application of Patel (Claimant)

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Her Majesty's Revenue and Customs (Defendant)

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(DAR Transcript of
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The Claimant appeared in person.

The Defendant did not appear and was not represented.

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Judgment
(As Approved by the Court)
Crown Copyright©

**Mr Justice Beatson:
**1. Mr Patel is an employee of Her Majesty's Revenue and Customs. He seeks to challenge the decision made on 8 July 2009 by a review officer, Kerry Black, who conducted a safeguard appeal by him in respect of his wish to be promoted to assistant officer. He wishes to have struck out supplementary comments in his appraisal and to be given top marking.

1. The claimant had worked for the Revenue and Customs and previously for the Inland Revenue since October 1997. The appraisal which was the subject of the safeguard review and which has generated these proceedings was in 2008. Its outcome of that was that his manager, Carole Pegg, gave him an assessment and commented that he was not suitable for promotion.  The comments on this stated that Mr Patel:

"…is keen to obtain a promotion marking but needs to guard against his enthusiasm for Customer Service preventing him from completing his day to day work.  He has often been unable to complete the post given to him on a daily basis and has to complete it the following day.  Everyday tasks ... are not done and he has to be reminded on a regular basis to complete it at the month end.  He takes on new tasks but after the first few weeks he loses interest.  Khandu is an experienced AA and needs to recognise the importance of doing an excellent job to the current grade instead of getting sidetracked by work of a higher grade.  Also he often suggests ways to improve working practices but does not always see the effect that his suggested changes can have on customers or other areas of the business."

1. As a result of this, Mr Patel, on 20 April this year, launched an appeal.  The counter-signature is from Miss Pegg's manager, Mrs Bennett.  He indicated that he wished to appeal against his performance assessment box marking, his promotion marking and the manager's comments.  He entered into the form electronically his comments saying why he disagreed with the assessment.

1. His comments include: the development activities he undertook made continuing improvements; that he responded to customers who required information by telephone or reply in free format, ie not in standard form letters or interviews; and he lists examples of him working with and drawing on the expertise and ideas of colleagues to increase the thoroughness and efficiency with which he did his job.  He refers to numerous telephone calls, letters and emails expressing appreciation of his work. He also challenged the manager's comments about the failure to post work or keep records up-to-date as factually incorrect and sets out his reasons for so concluding.  He also claims that the assertion that he was in any sense slow or dilatory was factually incorrect.

1. The matter came before Kerry Black.  Before it did so the claimant, Mr Patel, added a letter commenting that the evidence did not support the decision made.  This, he said, was because evidence which could be material had not been properly assessed and because of procedural irregularity in the handling of the appeal.

1. He states that Ms Pegg never acknowledged any of the letters he wrote as fulfilling the requirements to earning promotion and that the number of letters of thanks he submitted in support of his appeal "must have been exceeded by few in the department".  He states his manager went on leave soon after the review meeting and he had to make his appeal before having her reasons in writing to stay within the time limit.  She then commented with the remarks of which he complained, saying he was dilatory.  He also stated that soon after Ms Bennett joined the section she seemed determined to find fault with almost all he was doing.  He gives several examples and he refers to a remark that Ms Pegg made before his review with her, interjecting in a conversation he was having with a colleague about the promotion he was seeking.  He stated that Ms Pegg said "It is doubtful", which he believed was directed at his internal appeal.

1. The safeguard review is conducted on papers.  Mr Patel accepts that that is not in itself a problem, but he complains that the review simply repeated what his managers had written and did not address itself to his appeal.  The letter containing the outcome is a lengthy letter of 13 double spaced pages in typescript.  The letter sets out the appraisal result and then deals with the appeal.  There are headings in which the letter addresses the complaint that the managers refused to accept the merits of Mr Patel's letters written and team minutes.  There is a heading about the number of letters of thanks and headings "manager unwilling to consider work established competence to the next grade" and "manager is not familiar with AO grade work".  Under each heading the letter responds to points raised.  For example in the section of "refusal to accept the merits of letters" it is said:

"Whilst I acknowledge that this matter could have been worded more constructively and/or further emphasis placed on the benefit you have afforded your customers I hold the view that the inclusion in your performance reports supports the letters you presented were considered when reaching a judgment on the level of your performance.  The appeal manager decided that credit had been given to you within your statement of achievement and from the evidence presented to me I concur with this conclusion."

1. As far as whether the letters demonstrated a level of competence for the higher grade, Ms Black states:

"You did not provide specific evidence or details of the scenario you were faced with, what was expected of you in your role and what action you completed which demonstrated a higher level of knowledge and/or competence against the specific competences criteria outlined in the management framework. As such there is insufficient evidence available to support your view. While the letters presented to me clearly demonstrated that you have provided a good level of customer service there is nothing in the letters which provides me with any understanding of competences to a higher level"

1. In relation to the number of letters Ms Black states that again no evidence was provided of the number of letters, but she had the assumption that there must be many.  She, however, concluded that that did not assist in demonstrating a sustained very high level of performance and behaviour that is required to demonstrate a top award marking.

1. The other headings are addressed in a similar way.  She deals with the allegation of procedural irregularity and concludes that on the balance of probability it was more likely than not that Mr Patel attended the meeting with his manager to discuss his comments on 27 November.  She rejects the complaint that the comments were made out of malice.  She notes that the relevant templates states that the manager's comments should summarise what the jobholder needs to learn and what they need to develop further, how this will be achieved and the reason for recommending a development move, and she concluded that in the light of that she could not agree that the comments were not appropriately included in the document.  She acknowledged that some details could have been included to demonstrate where Mr Patel achieved the standard for the higher grade but she said that, taking account of this, she did not believe that any of the comments that were made were incorrect or inappropriate.

1. The letter also deals with the claimant's complaints that he was not fairly or impartially treated and the promotion marking.  The conclusion was that Ms Black was satisfied that the appeal officer considered all the relevant evidence against each point of the appeal and that her decision was reasonable.  She also was satisfied that there was no procedural irregularity which would warrant a further review and states that the decision was final and exhausts internal rights of review.

1. Proceedings were launched by Mr Patel on 7 October, and permission was refused on the papers by HHJ McKenna on 12 October.  In refusing permission the judge observed:

"The decision under challenge is in the nature of a private rather than a public one.  Moreover judicial review is a remedy of last resort and only exceptionally available, whereas here there is an adequate alternative remedy via the Employment Tribunal.  There is nothing exceptional about this case."

1. The defendant's Acknowledgment of Service arrived almost a month after the decision was made.  It must have been prepared after the judge's observations were available to the defendant.  It was submitted after the claimant submitted his renewal application.  It was not submitted out of time, but it was unfortunate that it was not submitted before the decision was made.  But as the decision was only made five days after Mr Patel lodged his application, that is understandable.  At any rate the defendant's Acknowledgement of Service relies on the fact that judicial review is inappropriate for matters arising out of an employment relationship which continues and is of a "private law" nature.

1. Mr Patel, in his application to renew the application for permission, pointed the court to a number of decisions which he submitted showed that the position of a civil servant is not a pure and ordinary contractual relationship.   He referred to R v Civil Service Appeal Board ex parte Bruce [1988] ICR 649, a number of Privy Council cases in the late 1960s and early 1970s such as Kodeeswaran v Attorney General of Ceylon [1970] AC 1111 in 1970 and other cases.  He referred to the fact that statute specifically applies employment rights and other rights legislation to Crown employment, which shows that those employed by the Crown do not have a contract of employment but are to be treated as if they did for the purposes of the statutes.

1. Before me Mr Patel submitted that he would be unable to obtain an adequate remedy through contract law because the remedies available under contract would not suffice, and would not provide him with protection against unreasonable and irrational decisions made by his employers.  The instruments of protection afforded by judicial review in its tests of relevance, proper purposes and rationality protected him and other Crown employees in a way that contract law does not.  His case is based on the claim that the way his progression was managed was unfair, that he had exhausted the internal process and had no further internal process, and there is no jurisdiction in the employment tribunal because he remains in his employment.  He accepted that he had not thought about the county court and stated that no one to whom he had spoken had suggested the county court.

1. I have set out the factual basis upon which Mr Patel bases his public law claim in greater detail than would normally be the case at a renewal hearing.  I have done so because, while I believe that ultimately this case must be disposed on the basis of the legal position, it is important for the court to form an assessment of the underlying arguability of the case.  Essentially the difference between Mr Patel and his managers is a difference of judgment as to his competence.  There are some issues of fact such as whether he had completed tasks in the requisite time, but judicial review is not a process that is appropriate for determining this.

1. Leaving aside the questions of law, I do not consider that, on the material brought before the court by Mr Patel, he has shown that he has arguably been treated unfairly, in particular in the safeguard review, which is the decision under challenge.  Ms Black's letter deals with the points.  She does not set out every matter in the appeal documents.  That is understandable but she deals, in my judgment, with the essence of the complaints.  Mr Patel was not able, despite my invitation, specifically to point to a matter which is not in substance dealt with in her response.  He submitted that she did not address the fact that he wrote non-standard letters.  But she did address the question of whether the letters that were presented provided evidence that Mr Patel was performing at a level of competence that was appropriate for the higher grade.  I have quoted that section of her letter.

1. I turn to the legal point.  Mr Patel is right that the position of Crown servants differs from other employees but, notwithstanding the decision in Bruce, in R v Lord Chancellor's Department ex parte Nangle [1992] 1 All ER 897 it was held that a civil servant who had been transferred and denied an increment in salary after an internal disciplinary process could not challenge the fairness of the disciplinary process by way of judicial review.

1. The position is stated in summary form in Wade and Forsyth's Administrative Law 10th Edition, page 56.  The authors refer to the fact that in cases of dismissal the courts have been determined to reduce the contractual element in Crown service almost to a vanishing point, and states that cases such as Inland Revenue Commissioners v Hambrook [1956] 2 QB 641 are no longer correct.  The Kodeeswaran case to which I have referred, and Mr Patel cites, held that the law of Ceylon allowed a civil servant to sue for increments of salary, and in Bruce's case the Divisional Court held that there is no constitutional bar to a contract of employment between a civil servant and the Crown.  Wade and Forsyth state, referring to Nangle's case, "more positively" "the Divisional Court held that civil servants do after all have contracts of employment with the Crown."  Civil servants have contracts of employment with the Crown and the contents of those contracts are determined by the Civil Service Code which involves the public law duties of the Crown not to act Wednesbury unreasonably or irrationally or unfairly.  In any event, there is a duty of fairness on employers vis-a-vis their employees.   For these reasons, I am satisfied that it is not arguable that on the scenario of this case it would be right to allow Mr Patel to proceed by judicial review when he can bring his claim, insofar as it is based on unlawful discrimination, before a tribunal or otherwise in the county court.

1. For these reasons this renewed application is dismissed.