Dr S Krishna Thalagavara v Cwm Taf University Health Board and others: 1600048/2017 & 1601045/2017

EMPLOYMENT TRIBUNALS

Case No 1600048/2017, 1601045/2017, 16001045/2017

Between

Dr S Krishna ThalagavaraClaimant

Cwm Taf University Health Board and othersRespondent

Before

Regional Employment Judge B J Clarke

Not represented for claimant

Date 21 May 2018

JUDGMENT

The above claims are struck out in their entirety.

REASONS

All reference in this judgment to "EqA" are to the Equality Act 2010. All references to "Rules" are to the Employment Tribunal Rules of Procedure 2013. Case Numbers: 1600048/2017 & 1601045/2017 2 The issues for determination

[1]The claimant has been engaged in litigation with the respondent health board and various other named individuals and organisations for a period of about 2½ years. He has now brought three separate claims before Wales Employment Tribunal, which were presented on 20 December 2015, 11 January 2017 and 12 November 2017. The first claim has already been dismissed. This Rule 53 preliminary hearing was listed to deal with various applications by the respondents to strike out the second and third claims. I will deal in a moment with the content of those claims and the history of the associated tribunal proceedings.

[2]The specific issues for determination at this hearing are as follows:2.1 Should any of the claimant's complaints pursued in the second or third claims be struck out as vexatious, applying the doctrine of "res judicata", in the sense that they are an abuse of process? (Rule 37(1)(a))

2.2 Insofar as any such complaints are not struck out on this basis, should they be struck out on any alternative basis such as whether they were presented out of time and/or have no reasonable prospect of success? (Rule 37(1)(a))

2.3 Insofar as any such complaints are not struck out on this alternative basis, should the claimant be ordered to pay a deposit as a condition of continuing to pursue them on the basis that they have little reasonable prospect of success? (Rule 39)

[3]In a note prepared by counsel shortly before the hearing, the respondent health board asked the tribunal to deal with a further issue: whether I should declare the third claim to be "totally without merit" by reference to the judgment of Laing J in Nursing and Midwifery Council v. Harrold

[2016] IRLR 497

. This point was not in the event pursued.

[4]Once I appreciated the time it would take to conduct a close examination of the content of the three claims, as requested by the respondents, I reserved judgment. I apologise that it has taken longer than I had anticipated for the tribunal to issue this judgment, which is a consequence of workload pressures. The claimant's non-attendance at the hearing

[5]The hearing was due to commence at 9.45am. The parties were notified the day before the hearing that the venue had been changed from Cardiff Magistrates' Court to Pontypridd County and Family Court; this often happens Case Numbers: 1600048/2017 & 1601045/2017 3 and is a consequence of a policy of over-listing cases to ensure effective utilisation of judges and venues. Mr Leach attended the hearing with his instructing solicitors on behalf of the health board and the other respondents. As noted above, the claimant did not appear; he gave no explanation at the time and I understand him to have given none since.

[6]I examined the file to check that the claimant had been notified of the date of the hearing and the change of venue; the answer to both was yes. His awareness of the hearing was demonstrated by the fact that he had corresponded with the tribunal about it on 3, 8, 12, 17, 21 and 22 January 2018, expressing his concerns about the decision of Employment Judge S Davies to consider various matters together at this hearing; and, on 7 March 2018, the tribunal had emailed him to confirm her refusal to postpone this hearing. The file also confirmed that the claimant had provided no written submissions beyond the points made in his previous correspondence.

[7]I checked whether the claimant had attended in Cardiff instead, but he had not. There was no telephone number for him on the file. Bearing in mind the distance of 13 miles between the Pontypridd venue and the Cardiff venue, and the risk that confusion had arisen from the change in venue, I delayed the start of the hearing to 10.45am. In the meantime, I asked the clerk to make enquiries of the respondents about whether they had a contact number for him (they did not). After consulting the respondents' counsel, Mr Leach, I decided to proceed in the claimant's absence and the hearing began at 11am. Having regard to Rule 47, I have familiarised myself with the claimant's correspondence to ensure that I have considered the points that, had he attended, he might have made.

[8]The respondents produced a bundle of about 200 pages which related to the history of the proceedings and contained relevant documentation in relation to certain of the claimant's allegations. The relevant legal principles: res judicata

[9]In the case of Divine-Bortey v. Brent London Borough Council

[1998] IRLR 525

, the Court of Appeal described three types of estoppel encompassed by the doctrine of "res judicata":9.1 "Cause of action estoppel", which prevents a party pursuing a cause of action which has been dealt with in earlier proceedings involving the same parties;

9.2 "Issue estoppel", which prevents the party pursuing an issue which has been decided in earlier proceedings involving the same parties; and Case Numbers: 1600048/2017 & 1601045/2017 4

9.3 A wider form of "issue estoppel", as described in the case of Henderson v. Henderson [1843] 3 Hare 100, which prevents a party from pursuing an issue which could and should have been litigated in the earlier proceedings.

[10]A claim presented in such circumstances can be described as an abuse of process which, for the purposes of Rule 37(1)(a), is considered vexatious.

[11]In Johnson v. Gore Wood & Co

[2002] 2 AC 1

, the House of Lords re- examined the rule in Henderson. Lord Bingham explained that it was necessary to reach a "broad, merits-based judgment", taking account of the public and private interests involved and the facts of the case, focusing attention on the crucial question of whether, in all the circumstances, the party was misusing or abusing the process of the court by seeking to raise issues which could and should have been raised before.

[12]This approach applies equally in the employment tribunal; see, by way of illustration and guidance, the EAT's judgments in cases such as Parker v. Northumbrian Water

[2011] IRLR 652

, Owolabi v. Bondcare & others (

EAT/0624/12

), Fox v. Bassetlaw District Council (

EAT/0274/12

), Deer v. University of Oxford (

EAT/0532/12

), Thomas Cook Airline Services Ltd v. Wolstenholme (

EAT/0353/12

) and London Borough of Haringey v. O'Brien (

EAT/0004/16

). The O'Brien case confirms that the assessment under Henderson must be by reference not to the date on which an earlier claim was presented but by reference to the date of the hearing, given the possibility that a claimant may apply to amend the claim up to the point at which the hearing takes place. In the present case I note that the hearing of the first claim took place on 28 June 2016. The relevant legal principles: no/little reasonable prospect of success

[13]The threshold for striking out a claim for having no reasonable prospect of success is high. Where there are facts in dispute, it is only exceptionally that a case should be struck out without the evidence being tested. A claim should not be struck out if the prospect of success was "realistic" as opposed to "fanciful". Tribunals should not be overzealous in striking out a case as having no reasonable prospect of success, unless the facts as alleged by the claimant disclosed no arguable case in law (Ezsias v. North Glamorgan NHS Trust

[2007] EWCA Civ 330

CA).

[14]For the purposes of deciding whether to strike out a claim as having no reasonable prospect of success, a tribunal must assume the claimant's version of events is correct where there is any dispute (Patel v. Lloyds Pharmacy Ltd

EAT/0418/12

). Case Numbers: 1600048/2017 & 1601045/2017 5

[15]Strike out is a "draconian power" that should not be exercised lightly by a tribunal (Blockbuster Entertainment Ltd v. James

[2006] EWCA Civ 684

CA).

[16]The power should be exercised only after a careful consideration of all the available material, including the evidence put forward by the parties and the documentation on the tribunal's file. The threshold of "no reasonable prospect of success" does not mean that the claimant's claim is likely to fail, or that it is possible the claim will fail. It is not a test that can be determined by considering whether the other party's version of disputed events is more likely to be believed. It is a high test: there must be no reasonable prospect of success (Balls v. Downham Market High School

EAT/0343/10

[17]Where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts. There may be cases where it is demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the documents (Tayside Public Transport Company Ltd (t/a Travel Dundee) v. Reilly

[2012] IRLR 755

CS).

[18]Sometimes it may be obvious that, taking the facts at their highest in favour of the claimant, as they would have to be if no evidence were to be heard, the claim simply could not succeed on the legal basis on which it has been put forward. Where, however, there is a dispute of fact, then unless there are good reasons, indeed powerful ones, for supposing that the claimant's view of the facts is unsustainable, it is difficult to see how justice can be done between the parties without hearing evidence to resolve the conflict of fact (Romanowska v. Aspirations Care Ltd

EAT/0015/14

[19]Additional considerations apply in respect of applications to strike out claims of discrimination:19.1 Discrimination can be described as a social evil. Such claims should not be struck out on the basis of having no reasonable prospect of success save in the plainest and most obvious cases. They are generally fact-sensitive, and their proper determination is vital in a pluralistic society. In this field, perhaps more than any other, the bias in favour of a claim being examined on the merits or demerits of its facts is a matter of high public interest (Anyanwu and another v. South Bank Students' Union and South Bank University

[2001] IRLR 305

HL).

19.2 There have been some cases where it was appropriate to strike out a discrimination claim. For example, the EAT held that a complaint of age discrimination could properly be struck out on the basis that it was Case Numbers: 1600048/2017 & 1601045/2017 6 prima facie implausible to the point of absurdity for a claimant to allege that he had not been offered an alternative position during a redundancy consultation because the successful candidate was nine months older than him (see ABN Amro Management Services Ltd and another v. Hogben

EAT/0266/09

19.3 The concept of "Micawberism" was canvassed in the ABN Amro case. The employer in that case contended that it would be wrong in principle to allow an apparently hopeless case to proceed to trial in the hope that "something might turn up" during cross‑examination.

[20]The tribunal can, in the alternative, order a claimant to pay a deposit under Rule 39 as a condition of continuing with his contentions if they have little reasonable prospect of success. This test is not as rigorous; in Van Rensburg v. Royal Borough of Kingston-Upon-Thames & others (

EAT/0096/07

), for example, the EAT stated that "a tribunal has a greater leeway when considering whether or not to order a deposit" than when deciding whether or not to strike out. This may include a provisional assessment of the credibility of a party's case when deciding whether to make a deposit order. The relevant legal principles: time limits

[21]In her judgment in respect of the claimant's first claim, Employment Judge S Davies summarised (at paragraphs 10 to 14 of her judgment) the relevant legal principles and case law. I incorporate that summary into this judgment by reference. The legal proceedings to date

[22]Whether for the purposes of the "broad, merits-based judgment" urged by the House of Lords in Johnson v. Gore Wood & Co

[2002] 2 AC 1

or the careful consideration of the available material required when assessing whether a complaint has no reasonable prospect of success, it is necessary for me to examine closely the matters that the claimant has put before the tribunal. I will look at each of his three claims in turn. The first claim

[23]The claimant qualified as a consultant psychiatrist, He worked for the respondent health board between 5 March 2012 and 8 May 2014, when he was dismissed on capability grounds. It is worth underlining the point that this employment relationship ended some four years ago.

[24]On 20 December 2015, the claimant presented an ET1 claim form against the health board. He also named the health board's chair, chief executive, Case Numbers: 1600048/2017 & 1601045/2017 7 medical director, deputy medical director, clinical director, primary care director and assistance workforce director as additional respondents. This claim was allocated case number 1600011/2016; I shall refer to it as the "first claim".

[25]In the context of this preliminary hearing it is necessary to summarise the main contentions set out in the first claim. In doing so I recognise that it is difficult to capture all the nuances of the claimant's concerns; his particulars of claim ran to 18 pages and 49 paragraphs. In summary, the claimant contended that he was a disabled person by reference to three conditions: depression, type 2 diabetes and Hodgkin's lymphoma. He alleged that the health board unfairly dismissed him and that all respondents had to varying degrees subjected him to discrimination. Harassment, victimisation, a failure to make reasonable adjustments, direct and indirect discrimination and discrimination arising from disability were all alleged. This included alleged discrimination both before and after his dismissal.

[26]Without attempting an exhaustive list, I need to describe the range of issues pursued in the first claim. The claimant identified many areas of concern that he wanted to bring before the tribunal and they covered a period of more than two years:26.1 a requirement in early 2012 to use his mobile telephone in areas with poor reception;

26.2 a refusal to schedule a return to work meeting following a period of sickness absence in May 2012;

26.3 inappropriate supervision resulting in further sickness absence in July 2012;

26.4 a refusal to grant him a "study funding request" in July 2012;

26.5 unreasonable demands for him to attend a meeting with Dr Winston in August 2012;

26.6 incorrect details in a referral of his case to occupational health;

26.7 a failure to carry out a risk assessment for his work-related stress at the same time;

26.8 a refusal to consider temporary work as an alternative to his sickness absence between October 2012 and December 2012;

26.9 a failure to offer him psychological support or an independent psychiatric assessment in the second half of 2013; Case Numbers: 1600048/2017 & 1601045/2017 8

26.10 unreasonable requests made of him to attend meetings during August 2013 to discuss his attitude and behaviour;

26.11 the respondent health board's decision to report him to the GMC in October 2013 in respect of his fitness to practise, and its approach to that matter generally, which led to him feeling helpless and to serious incidents in his personal life1;

26.12 an inadequate response to a disclosure of his concerns about patient safety in November 2013;

26.13 recategorisation of his sick leave as annual leave in December 2013;

26.14 a refusal to offer him out-of-area psychology treatment in late 2013 and early 2014;

26.15 a refusal by Dr Quirke and others in February 2014 to offer him private medical treatment funded by the respondent health board;

26.16 a refusal to progress his grievance in early 2014;

26.17 a decision to block his emails because they were considered offensive and abusive;

26.18 a protected act which consisted of telling the respondent health board in February 2014 that he was unable to make a clear judgement about whether to bring a tribunal complaint;

26.19 the health board's decision to terminate his employment on capability grounds in May 2014;

26.20 an allegation in August 2014 that the health board had colluded with a MIND advocate to harass him (which led to a complaint against him for defamation);

26.21 various post-termination refusals in relation to out-of-area referrals for psychiatric or psychological treatment; and

26.22 the provision of inaccurate information in closing P60s which led to concerns about whether he had paid the correct amount of tax. 1 These incidents affected his family. Bearing in mind that this is a public judgment, I have not described the incidents or their consequences. They are not relevant to my

[27]The claimant concluded the first claim by describing the advice he had received from his medical defence union and legal professionals (for example, he considered he had been let down by several named advisers) and proposing an assessment for the balance of prejudice which should allow his claim to proceed notwithstanding that it was out of time. He accepted in his claim that he had received advice about the three-month time limit in November 2013 and, as noted above, he said in February 2014 that he could have brought a tribunal claim if he felt able to exercise clear judgement on the matter.

[28]I intend the respondents no discourtesy by providing no equivalent summary of their response to the first claim save to note that it was resisted in full and they applied to have it struck out on various grounds.

[29]The tribunal convened an in-person preliminary hearing on 28 June 2016 to consider the respondents' applications. In a reserved judgment dated 14 July 2016 and sent to the parties the following day, Employment Judge S Davies decided that some of the discrimination claims related to the claimant's treatment by the health board as a patient rather than as an employee and so were outside the tribunal's jurisdiction; in any event, all claims were (with one exception) presented outside the applicable statutory time limit; it was reasonably practicable for the unfair dismissal claim to have been presented within time; it was not just and equitable to extend time in respect of the discrimination claims; and, although one claim (relating to provision of a P60 and certain tax information) appeared to have been presented in time, it had no reasonable prospect of success. The result was that all claims were dismissed.

[30]Following a Rule 3(10) hearing before the EAT on 15 March 2017, Mr Justice Kerr determined that there was no arguable basis for permitting the claimant's appeal to go to a full hearing. The second claim

[31]On 11 January 2017, the claimant presented a second ET claim form against the health board. He also named Rhondda Cynon Taff Council, NHS Wales Shared Services Partnership, the Cwm Taf Community Health Council (CHC), a local MIND charity, a GP surgery, a named professor, the National Clinical Assessments Service (NCAS), the Health Inspectorate of Wales and the Public Services Ombudsman for Wales as additional respondents. This claim was allocated case number 1600048/2017; I shall refer to it as the "second claim".

[32]In the context of this preliminary hearing it is necessary to summarise the main contentions set out in the second claim. In doing so I recognise, once again, that it is difficult to capture all the nuances of the claimant's concerns; Case Numbers: 1600048/2017 & 1601045/2017 10 on this occasion, his particulars of claim ran to 17 pages and 62 paragraphs. The claimant contended that he was a disabled person by reference to depression. He identified his race as "Indian ethnic origin". He alleged that the respondents had subjected him to victimisation and that they had instructed, caused or induced contraventions of the EqA. He ticked the appropriate box in the ET1 claim form to indicate that he was bringing a claim of unfair dismissal and disability discrimination; despite the reference to his national origin he did not tick the box marked race discrimination.

[33]The concerns set out in the second claim can be summarised in the terms below. Again, I do not seek to provide an exhaustive list but, instead, a flavour of the scope of the allegations and the period they cover. I will focus on the complaints against the health board. I will indicate as appropriate where I consider something to be a "repeat" issue raised or a "new" issue raised:33.1 a refusal to provide him with study leave in July 2012 (repeat);

33.2 incorrect details in his occupational health referral (repeat);

33.3 unreasonable demands for him to attend a meeting with Dr Winston in August 2012 (repeat);

33.4 a refusal to consider temporary work as an alternative to his sickness absence (repeat);

33.5 a missed salary payment in March 2013 (new) but which was the cause of later concerns about whether he had paid the correct amounts of tax (repeat);

33.6 a failure to provide minutes of a meeting in April 2013 (new) but which was said to have induced Mr Chadwick to cease representing him (repeat);

33.7 a failure to make reasonable adjustments in the context of a return to work in a temporary redeployed post in May 2013 (new);

33.8 unreasonable requests of the claimant to attend meetings during August 2013 to discuss his attitude and behaviour (repeat);

33.9 the respondent health board's approach to the question of the claimant's fitness to practise in October 2013 (repeat), including forwarding a prejudiced investigation report to the GMC in February 2014 (new); Case Numbers: 1600048/2017 & 1601045/2017 11

33.10 various lies told to the GMC by Dr Quirke about the circumstances of the claimant's admission to a psychiatric hospital in November 2013 (new) and the circumstances of an incident affecting his family (new);

33.11 an allegation that the respondent health board had colluded with the local social services team to harass his family (new);

33.12 Dr Quirke had lied about him to NCAS in February 2014 (new);

33.13 insufficient efforts made by the respondent health board in April 2014 to release salary in lieu of annual leave to the claimant so that he could avoid eviction (new);

33.14 inaccurate information provided to the CHC in June/July 2014 (new);

33.15 a further failure in July 2014 to provide the claimant with assistance in relation to his dismissal from employment, eviction from hospital accommodation and continued ill health (new);

33.16 an allegation in August 2014 that the health board had colluded with a MIND advocate to exploit mentally ill patients and harass him personally (repeat) (this was elevated to an allegation of criminal conspiracy in January 2015);

33.17 a refusal to send the claimant an appointment letter by email, with the effect that he missed a scheduled appointment with a consultant psychologist in September 2014 (new);

33.18 he referred to concerns he had expressed to the Chair of the Medical Practitioners Tribunal Service in December 2014 that the main reason he had been subjected to interim orders over his medical registration was because the health board had refused him out-of-area treatment (the communication of the concern to the MPTS was new, but the underlying concern was a repeat of earlier allegations);

33.19 the health board's ongoing failure in 2014 and 2015 to fund out-of-area treatment for him (repeat), continuing to October 2016 (new);

33.20 the provision by the health board in or around May 2016 of false information to the Public Services Ombudsman for Wales so that the Ombudsman wrongly refused to investigate his concerns (new);

33.21 the provision of inaccurate information in a P60, leading to concerns about whether he had paid the correct amount of tax (repeat); Case Numbers: 1600048/2017 & 1601045/2017 12

33.22 an email (said to be a protected act) sent to the Chairman and Chief Executive of the health board on 3 October 2016, alleging that they had continued to breach the EqA (new); and

33.23 a detriment consequent upon that and earlier protected acts in the form of a failure by the health board to complete Form UD8 to assist the claimant's application for "restoration of professional registration" with the GMC (new).

[34]In a decision communicated to the parties in a letter from the tribunal dated 13 February 2017, Judge Davies rejected the claim (with one exception) under two provisions of the Rules of Procedure 2013. The first provision, set out in Rule 12(1)(a) read with Rule 12(2), requires a judge to reject all or part of a claim where the tribunal has no jurisdiction to consider it. This was the basis used to reject allegations against the local council in respect of certain immigration matters, allegations against the Ombudsman and the complaints against the GP surgery (among others) that related to his treatment as a patient (none of which I included in my summary above). The second provision, set out in Rule 12(1)(b) read with Rule 12(2), requires a judge to reject all or part of a claim where it is in a form that cannot sensibly be responded to or is otherwise an abuse of process. This was the basis for rejecting the repeated complaints of unfair dismissal and disability discrimination, those complaints having already been dismissed in the first claim (being cause of action estoppel). In a subsequent letter dated 15 February 2017, Judge Davies clarified that she had intended to rely on Rule 12(1)(a) in respect of all the matters rejected and that she did not rely on "abuse of process" as a basis for rejecting any of the complaints.

[35]The exception (and the only part of the claim that Judge Davies directed should be accepted) related to a new complaint of post-employment victimisation under Sections 27 and 108 EqA. This comprised two discrete allegations. The first was an allegation against the health board that it had taken an adverse decision in October 2016 to treat him within region (in his capacity as a patient). The second was an allegation that the health board had failed to complete Form UD8. In both cases this was said to be in retaliation for various protected acts, including the one most recently carried out in the form of the email sent on 3 October 2016. These complaints were accepted against the health board only; the complaints against all other respondents were rejected.

[36]The health board in due course filed an ET3 form with the tribunal resisting the complaint of victimisation. More particularly: it denied that the email of 3 October 2016 qualified as a protected act; it said that no meaningful allegation had been made about the issue of out-of-area treatment; it pointed out that Form UD8 had been properly completed on 10 January 2017 (the day before the claimant presented his ET1 form to the tribunal), such that Case Numbers: 1600048/2017 & 1601045/2017 13 there was no detriment; and it asked for a preliminary hearing to strike out these complaints as having no reasonable prospect of success.

[37]Separately, the claimant applied under Rule 13 for a reconsideration of the rejection of part of his claim. A reconsideration hearing before Judge Davies took place on 19 July 2017. Neither party attended but both supplied written submissions. In a judgment dated 20 July 2017 and sent to the parties on 24 July 2017, Judge Davies refused to reconsider her decision to reject the complaints under Rule 12(1)(a) insofar as they related to the complaint of unfair dismissal against all respondents. However, she decided that it would be appropriate to categorise her approach to the complaint of disability discrimination as an "abuse of process" (referring to issue estoppel and the Henderson doctrine). She decided that this reintroduced Rule 12(1)(b) as the proper basis for rejection. She then referred to the case of Trustees of the Williams Jones's School Foundation v. Parry (

EAT/0088/16

), which had since come to her attention; by this judgment, the EAT held that Rule 12(1)(b) was ultra vires and that the proper route in such circumstances was to accept the claim and hold a hearing under Rule 27. She directed that the complaints of discrimination against the respondent health board be accepted, that it should supply amended grounds for resisting those complaints and that, upon receipt of those grounds, a judge should decide whether to list a hearing under Rule 27 or a hearing under Rule 53 for strike out/deposit purposes. She recused herself from that hearing.

[38]Naturally, Judge Davies would not have known at the time that the Court of Appeal would subsequently overrule the EAT's judgment in Parry (see judgment handed down on 28 March 2018 at

[2018] EWCA Civ 672

, where Rule 12(1)(b) was held not to be ultra vires), such that there was no barrier to her original decision that the further complaints constituted an abuse of process.

[39]In amended grounds for resisting the second claim, the health board contended that most of it should be struck out as an abuse of process by reference to issue estoppel or in consequence of the rule in Henderson, and that various aspects were in any event out of time and/or misconceived.

[40]On reviewing the file, Employment Judge Beard listed the matter for a preliminary hearing for case management purposes on 12 January 2018. The third claim

[41]On 12 November 2017, the claimant presented a third ET claim form against the health board. He also identified eight named individuals as additional respondents (five of whom had been named in his first claim). This claim was allocated case number 1601045/2017; I shall refer to it as the "third claim". Case Numbers: 1600048/2017 & 1601045/2017 14

[42]In the context of this preliminary hearing it is necessary to summarise the main contentions set out in the third claim. In doing so I recognise, once again, that it is difficult to capture all the nuances of the claimant's concerns; on this occasion, his particulars of claim ran to 5 pages and 22 paragraphs. The claimant contended that he was a disabled person by reference to depression and again alleged that he had been subjected to post- employment victimisation under Section 108 EqA.

[43]The claimant stated that the background to the third claim was the decision by the GMC in August 2017 to reject his application for restoration of his professional registration. After repeating the history of his alleged poor treatment by the various respondents (dealing in particular with the health board's refusal to make an out-of-area referral for treatment, the reference to the GMC, his admission to hospital, the incidents affecting his family and his dismissal in May 2014), the claimant set out the particulars of his complaint of post-employment victimisation. As before, in summarising the claim I will indicate as appropriate where I consider something to be a "repeat" issue raised or a "new" issue raised, this time by reference to the first and second claim:43.1 Dr Quirke had lied to the GMC in November 2013 about the circumstances of the claimant's admission to a psychiatric hospital (new from first claim, repeat from second claim);

43.2 inaccurate information provided to the CHC in June/July 2014 (new from first claim, repeat from second claim);

43.3 various failures to refer him for out-of-area treatment (repeat from first claim), which continued into October 2016 (repeat from second claim) and which, among other consequences, was the main reason he had been subjected to interim orders in respect of his medical registration (repeat from second claim);

43.4 a refusal to send him an appointment letter by email, with the effect that he missed an appointment with a consultant psychologist in September 2014 (new from first claim, repeat from second claim);

43.5 the provision by the health board in June 2016 of false information to the Public Services Ombudsman for Wales so that the Ombudsman wrongly refused to investigate the claimant's concerns (new from first claim, repeat from second claim); and

43.6 the provision of inaccurate information in closing P60s which led to concerns about whether the claimant had paid the correct amount of tax (repeat from both first claim and second claim). Case Numbers: 1600048/2017 & 1601045/2017 15

claim:

[44]The respondents filed an ET3 with the tribunal, resisting these further complaints. They contended that they were out of time, re-litigated matters that had been pursued unsuccessfully in previous proceedings and had no reasonable prospect of success.

[45]In an email sent to the tribunal on 15 December 2017, the claimant provided clarification on the overlap with his previous claims. He wrote that the third claim "is for post-employment victimisation under Section 108 of the Equality Act 2010, while all other previous dismissed and/or ongoing claims were made for breach of Equality Act under different sections. Hence the question of discussing the new claim with any other ongoing claim or dismissing the claim does not arise and I strongly object to the respondents' representative's request for the same". This is the principal submission he has made, and which I have given proper consideration under Rule 47 in deciding to proceed with this hearing in his absence.

[46]A preliminary hearing for the third claim was listed for case management. The date allocated was 16 March 2018. Judge Davies postponed the case management hearing in the second claim and brought all matters together for consideration at a one-day Rule 54 preliminary hearing on 16 March 2018. Analysis: res judicata

[47]The claimant is a litigant in person and he has sought to challenge as unlawful how he perceives he has been treated. His claim forms and correspondence give the strong impression of an intelligent person who has made diligent efforts to understand the law and how it might assist him. They are also demonstrative of the significant ill health he has experienced. The impact on his personal and family life, and his working life, of recent events has been catastrophic. It is difficult to read his account of admission to hospital, the consequences for members of his family, his eviction, his near bankruptcy and the apparent loss of his clinical career without feeling considerable sympathy for him. Those experiences, however difficult and challenging they will have been for him, do not necessarily mean that he has been subjected to unlawful treatment by the many individuals against whom he has brought proceedings in this tribunal. Nor does it allow him to continue making the same allegations against those individuals once they have been dismissed and his rights of appeal have been exhausted.

[48]Judge Davies' decision to reject the claim of unfair dismissal on the grounds of cause of action estoppel is unaffected by this hearing; that rejection stands. The other aspect caught by cause of action estoppel is the claimant's contention that he was subjected to discrimination and/or victimisation through the health board's provision of inaccurate information in his P60, which Judge Davies has already rejected as having no reasonable prospect of success. Case Numbers: 1600048/2017 & 1601045/2017 16

[49]My focus instead is on the various issues raised further or alternatively in the second claim as other forms of disability discrimination. In my judgment, many of them are plainly caught by issue estoppel. Having already been rejected by Judge Davies as being out of time, it is simply not open to the claimant to have a second attempt at arguing that he was subjected to discrimination (whether that be in the form of direct, indirect, harassment, victimisation etc) by reference to the same factual issues. His contention that he is free to do so by switching the statutory provision he relies on in the EqA is misconceived. I have in mind these complaints in particular: the refusal to provide him with study leave in July 2012; incorrect details in his occupational health referral; unreasonable demands for him to attend a meeting with Dr Winston in August 2012; the refusal to consider temporary work as an alternative to his sickness absence; unreasonable requests to attend meetings during August 2013 to discuss his attitude and behaviour; the health board's approach to the question of his fitness to practise in October 2013 and its dealings with the GMC; the health board's alleged collusion with a MIND advocate; and the health board's actions throughout this episode in declining to refer him for out-of-area treatment. These complaints are caught by issue estoppel and, in my judgment, they constitute an abuse of process. They were part of his first claim and cannot now be part of a second claim. They are therefore struck out.

[50]There are several matters that appeared for the first time in the claimant's second claim, despite allegedly occurring before he presented his first claim on 20 December 2015 and before the hearing of that claim before Judge Davies on 28 June 2016. As the EAT's decision in London Borough of Haringey v. O'Brien makes clear, I must focus on the latter as the date by which the claimant might have brought those allegations before the tribunal, because he could have applied to amend his first claim until that point. The allegations that fall into this category are: the missed salary payment in March 2013; the failure to provide minutes of a meeting in April 2013; a failure to make reasonable adjustments in the context of a return to work in a temporary redeployed post in May 2013; the biased investigation report that was forwarded to the GMC in February 2014; the alleged lies told to the GMC, CHC, NCAS and the Ombudsman by Dr Quirke and others; the alleged collusion between the health board and the local social services team; the refusal to release salary in lieu of annual leave so that the claimant could avoid eviction; and the refusal to send him an appointment letter by email.

[51]As Johnson v. Gore Wood makes clear, a broad, merits-based judgment requires me to take account of the public and private interests involved and the facts of the case, focusing attention on the crucial question of whether, in all the circumstances, the claimant was misusing or abusing the tribunal's process by seeking to raise issues which could and should have been raised before. In my judgment, most of the second claim is also an abuse of process. Case Numbers: 1600048/2017 & 1601045/2017 17 Three of the new matters raised by the claimant (the missed salary payment in March 2013, the failure to provide minutes in April 2013 and the missed appointment letter) may be expressed in different ways but they are part of the factual matrix underpinning the first claim (respectively, the concerns about the accuracy of the claimant's tax records, the allegation relating to the quality of his legal advisers and the barriers to the claimant receiving treatment that might have facilitated an earlier return to work).

[52]As for other new allegations in the second claim, the claimant has asserted no positive case for why they were missing from the first claim. The first claim was detailed. It gives every impression of having been drafted with care. As Judge Davies noted in her 2016 judgment, the claimant had benefited from professional advice from multiple sources in 2013 and 2014; consequently, it can be inferred that he was aware that his first claim gave him the opportunity to bring before the tribunal the points that concerned him. There is no suggestion that these are matters that came belatedly to his attention in the months between the hearing on 28 June 2016 and the presentation of the second claim to the tribunal on 11 January 2017. Having failed to persuade Judge Davies that it would be just and equitable to extend time in respect of the allegations of disability discrimination set out in the first claim, it is inconceivable that the claimant would persuade a different judge that it would be just and equitable to extend time in respect of new matters that occurred over the same period but which were the subject of an even later claim.

[53]The claimant failed without explanation to attend this preliminary hearing to put forward any submissions. Doing the best that I can with the limited information available, the most plausible explanation I can infer is simply that he wanted a "second bite at the cherry". It is understandable and appropriate that the respondents should wish to avoid being further vexed by litigation from a claimant who is attempting to re-argue points he has already lost. There is a strong public interest in the finality of litigation, not least the need to limit the burden on a tribunal system with scarce resources by requiring it to address repeated allegations. These allegations are therefore also struck out.

[54]The same analysis applies to the claimant's third claim. The third claim contains nothing of substance that has not already been argued before in the first claim or which is otherwise an unnecessary duplication of points raised in the second claim. The allegation that lies were told to the GMC in 2013 and 2014, to the CHC in 2014 and to the Ombudsman in June 2016, the various alleged failures to refer the claimant for out-of-area psychiatric or psychological treatment, the refusal to send him an appointment letter by email and the provision of inaccurate tax information; these simply repeat what has been said before. They too are struck out as an abuse of process. Case Numbers: 1600048/2017 & 1601045/2017 18

[55]That leaves a handful of matters arising for my consideration that occurred after the hearing before Judge Davies on 28 June 2016 and which are not struck out by reference either to issue estoppel or to the rule in Henderson. They are as follows:55.1 The claimant's factual contention that he carried out a further protected act by his email to the health board on 3 October 2016 (mentioned at paragraph 59 of the second claim);

55.2 In consequent of that and earlier protected acts, the claimant's contention that the health board victimised him on 27 September 2016 and 7 October 2016 by refusing to provide him (in his capacity as a patient) with an out-of-area referral for psychiatric or psychological treatment (paragraph 57 of the second claim) and by confirming that this was an assessment based entirely on clinical need with no conflict of interest (paragraph 60 of the second claim);

55.3 The claimant's contention that the health board victimised him by refusing to respond to a request on 3 January 2017 for it to complete Form UD8 to assist his application to the GMC for the restoration of his professional registration (paragraph 61 of the second claim); and

55.4 The claimant's contention that the health board again refused an out- of-area referral on 27 June 2017 (paragraph 19 of the third claim).

[56]These are the contentions where I am required to address the respondents' application that they should be struck out on the basis that they were presented out of time and/or have no reasonable prospect of success. Analysis: time limits

[57]ACAS early conciliation in the second claim took place between 13 October 2016 ("Day A") and 20 October 2016 ("Day B"); the limitation clock stopped for seven days. The second claim was presented on 11 January 2017. On the face of it, the second claim was presented in time in relation to the alleged refusal on 7 October 2016 (and arguably the earlier refusal on 27 September 2016 if viewed as a potential continuing act) and the alleged lack of response to the request on 3 January 2017. There is no basis for striking out the remaining aspects of the second claim on the grounds of having been brought outside the time limit. (If the claim were to have proceeded to a full merits hearing, I would have left it to the tribunal panel to decide if there was a continuing act by which the alleged refusal on 27 September 2016 could be argued as in time.)

[58]ACAS early conciliation in the third claim took place between 1 November 2017 ("Day A") and 10 November 2017 ("Day B"), but it was commenced Case Numbers: 1600048/2017 & 1601045/2017 19 more than three months after the only new act complained of, being the alleged refusal of an out-of-area referral on 27 June 2017. If this further complaint were to be in time, the claimant should have contacted ACAS by no later than 26 September 2017; in fact, he did not do so until 1 November 2017. This means he cannot benefit from the extension provisions set out in Section 140B EqA. This aspect of the third claim was not presented within the period of three months stipulated by Section 123(1)(a) EqA. In fact, it was presented on 12 November 2017, nearly seven weeks late.

[59]I must therefore decide whether this complaint was brought within a period I think just and equitable for the purposes of Section 123(1)(b) EqA. I referred above to the analysis of the legal provisions by Judge Davies in her earlier judgment, which I adopt. I have considered the following matters as relevant in accordance with the guidance in British Coal Corporation v. Keeble

[1997] IRLR 336

:59.1 Despite knowing that this issue would be considered (it was in the respondent's ET3 and identified as an issue for today's hearing), the claimant failed without explanation to attend the hearing. He has therefore advanced no explanation for why the third claim was not presented in time;

59.2 Although it might be possible to infer that his continued ill health was a reason for his failure to comply with the time limit, he has made no assertion to that effect and provided no up-to-date medical evidence. Indeed, he continued to correspond with the tribunal throughout the period when he ought to have presented the third claim; and

59.3 As note above the claimant took professional advice from multiple sources in the context of his first claim and acknowledged that he was aware of the time limits that applied to claims of discrimination, going so far as to pursue arguments in person about time limits before the Employment Appeal Tribunal.

[60]For these reasons I am not persuaded that it would be just and equitable to extend time. This remaining aspect of the third claim is dismissed on the basis that it was presented outside the statutory time limit. Analysis: no reasonable prospects of success

[61]Through a process of elimination, three contentions of post-employment victimisation remain from the claimant's second claim:61.1 His factual contention that he carried out a further protected act by his email to the health board on 3 October 2016; Case Numbers: 1600048/2017 & 1601045/2017 20

61.2 In consequent of that and earlier protected acts, his contention that the health board victimised him on 27 September and 7 October 2016 by refusing to provide him (in his capacity as a patient) with an out-of- area referral for treatment and by confirming that this was an assessment based on clinical need with no conflict of interest; and

61.3 His contention that the health board victimised him by refusing to respond to a request he made on 3 January 2017 for it to complete Form UD8 to assist his application to the GMC for the restoration of his professional registration (paragraph 61 of the second claim).

[62]Mr Leach confirmed that the health board disputes the contention that the email of 3 October 2016 constituted a further protected act. Purely for the purposes of this analysis, and taking the claim at its highest, I will assume that it was.

[63]Mr Leach showed me documentary confirmation that the health board had swiftly completed Form UD8 as the claimant had requested. The bundle for this hearing contained (at page 96) a copy of the completed form, as signed by Dr Quirke on 10 January 2017 (the day before the claimant presented his second claim to the tribunal). There was no adverse comment about the claimant on the form at all. Indeed, the claimant must have known that the form had been appropriately completed because Dr Quirke's PA emailed him to confirm that it had been done and sent him a copy, and the claimant replied on 13 January 2017 to acknowledge receipt (page 97). It follows that the claimant's contention that the health board refused to respond to his request proceeds on a false factual premise. It does the claimant no credit that, in all the correspondence surrounding his request for a reconsideration of Judge Davies' rejection of his claim, he did not withdraw this allegation. The respondent indisputably dealt with his request; logically, any contention to the contrary has no reasonable prospect of success. That allegation is struck out.

[64]Only one allegation now remains, which relates to the health board's refusal in September and October 2016 to provide the claimant, in his capacity as a patient of the health board, with an out-of-area referral for psychiatric or psychological treatment. I shall assume for present purposes that this assertion is correct and that the health board wanted his treatment to be handled within the geographical area for which it has healthcare responsibilities. The health board's position on this point has been consistent throughout: its approach towards the claimant as a patient, it contends, was based upon an assessment of his clinical needs and there was no conflict of interest arising from his status as a former employee or indeed a litigant.

[65]After Mr Leach made submissions on this point, I asked him if it would be appropriate to allow the claimant an opportunity to attend a yet further preliminary hearing at which he could explain why he contends that the health Case Numbers: 1600048/2017 & 1601045/2017 21 board has continued to make adverse decisions about his clinical care to retaliate against him for his previous allegations of discrimination. Having reflected on the matter further, I have reminded myself that the very purpose of this hearing was to present the claimant with that opportunity and he has declined, without explanation, to avail himself of it.

[66]The health board's refusal to refer the claimant for out-of-area treatment has been a recurrent theme in this litigation; it features in all three of the claimant's claims and, indeed, was considered by Judge Davies at paragraph 53 of her judgment following the hearing on 28 June 2016. To succeed in this remaining part of his second claim, the claimant will, at the very least, need to establish as part of a prima facie case that there was a link between the decision to treat him within its geographical region and his earlier protected acts. He has provided the tribunal with no documentary evidence capable of demonstrating that such a link exists. To an extent that is not surprising; his case rests on a bald assertion of collusion in bad faith between senior people working for the health board and others, which extends in some respects to allegations of a criminal conspiracy. It is hardly likely to be documented. The narrative provided by the claimant in his third claim suggests that the person who provides the link is Dr Quirke, who was aware of his clinical treatment while being, in the apparent view of the claimant, his chief antagonist in providing false information to GMC, NCAS, the CHC and others. All those additional respondents named in the third claim may, in his view, also have played a part (although it is difficult to discern why he has formed that view beyond the mere fact that they feature in the narrative account).

[67]By failing to attend this hearing or to provide any submissions, the claimant has eschewed the opportunity to articulate why he considers such a link exists. His correspondence with the tribunal suggests that he wants a full hearing of his claims so that a proper examination can be carried out of the mental processes of the decision-makers, in this respect concerning his clinical care. I entirely accept that, in many (if not most) cases of alleged victimisation, it is appropriate for there to be a full hearing of the case so that conscious and subconscious motivations can be examined and the mental processes of decision-makers subjected to proper scrutiny. But this does not mean that a similar approach should be extended to cases where a claimant's case consists of nothing but a bald assertion of ill motive and conspiracy with no supporting evidence and no apparent rationale. I bear in mind that his contention is inherently implausible, since, if the respondents were determined to see the back of him, it might be said that the more logical response would have been to refer him as a patient for treatment by a different health board; and, if they were determined to subject him to harm, the more logical response would have been to refuse any treatment at all. This is a case where, to quote from ABN Amro, the claimant's case appears to rest upon the hope that "something might turn up" during cross‑examination of Dr Quirke at a full merits hearing. Case Numbers: 1600048/2017 & 1601045/2017 22

[68]By contrast, the consistency of the health board's position and the swift and professional way it dealt with Form UD8 strongly suggest that it would have no difficulty persuading a tribunal that it was neither acting in bad faith towards the claimant nor seeking to retaliate against him for the various allegations he had made in the past about EqA contraventions. The tribunal would be likely to examine this allegation in the context of the claims as a whole, where it can be seen that the claimant's first response to unfortunate events in his life is to accuse numerous agencies of colluding in bad faith to subject him to unlawful treatment, whether they are the health board, the local social services team, the local branch of MIND or others.

[69]In summary, the respondent has persuaded me that this is one of those very rare cases where it is plain and obvious that the claimant's complaint of victimisation is fanciful. In my judgment, his contention that the health board declined yet another request for out-of-area treatment in September and October 2016 to retaliate against him for earlier protected acts, constituting unlawful victimisation, has no reasonable prospect of success. I strike it out on that basis. There is no need to consider the separate application for a deposit order.

[70]The first claim having already been dismissed, the entirety of the second and third claims are also dismissed for the reasons given above.