Dr F Donaldson v Cwm Taf Morgannwy University Local Health Board: 1600147/2021
EMPLOYMENT TRIBUNALS
Case No 1600147/2021
Between
Dr F DonaldsonClaimantCwm Taf Morgannwy University Local Health BoardRespondent
Before
Employment Judge C SharpIn person for claimantMr S Nicholls (instructed by Counsel) for respondentDate 3 August 2022
JUDGMENT
[1]the Claimant’s claims of unfair dismissal and wrongful dismissal are dismissed due to lack of jurisdiction on the basis that they were presented to the Tribunal outside of the statutory time limit under s111 Employment Rights Act 1996 and it was reasonably practicable for them to have been presented in time;[2]the Claimant’s claims of direct race discrimination and victimisation (with the exception of the act alleging that the Respondent had not provided evidence and information in support of the disciplinary allegations made against the Claimant from May 2017 to date) are dismissed due to lack of jurisdiction on the basis that they were presented to the Tribunal outside of the statutory time limit under s123 Equality Act 2010 and it is not just and equitable to extend time;[3]the Claimant’s claims of direct race discrimination and victimisation alleging that the Respondent had not provided evidence and information in support Case Number: 1600147/2021 of the disciplinary allegations made against the Claimant from May 2017 to date are left to the final tribunal to determine, both in respect of merits and time limits on the basis that the Claimant is asserting it is a continuing act that continues to this date.
REASONS
These reasons have been produced following the oral request of the Claimant at the end of the hearing when oral reasons were given. Reconsideration[1]This is an unusual decision that the Tribunal is being asked to make at this hearing. It starts with a Judgment that I made on 3 August 2022 where in respect of one particular allegation, which at the time I understood to be that the Respondent had not provided evidence and information in support of the disciplinary allegations made against the Claimant from May 2017 to date, should be reconsidered. That application was made by the Respondent through a variety of correspondence and then a hearing before me on 19 December 2022.[2]In the hearing of 19 December 2022, I found I had been misled and the allegation was therefore varied to cover the time period of 30 August 2019 to 16 December 2020. As a result, the first thing that I have to decide today is whether it is in the interests of justice for me to reconsider the decision I made in August, where I declined to consider whether this allegation was brought too late to the Tribunal as it was then argued by the Claimant as being a continuing act.[3]Mr Walters on behalf of the Respondent submitted that my decision in August was not a Judgment but an Order and therefore should be reviewed by me today under Rule 29, rather than under Rule 71 and the connected Rules dealing with the reconsideration of Judgments. I disagree. I remain of the view that what I issued in August 2022 was a Judgment. Rule 3(b)(ii) says the definition of a judgment includes “any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so, for example, an issue whether a claim should be struck out or a jurisdictional issue”. What I dealt with in August was a jurisdictional issue and could have led to the strike out of all of the claims. The word “capable” confirms that the possibility of strike out renders the decision a judgment. However, I do not consider that the point is critical – today has been listed as a public hearing, so if I am incorrect, today’s Judgment would be in reality an Order. It is when Judgments are made in private hearings on the basis of matters not set out in a Notice of Hearing that they have no effect (with the exception of dismissal judgments following a withdrawal).[4]I have concluded that it is in the interest of justice for me to reconsider what I did in August 2022 in respect of the now varied allegation which remains before the Tribunal. As I was misled in August into believing that the allegation was a continuing act, and the position has now been corrected, it is in the interests of justice for the matter to be looked at again. I had refused to consider whether the allegation was within the Tribunal’s jurisdiction in August; that refusal cannot stand now the allegation has been limited in terms of time.[5]Accordingly, I will proceed to consider whether the allegation that there has been a failure by the Respondent to provide evidence and information in support of the disciplinary allegations to the Claimant between 30 August 2019 and 16 December 2020 has been brought outside of the limitation period for discrimination claims, and if so, whether it is just and equitable to extend time. I will review the material before me from the August 2022 hearing (including my notes of the evidence and submissions), the additional evidence which the Claimant helpfully provided in a statement on 31 January 2023 headed “extension of time limits”, the bundle provided for today by the Respondent’s representatives and the submissions made today. Jurisdiction[6]There is no dispute that the remaining discrimination allegation was brought to the Tribunal out of time; it was not in the original ET1 presented to the Tribunal for these proceedings on 31 January 2021 (which was not effective due to the failure to enter into ACAS early conciliation). The allegation only arose by way of an amendment application originally made orally before Employment Judge R Harfield on 5 May 2022 and recorded in her Order of the same date (which was then explained by her email of 20 September 2022). Time for the remaining allegation started to run from 16 December 2020, and the primary limitation period expired on 15 March 2021. ACAS early conciliation was not entered into until 4 May 2021.[7]What I need to decide is whether it is just and equitable to extend time. There was no dispute or discussion before me regarding the law. The Claimant accepted that the onus was on him to persuade me to extend time. The Court of Appeal in Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA, said in relation to extensions of time that “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.”[8]A Judge must consider all the relevant factors when exercising their discretion. A point that Mr Walters made was that when I considered this issue in August 2022 for the other allegations, I refused to extend time. However, I do now have an additional statement from the Claimant dated January 2023 where he focusses on just and equitable reasons to extend time. This may lead me to a different conclusion today. It may be helpful for me to consider factors such as the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, including the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the Respondent has cooperated with any requests for information; the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action; and the steps taken by the Claimant to obtain appropriate advice once he knew of the possibility of taking action, but I am not required to do slavishly (Southwark London Borough Council v Afolabi 2003 ICR 800, CA; Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA). It is generally accepted that the two most important factors are likely to be the length of and reasons for the delay, and whether the delay has prejudiced the Respondent. I have also considered each of the points made by the parties in reaching my decision. August 2022 findings[9]It may assist if I briefly recap the reasons in August 2022 why I refused to extend time for the other discrimination claims. I am conscious the reasons have not been promulgated as written reasons were not requested by either party. This summary is not the formal written reasons, and is intended to set out what happened at the last hearing that may be of relevance to today’s hearing.[10]I found that the Claimant was a highly intelligent and educated gentleman; this was evident from his submissions and from the fact that he was a specialty anesthetist doctor. His oral evidence in August was that he did research the Employment Tribunal before the issue of time limits arose, but his position was that it was more efficient to only research particular specific issues as they arise and he did not research time limits. The Claimant’s evidence was that he had no knowledge of time limits until 2022, and it was a coincidence that he presented the claim reference 1600147/2021 within the primary limitation period. It is undisputed that the Claimant had previously issued a claim in this Tribunal (1600325/2020) and had the opportunity of reading the standard wording in the ET1 which tells claimants that they must have an ACAS Early Conciliation Certificate for that claim, except in extremely limited circumstances. The Claimant accepted that he did not read this wording, but his position was it would not have made any difference as he was firmly of the view that there was no point contacting ACAS, given his previous experience in dealing with the Respondent. Instead, what the Claimant did was tick the “no” box and tick the box that says “my claim consists only of a complaint of unfair dismissal which contains an application for interim relief”, which was not true – the Claimant had brought other claims and did not seek interim relief.[11]I was not persuaded that it was reasonable for the Claimant to have failed to have researched time limits for Employment Tribunal claims, or to have proceeded without an ACAS early conciliation certificate and untruthfully tell the Tribunal that the complaint he was presenting was for interim relief only. Indeed, as the Claimant presented as a thorough and careful person, and given his previous Tribunal experience, I cannot explain why the Claimant conducted himself in such a manner. His evidence was that he did know about the need to go through early conciliation, and he did know he could not rely on the certificate he used for his first claim. What I found was that the Claimant chose not to comply with the requirement for early conciliation due to his negative view of ACAS. His alleged ignorance of time limits was in my view unreasonable, and I was not persuaded that he was in reality ignorant.[12]Some of the allegations before the Tribunal in August 2022 could have been dealt with in the first set of proceedings, and no explanation was given by the Claimant why not.[13]Turning to other matters, the Claimant’s oral evidence was that logistically he had some difficulties in dealing with matters earlier. He pointed out that he was dismissed just before Christmas, that he was concerned in sorting out his income and his financial affairs, that he was trying to deal with his NHS pension, and other matters. I considered it reasonable that some time following dismissal might be required to process what had happened, but he was able to take action by 31 January 2020 when he presented the ET1. The presentation of the claim was not effective due to the deliberate failure to go through ACAS early conciliation, and it was not rectified until the Claimant provided the certificate to the Tribunal on 25 June 2021. The Claimant accepted that he knew of the requirement to enter into ACAS Early Conciliation when he presented his complaint, but did not do so until 4 May 2021 after the Tribunal notified him on 29 April 2021 that his claim was rejected.[14]I considered the Claimant’s explanation as to why, when he had the ACAS Certificate on 15 June 2021, it took him 10 days to forward it to the Tribunal; his evidence was that he had other things to deal with which were a higher priority. Given all that the Claimant did when forwarding the new certificate to the Tribunal was to write “Please find attached my N244 form, ACAS Certificate and original Judgment. Could I please be rung to collect the fee? Yours sincerely, F Donaldson.”, it was difficult to see much time was required to action this requirement. It was not clear why that the Claimant could not simply have sent the certificate to the Tribunal earlier.[15]I thought about the meaning of “just and equitable” which could also be described as “fair” and bore in mind what the Claimant said about the public interest, especially as this all goes back to concerns about the death of a patient. Taking everything into account, I was not persuaded it was just and equitable to extend time in the circumstances. The Claimant was not ignorant of time limits and if I was wrong about that, his ignorance was not reasonable. The Claimant did not explain why it was not until the hearing before Judge Harfield on 5 May 2022 that he sought to amend his claim to bring this (and other) allegation when he told me today that he knew he wanted to bring this allegation in June 2021. The Claimant may have had other matters to deal with, but he had not promptly rectified the issue with the ACAS certificate or made the amendment application to the Tribunal. He had chosen not to engage with ACAS which was part of the cause for the delay in making his claim effective. I found that the prejudice that the Respondent would suffer if time was extended outweighed the prejudice that the Claimant would suffer if extension was refused. Today’s findings[16]I considered what the Claimant’s submissions carefully, as well as his January 2023 statement. I was unpersuaded that it was just and equitable to extend time for the remaining allegation. The Claimant’s position was his case was extremely important and that there should be no fetter on the ability of the Tribunal to investigate serious complaints of discrimination against public bodies. If the Claimant was right on this, I concluded that there would never be a time limit for discrimination claims brought against the public sector. That is contrary to what Parliament has directed.[17]I also recalled the evidence I heard about the delays in this case during the hearing in August 2022 and my findings (see August 2022 section above). The Claimant’s January 2023 statement did not assist me as it consisted of statements about why judges had primacy over legislators (they do not – we are bound by Parliament), and the building of the “First World” using the exploitation of cheap labour.[18]Mr Walters asked me to consider the issue of the merit of the remaining allegation before the Tribunal. It is not a factor on which I have placed much weight. One of the points that Mr Walters made was that the emails that are allegedly requests by the Claimant for information/evidence used in the disciplinary proceedings within the relevant time period actually arise within inter-partes correspondence regarding the proceedings first issued by the Tribunal under case reference 1600325/2020. I considered the contextual point to be irrelevant – within those emails, which were part of preparing for 1600325/20, the Claimant asked for evidence relied upon in support of the disciplinary allegations. As the Claimant said, whether or not he asked in the right way is not important; I did not think it mattered whether he made the requests within the ambit of Employment Tribunal proceedings or otherwise. What mattered was whether the Claimant made the requests he asserted to have made, whether they were complied with and ultimately if not, why not. I could not make those decisions today.[19]I did consider though that there was a stronger argument about whether the allegation includes matters that should have been before the Tribunal dealing with the first set of proceedings, which has now concluded in terms of liability and made findings. I accept that if the remaining allegation goes forward, it may be challenging at a final hearing as this Tribunal may be bound by any relevant findings made in the earlier Tribunal. I place little weight on this point though.[20]I have looked closely at the issue of prejudice. Mr Walters explained the prejudice that the Respondent would suffer if I extended time - it will have to incur additional expense in addition to what has already been spent dealing with Dr Donaldson’s claims, it will have to investigate aged matters, and there is no basis justifying the extension of time in this case. The Claimant’s position could be summarised as “justice should be done and there should not be a price put on justice”. However, the overriding objective requires Tribunals expressly to consider cost and expense. I must also consider proportionality, and while I have not put much weight on the arguments about merits made today, I am not persuaded the claim is a strong one as the Claimant went through a lengthy disciplinary process before being dismissed, which included reports and hearings. I do not think the Claimant, who has already been through one set of proceedings with the Respondent, is being deprived of an opportunity for justice.[21]Stepping back and considering everything in its totality, including my previous findings in August about delay and the findings regarding prejudice, I concluded that it was not just or equitable for me to use my discretion to extend time. The Claimant’s remaining claim of direct race discrimination and victimisation were dismissed.