Mr K Hirani v Institute and Faculty of Actuaries and others: 2202045/2019
EMPLOYMENT TRIBUNALS
Case No 2202045/2019
Between
Mr K HiraniClaimantInstitute and Faculty of Actuaries and othersRespondent
Before
Employment Judge GoodmanIn person for claimantMs J. Connolly (instructed by counsel) for respondentDate 29 November 2019
JUDGMENT
All the claims are dismissed, whether because res judicata, or because they have no reasonable prospect of success.
REASONS
[1]The claimant wanted to qualify as an actuary but found it difficult. Between July 2013 and November 2014 he brought four claims against the first Respondent, the qualifying body, and various other individuals employed by it. He alleged discrimination because of disability and race. The race claims were withdrawn. The disability claims proceeded to a hearing in September 2019.[2]A few months before the final hearing, in May 2019, he presented a fifth claim, alleging race and disability discrimination. It was not joined to the other four because it would not be ready for hearing in time. The response to that claim was filed on 17 September 2019. On 27 September 2019 there was a case management hearing, at which today’s open preliminary hearing was listed to decide applications made by the respondent to strike out the claims in this fifth claim.[3]By a reserved judgment sent to the parties on 15 November 2019 all the disability claims in the first four claims were dismissed. 1 ph outcome jment and case mngmnt 1.5.14 version[4]The May 2019 claim form listed seven claims made. The first five relate to the first respondent, the qualifying body. The last two are complaints of victimisation by the individual respondents as well.4.1 Claim 1 is of direct discrimination because of race (nationality). The less favourable treatment alleged is that an Indian national could be a member of the IAI (Indian Actuarial Institute) as well as the first respondent, and so have four opportunities to sit qualifying exams in a year, when British nationals could not join IAI and sit their exams, and so had only two.4.2 Claim 2 is of direct discrimination because of disability, comparing a dyslexic British national with a non-dyslexic British national. It is asserted the latter could join IAI and sit exams four times a year.4.3 Claim 3 is of indirect discrimination because of nationality. The PCP is that students of the first respondent could sit exams only twice a year. This put British students at a disadvantage compared to Indian students.4.4 Claim 4 is of indirect discrimination “because of disability and nationality”. The PCP is the same. British students with dyslexia had only tow opportunities to sit exams a year while Indian students had four.4.5 Claim 5 is that the first respondent instructed, caused, induced or aided IAI not to admit British students, leading to less favourable treatment of them.4.6 Claim 6 is that the individual respondents subjected the claimant to detriment because he had done protected acts (there is a list of 41 acts, ranging from 2010 to October 2013). Three of the four detriments are about failure to provide the claimant with an email of 22 July 2013 between Liaquat Khan of IAI and the first respondent’s Director of Education. The other one is about a letter sent to the claimant on 17 September 2013, which was marked without privilege save as to costs.4.7 Claim 7 is the same, except it is said Mr Kemp or Mr Cribb instructed, caused, induced or aided Ms. Russell in subjecting the claimant to these detriments.4.8 Unenforceable Rules. Not listed, but also described in the claim form, is a request for rules to be declared unenforceable under section 145 of the Equality Act. .[5]The Respondents ask for these claims to be dismissed. They pleaded in response to the claims that they were brought out of time, that they duplicated and relabelled the pending claims, that the race claims were res judicata, that the letter of 17 September was privileged, and that the claims against the individual respondents had no reasonable prospect of success, as well as denying the substance of the claims. It was asserted the claimant would in any case have derived no advantage from sitting IAI exams because the IAI does not make adjustments for disability as the first respondent does.[6]Today, and in the light of the judgment of 15 November 2019, the arguments that the claims should be dismissed were: 2 ph outcome jment and case mngmnt 1.5.14 version6.1 claims 1, 3 and 5 and the rules claim are subject to cause of action estoppel6.2 claims 1- 5 and the rules claim are all subject to issue estoppel6.3 claims 1- 5 and the rules claim are also barred as all could have been brought in 2013, so they are subject to the rule in Henderson.6.4 In claims 6 and 7, the letter of 17 September 2013 was ruled to be to be subject to privilege by Judge Auerbach in 2016 and cannot now be relied on6.5 In respect of the other detriments in claims 6 and 7, the claims are all out of time, and the just and equitable extension should not be applied6.6 Claims 1-5, if not estopped, are all out of time, and there should be no just and equitable extension.6.7 The victimisation claims against the three individuals should be dismissed as having no reasonable prospect of success. Alternatively, poor prospects of success should be weighed in the balance of prejudice when considering whether to extend time. Conduct of the Hearing[7]When this hearing was listed on 27 September, there was also discussion of preparation for it. The issues for decision were listed. Orders were made that any additional documents were to be sent to the other party by 6 November, and any witness statement was to be sent by 20 November. (The claimant sent documents on 12 November and more on 20 November. He sent a witness statement on 25 November). The claimant was invited to identify whether any of the claims in the May 2019 claim form did not duplicate those already brought and send his list to the other side for agreement. He did not do this. He explained today that none of the claims were duplicated.[8]Today, he objected that he had wanted to see the respondents’ submissions in writing, and if they were now made orally, he wanted to make his own submission in writing in the next 14 days, and at any rate not before Friday (29 November), because he finds that easier than hearing oral submissions and speaking in reply, because of the short-term memory difficulty associated with dyslexia and ADHD. I considered this, but ruled that submissions must take place today. The reasons for this decision were that even of the claimant had not thought of this at the 27 September hearing, he could have asked for written submissions at any time between 27 September and 27 November, but did not; that I would not be at work after 29 November, as I was using up accrued annual leave, and so any judgment must be made by then, or wait until 2 January 2020, which would be undesirable as memory of the detail would have faded; I offered to work on a day in December instead but the claimant did not wish me to; the claimant had had notice of the respondent’s objections in the response to the claim, and indeed had anticipated them in his claim form (passages headed “different facts - different causes of action” and “time limits”) confirming that unlike many litigants in person he was already familiar with the doctrines of res judicata and privilege, as well as time limits.[9]When the time came for submission the claimant made a short statement and was then asked point by point what he would say about particular arguments 3 ph outcome jment and case mngmnt 1.5.14 version made by the respondent, and there was dialogue about his case. In considering the arguments I have reviewed the case set out in his claim form.[10]Following the adjustments for disability agreed for the hearing of his earlier claims, the hearing started late, and he claimant was provided with short breaks each hour. In addition to one hour’s break at lunch there was a half hour break mid-afternoon on request so he could clear his head. He made notes of the respondent’s argument on a laptop, and time was taken to allow him to keep pace. The support worker helped by finding pages in the documents bundles for him.[11]The claimant gave oral evidence about the timing of presentation of his claim. There was also a 417 page bundle of the earlier claim forms and decisions in the claimant’s case. The claimant had prepared an additional bundle numbered 1810 to 2014. This included a decision in another case against the first respondent.[12]At the conclusion of the hearing it was late in the day. Judgement was reserved and there was to be a telephone hearing to list the claims for hearing if not struck out. Relevant History[13]The detailed narrative of the claimant’s progress toward qualification is set out in the Judgment sent to the parties on 15 November 2019. This summary focuses on matters not discussed there which are relevant to the issues for decision today. The Race Claims[14]In July 2013 the claimant presented the first two claims. The second claim (220469/2013) included a claim of nationality discrimination- the protected characteristic of race is defined in the Equality Act to include nationality. Under this heading, paragraph 20 of the claim form says the IAI exams were better suited to the claimant’s disabilities because they “did not contain so many convoluted and ambiguous questions” as the first respondent’s papers. Paragraph 21 speaks of “an agreement/arrangement” with the first respondent “not to conduct exams in the UK for UK members”. This meant Indian students could sit both sets of exams, so four times a year. These paragraphs state the claimant had had his exam registration with IAI in 2010 cancelled in 2010 because he asked for adjustments for disability, and that in 2013 he was told an agreement not to accept UK students was still in place. Paragraph 22(i) stated the claim was made under section 13 of the Equality Act. Paragraph 5 stated there was a claim for combined race and disability discrimination under section 14.[15]In October 2013 the claimant withdrew the race discrimination claims. Employment Judge Grewal recorded in a judgment sent to the parties on 25 October 2013 that the claim of race discrimination was dismissed on withdrawal. There has never been an application to reconsider that judgment. The claimant says he withdrew because of the without prejudice letter he had 4 ph outcome jment and case mngmnt 1.5.14 version been sent on 17 September 2013, and also because he had learned that section 14 was not in force.[16]In November 2014 the claimant presented his fourth claim (2202131/2014). This included a claim for direct and indirect discrimination because of race relating to the IAI exams compared to the first respondent’s exams. Paragraph 26.5 pleads section 14. Paragraph 26.7 sets out the detail of PCPs for the indirect claim, although indirect discrimination and section 19 are not mentioned by name. The nub of the claim is that IAI exams covered the same syllabus as the respondent’s but were easier to pass. The matters complained of as both race and disability discrimination postdated the 2013 claims, which explains the further claim being made at this point, but it is not clear to the tribunal why race claims were revived at this point.[17]At a preliminary hearing on 15-17 November 2016 before Employment Judge Auerbach, the claimant withdrew some claims, including any race claim. A Judgment was sent to the parties on 23 November 2016 which included a dismissal on withdrawal of “all remaining claims of race discrimination”. The claimant says that he gave instructions to withdraw the race claims “under pressure” from his then counsel. There has never been an application to reconsider that judgment. An agreement or understanding with IAI Privilege.[18]Also in the Auerbach judgment was the ruling that the letter of 17 September 2013 was privileged. The claimant’s application to rely on part of it was refused. The detailed reasons were sent to the parties on 8 December 2016; paragraphs 26-42 explain the finding on privilege. Today the respondent indicated there was no longer any objection on their part to this tribunal now reading this letter. The letter was a long one, covering a number of matters then in dispute. The passages the claimant then wished to rely on concerned arrangements for sitting a particular exam. The passage he now seeks to rely on denies any agreement with the IAI about excluding British students, and denies influencing the IAI’s decision to exclude him. That passage was not specifically considered by Judge Auerbach because there were no longer any race claims to which it could relate. The Missing Emails[19]The final hearing judgment of 15 November 2019 discussed at paragraphs 89- 108 the evidence of an agreement with IAI. First, there was the email to the claimant from Liaquat Khan on 30 October 2010, copied to the respondent’s Dr Watkins, which said there was an “agreement/arrangement not to conduct examinations in UK for UK resident/subjects”. They did have exams in the UK, but they were for IAI students who had moved to the UK. His application had been processed by staff who were unaware of “this historical arrangement”. This followed the claimant having joined IAI that summer and entered for an exam, he then asked IAI for extra time in an exam because of his disability, and at that point his exam entry was cancelled, a few days before, and he was given this explanation. In July 2013 the claimant asked IAI if this still applied, and 5 ph outcome jment and case mngmnt 1.5.14 version was told “the status of IAI as for admission of students from UK remains the same”. The claimant then asked the respondent questions about their involvement in the termination of his IAI membership, leading the first respondent to correspond with IAI, seeking a copy of the agreement they had told the claimant about, and being told it was “more of an understanding”, with Dr Watkins predecessor. The tribunal concluded (paragraph 108) that there was no such agreement, and that “asserting an agreement had been a bureaucratic response to administrative inconvenience”. All this material was in the hearing bundle.[20]The tribunal now learns that the correspondence of 22 July 2013 between the first respondent and IAI about the agreement the claimant had asked them about did not form part of initial disclosure, and came to the claimant’s attention on or after 3 March 2019.[21]The claimant relies on this fact to argue that the availability of fresh evidence means his time to bring a claim should be extended, alternatively that he is bringing a different claim to those already dismissed, so the history of what the claimant knew, and when, must be examined.[22]On 10 November 2014 the claimant made a subject access request (SAR) to the first respondent under the Data Protection Act. At that date he had already withdrawn the July 2013 race discrimination claim involving the IAI, and the November 2014 claim had not yet been presented. (It was presented to the tribunal on 18 November and sent to the respondent on 21 November). The respondent sent him on 19 December 2014 all the documents they had found on his claims, and the letter explaining the searches they had made followed on 9 January 2015.[23]In May 2016, when there was a pending race claim, (the November 2014 was not withdrawn until November 2016), the claimant asked to have the SAR documents in electronic form, and he also widened his search terms. He received what he describes as a “massive” amount, in a pdf so large it crashed his computer every time he opened it. In the witness statement he prepared for this hearing the claimant said he could have had the 2013 emails between the respondent and IAI in this collection and overlooked it, and he added that he struggled to believe the respondent had suppressed it as they had sent other emails where staff made disparaging remarks about him. The respondent however accepts it did not include the 22 July 2013 IAI/first respondent emails in the 2016 SAR.[24]In 2017 another UK actuarial student, Mr. R. Davda, began a claim against the first respondent (2207536/2017). He alleged race and age discrimination (but not disability) and relied on an agreement between the first respondent and the IAI excluding British students from IAI exams. The basis of the claim was that in September 2017 he had asked to join IAI (he was already a student member of the first respondent) and been refused. The claimant assisted him in drafting his claim form.[25]The final hearing of the Davda claim took place over four days in January 2019. The claimant attended as an observer on some days. He says he did not expect 6 ph outcome jment and case mngmnt 1.5.14 version Mr Davda to win his case, and attended to watch counsel’s performance. He says he missed evidence from Dr Watkins about an agreement.[26]On 3 March 2019 Mr Davda gave the claimant a copy of the hearing bundle. The claimant says this is when he first saw the 22 July 2013 IAI/first respondent emails about an agreement.[27]On 3 May 2019 the claimant attended a further hearing in the Davda case at which both sides applied to adduce additional evidence – both applications were refused for different reasons. Here he learned that after the January hearings Derek Cribb, the first respondent’s chief executive, and a respondent to this claim, had written to the IAI asking them to confirm there was not and had not been an agreement to exclude British students from IAI exams. The IAI had replied that there was no such agreement, but did not answer the question about the historical position. This discovery was the trigger for his decision to present the May 2019 claim, reviving the race discrimination claim. He told the tribunal that this, in conjunction with the additional emails he saw in March, convinced him there had been an agreement of some kind, even though the respondent had denied it in the September 2013 letter.[28]The Davda Judgment was sent to the parties on 20 May 2019. The claimant saw it straight away, and pasted material from it about Mr Cribb’s 2019 correspondence with IAI into his claim form for his fifth claim, though without mentioning Mr. Davda’s claim or circumstances. This claim was presented to the tribunal on 21 May 2019.[29]The claimant says he wanted to make sure it was presented before a case management hearing next day, so that he could have it consolidated for hearing with the other four. However, at that 22 May hearing Judge Grewal said she was not prepared to adjourn the hearing of the existing four claims, and thought it unlikely the new claim would be ready for the September hearing. A decision could be made once she had seen the scope of the new claim.[30]Also on 22 May 2019 he emailed IAI in the name of “Dr Watson 1977”, asking if he could join IAI and take exams in London. On 23 May he sent two more short emails, one for “Dr Watson”, and one under the name “John Smith”, asking how he could enroll with IAI. IAI did not reply.[31]On 20 May 2019 the claimant asked the respondent’s data protection officer why the 2013 emails between the respondent and Mr. Khan had not been disclosed to him with his SAR in January 2015. The reply came back that at this distance in time the reason could not be identified. The claimant then asked for the string of emails in which they were contained, and was sent them. He was told: “this is correspondence that is exempt from subject access under legal advice privilege and so would not have been released to you in response to your original request. Nevertheless we are prepared to waive privilege and release this chain of emails as attached.”[32]The May 2019 claim form was not sent to the respondent by the tribunal until 20 August 2019, because of administrative backlogs. The data protection officer did not know what any fresh claims were (even supposing he had been told from what was said at the case management hearing that more claims were on the way) when he said this. 7 ph outcome jment and case mngmnt 1.5.14 version[33]The Davda judgment (which is about race and not disability) was not in the bundle for the September 2019 hearing, and not referred to by either side. It records that Mr. Davda had been told by IAI in September 2017 that he could not join because he was a UK citizen, clarified in October 2017 as meaning he could join but he had to pass ACET first. The ACET exam centres were all in India. A list of frequently asked questions shows the IAI also retains a discretion to exclude non-Indian students. The Davda tribunal concluded that IAI does have a policy of not allowing UK nationals to join (paragraph 80). The respondent says that this judgment has been appealed. Relevant Law Res Judicata[34]The doctrine of res judicata “provides that where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by the decision, save on appeal”. (Halsbury’s Laws). It is an umbrella term for several related legal principles.[35]As analysed by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (2013) UK SC 46, there are 5 general principles of res judicata:(1) cause of action estoppel. This precludes a party from challenging the same cause of action in subsequent proceedings. The parties have to be the same in the two actions.(2) a rule precluding bringing a second action for damages on the same cause of action(3) merger – a cause of action is extinguished when there has been judgment on it.(4) issue estoppel – even where the cause of action is not the same in the later action as it was in the earlier one, where some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties. (It was given the label issue estoppel in Thoday v Thoday (1964) 1 All ER 341)(5) the rule in Henderson v Henderson (1843) 3 Hare 100, precluding a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier one.[36]The purpose of the principle is in part the public interest that the courts are not clogged up by redetermination of the same disputes, and in part the private interest that it is unjust for a man to be vexed twice with litigation on the same subject matter.[37]The doctrine applies to withdrawal of employment tribunal claims, as in Barber v Staffordshire County Council (1996) 2 All ER 748, where a claimant withdrew a redundancy payment claim and later, after a clarification of the law, brought an unfair dismissal claim, which was dismissed as estopped by the judgment dismissing the redundancy claim on withdrawal. There were no 8 ph outcome jment and case mngmnt 1.5.14 version exceptional circumstances, and she could and should have brought the unfair dismissal claim with the redundancy payment claim.[38]“Discovering fresh evidence, as distinguished from the development of fresh circumstances, on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata” (Halsburys Laws). It must be “fresh evidence which entirely changes the aspect of the case”, and was not and could not by reasonable diligence have been obtained before. It applies to issue estoppel, but not to cause of action estoppel, where the bar to reopeoning the decision is absolute unless fraud or collusion is alleged – Arnold v National Westminster Bank plc (1991) 3 All ER 41, a decision of the House of Lords.[39]In Thoday, Lord Diplock clarified a distinction between a finding on an issue and a finding of fact: If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. But "issue estoppel" must not be confused with "fact estoppel," which, although a species of "estoppel in pais," is not a species of estoppel per rem judicatam. The determination by a court of competent jurisdiction of the existence or nonexistence of a fact, the existence of which is not of itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court. (Emphasis added).[40]In the discussion that follows, references to claims use the numbering in the claimant’s claim form. Claimant’s Submissions[41]Although the claimant had not prepared a written submission and found it hard to make a sustained submission in person, he has in fact set out much of his case in E1, anticipating the respondent’s objections to revival of his claim.41.1 In paragraph 6 he describes his discovery on 5 March 2013 of the extra emails and says they were deliberately withheld from him. The respondent knew there was no agreement. IAI thought the respondent should deal with it as the claimant was their member. The understanding Mr Khan described prevented the claimant from sitting IAI exams.41.2 In paragraph 7 he asserts Mr Cribb was trying to manufacture evidence in his February correspondence with IAI by getting them to state the current and historic position as there having been no arrangement baring British students from sitting exams, while IAI’s reply on 23 April mentioned only the current position. 9 ph outcome jment and case mngmnt 1.5.14 version41.3 In paragraph 8 he explains his position as being that the respondent wanted to prevent him bringing an employment tribunal claim.41.4 In paragraph 9 he asserts that omitting the emails from the SAR was fraud- they did so “deliberately and dishonestly”, and so as to prevent him bringing a claim based on an understanding.41.5 Next he adds: DIFFERENT FACTS – DIFFERENT CAUSE OF ACTION For the avoidance of doubt, C is not bringing the discrimination claims based on an “agreement/arrangement with the UK Actuarial profession” “which made it necessary” for them to “not compete with UK Actuarial Profession and in specific terms not to conduct examinations in UK for UK residents/subjects”. C instead relies on ‘understanding’ and / or rule, policy or practice etc (whether in writing or otherwise), between R and the IAI. The facts are different to the un-particularised S.14 EqA claim stipulated in the 26 July 2013 ET1 form. The cause of action is also different.[42]In other words, he seeks to argue that there should be an exception to the cause of action estoppel because there was fraud, or deliberate withholding of the evidence. In the alternative he argues this is not a claim on the same facts or premise, as it is not about an arrangement but about an understanding. In either case had he known it was an understanding he would have persisted with the original race claim.[43]He stated in the hearing he wished to rely on what Lord Diplock said in Thoday, as there was a distinction there between issues and facts and the effect on estoppel. I have extracted above the passage he may have had in mind, as a basis for arguing that findings in the 15 November judgement are not findings on issues estopping him from claiming again. Respondent’s Submission[44]The respondent argues the judgements dismissing the withdrawn race claims are an absolute bar, by cause of action estoppel, to claims 1, 3 and 5. The only way round them is to apply for reconsideration. The claimant cannot assert of claim 2 that he withdrew a claim for section 14 only, because he also brought a section 13 claim, as he did in claim 4. The causes of action are the same. As for whether an application to reconsider would succeed on a fresh evidence coming to light, it is argued it was not new in substance, he had all the evidence he needed in 2013, from IAI. If anything the new emails weakened his case, as they showed IAI asserting an understanding, not an agreement, and did not show the respondent agreeing there was an understanding. The respondent had continued to tell the claimant during the mediation that there was no restriction on UK students joining IAI.[45]Failing that, the respondent argues there is issue estoppel, in that the tribunal’s decision that there was no agreement, arrangement or understanding decided an issue underlying the claims. This applies to all five claims, all being based on 10 ph outcome jment and case mngmnt 1.5.14 version him not being allowed to sit IAI exams, whether as the reason, or as the PCP. Claim 5 relied on the arrangement to draw an inference that there had had been an instruction, aiding, and so on. The tribunal had found in the November judgment there was no instruction. In the alternative the respondent relies on the rule in Henderson, that he could and should have brought his claims in 2013, and any new evidence was immaterial. He already knew relevant facts as IAI had told him in 2010 and again in 2013 there was an agreement.[46]The claim of an unenforceable rule was also premised on an agreement and so failed on issue estoppel or the rule in Henderson. (If not, it was time barred, having ceased to be a member by early January 2019 at the very latest. Discussion[47]It is plain enough that having brought race discrimination claims, based on an arrangement between IAI and the respondent excluding British students from sitting IAI exams, on two occasions, and then having had them dismissed on withdrawal in 2013 and in 2016, cause of action estoppel applies to the current race discrimination claims.[48]The claimant seeks to argue that it should not apply because the first respondent engaged in fraud to withhold material from him. The tribunal does not accept that the claimant has shown fraud or dishonesty. The volume of material (such that even the claimant was unsure if he had overlooked them) indicates that oversight was clearly a possibility. More likely, their placement in a privileged string was what excluded them from subject access disclosure, and that was the reason given. A further possibility is that the data protection team did not know in November 2014 that a race claim had been served days earlier, making IAI relevant, and did not appreciate from the 2016 request to widen the search terms that there was now a race claim. The probability is that privilege was thought to apply. Further, the respondent was thorough in disclosure, and has, as the claimant pointed out, disclosed other material disadvantageous to them, making it implausible that they would deliberately exclude material to preclude a claim. Importantly, it is hard to see how the 22 July emails gave the claimant a better case than the case based on the 2010 and 2013 emails he already had, where Mr Khan said there was an agreement or arrangement. The 22 July emails show Mr Khan backtracking from “agreement” to “more of an understanding”, and Mr Watkins then commenting to his colleagues that, as he thought, there was no agreement. They are not evidence that the respondent agreed there was an “understanding”. It is thus hard to see why the respondent would have wanted to withhold them.[49]The claimant said he did not apply for reconsideration of the 2013 or 2016 judgments dismissing the earlier race claims because it did not occur to him. How likely is it they would have been reconsidered if he had applied with the extra emails? Rules 70-72 provide for reconsideration in 14 days, though I add that a tribunal has discretion to extend any time limit subject to the overriding objective to deal with cases justly, and an application is unlikely to have been refused because it was late if he had only just discovered new evidence. On the merits of whether it would have been in the interests of justice to reconsider the decision, it seems improbable. The new evidence did not weaken the respondent’s case that there had been no arrangement. At best it suggested 11 ph outcome jment and case mngmnt 1.5.14 version the IAI thought there had been an understanding, rather than the arrangement they had told the clamant in 2010 and 2013 there was. To the extent that he withdrew the race claim in 2013 because they had denied in the without prejudice letter that there was an arrangement, the email did not change that – in July 2013 the respondent had concluded from Mr Khan’s reply there was no agreement and they did not believe there was an understanding. Had the claimant seen the missing emails at the time, it is hard to conclude he would have assessed his prospects as better than he already thought. As for 2016, the circumstances (“pressure” from counsel) suggest he may have been advised by counsel to withdraw the second race claim because he had withdrawn the first one, such that cause of action estoppel would apply. I conclude that it could not be held that the new evidence required the dismissals of 2013 and 2016 to be revoked in the interests of justice. If the applications had been made to me in this hearing, I would have refused to reconsider either judgment.[50]If the claimant argues this is not the same cause of action, that argument is not accepted. The substance of the claims is the same: easier exams, or if not easier, more chances to pass them in a year, giving Indian students, who could take both institutions’ exams, preferential treatment over British students. This is the case whether formally pleaded as breaches of section 13, section 14 (both express) or section 19 (by implication in claim 4), whether by themselves or by instructing, causing, inducing or aiding IAI. It does not matter whether the claim was founded on an arrangement (as in 2013 and 2014) or on an understanding (as in 2019). However labelled, it concerns alleged cooperation or coordination between the respondent and IAI.[51]Turning to consider issue estoppel, this is relevant to claims 2 and 4, as well as 1, 3 and 5 and the unenforceable rule claim. Claim 2 is about treatment of a disabled and non-disabled British national, on the premise that a non-disabled Briton could join IAI, and claim 4 is of indirect discrimination, with the agreement underlying the PCP, giving Indian nationals more opportunities to sit exams (in claim 3 the arrangement is not pleaded as a PCP but as the cause of the disadvantage). The September 2019 tribunal (which did have the missing 22 July emails), as well as the evidence of the claimant and Dr Watkins, but not the correspondence of Dr Cribb, found, on the evidence before it, that there was no arrangement (107). As the tribunal noted, having heard much evidence about an agreement, it was puzzled how it related to the claims before it, rather than to a race claim which had been withdrawn (see 260-262). The parties’ submissions identified that it related to a victimisation claim, that the respondent had caused (etc) the IAI to discriminate against the claimant when he requested a reasonable adjustment to their exam arrangements. The other possible issue related to the respondent discriminating by only having two sittings a year. The claimant did not develop an argument today that the finding there was no arrangement was not issue estoppel but fact estoppel, but he stated that this was what he wanted to argue, supported by Thoday. Having considered the point, it is not accepted that this is not issue estoppel. The victimisation claim relied on establishing an arrangement or understanding that IAI would not accept UK based British students. The race claims, direct or indirect, and claim 2, of disability discrimination, also rely on establishing an arrangement or understanding. It was the reason in the direct discrimination claims. It was the 12 ph outcome jment and case mngmnt 1.5.14 version provision, criterion or practice (by itself or by interacting with other conditions) in the indirect claims. It underlay the unenforceable rule claim. In all cases, it was: “a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court”. The issue was decided, and he is estopped from reopening it in the new claims unless he can show an exception.[52]If there is an issue estoppel, the claimant can seek to show an exception if there is “fresh evidence which entirely changes the aspect of the case”. He has argued the 22 July emails, and Mr. Cribb’s 2019 correspondence with IAI, are such evidence. However, Mr Khan saying to the respondent there was not an arrangement but an understanding does not yield more or better evidence than the claimant already had. In any case, the tribunal hearing the first four claims had that evidence, and concluded from it that there was no agreement. As for Mr Cribb’s correspondence, which the claimant relies on in conjunction with the emails, at best it raises a query whether IAI, by not following the text of the draft proposed to them, did not want to state in terms there never had been an arrangement, but again it does not add to what the claimant already had from Mr. Khan himself, when Mr. Khan asserted there was an arrangement. It is new evidence, and did not come into existence until 2019, but it does not entirely change this aspect of the case. Nor does it show the respondent wanted to prevent a race claim from the claimant (which is not a claim in the May 2019 claim). Mr Cribb wrote to IAI because they were concerned about the state of the evidence in the Davda case. It is fanciful to believe the respondent wanted to prevent the claimant bringing a race claim based on the agreement when at the time they knew he had twice brought such a claim and twice had it dismissed on withdrawal,and had no reason to believe he might want to revive it.[53]If the claimant were not estopped,whether on cause of action or issue, the rule in Henderson impedes him. He could (and did) bring claims of race discrimination in respect of the alleged arrangement in 2013 and 2014. If there is anything new in the current claims 1-5 and the rules claim (noting that the claimant has not identified what is new) there is no reason shown why he could not have brought a claim then. It is another aspect of res judicata which prevents him relitigating a claim against the first respondent based on any cooperation, whether arrangement or understanding, between them and the IAI.[54]In respect of all three principles, it must be said the first respondent has been put to very considerable trouble over several years preparing and defending claims brought by the claimant, and they should not have to start again with race claims already brought and withdrawn, or disability claims which are reshaping of material already considered and on which findings have been made. Claims 6 and 7 – Victimisation Claims[55]The respondents argue these are brought out of time - as are the other claims if not res judicatae.[56]Alternatively, they say the victimisation claims have no reasonable prospect of success and should be struck out. 13 ph outcome jment and case mngmnt 1.5.14 version Time.
Relevant Law
[57]Section 123 of the Equality Act provides that proceedings may not be brought after the end of—(1) (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable.(2) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[58]In deciding whether it is just and equitable to extend time a tribunal should consider the length of delay, the reasons for it, including whether the other party is responsible for it, the effect of delay on cogency of the evidence, and how promptly the claimant acted once he knew of any relevant matter, and then weigh up the balance of prejudice between the parties of allowing the claim to proceed out of time - British Coal Corporation v Keeble. Employment Tribunal time limits are short, a matter decided by Parliament. It is for a claimant to persuade a tribunal that it is just and equitable to extend time. Time -
Discussion
[59]The detriments relied on (claim form paragraph 22) are: (c) the 17 September 2013 without prejudice letter, sent while withholding the IAI 22 July email(a) not providing to him the email chain of 22 July,(b) not forwarding the chain with the 22 July email to him, and (d) not doing so in response to the requests for information made on 2 October 2014 and 7 June 2016.[60]In respect of detriment (c), the letter was adjudged privileged by Judge Auerbach. Paragraphs 29-35 of the reasons explain why he held this letter, which ranged over several aspects of the complaints and claims, was a genuine attempt to settle claims and attracted privilege. Paragraphs 36-39 consider whether any exceptions applied. At the time the letter was sent, there was a live race claim, and the fact that there were live claims forms part of his reasons for holding it was privileged. He did not otherwise deal with the detail of the agreement because he was considering the point in the context of exam time, and at the time of his decision all race claims had been withdrawn. There is no case made that the privilege finding does not apply to the whole of the letter. There is no sign of impropriety, let alone unambiguous impropriety, in asserting there was no agreement, which is what the 22 July emails claimed.[61]The claimant argues that the underlying rule or provision (the arrangement or understanding between the respondent and IAI) has not ended, and in fact continues, on the finding in Davda. Therefore his claims are in time.[62]Failing that, he argues that not until he saw the 22 July 2013 emails on 5 March 2019 did time start to run, and arguably, not until he appreciated their significance when he saw Mr Cribb’s correspondence with IAI in 3 May 2019. 14 ph outcome jment and case mngmnt 1.5.14 version[63]The respondent argues that the claimant well knew at all stages, but particularly by 2019, about time limits. If 5 March is the relevant date of the act complained of, there is no reason why he delayed after 5 March. He knew how to bring a claim, having done so before. If the discovery of the email made a difference to his perception of the 2013 letter (as a detriment) he did not act promptly, but waited another 11 weeks to start a claim. Finally, it is argued that the claim is weak on the merits, as it is improbable the respondent withheld it deliberately so as to prevent him claiming, and this should be a factor against allowing an extension, as there is little prejudice to the claimant and much trouble and cost to the respondent.[64]The claimant set out in the claim form that he lodged the claim form “within 3 months of sight of the previously suppressed 22 July 2013 emails and the correspondence between Derek Cribb and the IAI confirming that there was historically an IAI rule policy or practice (whether in writing or otherwise) which prohibited or restricted any individual of British nationality from..” joining IAI or sitting their exams. In other words,(1) the victimisation claims were presented in time and(2) in respect of other causes of action, there should be a just and equitable extension of time. In the hearing he added that he was considering whether res judicata would apply because he had brought and withdrawn claims before, in particular that he had written to an Australian law professor about a point from his textbook. He had also wanted to check if the agreement was still in place, hence his Dr Watson emails, though these come after he presented the claims.[65]Time - Discussion[66]Claims 1- 5 and the unenforceable rules claims were out of time on 21 May 2019. (In the rules claim, he had not entered for any exam since 2014, and had let his membership expire, such that after 9 January 2019 at the very latest he was no longer a member and rules did not apply to him). If the rule continues, the claimant is no longer trying sit exams with either institution. The matters he complains of are historic, not current. If the claims were not barred by cause of action estoppel, and they were freshly brought in May 2019, the discovery of the 5 March emails would not operate to make it just and equitable to extend time. He already held the information he needed. All that changed was a revision of his estimation of his prospects of success after the Davda hearings. If it was the discovery of the emails that altered his view, he did not act promptly then.[67]Claims 6 and 7 are such that the detriment is not doing something, so that time runs from when the respondent decided not to do it, so whenever disclosure took place, or the subject access documents were sent to him in December 2014 and June 2016.[68]Considering an extension of time, there is a clearer case for saying the claimant could not have known anything was withheld until he saw Mr Davda’s bundle on 5 March 2019. The case for a just and equitable extension is therefore stronger in the victimisation claims. Delaying while he checked res judicata, as an explanation for delay, is irrelevant to these claims. So is knowing about Mr. Cribb’s correspondence with the IAI. It is against him that he was not more prompt. This delay of a few weeks of itself made little difference to the cogency 15 ph outcome jment and case mngmnt 1.5.14 version of the evidence, but, as things worked out, had he acted more promptly the victimisation claims could have been heard in September 2019 and saved further full panel hearings and substantial delay if the victimisation claims are now listed for final hearing. The prejudice to the respondent is that they must now defend a claim where the evidence is about what happened in 2013, 2014 and 2016. Proving why things were not done then (and proving reasons for omissions is always harder than for acts) is now very difficult. The prejudice to the claimant is loss of a claim that he was victimised for complaining or bringing claims about nationality discrimination. What does he lose? The chances of success in this claim are poor. There is no positive evidence that the emails were withheld because the information detracted from the respondent’s case and would assist the claimant. They were part of a string between the respondent’s staff and the in-house legal team, in the context of an actual or impending employment tribunal claim, and were thought, wrongly or rightly, to be privileged, and that was the reason given the data protection officer in June 2019. They may also genuinely have been overlooked. Many other documents were disclosed, making it unlikely they were withheld because he had claimed. In many tribunal cases with large amounts of documents there are some that come to light at a later date without any deliberate act of withholding. That makes unlikely he could establish, even on a reverse burden of proof, that the reason for not disclosing them was because of any claim he had or they thought he might bring. There is also a question whether he could show detriment, meaning more than trivial, when the documents told him only what he already knew, that the respondent denied there had ever been an agreement, and also showed that Mr. Khan’s assertion that there was such an agreement was weakened by his concession when challenged that it was “more of an understanding”. The emails did not show that although there was a dispute about an agreement there was no dispute about there being an understanding. On the evidence, when the issue was explored in the September 2019 hearings, none of the respondent’s then staff knew anything about it. Weighing the prejudice to the respondent in having to defend victimisation claims for which the evidence is stale, against the prejudice to the claimant when the prospects of success are so poor, it is not just and equitable to extend time. Strike Out for Prospects of Success[69]I have to consider whether the victimisation claims against the respondents should be struck out under rule 37 because they have no reasonable prospect of success. I remind myself that tribunals must be slow to strike out fact sensitive cases at a preliminary stage, before evidence is heard - Anyonwu v South Bank University (2001) UKHL 14; Ezsias v North Glamorgan NHS Trust (2007) EWCA Civ 330. This case is unusual in that so much evidence as already been heard, though not on the specific issue of why these emails were not disclosed earlier, and many documents have been considered, in the context of the claim that was decided by a tribunal, namely whether the first respondent had instructed or aided (etc.) IAI in victimising the claimant because he had asked for adjustments. This tribunal does not know what the individual respondents or the data protection officer, might say, if they can remember, why the emails were not disclosed before; privilege is the explanation put forward. But taking the matter in the round, it seems extremely unlikely the claimant can prove facts from which the tribunal could infer 16 ph outcome jment and case mngmnt 1.5.14 version discrimination, and very likely that the only plausible explanation for not disclosing them is that they were thought to be privileged, and quite apart from persuading a tribunal of the prohibited reason for not disclosing them, there is a real question whether this amounted to detriment when it appeared to support, rather than undermine, the respondent’s case that there was no agreement or arrangement. I conclude there is no reasonable prospect of success in the victimisation claims, whether against the individuals or the first respondent. If I were wrong in that, I would certainly impose a deposit order under rule 39, with its substantial costs consequences if the claims were unsuccessful.[70]In conclusion, the vitimisation claims are struck out under rule 37, and the remaining claims are res judicata.