Dr M Alexander v Imperial College Healthcare NHS Trust: 2206345/2021
EMPLOYMENT TRIBUNALS
Case No 2206345/2021
Between
Dr M AlexanderClaimantImperial College Healthcare NHS TrustRespondent
Before
Employment Judge AdkinIn person for claimantDate 5 July 2023
JUDGMENT
[1]The Claimant’s application to amend is:a. Granted in respect of the following paragraphs of the 15 page list of issues produced on 9 September 2022: 4b, 4e, 7a, 7b, 7c, 11a, 11d (short summary only), 12b(i)-(vi) inclusive, 12d, 12e (summarised), 13b, c, d (summarised), 14a (summarised), 16, 19eb. Refused in respect of 4f, 7d, 11a, 11b, 11c, 12a, 12b(vii)-(viii), 12c, 13a, 14b, c, d, e, 15, 19a, 19b, 19c, 19d, 19f, 19g, entire claim of indirect discrimination, entire breach of contract claim[2]The Respondent’s application to strike out the claims or alternatively make a deposit order on the basis that there is no/little reasonable prospect of the claims being found to be in time is refused. 1.
REASONS
CONCLUSIONS
[1]This case has already been case managed by a number of judges. Documentation[2]In preparation for this hearing I received, a fairly excessive number of documents. The Respondent produced a bundle of 1,027 pages.[3]The Claimant produced a separate bundle of 201 pages. In addition to that I have received the following documents: 3.1. A document entitled: Claimant’s submissions regarding Respondent’s objections to strike out its claim dated 28 June 2022 which is signed on 12 July 2022 3.2. Another document: Claimant’s guidance of evidence to all parties for the preliminary hearing on 28 September 2022 3.3. Application to amend.
Background
[4]The Claimant was employed by the Respondent as a trainee doctor from 7 August 2019 to 6 April 2020. A grievance process in which he was involved concluded on 23 August 2021.[5]He presented a claim to the Employment Tribunal on 20 September 2021 having also submitted an ACAS certificate on the very same day.[6]On 2 March 2022 Employment Judge Norris at a case management hearing listed a further case management hearing on 3 May 2022 to consider disability status and time points.[7]Disability was conceded by the Respondent on 21 April 2022.[8]At a hearing on 3 May 2022 Employment Judge Gordon Walker recorded the acceptance of disability by virtue of the mental impairment of “recurrent 2. depressive disorder and anxiety”. She listed a further case management order for 19 July 2022 to consider the application to amend further applications and case management orders.[9]That came before Employment Judge Khan on 19 July 2022 who ordered that the Respondent should identify which parts of on the legal issues were said to be new, to particularise the justification defences, and also to send a copy of an agreed list of issues to the Tribunal and to the Claimant. He listed a further hearing on 28 September 2022 to consider the application to amend brought by the Claimant and an application for strike out or in the alternative a deposit order by the Respondent. APPLICATION TO AMEND Original claim[10]In the claim form ET1 submitted on 20 September 2021 the Claimant ticked the box to indicate that he was bringing a disability discrimination claim. He also ticked the box saying he was bringing another type of claim which was injury to health (which would simply be a possible remedy outcome of a disability discrimination claim).[11]The Claimant also purported to bring a claim of breach of the Data Protection Act 2018 regarding documentation of his training process. The Tribunal does not have jurisdiction to deal with that sort of claim.[12]In box 8.2 there is a narrative which reads as follows: Injury to my mental health in June 2020 after a competency panel report based on the behaviour of supervisor Dr Fertleman to actively try and terminate my career from his April 2020 report. His report was based on "concerns" which were either untruthful or misrepresentative of the facts. Disability discrimination August 2019 to May 2020 in the hands of supervisors Dr Colin Mitchell, Dr Michael Fertleman and Dr Susanna Long treating me differently to my peers by unjustly making me supernumerary for a whole year, not allowing me to do on calls, not following training guidelines written by HEE, not following disability training guidelines written by the GMC and not following reasonable adjustments recommended by occupational health reports. Occupational health had written asking to wean me off a supernumerary position, be given guidance on this and start a substantive post and do on calls and thus be able to learn more effectively. The disability training guidances written by GMC describe how occupational health have jurisdiction in training matters, and where reasonable adjustments are recommended by occupational health, it is unlawful not to consider them. There was active secrecy, out of keeping with the training guidances by HEE for transparency, by Dr Long, Dr Mitchell and Dr Fertleman about 3. the unfair opinions of Dr Fertleman on my progress which put my career in jeopardy and led to the consideration of unfair dismissal in June 2020, Breach of Data Protection Act 2018 regarding accurate documentation on my training progress in Dr Fertleman's rotation from December 2019 to April 2020 by not acknowledging the progress I made in the ward rounds that I led, shown by my ward round entries. Discrimination in a biased grievance investigation relating to the above which was concluded on 24/8/2021 and denied my right to a fair grievance as an appeal has been refused. The investigator failed to grasp the meaning of the points I was making regarding regulations and misrepresented the facts with the evidence I had submitted. Given that employment finished with Imperial on 6/4/21 I ask for permission to lodge a hearing out of time based on exceptional circumstances given that I had lodged a grievance with Imperial on 6/4/21, I had misplaced my faith in the Imperial justice system and was misled into thinking that the Grievance will conclude fairly at the end of May 2021 but had an unfair conclusion on 24/8/21 prohibiting me from appealing to tribunal.[13]It is noted that this referred to not following reasonable adjustments recommended by Occupational Health reports and ultimately consideration of unfair dismissal in 2022. As to the reasons for delay in submitting this claim the Claimant has dealt with this at the bottom of this extract, in essence that he was following the internal grievance process. Evolutions of the original claim[14]The Claimant has attempted to particularise his claim in a series of stages: 14.1. A response to the Respondents agenda for the preliminary hearing on 24 January 2022 provide on 15 March 2022 14.2. A requested additional issues document provided on 15 March 2022 14.3. A “list of issues amended by Claimant as per ET directions” document provided on 23 March 2022 14.4. A response to the Respondents email dated 24 March 2022, provided on 28 March 2022 14.5. A modified witness statement dated 22 April 2022 14.6. An annotated version of the Respondents new draft list of issues provided on 31 May 2022 4. 14.7. Additional information for the list of issues provided on 31 May 2022[15]Subsequently there have been edits to a list of issues which was created by the Respondent on 10 May 2022 and amended on 7 June 2022, further amended on 27 June 2022 and additions made by the Claimant on 9 August[16]Shortly before the matter came before me there was a significant amount of to and fro about the correct format of a draft list of issues, as at 10 September 2022 a document entitled amended list of issues of some 15 pages was provided, this was at the request of the Respondent. The document that we used to consider the applications to amend.[17]Because of the evolution in this matter, it is slightly difficult to identify exactly when each element of the proposed amended claim arose. I have done my best to understand it. Respondent’s stance[18]The Respondent in this hearing as communicated by Ms Hoskyns has taken a commendably pragmatic and realistic approach, making appropriate concessions in the interest of moving this litigation forward.[19]The approach has been to in many cases not object to a proposed amendment where there is documentary evidence that these matters were raised in the grievance, i.e. reasons to believe that the Respondent had already dealt with this matter and then would not suffer significant hardship in trying to deal with a matter that was being brought a long time after the event.[20]The Claimant made some sensible concessions of his own.[21]I understand there has been quite voluminous correspondence in the litigation to date. I would encourage the parties to keep such correspondence to minimum and keep some “momentum” going with the concessionary and collaborative approach that arose during the course of this hearing. LAW Law on Amendment[22]I have considered this application to amend applying the tests set out in Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore [1996] IRLR 661 and the guidance in Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 as well as the Presidential Guidance on General Case Management (2018) Guidance Note 1: Amendment of the Claim and Response.[23]When considering an application to amend, a tribunal must take into all the circumstances and should balance the injustice and hardship of allowing the 5. amendment against the injustice and hardship of refusing it. The relevant circumstances include: 23.1. The nature of amendment; 23.2. The applicability of time limits; 23.3. The timing and manner of the application.[24]In Vaughan v Modality Partnership [2021] IRLR 97 HHJ James Tayler suggested that a relevant question is "what will be the real practical consequences of allowing or refusing the amendment": [paragraph 21]. Law on time limits[25]The Equality Act 2010 contains the following provision: 123 Time limits (1) Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of— (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.[26]The leading case of whether an act is ‘continuing’ for the purposes of discrimination is Hendricks v Commissioner of the Police for the Metropolis [2003] IRLR 96, CA per Mummery LJ at paragraphs 48-49 & 52: 48… the burden is on [the Claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination', or 'climate' or 'culture' of unlawful discrimination. 49… [the Claimant] may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no 'act extending over a period' for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the Service in matters of race and sex discrimination. 52 The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over 6. a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'… the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an on-going situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.[27]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, the Court of Appeal held that when employment tribunals consider exercising the discretion under [what is now] S.123(1)(b) EqA, ‘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.’[28]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA, the Court of Appeal pointed to the fact that it was plain from the language used in S.123 EqA (‘such other period as the employment tribunal thinks just and equitable’) that Parliament chose to give employment tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision. At paragraph 18-19 Leggatt LJ said: ''it is plain from the language used (such other period as the employment tribunal thinks just and equitable) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike s 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in s 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see [2003] EWCA Civ 15, [2003] IRLR 220, para [33]. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under s 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WLR 728, paras [30] [32], [43], [48]; and Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 All ER 381, para [75]. 7. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).''[29]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, [2021] ICR D5, Underhill LJ said: ''The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) the length of, and the reasons for, the delay. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.'' Law on strike out[30]Discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union [2001] IRLR 305, HL, a race discrimination case in Lord Steyn stated (at [24]): ''For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our 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 particular facts is a matter of high pub-lic interest.''[31]At [39] Lord Hope of Craighead noted that '[t]he time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail, he also stated (at para 37): '' … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injus-tice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an op-portunity to lead evidence.''[32]The EAT in Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at [41], EAT confirmed that this did not amount to a fetter on the Tribunal’s discretion. There is no blanket ban on strike out 8. applications succeeding in discrimination claims (see Langstaff J in Chandhok v Tirkey UKEAT/0190/14, [2015] ICR 527 at [20]). The learned editors of Harvey suggest that the power to strike out in discrimination cases should be exercised with greater caution than in other, less fact-sensitive, types of case.[33]I was referred by the Respondent to the decision of the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548.[34]In E v X & ors; L v X & ors (UKEAT/0079/20/RN, UKEAT/0080/20/RN) Ellenbogen J reviewed the authorities governing the situation in which a tribunal considers strike out on the basis of time grounds. In order for a Tribunal to have jurisdiction either the claimant needs to establish that the act of discrimination amount to a continuing act extending into the primary limitation period, or the Tribunal must be satisfied that it is just and equitable to grant the required extension of time (para 4).[35]Following a review of the authorities Ellenbogen J distilled the following principles at paragraph 50: 1) In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin; 2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson; 3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar; 4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or(2) substantively to determine the limitation issue: Caterham; 5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar; 6) An alternative framing of the test to be applied on a strikeout application is whether the claimant has established a 9. reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar; 7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz; 8) In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required — the matter will be decided on the claimant's pleading: Caterham (as qualified at para 47 above); 9) A tribunal hearing a strike-out application should view the claimant's case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson and para 47 above; 10) If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham; 11) Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham; 12) Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham; 13) If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively,, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time 10. are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham. CONCLUSIONS Application to amend Direct Disability Discrimination
Law
[36]The Respondent does not object to the allegation brought at 4b of the amended list of issues i.e. Dr Suzanna Long and Dr Megan Griffith on the ARCP panel passing all of the F1 Doctors in the Claimants cohort in May/June 2020 but not the Claimant. Allowed.[37]A modified form of the allegation at 4e is allowed, is not disputed by the Respondent and I grant permission for it in this form: “Dr Anna Wetherall had unjustly precluded me in fulfilling the 20 curriculum points by only allowing me to document on ward rounds, only seeing the medical fit for discharge patients and only writing up discharge summaries.”[38]As to allegation 4f which is opposed by the Respondent the position of the Respondent is that this is a new allegation not contained in the ET1 and requires leave to amend. The Respondent submitted that the substance of this allegation was not in the grievance it refers to individuals not mentioned in the grievance and it relates to events that took place more than two years before the claim was submitted. The Claimant confirmed during submissions that in fact people mentioned here did not still work for the Respondent.[39]I accept the Respondent’s position that they would be genuinely prejudiced in trying to deal with this allegation given this and that it is brought significantly out of time. I do not grant permission for this allegation. Refused. Harassment relating to disability[40]Although the Respondent submits generally that this is a new allegation not contained in the ET1 I take the view that there is not a clear box to tick to indicate harassment and harassment does come under the umbrella of disability discrimination, in this case the allegation is harassment relating to disability.[41]Pragmatically the Respondent does not object to 7a which relates to an email on 17 December 2019. Allowed.[42]The Respondent does however object to 7b which relates to comments said to have been made in December 2019. I take the view that the substance of 11. allegation 7b is very similar to 7a in 7b the allegation is that comments were made in line with the content of the email at 7a in those circumstances it is difficult for me to see the prejudice to the Respondent. In any event I would not expect the Respondent to call as a witness every single person alleged to have been present in that allegation, accordingly I allow 7b. 43. 7c refers to an allegation which is particularised under the section 15 claim at paragraph 12b of the list of issues. I am content to allow that amendment on the basis suggested and agreed by Counsel for that allegation at 12b i.e a truncated version of the form that appeared in the list of issues. Allowed.[44]7d is opposed by the Respondent on the ground that this is an allegation of concealment rather than an allegation of harassment. I do not accept that concealment could not be unwanted conduct. But it seems very difficult to see how concealment would be relating to a disability and I take account of the fact that this is something involving two different witnesses to the main body of the harassment allegation. I do not allow this element 7d. Indirect Discrimination[45]This is said to be based on the PCPs set out in the failure to make reasonable adjustments claim. The PCPs set out in the reasonable adjustment claim are unsatisfactory as I discussed with the parties at the hearing.[46]Considering as I am required to do under the Vaughan v Modality case the practical affect of the application on the parties, my view is the indirect discrimination will add complexity to the hearing and at present is completely inchoate i.e. I cannot see a proper claim. Adding the claim would prejudice to the Respondent, and no particular advantage to the Claimant, since I do not see that there is a coherent claim.[47]This application is refused. Discrimination arising from disability (section 15 of the Equality Act)[48]The parties agree and I am happy to adopt a suggestion that allegation 11a is framed in substantially identical terms to 4e for which permission is granted.[49]Moving to 11b this allegation is not in the grievance the Respondent says that they are prejudiced, and, in any event, this adds little to an allegation already being pursued about the 20 foundation curriculum points. The Claimant says that this only came to his attention as a result of a subject access request. Similar considerations apply to point 11c. On balance, and because this was not covered in the internal grievance process as I understand it I will not allow this allegation to proceed. These parts of the application are refused.[50]As to allegation 11d as presently framed in the list of issues there is something of a mish mash of different points, multiple points in one which is difficult to make sense of and includes reference to reasonable adjustments. The Respondent has proposed a short summary version of this: 12. “Dr Mitchell failed to adequately act as a Clinical Supervisor”[51]On the basis that the Claimant could use the points below it on the draft list of issues to substantiate this allegation pragmatically this seems to be a sensible approach and I allow the amendment on that basis.[52]Paragraph 12a of the section 15 claim was apparently not raised as part of the grievance and is brought significantly out of time, for these reasons I do not allow this.[53]Allegation 12b it is suggested by the Respondent that this is framed by using the headline “did Dr Fertleman undermine the Claimant’s clinical capabilities in front of other educational supervisors by sending the following” and then the first six dates given which are: 53.1. 17 December emailing Dr Mitchell and Dr Long 53.2. 12 February 2020 emailing Dr Mitchell and Dr Long 53.3. 13 February replying to Dr Daneshmend 53.4. February 2020 an email sent to Dr Mitchell and Dr Long about the Claimant being aggressive to staff 53.5. 23 April 2020 emailing Dr Mitchell and Dr Long 53.6. 24 July 2020 emailing Mr Kinross and Dr Koizia[54]I have not allowed 12(b) vii or viii since these are and have been appropriately identified by the Respondent as being consequences rather than illegal acts. 55. 12(c) is substantially background and is refused.[56]12(d) is opposed by the Respondent on the basis that this is no more than an element of 12(e). Having heard submissions from the Claimant this is a separate allegation, which is that the Dr Fertleman failed to raise with the Claimant his concerns about the Claimant’s clinical competence, time management and prioritisation issues in the period December 2019 to January 2020, it is my view that this should stand alone and should proceed as an allegation, so I allow this 12(d).[57]12(e) should proceed as “Did Dr Michael Fertleman prepare a damaging and unsubstantiated Clinical Supervisor report in April 2022”, the remainder of the matters added by the Claimant in the list of issues under this subparagraph are simply commentary and background and substanting evidence and should be removed from the list of issues but might form part of the Claimant’s witness evidence in due course. The Respondent of course has notice of them. Allowed. 13.[58]Paragraph 13 it is suggested by the Respondent that this does not make sense as an allegation, I agree that it seems to be blending together of a section 15 and a reasonable adjustment claim. It does not make sense of the face of it and I will not allow this to proceed. Refused.[59]Pragmatically the Respondent does not object to 13(b), (c) and (d) and in each case suggests that the issue be framed by reference to the first phrase used in the narrative I agree with that approach and the Claimant can use the references to evidence in other matters as commentary and part of his witness statements as appropriate. Allowed. 60. 14a for similar reasons is allowed.[61]The remaining allegations 14(b), (c), (d) and (e) are related matters or background and are not allowed through as separate allegations. The object of this exercise is to identify clear headline allegations not a confusing mass of different but similar allegations. Refused.[62]Paragraph 15 of the list of issues should come out since this is the reference to evidence.[63]The Respondent has no objection to paragraph 16 which is a description of the matters that were said to be something arising. I am content to allow this but remove the words “such as” and replace them with “specifically” since this needs to be a definitive list. Failure to make reasonable adjustments[64]I note that the words reasonable adjustments were used in the claim form and to some extent this is an exercise in providing further particulars rather than bringing a new head of claim.[65]The difficulty identified is that many of the said provisions criteria or practices (“PCPs”) do not in my view amount to cogent PCPs. In particular many seem to be matters that arose in the Claimant’s own case but not provisions criteria or practices that the Respondent more widely.[66]The only matter which is clearly a PCP of general application is 19(e) not allowing trainees to move to another firm, this is the only allegation that I will allow to proceed.[67]The Claimant needs to identify what the effect of not being able to move to another consultant’s team and why that was said to be a substantial disadvantage and that needs to be reflected in in an amended paragraph 20 much of which can fall away. Claimant to update in list of issues.[68]It follows that paragraph 21 should be amended to say that the adjustment would be to allow the Claimant as a trainee to move to another firm (team led by another consultant). Breach of Contract 14.[69]This claim was not intimated or mentioned in the claim form at all. It is highly complicated taking up three pages of close type, the objection of the Respondent is that it is unclear whether there was any loss arising from a breach of contract at all.[70]The Claimant counters that he lost money as a result of achieving promotion late. It seems to me that this might be a remedy in the other claims which are proceeding, if any of the allegations of discrimination are successful. I share the scepticism of the Respondent as to whether this is a proper breach of contract claimant all.[71]This claim of breach of contract has been brought late. It is not a case of “relabeling” another allegation it seems to relate to a mass of other factual matters. Considering the practical affect on the parties (Modality) this will cause hardship to the Respondent who will have to deal with another new and complex claim. I do not consider it is in the interest of justice to allow this completely new claim and I refuse this application. STRIKE OUT Respondents’ application for Strike Out[72]The Respondent makes an application to strike out by letter of 28 June 2022 that is pursued principally on the basis that the Claimant has no reasonable prospect of showing a continuing act so as to bring claims that are out of time in time.[73]In particular the Respondent contends that there was “clear blue water” [this may have been my paraphrase] i.e. a time during which there was no ongoing discriminatory act or events between July 2020 and the start of the grievance on 6 April 2021.[74]The claim was presented on 20 September 2021. The ACAS certificate was issued the same day. The Respondent makes the point that events which occurred wholly or before 20 June 2021 are on the face of it out of time.[75]It is submitted that the Claimant has provided no explanation at all for delays between August 2019 and April 2021 and that the explanation for delays between April and September 2021 is inadequate. Claimant’s position[76]The Claimant contends in summary that there were ongoing discriminatory matters, that he only discovered certain matters in May 2021, he references the unusual pressures of the Covid-19 pandemic and opposes the application for a strike out or a deposit order. 15.[77]I have examined the way that the Claimant’s has articulated his claim in various documents to analyse the Respondent’s “clear blue water” submission. Claim form[78]I have considered the narrative in the claim form, in particular at box 8.2.[79]The claim form complains about the report of Dr Fertleman dated April 2020 and the resulting competency panel report in June 2020 at which consideration was given to his dismissal he says. He describes disability discrimination in the period August 2019 – May 2020 at the hands of supervisors Dr Colin Mitchell, Dr Michael Fertleman and Dr Susanna Long, whom he says unjustly made him supernumerary for a whole year. This was the year ending 6 April 2021.[80]The Claimant’s employment with the Respondent finished on 6 April 2021. He lodged a grievance on this day and it concluded on 24 August 2021. He contends that this date had the effect of “prohibiting me from appealing to tribunal”. The claim form on its face expressly acknowledges that the claimant being presented out of time based on exceptional circumstances.[81]It is unclear based on the Claimant’s claim form what ongoing discriminatory conduct was said to be in the period May 2020 – 6 April 2021. Claimant’s modified witness statement[82]I considered a 10 page document which appeared at page 61 in the bundle for the hearing, which is a entitled “Claimant’s modified witness statement” assigned and dated 22 April 2022. This is directed to the question of time limits. The second paragraph refers to “a chained events of discrimination”, which I take to be an allusion to a continuing act of discrimination or continuing discriminatory state of affairs, which, if the Claimant can establish it may have the effect of bringing events which are on the face of it out of time in time.[83]He also refers to reasons why it would be just and equitable to extend the deadline.[84]In this document the Claimant contends that had he not suffered personal injury and injury to feelings in June 2020 and that he would have been promoted to foundation Year 2 on 2 August 2020. He says that he suffered from May 2021 from low mood after discovery of the level of harassment and discrimination.[85]As to earlier events in August 2019 – May 2020 the Claimant says that he was misled until May 2020. The Claimant says [68] at paragraph 10(b) of this document that an email disclosure on 20 May 2021 was highly significant. I understand that he received emails from the Respondent on this day, following a Data Subject Access Request. He says that fully understood the level of discrimination at this stage and that a misguided report from his immediate superior a Senior House Officer Dr Anna Weatherall was the reason for the restrictive approach allowed to his development. 16.[86]The Claimant says that between April – August 2021 he was in a very busy job working 3 – 4 hours overtime with increased responsibilities and had little time outside of work to pursue the stresses of legal action. He also relies on the Covid-19 pandemic as being a reason why it would have been “unsuitable and unfair” to have taken legal action sooner. Claimant’s submissions regarding respondent’s objections to strike out its claim dated 28/6/22[87]I considered this 24 page submission document from the Claimant, signed and dated by him on 12 July 2022. In it, the Claimant submits that Lyfar v Brighton is not applicable given what he describes as the “intertwined and continued conduct” regarding the act of Dr Mitchell, Dr Fertleman and Dr long.[88]As to prospects of success that he submits that the was strong evidence of differential treatment in being made supernumerary for a whole year and been prohibited from doing on calls up to May 2020. That alleged concerns about clinical incompetence were unsubstantiated. Further submissions invitation[89]Following on from the hearing I invited further submissions from the parties in writing as follows: 89.1. Do the parties agree that Employment Judge Adkin should be considering whether it is just and equitable to extend time? (This appears to be addressed in the Respondent's letter of 28 June 2022 and the Claimant's modified witness statement dated 22 April 2022.) 89.2. If so, is the assessment of just and equitable part of the likelihood test (i.e. no reasonable prospect of success or alternatively little reasonable prospect of success) being applied as part of the strike out/deposit order, or is it a separate and distinct exercise that the Tribunal is carrying out? 89.3. Can the Claimant identify particular documents in the bundles which were discovered by him on 20 May 2021 which he says revealed to him new matters relating to discrimination. He should clearly identify whether these are references to the larger Respondent bundle or alternatively his bundle. 89.4. Does the Respondent accept that the Claimant discovered facts on 20 May 2021 as a result of a subject access request which were previously unknown to him and are the basis of the allegations that he now pursues of discrimination and harassment? (This is described in the Claimant's modified witness statement dated 22 April 2022). If so it is accepted that this is an argument in favour of extending time? 89.5. Is it open to the Tribunal at this preliminary stage to conclude that the "just and equitable" extension should be dealt with by a full panel at a final hearing? 17.[90]I provided the opportunity for the parties to reply to one another’s written submissions. I did not receive any replies to those primary submissions from either party. Respondent’s written submission[91]In a written submission dated 16 October 2022 the Respondent submitted that the exercise of considering likelihood for the strike out/deposit order should include consideration of the likelihood of the just and equitable extension being exercised in the Claimant’s favour. It was submitted that the “new” material discovered by the Claimant in May 2021 as a result of his DSAR application did not constitute matters of which the Claimant was wholly unaware. In essence the Claimant knew the actions that Dr Fertleman had taken, and the new material was no more than supporting evidence. Claimant’s written submission[92]In a written submission dated 18 October 2022, the Claimant explained that documents pages 299 – 321 of the Respondent’s bundle for the hearing on 28 September 2022 were the documents which he says showed to him new matters relating to discrimination harassment and breach of contract. He characterised them as correspondence indicating hostile intentions and a coordinated attempt to dismiss the Claimant. He says that had he seen the sooner he would have taken legal action sooner.[93]Furthermore, the Claimant stated that at the hearing on 28 September he is concerned that there was not sufficient time to deal with the “just and equitable” extension to extend time in the alternative. He requested that this be dealt with at a further hearing rather than on paper. Conclusion on Strike Out[94]I have, with the assistance of the parties, carried out the exercise in clarifying the list of issues before I have gone on to deal with strike out or in the alternative deposit order.[95]I did not hear oral evidence. Neither party suggested to me that I should do. Indeed, given the amount of time that have been taken up with refining the list of issues and dealing with the application to amend, it seems to me that it was doubtful that there would have been sufficient time to dealt with this without listing a further day to complete this hearing. In any event I have the Claimant’s position set out in various documents as detailed above.[96]I have considered carefully the nature of the exercise that I have been asked to do. Employment Judge Khan on 19 July 2022 (there is a typographic error in the date of the order suggesting it was 2021) set this hearing to “Determine the respondent’s application for strike out/a deposit order dated 28 June 2022”. The Respondent’s letter deals in part with the application to amend, dealt with above and then goes on to put forward arguments for strike out or in the alternative a deposit order. 18.[97]At paragraph 30 of that letter it states that time should not be extended for two reasons. First the explanation given by the Claimant for delay is said to be inadequate. Second, the delays have significantly affected the Respondent’s ability to investigate the allegations. It is said that that is particularly significant where the matters complained of occurred during the most acute phase of the Covid-19 pandemic from March 2020. Out of time[98]The claim, presented on 20 September 2021 was presented in time in respect of the alleged unfair conclusion of a grievance on 24 August 2021. That grievance was the conclusion to a process initiated by the claimant on 6 April 2021. It would certainly be open to the Claimant to argue that that grievance process was a continuing act, such as to bring matters in time[99]The claim was certainly presented out of time in respect of alleged discrimination in the earlier period August 2019 – May or June 2020. The Claimant can only succeed in respect of claims in relation to this period if either he can show a continuing act of discrimination (sometimes called continuing discriminatory state of affairs), or a Tribunal finds that it is just and equitable to extend time. Continuing act[100]As to the Respondent’s argument that there was no ongoing discriminatory act or events between July 2020 and the start of the grievance on 6 April 2021, it seems to me that there probably is no reasonable prospect of success of the Claimant showing that there was an ongoing act of discrimination during this period.[101]The decision to make him act as a supernumerary had already been taken. The period where he was working as a supernumerary was simply the consequence of that decision it was not discrimination in itself.[102]Having considered continuing act, I go on to consider just and equitable extension. Just & equitable extension[103]There are two factors in this case which persuaded me that I cannot conclude that there is either no reasonable prospect of success or little reasonable prospect of success. First is that the material time between June 2020 and the start of the grievance in April 2021, and also in the period between April 2021 and the submission of the claim in September 2021 were an extraordinarily pressurised times in hospitals because of the Covid-19 pandemic. The Claimant relies upon this. Second, the Claimant plainly did discover documents as a result of the DSAR exercise which he received on 20 May 2021 that caused him to re-evaluate events. While I have been referred to these pages, which plainly might have a relevance for his claim, I have not gone through each of these in detail page by page, nor is it clear to me slightly what the Claimant took from these. It is difficult for me without the assistance of the 19. parties to appreciate how much of this was genuinely new and how much of this must reasonably have been understood by the Claimant at the time.[104]It is difficult for me to say in the exercise of a mere likelihood test that there is little reasonable prospect or no reasonable prospect of a Tribunal (or a judge sitting alone) concluding that that these were two reasons making it just and equitable to extend time. Both the pandemic and the DSAR exercise are both potentially matters which a Tribunal might consider were basis to exercise the discretion. To be absolutely clear in this strike out/deposit order I am not seeking exercise the discretion as part of this exercise.[105]It follows that I refuse the Respondent’s application to strike out or alternatively make a deposit order. Next steps Preliminary Hearing[106]A further Preliminary Hearing has been listed in this matter on 13 December 2022 with a time estimate of 1 day.[107]The Claimant has, in his written submission requested that the question of a ‘just and equitable’ extension be dealt with at a further hearing rather than on paper. It seems to me that there may be significant benefits to both parties to have this issue decided on a preliminary basis, since it might potentially simplify the claim significantly. The Claimant has already submitted a witness statement dated 22 April 2022. There is already a bundle of documents.[108]It seems to me that it would be a good use of time for the “just and equitable” test to be taken as a preliminary point at the Preliminary Hearing, before dealing with outstanding case management matters. I will direct that an amended Notice of Hearing is sent to the parties.[109]Either party may, if it objects to this course of action, apply for this hearing to be converted back to a simple case management hearing, provided it does so by 21 November 2022.[110]The parties should exchange any updating evidence (witness statement or documentary) on which they rely specifically for the "just and equitable" extension by 2 December 2022.
Relevant Law
[1]Claims for acts and omissions before 6 April 2021 are out of time. It is not just and equitable to extend time.[3]They are therefore dismissed for want of jurisdiction. The remaining claims are those listed as 4h. and 5d, and 27, on the attached list of issues, namely discrimination or harassment in handling the April 2021 grievance. They will be decided at a final hearing on 3-5 July 2023.[1]This open preliminary hearing has been listed to decide:(1) whether on the claimant’s pleaded case there was a continuing act in the period July 2020 to 6 April 2021(2) for any act that is out of time, whether it is just and equitable to extend time for all or any of the claimant’s claims for discrimination and conduct extending over a period.[2]Claims of disability discrimination have been brought under sections 13,15, 20 and 26 of the Equality Act 2010, that is, direct discrimination because of disability, discrimination because of something arising from disability, failure to make reasonable adjustments for disability, and harassment related to disability. The respondent concedes that the claimant was at the material times disabled by reason of recurrent depressive disorder and anxiety.[3]The issues in this case have been discussed at a number of cases case management hearings. The list of issues has seen a number of iterations. At the last hearing, on 28 September 2022, Employment Judge Adkin allowed an amendment in respect of some matters, but did not allow amendment in respect of others. The claimant has made two applications for reconsideration of this decision. The first on 15 November 2022 has been refused, on the basis that reconsideration has no reasonable prospect of success. A further application made on 22 November 2022 has been referred to Employment Judge Adkin but not yet decided. The relevance of this is that one of the matters where reconsideration is outstanding is the refusal of an amendment to add a claim of breach of contract. As things stand, there is no breach of contract claim, and I therefore altered the most recent list of issues, prepared by the claimant for this hearing so as to incorporate the particulars of substantial disadvantage which E J Adkin had asked for, by deleting refence to breach of contract and merging the remaining elements of 27 and 28 on that list. I explained to the claimant that if his application to reconsider the addition of a breach of contract claim succeeds, the list can be altered again. The list is appended to this judgment.[4]As this a preliminary hearing, without oral evidence or all documents, I have to consider whether the claimant establishes a prima facie case of conduct extending over a period, that is, assuming that he will prove what is pleaded, whether that establishes a continuing course of conduct.[5]For this hearing I worked from the respondent’s indexed bundle of 1,109 pages, a claimant’s of 273 pages, the claimant’s 10 page skeleton argument prepared early this morning, and a four page submission entitled “claimant’s guidance of evidence to all parties for the preliminary hearing, on 13.12. 2022”. Within these bundles I have particularly read the claim form and response, the claimant’s witness statement of April 2022 (with a more recent copy annotated in red to refer to documents in the bundle), which the claimant says forms part of his pleaded case, the grievance and the grievance outcome, the medical report of consultant psychiatrist Dr R Sachdev following clinic review on 17 June 2020, and the claimant’s submissions, dated 28 June 2022, for the hearing of the respondent’s application to strike out his claim, which was decided by Employment Judge Adkin at September 2022 hearing. In today’s hearing the claimant took me through the sequence of emails he received in May 2021 as part of a subject access request, as annotated by him, so that he could explain what he learned from the disclosure that he did not already know.[6]I heard oral submission from both parties. At the conclusion, judgment was reserved, and we moved on to case management, with alternative final hearing date set contingent on the outcome. Summary of Events[7]The following summary is drawn from the pleadings and list of issues and supplemented from the documents.[8]The claimant was employed by the respondent as a trainee doctor F1 (foundation year one) on a one year fixed term contract from 7 August 2019. The term was later extended to 6 April 2021, when he completed F1. He then left the Respondent Trust. For the F2 stage of his training he had a contract with Hillingdon Hospital, a different Trust within the North West London Deanery which was supervising his training.[9]The claimant had already experienced mental ill-health. It had taken him eight years to complete a six year medical degree at the University of Cambridge. Before he started at Imperial, he had an occupational health assessment with Dr B. Assoufi and some adjustments were agreed, namely regular meetings with his supervisor, and clinical placements near home so that he could continue to receive treatment and family support. The claimant was further assessed by Dr Assoufi on 13 September 2019, 14 January 2020 and 12 March 2020.[10]For training purposes, doctors rotate on four-month assignments to different specialties. The claimant’s first rotation was in acute medicine. At the start of the first rotation, (under Dr Mitchell), he was to be supernumerary, before dealing with on calls. In the September report Dr Assoufi recommended extending this by at least three weeks. In fact it continued to the end of this rotation. Some concern was expressed about his time management of tasks assigned to him. In December 2019 at the start of his second rotation an incident involving a presumed MI caused concern and at a meeting the claimant was told there was a risk that he may have to restart F1 the following year.[11]By the end of his second rotation (under Dr Fertleman), in April 2020, he was told by the assessment committee that he had acquired insufficient experience to move on to F2 with the rest of his cohort in June 2020, when they completed their third rotation. The formal decision was made by the ARCP (Annual Review of Competency Progression) on 10 June 2020. The claimant wrote on 19 June explaining he had not signed off the ARCP form because he did not want it to be thought he agreed with it: he disputed the accuracy of Dr Fertleman’s report on which the decision was largely based.[12]The claimant had a consultation with his treating psychiatrist, Dr R Sachdev, on 17 June 2020, because in recent weeks his medical state had been deteriorating. This deterioration was explicitly related to the bad news of April 2020, and reported his dissatisfaction with the level of supervision while he was F1, and “overt and subtle bullying”. His depression had remained about level but his level of anxiety was heightened, and recommendations were made to his GP to adjust the medicines he was taking. The claimant was advised to continue seeing his psychotherapist.[13]He then did two more rotations, from August to November 2020, and from December 2020 to April 2021, when he completed F1, and as noted, moved on to F2 at a different Trust. The effect of being held back in April 2020 was to delay progression to the next stage, F2, by eight months.[14]In January 2021 the claimant wrote at length to Dr Parry, in charge of training, asking not to be given an orthopaedic placement, but also asking for Dr Fertleman’s report to be edited or rewritten as it would prejudice future training if it remained on the file. In February 2021 he wrote again about his next placement. This included a further critique of Dr Fertleman’s report and asked for the June ARCP report to be edited.[15]On the day that he finished, 6 April 2021, he filed a 16 page written grievance about his training from August 2019 to April 2020. He expressed “concerns about Dr Colin Mitchell, Dr Susannah Long and Dr Michael Fertleman regarding heavily collectively written misleading reports, deviating from guidelines from the foundation curriculum along with occupational health reports and the guidance on supporting disabled learners”. As an outcome he wanted an acknowledgement of wrongdoing, and for Dr Fertleman’s April 2020 report to be rewritten. He accused Dr Fertleman of dishonesty in underreporting his progress. He referred to the incident in November 2019 of a presumed MI, that this had been deliberately engineered. Another F1 trainee who had made a mistake was treated more favourably. His clinical supervisors, Dr Long and Dr Mitchell, had misinformed (dishonestly, he said) Dr Parry, the foundation school director, that he was performing at the level of the “first year clinical medical student”, when they had only told him that they didn’t feel he was safe to work as an independent F1. There were other complaints about an SHO restricting him to discharge summaries and documenting ward rounds, and an extended section on insufficient feedback from supervisors. There was a section setting out the occupational health advice received during his F1 rotations, and how recommended adjustments to assist him to take on more responsible tasks were not made.[16]There was a grievance meeting on 7 May 2021 to discuss these concerns in detail. The claimant was told that the investigator would need to interview the other doctors and it might take a month.[17]The claimant had made a data subject access request. He saw these documents on 20 May 2021. They included reports gathered from those working with him, and they show concern that the claimant may not have been getting adequate feedback on the level of his performance because of sensitivity to criticism given his depression, and that as a consequence he had a “rose tinted” view. The claimant submits that these show there was evidence gathering to build a case against him.[18]The grievance outcome was delivered on 24 August 2021. It covers six pages. The claimant was given explanations of some of the matters causing concern about his safety with patients. He was also told that while occupational health doctors were concerned about his health, the training supervisors were concerned about patient safety when deciding the level of responsibility he should assume in his initial rotations. The claimant asked if he could appeal, but on 2 September 2021 was told an appeal was not available to those who are no longer employed by the Trust.[19]On 20 September 2021 he contacted ACAS, who issued a prompt early conciliation certificate, and later that day he presented this claim to the employment tribunal. First Issue: Are Parts of the Claim Out of Time? Relevant
LAW
[20]The Equality Act provides at section 123(1) that proceedings must be brought within the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable.[21]Establishing “the date of the act to which the complaint relates” is not always straightforward. Section 123(3) provides:(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.[22]In Hendricks v Metropolitan Police Commissioner (2003) IRLR 96, it was held that the ‘conduct’ could concern the substance of the complaints that the respondent “was responsible for an ongoing situation or a continuing state of affairs” involving less favourable treatment, as distinct from “a succession of unconnected or isolated specific acts”. This appeal arose from a hearing of a preliminary issue, without hearing evidence. The appeal court concluded she was “entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of the continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.”[23]The claimant submits that the grievance decision maker Dr Souriere supported Drs Mitchell, Long and Fertleman in their discriminatory conduct without giving evidence to justify this, and that this constitutes a continuing state of affairs.[24]The Court of Appeal considered how to approach a case on conduct extending over a period, where there were 17 complaints of race discrimination, in Lyfar v Brighton and Sussex University Hospitals Trust (2006) EWCA Civ 1548. The tribunal had grouped these complaints into four categories: an investigation of bullying and harassment, a disciplinary process, the actions of the general manager, and the hearing of the grievance. It was held admissible on a preliminary hearing to consider them separately when reasons were given for doing so.[25]The respondent submitted (in their response to the grounds of claim) that the conduct complained of splits into three categories: the actions of Dr Fertleman, from August 2019 to May 2020, the actions of Drs Long and Mitchell from August 2019 to May 2020, and the grievance process, which concluded on 23 August 2021. They added two more categories in their application letter of 28 June 2022, supporting an application to strike out the claim as having no reasonable prospect of success, namely the decisions of the ARCP panel in May/June 2020, and the provisions criteria or practices identified in the claim of failing to make reasonable adjustments. The surviving provision on the current list of issues is E: not allowing trainees to move to another firm (i.e. a different rotation). Discussion and Conclusion[26]Working back three months from the claimant’s approach to ACAS, acts occurring before 21 June 2021 are potentially out of time.[27]The respondent concedes that the grievance process can be treated as a course of conduct That process ended on a date within time, so in effect complaints that the grievance process which began on 6 April 2021 was discriminatory are all in time.[28]Of the earlier acts complained of, the complaints about Drs Long, Mitchell and Fertleman are of a state of affairs that ended in April 2020, when he was told he would not pass F1 with the rest of his cohort, or at the latest June 2020, when they completed their third rotation and passed F1 and he was formally assessed as not passing F1. There are no complaints about his treatment in the remaining rotations, from May 2020 to April 2021. There is no complaint about not editing Dr Fertleman’s report before he lodged his grievance.[29]The claimant submits that these acts continue as a course of conduct because they delayed his completion of F1 from June 2020 to April 2021. Of this argument, the tribunal observes that an action must be distinguished from its continuing consequences. Dr Fertleman’s report and the ARCP decision in June 2020 were decisions which had continuing consequences, but they were not continuing decisions.[30]In his argument for today the claimant also argues that failing to remediate the damage by rewriting Dr Fertlemans report establishes continuity of discriminatory conduct. Of the requests for the report to be rewritten, as noted this does not feature on the list of issues, but at this hearing the claimant has argued they are part of his claim relating to the grievance handling. This tribunal is sceptical that this can be the case, when the claimant has known from the filing of the employer’s response that there was a dispute about time limits, and has had the opportunity to elaborate (and has elaborated) on the detail of his case in successive preliminary hearings. Nevertheless, the argument has been made, and the tribunal considers whether this establishes, if it were the pleaded case, a course of conduct on the part of the employer. His June 2020 protest and request for rewriting was not followed up. If the respondent’s conduct in not acting on it is complained of, it is not reasonable to think that they did not make a decision not to respond until a date after April 2021. They might reasonably have been expected to decide not to reply within weeks, if not days, of the protest being made. The claimant had prompt replies on other matters he raised.[31]As for his January and February 2021 requests for rewriting, he did not try to turn the clock back, nor (as he stated explicitly in his letter) was he was asking for an investigation, and he said he was looking ahead to the F2 stage and whether the report might prejudice his future career. The respondent submits that decisions about the contents of the claimant’s ARCP file were not being made by the same people as had written the reports he complains of as discriminatory, but by Dr Parry, Dr Lewis and Mr Kinross, to whom the January and February 2021 correspondence was addressed. This is a compelling point. There is no complaint about them. It is not the same course of conduct as the unfairness that led to him not progressing to F2 in June 2020. If not rewriting at that stage was an action complained of as a discriminatory act, it was decided on in August 2021 when the grievance outcome letter was written, but it is not conduct which began before January 2021. The claimant may well have continued to resent the unfairness he perceived in Dr Fertleman’s actions and the ARCP review based on it, but it cannot be said there was a continuing course of conduct on the part of the employer.[32]Finally on course of conduct the claimant submits that the unfair (as alleged) handling of his grievance is part of a single course of conduct, because the grievance investigator’s decision was based on what she was told by the same doctors as he was complaining about, preferring that to the claimant’s account, which she had explored in some detail. The respondent complains that this is raised for the first time today, but in any case submits this must be a different course of conduct, involving different people (Dr Soubiere, the investigator, Dr Brown, Assistant Medical Director who approved the report), to whom the claimant made no objection at the time, concerning events that occurred at least nine months earlier, and is a distinction of a kind permitted in Lyfar.[33]Reviewing these arguments the tribunal finds that the grievance handling process from April to August 2021, if discriminatory, is not part of the course of conduct that involved his first and second rotation supervisors and ended with the ARCP decision in June 2020. The alleged discriminators were different people. The decision had been made. It had been made 9-12 months earlier. Even if the correspondence of January and February 2021 was relevant factual background to the grievance handling complaint, it does not show links between the people responsible for the June 2020 decision and those being asked to get the report rewritten.[34]The outstanding complaint, of failing to make reasonable adjustments, is about not moving the claimant to another firm for rotation. This act (or failure to act) relates to the second training rotations from December 2019 to March 2020. It is very hard to see how that was part of a continuing course of conduct that ended with rejection of his grievance. It is not mentioned in his otherwise detailed grievance.[35]The tribunal concludes that complaints on the list of issues about matters occurring before 6 April 2020 are out of time. Issue Two – Is it Just and Equitable to Extend Time? Relevant Law
CONCLUSIONS
[36]On whether it is just and equitable to extend time, in British Coal Corporation v Keeble (1997) IRLR 336, it was suggested that employment tribunals would find the list of relevant factors in the Limitation Act 1980 illuminating. The list in section 33 of the Act is long. It includes the length of and reason for delay, the effect of delay on the cogency of the evidence, whether the defendant was uncooperative with reasonable requests for information, disability, any steps taken by a claimant to get legal advice, and how promptly he acted when he knew the facts on which an action could be based. But in Abertawe Bro Morgannwg University Local Health Board v Morgan (2018) EWCA Civ 640, tribunals were told not to use Keeble as a comprehensive checklist but to focus on the length of delay and the reason for it, and any other factor that might be relevant to why the claim was late. Ahmed v Ministry of Justice UKEAT/0390/14 explains: “It is for the Claimant to satisfy the Employment Tribunal that time should be extended. There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be extended. The Employment Tribunal is required to consider all relevant circumstances including in particular the prejudice which each party will suffer as a result of granting or refusing an extension. Relevant matters will generally include what are known as the “Keeble” factors.” In this, it restates the position enunciated in Bexley Community Centre v Robertson (2003) EWCA Civ 576, that there was no presumption in favour of extending time, and it was for the claimant to convince tribunals it is just and equitable to extend, and Department of Constitutional Affairs v Jones (2008) IRLR 128.[37]There are authorities discussing the weight to be given to the claimant following a grievance process when deciding whether it was just and equitable to extend time. In Vodafone Ltd v Winfield UKEAT/0016/16/J0J, it was held that it was not an error of law to take into account the grievance, and that “the weight to be given to the fact that a grievance process is being followed will vary from case to case”. In Wells Cathedral v Souter and Leishman EA – 2020 – 000801 – JOJ, where the claimant delaying so as to pursue a grievance process was one of a number of factors which led the tribunal to decide that time should be extended, it was noted that she had explicitly said that she preferred to explore this in order to avoid legal action, and also that the grievances served to crystallise the allegations and put the respondents on notice that the claimants considered that the treatment had been discriminatory, that they had received advice, had contemplated proceedings and were pursuing internal procedures first. It gave respondents “the opportunity to take steps to investigate and preserve evidence around the allegations”. It was held that the weight the tribunal had attached to this factor, ranged along with the others was part of “a fact sensitive appraisal of the particular facts of this case”. Discussion and Conclusion[38]The claimant submits that the tribunal should take account of a number of factors and conclude it is just to extend time. These are discussed in turn.[39]His mental health suffered a relapse in May and June 2020. The medical evidence indicates a downturn, met by increasing his medication. He was able to work his remaining rotations from August 2020 to April 2021 however. This is a factor, but it was temporary, not long lasting.[40]There was a further relapse at the end of May 2021, when he saw the documents in the subject access request. The medical reports are referred to in the submissions but are not in the bundles. This is probably of little weight in deciding whether time should be extended from September 2020 (three months after he got the ARCP report).[41]He (and all other doctors) were very busy during the pandemic, which began in March 2020, eased a little in autumn 2020, increased in December 2020 and into early 2021, and so on. Against this, as a measure of available time and energy during this period, he was able to write long and detailed letters in January and February 2021. So it may well have been a factor, but not disabling. It does not indicate he could not have submitted a claim in September or August 2020, when case numbers seemed to be coming down.[42]He did not want to pursue a claim because it would occupy the time of busy doctors and might cause them to be suspended when there was a national need for their services. He was asked if he meant he was contemplating a claim but decided to hold off for this reason. He answered that he had consulted the BMA, his trade union, about a claim, around May 2021.[43]The case should be allowed to proceed because it was an important case about doctor training. (This does not explain the delay in bringing it).[44]He wanted to settle the matter internally, because if he brought a claim at a time when he still needed the respondent to write him references, he would come across as aggressive and jeopardise his ongoing training. For that reason he wanted to conclude the grievance before presenting a claim. There was no explanation why he delayed presenting the grievance.[45]The respondent had concealed the extent of the discrimination, which was revealed to him only when he saw the emails on May 2021. It is however noted that he already considered there was discrimination when he protested about the ARCP report in June 2020, and had articulated detailed concerns, including discrimination, in the April 2021 grievance. There was no indication that when he prepared this he had any more material or facts available than he did in June 2020. Having read and heard the claimant on these emails, the tribunal concludes they were additional evidence supporting his preliminary view that his treatment was unfair and discriminatory, but did not tell him much more about why he had not passed.[46]The respondent had concealed from or misled him as to the fact that he could not appeal the grievance outcome – he had believed that as he was still an employee when he sent it, he was entitled to an appeal as an employee. Further, by saying an outcome was expected in a month (i.e. mid-June) he had been induced to delay his tribunal claim until he had an outcome. This does not help explain why he did not present a claim before April 2021. It was not suggested he was unaware there was a grievance procedure or that this had been concealed from him.[47]The respondent submits that they are prejudiced by having to defend old claims in that four of the junior doctors who wrote reports on the claimant’s progress during rotations (Danishmend, Radia, Elhan and Phillips) are no longer employed by them and so it could be difficult to obtain statements and call them as witnesses. The principal witnesses are available. The tribunal notes that the issues were discussed a year to eighteen months after they happened, in the course of the grievance investigation, although the claimant suggests in his written submission that the notes of these meetings have not been disclosed and may no longer be available. The respondent was thus already having to deal with matters that happened over a year earlier so the evidence was stale. On a different point, the grievance process (whatever documents are now available) may not help the respondent in defending the detail if the claimant is able to prove his assertion that the grievance was not properly investigated at all, and simply accepted his supervisors’ views, so it could not be said that the prejudice of delay is mitigated by having crystallised the issues closer to the time.[48]More generally the tribunal notes that the claimant is intelligent and literate and at least from the start of his employment had some knowledge of adjustments for disability, which suggests he knew where to start any research on making claims As a BMA member he had access to advice apart from his own research. Many of his points do not explain the delay from June 2020 to April 2021. The weight to be attached to wanting to pursue a grievance first to avoid litigation is less because he did not even pursue a grievance for 9 months. It does not explain why he delayed internal resolution. He knew all the relevant facts – and was protesting the unfairness - in June 2020, and has not shown what else occurred in the interval to reinforce his view that he should lodge a grievance as an alternative to making a claim.[49]Some weight has to be attached to the conditions of the pandemic. By all accounts junior hospital doctors were very busy because of patient numbers or staff illness, and that will have reduced the time and energy available to write a grievance or a claim form. Against that, conditions fluctuated over the relevant period, and he was able to prepare long and complex letters on the subject.[50]A reason he has not advanced is that he did not want to lodge a grievance until he knew he had passed F1. Of course many employees hesitate to pursue grievances if they think it make the workplace more unpleasant or jeopardise goodwill, but if this were a reason worthy of weight when considering whether to extend time, very many discrimination claims would be brought out of time, when the statute and case law are clear that claims are to be resolved sooner rather than later, hence the short time limit.[51]Gathering these factors together, the tribunal concludes that they are of insufficient weight, given the length of delay, and particularly that the delay between June 2020 and April 2021 is largely unexplained, to displace the prejudice caused to the respondent in defending old claims, or the principle that claims should be brought within the times set by statute. It is not just and equitable to extend time.
CONCLUSIONS
[1]Under the Employment Tribunal Rules of Procedure 2013 a request for reconsideration may be made within 14 days of the judgment being sent to the parties. By rule 70 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.[2]Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.[3]Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. Ladd v Marshall (1954) EWCA Civ 1 set out the principles on which evidence could be admitted after the judgment: it could not have been obtained with reasonable diligence before the hearing; it would have an important influence on the outcome; the evidence was apparently credible. The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown UKEAT/0253/14/LA that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review); the ET will generally apply the Ladd v Marshall criteria, although there is a residual discretion to permit further evidence not strictly meeting those criteria to be adduced if for a particular reason it is in the interests of justice to do so.[4]When making decisions about claims the tribunal must have regard to the overriding objective in rule 2 of the 2013 regulations, to deal with cases fairly and justly, which includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, and seeking expense. The Application[5]There was an open preliminary hearing on 13 December 2022 to decide whether some of the claimant’s claims were out of time. It was decided that some of them were. The judgement and written reasons were sent to the parties on 14 December 2022.[6]The claimant emailed the tribunal on 28 December (i.e. just as the 14 days allowed expired) with a 10 page draft application to reconsider. He asked for the deadline to be extended by a few days, but if not extended, that the draft was accepted as the application.[7]On 30 December, so 2 days out of time, he sent a 14 page final application. I have not made a detailed comparison of the two. I assume that all the points made in the draft are included in the final.[8]On 29 December the claimant sent two additional items. One is a letter dated 24 June 2021 from the Secretary of State for BEIS (then Paul Scully MP) to Nicholas Paine QC (one of the Law Commissioners) about the BEIS response to the Law Commission report on proposed changes to employment law and tribunal practice. The other is an article by Craig Ludlow, a barrister at 3PB, entitled “Employment Tribunals in the Pandemic – Presidential Guidance, the Reality and the Future”. I understand that both items are sent as relevant to a contention by the claimant that during the pandemic the time limit for presenting a claim to an employment tribunal was extended from 3 months to 6 months. On 3 January he added a fit note from his GP dated 29 December, saying he was unfit for work from 3-6 January.[9]On 3 January 2023 the respondent wrote commenting on the various communications they had had from the claimant about reconsideration, asserting that the final version was out of time, and tribunal was not able to extend time. Is the reconsideration application in time?[10]The draft version is in time, the final version is out of time. Rule 71 makes it clear that an application must be made within 14 days. Rule 5 of the employment tribunal res says that the employment tribunal has discretion to extend time for any order or rule. Rule six lists a number of exceptions to rule 5, but the time limit in 71 is not one of them. I conclude I can extend the time limit if that appears to be in the interests of justice.[11]I decide to exercise discretion to extend the time limit by two days to include the final version dated 30 December. First of all, there is a substantial reconsideration application which is in time. Next, the additional material was made available to the tribunal very soon after that. At that point, 28 December email had not been considered, so this was no duplication of effort. The respondents have the opportunity to respond if they had wanted to (although under rule 72 I need only consider the application, without taking account of any view of the respondent). It is in the interests of justice that all the claimant’s point should be considered, not just those made in the version of 28 December. There is no disadvantage to the respondent, or any drain on tribunal resources. The position may have been different if I had already read and reconsidered. I do not give weight to the claimant’s assertion that he was, from 29 December, depressed and unfit for work between 3 and 6 January 2022. Despite depression he was able to complete and send a very substantial document on 28 December, and there is nothing to suggest that why he suddenly became depressed on 29 December. I also take no account of the claimant’s assertion that he believed that the intervention of a bank holiday would extend the 14 days allowed. I do not know on what this belief is based. The Application – Discussion and Conclusion[12]The claimant states that the decisions do not take account of the time limit for presenting claims being extended from 3 months to 6 months during the pandemic. This is likely to come from the Craig Ludlow article dated 3 April 2020, which is about the pandemic. The claimant does not say when he saw or read the Craig Ludlow article. Most of the article is about arrangements for online hearings. It does refer to the President’s FAQs of 3 April 2020 shortly after the start of the first lockdown which said: “time limits remain as normal”, adding: “Judges have discretion to allow matters to be pursued out of time”. It does not say that the time has been extended for three months to 6 months, quite the opposite. I add that judges have always had discretion to allow matters to be pursued out of time. This was no change in the law.[13]The extension from 3 months to 6 months comes from the Law Commission’s report recommending changes in the law, as recited in the June 2021 BEIS letter. The Law Commission report was printed in April 2020, and states that its terms were agreed in March 2020. It is therefore clear that the recommendation to extend the time limit from 3 to 6 months was not about the pandemic. The text of the report gives other reasons. The law on time limits did not and has not changed. It remains a recommendation by the Law Commission which may or may not be enacted by Parliament. Tribunals must administer justice according to the law, not as it might be. The tribunal did include the pandemic is one of the factors that might be relevant when deciding whether it was just indexable to extend time.[14]I note that the claimant does not say when or how this letter came to his attention, or whether it was available to him at the time of the preliminary hearing in December 2022. Further, if he got this letter at any time after June 2021, when it was written, he cannot have been relying on it when he decided not present a claim earlier, that is, within three months of knowing that he had not passed the first rotation. At the date of the letter, he was already (assuming the finding on the course of conduct is unchanged) out of time.[15]Finally, the claimant does not say why this evidence could not have been presented at the tribunal hearing on 13 December 2022. He made the assertion around that time had been increased to 6 months, but he did not back it up.[16]Moving on, it is asserted that disciplinary hearing should not have taken place until Employment Judge Adkin had resolved the outstanding application to reconsider his decision not to allow a claim in breach of contract. The claimant says that Employment Judge Adkin may decide that there is no point in reconsidering his decision is it has now been decided that all the claims are out of time. I do not know if Employment Judge Adkin has yet dealt with this reconsideration application. The claimant says that the breach of contract claim would “encapsulate Dr Fertleman not rewriting his report as a continuing act”. I doubt this is the case. The preliminary hearing judgement deals with whether failing to rewrite the report is or is not a continuing act, and if it was not a continuing act, when the failure to take the action was reasonably decided on. Further, at the date the preliminary hearing judgement, Employment Judge Adkin’s judgement had made clear what the claims were at the time of the hearing.[17]The claimant states in a number of places that the tribunal did not take into consideration the points he had made in his submissions. The tribunal did review his submissions carefully, and if the tribunal did not agree with his points, that does not mean that they were not considered. Reconsideration is not an opportunity to reargue arguments that have already been read or heard.[18]There is a detailed critique of the employment tribunal’s conclusions from the documents available. As explained in the first judgement, the claimant was given the opportunity at the hearing on 13 December to take the tribunal through the document in detail, with the claimant’s explanations of the significance. It is not in the interest of justice to go through them again.[19]A point is made about the date that the claimant went to the BMA for advice. The tribunal was not considering when the claimant went to the BMA for advice. What was relevant was whether the claimant had access to advice. The claimant states that he was not given any advice about time limits. What advice he may have been given is privileged, unless he chooses to waive it. He did not adduce any evidence about this at the hearing, indeed it only came out that he had got advice when he was dealing with another point.
Relevant Law
[20]There is an analysis of why the tribunal was wrong to conclude when a decision was made not to rewrite the report. This is an appeal point.[21]There is an assertion that the tribunal needed to heard evidence from Dr Fertleman, Dr Mitchell and Dr Long, in order to show that they “could have continued to mislead Dr Soubiere”, who decided the grievance. This is the point on which the claimant had an opportunity to make representations at the hearing if the tribunal was wrong not to hear the evidence before making a decision about whether there was conduct extending over a period, rather than rely on facie case and documents, as in Lyfar, that is a matter for an appeal, not reconsideration.[22]There is discussion of whether the tribunal drew the correct conclusions from the medical evidence in deciding whether it is just and equitable to extend time. This is a matter of discretion for the employment tribunal and if it was wrongly exercise that is not of the appeal tribunal. There is no new material here, nor any explanation why these points could not have been made at the hearing.[23]The claimant rehearses earlier arguments about why he did not present a grievance earlier. There is no new material here, and if there were, no explanation why he did not present it at the hearing.[24]The same goes for the argument that he did not appreciate that what he had thought was unfair was now, when he saw the documents in the subject access request, disproportionately unfair such that he should bring a claim. This argument was made at the preliminary hearing, and the tribunal did not see it as a reason to extend time, or to conclude that time had not started to run until he saw them. I note the claimant now says that he could now understand that there was “deception” in saying that he had misty and MRI (myocardial infarction), which was Dr Fertleman’s criticism of him. The documents showed that according to Dr Fertleman the claimant had missed signs on ECG that there might have been an MI, which would then lead to a further test which could exclude MI. When Dr Fertleman did this test it showed that there had not been an MI. It remains that the patient could have had an MI, which could not be excluded until he had the test, and would presumably be treated in the meantime. That suggests that the criticism that he was unsafe (for missing the sign on ECG) was not “deception”.
Conclusion
[25]In conclusion, the claimant seeks to reargue points already made at the hearing. Insofar as there is any new material, he does not explain why it could not have been presented at the hearing.[26]If the claimant considers the tribunal has got the law wrong, that should be the subject of an appeal.[27]There must be finality in decision-making - that is in the interests of justice. Reconsideration is not an opportunity to go over the same arguments the second time. I do not find anything in the application that suggests it is in the interests of justice to overturn any part of the decision. The application has no reasonable prospect of success. Accordingly, it is refused under rule 72. 's