Mr B Lingard v Sussex Partnership NHS Foundation Trust and Mr G Wright: 2300941/2020

EMPLOYMENT TRIBUNALS

Case No 2300941/2020

Venue Croydon

Hearing 3rd and 4th March 2021 JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Croydon ON 3rd and 4th March 2021

Between

Mr B LingardClaimant

Sussex Partnership NHS Foundation Trust and Mr G WrightRespondent

Before

Employment Judge A Richardson

In person for claimant

Mr G Burke (instructed by Counsel) for respondent

Date 4 March 2021

JUDGMENT

For the Respondent: Mr G Burke, Counsel

REASONS

At the request of the claimant the reasons for the judgment delivered orally on 4th March 2021 are as follows:

Issues

[1]The first issue to be determined today was whether the claimant’ s claims should be struck out on the basis of res judicata/issue estoppel, Provided the claimant’s claims survived that first issue, the following issues would be dealt with: (ii) that some or all of the claims were out of time; (iii) a deposit order; and (iv) whether the claimant had waived legal privilege advice. The res judicata issue.

[2]I was provided with the respondent’s bundle in two parts of 480 pages and the claimant’s bundle, also in two parts, of 405 pages. The claimant was unable to agree the respondent’s bundle because he did not ‘recognise’ how the respondent had arranged its documents. Both bundles contained largely the same documents. Very few of the documents in either bundle were referred to. I was also provided with several authorities from both parties, and chronology prepared by the respondent. I was also provided with an authorities bundle by both parties. I heard oral evidence from the claimant about the withdrawal of his first ET 1 case no. 1406410/2019 filed in December 2019 in Bristol (the first claim). The claimant was cross examined. I heard submissions from both parties set out below.

Findings of Fact

[3]My findings of fact are made for the purposes of this hearing. Conflicts of evidence have been decided on the balance of probabilities. They are based the pleadings, contemporaneous documents and the claimant’s oral evidence which was strictly limited to the withdrawal of the first ET claim form. I have had reference to various authorities. I say as a standard precautionary formality that any subsequent EJ may well find alternative findings of fact after having had the benefit of hearing full evidence and seeing full disclosure in the event of a final hearing of this matter.3.1 The claimant issued proceedings against the first respondent on 26th December 2019 in the Bristol employment tribunals following a period of early conciliation between 26th October 2019 and on 26th November 2019. A response was filed.

3.2 The claims in the first ET1 related to an alleged qualifying disclosure made by the claimant on 11th September 2019 during a supervision session between the claimant and his line manager Sharon Waghorn. He informed Sharon Waghorn of his mental health audit compliance level on Woodlands Ward was low. The claimant claims on 12th September 2019 he was then subjected to the detriment of being given double the amount of work to do compared to other nurses, on the instruction of a nurse LS, who worked on Castle Ward. He claims that when he complained about this to his manager and LS’s manager, he was told there had been complaints about his work.

3.3 The claimant signed off sick between 20 September 2019 and 26th December; the claimant made various complaints of bullying and failure to make reasonable adjustments for his historic mental health condition of PTSD. The claimant’s complaints were escalated to Mr G Wright, Director of HR and second respondent at the end of September 2019. A grievance investigation officer was appointed, Ms J Bunce, and she met the claimant on 31st October 2019 following which the claimant made a further grievance concerning the refusal by Ms Bunce to increase the scope of the investigation and the length of time that the investigation was taking. A further complaint regarding a refusal to make a reasonable adjustment for the claimant’s mental health condition was lodged on 14th November 2019.

3.4 At the end of November 2019 the claimant raised his concerns to the CEO of the first respondent about why the first respondent’s policies and procedures were not being followed.

3.5 The first claim was lodged on 26th December 2019 under case number 1406410/2019.

3.6 Thereafter between 26th December 2019 and 26th February 2020 the claimant filed a further three grievances related to the same issues that were concerning him, as above.

3.7 On 4th February 2020 the respondent filed its response to the claimant’s first claim and requested the matter should be listed for a preliminary hearing including the potential strike out of the whistleblowing claims or in the alternative the making of a deposit order.

3.8 On 9th February 2020 the claimant emailed the respondent’s solicitors Ms Daw to say: “After seeking advice over the weekend, I can confirm I wish to withdraw my employment tribunal in its entirety. It would seem your view is correct that this case could be [struck] out on technicality. However as you properly aware its not down to the strength of the case. As you are objection to the case, I’m advised I’m still in time to raise these concerns and will get a solicitor to do my F1 form if no settlement can be reach through early resolution”

3.9 On 10th February Ms Daw wrote to the tribunal in Bristol forwarding the claimant’s email of 9th February and applied for the claimant’s first 1406410/2019 to be dismissed on withdrawal. Ms Daw added in her email that the claimant had been copied in on her email and advised that the claimant should set out his objections in writing as soon as possible if he objected to the dismissal application. Ms Daw also confirmed that the claimant should seek legal advice from his if he was unclear on the matter.

3.10 In response to Ms Daw’s email the claimant emailed the tribunal on 10th February 2020 stating: “I can confirm that I believe the solicitor Catherine Daw was correct in her assumption that this case on the balance of [probability] would be struck out. However this is due to technical reasons with the claim rather than substance. Consequently I’m happy to confirm that I wish to withdraw the tribunal claim I wrote on 26th December 2019. As time allows a new case has [been set] out.”

3.11 On 12th February 2020 the tribunal clerk acknowledged receipt of the claimant’s notice that he had withdrawn his claim and confirmed that the file would be retained until February 2021 and then destroyed. It stated that a dismissal judgment would follow in due course.

3.12 Two weeks later on 26th February 2020 a dismissal judgment was signed by EJ Midgeley. Submissions

[4]The respondent’s submissions are summarised as follows:4.1 The claimant referred in his withdrawal letter to the tribunal that he was bringing a new claim;

4.2 the claimant described his claim in the first claim as based on hurt feelings of whistleblowing, discrimination because of disability and public interest disclosure;

4.3 the claimant admits to having taken legal advice prior to withdrawing his claim but now claims it was not professional legal advice, but informal advice taken from someone who had been through the tribunal process; the second claim revives his claim of disability discrimination and public interest detriments which have already been decided upon;

4.4 additionally the case of Henderson is relied upon, namely that a party is precluded in subsequent proceedings from bringing matters which could and should have been raised in earlier proceedings.

[5]With specific reference to the first claim and second claim grounds of complaint [cross referencing 1 – 14 paragraphs in the first claim with the numbered paragraphs in the second claim: Claim no. 1 Page 16 of R’s bundle part 1 – para 3 – without criticising C it is sometime difficult to seek out what the allegation is – the complaint is dismissal from Amberley Ward after making a disclosure of his disability (PTSD) and asking for a work place adjustment – the adjustment was to work on the opposite shift to another employee. This is estopped by para 13 – it is the same ward, Amberley Ward, and the same time frame – note in para 3 of ET no. 2 he refers to July 2019. Claim no 2 Para 5 of ET no. 2 is in the original ET1 at para 2 - whistleblowing reference September 2019 supervision meeting with Sharon Waghorn. Claim no. 3 ET no. 2 para 6 is para 2 of ET no. 1 Para 7- excellent feedback during supervision with SW then suffering detrimental treatment is in paras 2 and 3 of ET no. 1 Claim no. 4 ET no. 2 is Para 8 Gavin Wright’s delay in starting investigation of bullying and harassment – raised in para 7 of ET no. 1 Claim no. 5 Para 8b of ET no. 2 complaint of a failure around bullying and harassment – see ET no. 1 at para 9 and possibility para 10. Failure to abide by policy. Para 9 of ET2 – wanted peace of mind – public concerns not acted up and requests denied - - illegal use of medication to service users – related to para 2 of the ET no.1 and also the earlier references to concerns not being acted upon – a rephrasing of his concerns in para 10 ET no. 1 Claim no. 6 Para 10 of ET no. 2 – essentially that Gavin Wright failed in his duty of care, failed to follow trust policy – this is essentially repackaged of paras 7 to 10 in original ET no. 1 – complaint to GW – refusal to investigate bullying and harassment and policies and procedures not being followed Para 11 – a deliberate failure to act for five months – needs more particularity. Arguably para 11 is covered off with paras 9 and 10 in original ET no. 1 in tht Jane Bunce refused to follow procedures and policies. Ie. under claim no. 6. Claim no. 7 Para 12 of ET no. 2 is CUD - a new claim - claimant complains that he was “subjected to multiple breeches of contract – failures to grant WPA, failure to investigate C’s complaints around the detriment to whistleblowing and discrimination.” Para 13 and unnumbered para immediately below: But claimant resigned on 27th Feb 2019 and this is a restatement that procedures not being followed and Jane Bunce’s investigation not being done quickly enough. Also Protected disclosures that he contends were raised in the original ET1 at para 2. There is a complaint about OH reports in original ET no. 1 at para 8, para 10 and 11, and failure to make adjustments at para 12 and 13. Claim no. 8 the paras immediately below para 13 is a restatement of delays/ detriment, however should the court not agree – although a longer time period, the essential ingredients are in the ET no. 1 that have just been mentioned Claim no. 9 Discrimination case 1 para 14 – 18 – these all have the essential ingredient contained in para 13 of the original ET1 namely that adjustments were not made for Mr Lingard, he says, when working in Amberley ward at Eastbourne. This is contained in the ET1 original at para 13 but also he is very significantly out of time. Claim no. 10 Para 19 – considering paras 14 – 18 this is also a cause of action or issue estopped as clearly relying on the same matters of para 14 – 18 outlined in para 13 of the original, but further to that at 19A the complaint is that essentially that normal process is not being followed. That is a policy and the claimant complained to the CEO and Chief Nurse that policies and procedures were not being followed. Same point at 19B as well. Claim no. 11 Para 19C- this para challenging R on how easy an adjustment is to implement - is clearly related to the claimant’s problems when he was on placement at Eastbourne. R says that because looking back at 18, 17, 16 he is referring to Mr Plant, his line manager. That is estopped by para 13 of the original ET1 where C refers to Darren plant refusing him reasonable adjustments. Claim no. 12 The following paras are narrative. The next complaint is at paras 27 - 29 – the failure of Mr Wright to redeploy him to another ward after receiving OH report – he complains in the original ET1 at para 7 and in the original ET no. 1 at 12 -1 4 he complains that no support because refused reasonable adjustments. Para 27 is the same as 12 – 14 just repackaged. At para 30 C refers to a complaint to Judy Lake about another reasonable adjustment turned down – fits into his original complaint that reasonable adjustments weren’t made in ET no. 1 Claim no. 13 - in ET no. 2 Paras 31 – 34 are about failure to make reasonable adjustments and failure to support a return to work, referring to Plant – covered in para 13 in the original ET no. 1 – complaints about Mr Plant. Claim no. 14 Para 35, ET no. 2 – a criticism of Wright response to OH – dealt with at para 7 and 8 of the original ET no.1 – where Wright is named and two health reports in para 8 and it didn’t happened in para 9 of ET no. 1 Claim no. 15 ET no. 2 Allegation para 38 – new complaint - jurisdiction time point which I will pick up later. Here a complaint about things not being speeded up – investigation speed – dealt with at para 9 of the ET no. 1 ET no. 2 Para 39 - must be referring to C falling out with a couple of other nurses and shift patterns weren’t changed and his placement had to change – dealt with in the original ET no. 1 at para 13. No consideration given to bullying and harassment in its own right – referring to Mr Plant – see para 13 of original ET no. 1 C complains about no consideration of act of dismissal of a serious incident of bullying and harassment in its own right, - dealt with at para 9 ET no. 1 and Plant’s refusal to make reasonable adjustments - dealt with in the ET no. 1 at para 13 Complaint no. 16 ET no. 2 Para 40 meeting Ms Waghorn – meeting referred to in ET no. 1 at para 1 – paras 40 – 44 inclusive all hinge on meeting with Ms Waghorn referenced already in ET1 and is estopped. Complaint no. 17 The similarity continues in para 45 where C refers to a number of complaints about work not previously raised with him – para 3 of ET1 no. 1 Para 46 the C recounts being subjected to humiliating treatment to other staff members – dealt with at para 4 of ET no. 1 Para 47 and 48 – being told to stay off sick after raising his concerns and this is covered in 5 and 6 of the ET no. 1 – matron suggested that he stay off work sick. Para 49 he telephoned Christine Sage, that is not considered in the original ET1 because it relies upon the facts of what happened to him after his meeting with Ms Waghorn, which he raises in ET1 no. 1 if not with me on that then it should have been raised in the original ET no. 1 and because of wasn’t he can’t rely on it now. Henderson And the same point at paragraph50. Clam no. 18 ET no. 2 and also para

51. See para 6 ET no. 1. Para 53 – the investigation didn’t happen quickly enough – dealt with at para 9 of the original ET1. Claim no. 19 ET no. 2 Para 54 OH report addressed to Ms Waghorn not acted on - ET no. 1 at paras 8 – 11 deals with OH report not being enacted upon. Para 55 – starts with a date 31/10/2019 that C getting upset that no investigation of detrimental experience – they are referenced in the original ET no. 1 and at the very least is issue estopped if not cause of action estoppel, - para 9 of ET no. 1 C had a meeting with Ms Bunce and she refused to widen the ambit of her investigation – see para 9 – they are one and the same thing. Para 56 – “WP exit talks“ not to be referred in the claim Para 57- he refers to Mental Health Act audits and him wanting to see outcome of investigation – relates to protected disclosure and Miss Waghorn at para 2 of the ET1 and although the claiant has widened the time period up to February 2020 – the essential ingredients of protected disclosure and Ms Bunce’s investigation are in the original ET no. 1 at paras 2 and 9. Claim no. 20 ET no. 2 At para 58 C complains of Ms Bunce’s failure to investigate his detrimental experiences and that is the same issue as at para 9 of the ET no. 1 And the same point for para 59 ET no. 1 at para 9 Claim no. 21 ET no. 2 at Para 60 – the absence of a dignity work investigation conducted under Dignity a Work policies – at para 10 of the ET no. 1 C references meeting CEO and chief nurse to raise concerns why policies and procedures not being followed – if wrong on that should have been raised in the ET no. 1and an abuse of process Para 61 – reference ET no. 1 para 9 and if wrong about that it should have been in the original claim. Claim no. 22 of ET no. 2 - At para 62 the claimant raises concerns about time for his concerns to be addressed – about the process - see para 7 of ET no. 1; He says key issue of personal harassment could be heard to day as was not in her remit- that is, Ms Bunce’s remit, also dealt with in para 9 of ET1 no. 1 . Para 63 not an allegation Claim no. 23 of ET no. 2 at Para 64 – the OH reports not being acted upon by Gavin Wright. That is dealt with from para 8 in the ET no. 1 and paras 10, 11 and 12 which we say at the very least have essential ingredients of this claim that policies and procedures not followed – doesn’t say OH reports not followed, that is clearly the implication – he says at para 11 they were aware of my mental health condition and advised by Mental health team and at para 12, I got no support on return to work and para 13, I received no reasonable adjustments. That para 13 is out of chronology – the point made there was post September for returning to work, but para 64 – OH reports not being speeded up or acted upon, that is set out in the original ET no. 1 Same point made for para 65 Para 66 – the reasonable adjustments requested were turned down. Para 12 of the ET no. 1 – the same issue being dealt with there. Para 67 isn’t an allegation - relates to a third party. Para 69 is a reference from Mr Wright dated 14/11/2019 and it refers to the ambit of the report from Jayne Bunce – para 9 of the ET1. What the claimant has done here is tagged on the full report released in February 2020 and what we say that is just a device to try and create an impression of distinction to bring the matter in time in the ET no. 2 whereas the original essential ingredients of the complaint are in para 9. Page 33 – para 68 widening the ambit of meeting with Mr Allen already in para 10 of ET no. 1 He carries on in paras 71, 72 and 73 essentially that conversation with Mr S Allen didn’t actually happen to widen the ambit. But we say that the essential ingredient is at para 9 and if not with me on that Henderson applies – it could and should have been advanced in the original ET1. Claim no. 24 ET no. 2 Trust policies not being following and too narrow ambit for Jayne Bunce’s investigation is in the original ET1 and paras 9 and 10. Para 74 not an allegation Complaint no. 25 ET no. 2 at Paras 75 – 78 a complaint that the Trust took too long to investigate into whistleblowing but in terms of the res judicata cause estoppel, this hinges on the original claim that there was a protected disclosure at para 2 of the ET no. 1 which he withdrew and cannot litigate upon. Complaint no. 26 ET no. 2 at Para 78 appears to be saying that the claimant got increased symptoms of PTSD from trauma from September 2019 onwards referring occupational health advice and delays. And failure of policy which we say are the essential ingredients are in ET no. 1 PTSD at para 14, intended Protected disclosures at para 2 and purported Negligence of G Wright at paras 7, 8 and 9 of the ET no. 1 Failure of OH and being inactive at paras 8 and 9 of ET no. 1 Para 79 hinges on Jane Bunce’s report but doesn’t seem to be raising in that para or in para 80 or 81. Complaint 27 – ET no. 2 4 Case 3 – 7b Complaint against Mr Wright trying to cover up findings of poor patient care - for not doing what he should have which is essentially what paras 7, 8, and 9 of the original ET no. 1 states On page 38 – Oct – Nov – complains about not keeping C informed, this part no covered in the ET no. 1 unless it is a policy which he says is not being followed which is covered in ET no. 1 at para 10. Allegation of a serious failure to act by Mr Wright – a reheating of complaint against Ms Bunce’s investigation and is covered in para 9 of the ET no. 1 In February 2020 page 38 and extension of broadening out the time and the complaint about not doing a proper investigation already trailed before that date. The support for that position is in last para page 38 – refers to a meeting with Ms Bunce on 31st October 2019 and original ET no. 1 was 26th December 2019. Page 39 (73) Mr Wright stated to have refused to start a prompt investigation and refers to a letter he wrote on 13th November 2019 – a reheating of a claim that the ambit wasn’t wide enough in the Ms Bunce investigation and falls foul of the Henderson Rule and should have been advanced in earlier proceedings. Page 39 (1) – ignoring OH advice – covered in ET no. 1 in paras 11, 12 and para 8 re speed of investigations. Speeding up of investigations also at para 2 on page 39 and we make the same allegation in relation to that. Page 39 last para – brings together by saying Wright trying to cover up findings of poor patient care – a device to bring a claim against Wright into time because constituent parts were clear to the Claimant from October and November 2019 – referenced in ET1 in para 7 – criticism, para 8 report not speeded up, para 9 and para 10 not following polices and procedures not followed. And it is res judicata, but otherwise cause of action estopped/Henderson as it could have been raised in the original ET no. 1 Claim no. 28 ET no. 2 at Page 40 constructive dismissal. C says there was a serious breach….. relates to C’s protected disclosures in September 2019 referenced in his ET no. 1 in para 2 and the detriments that he encountered after that at paras 3, 4, 5 and 6 and 8 of the original ET1. Page 41 – a vacuum of 21 days and how his mental health deteriorated – para 14 of the original ET1 he refers to his PTSD but I need to make clear that is in reference to the protected disclosure made in September 2019 – and in the original ET no. 1 his PTSD has been exacerbated and what he puts at page 41 is essentially that claim again but with a wider time frame, impermissible now that he withdrew his claim. On the basis of the above, the claim is barred due to abuse of process.

[6]The claimant’s submissions The claimant’s submissions can be summarised as follows:6.1 I struggled at the time with my English and grammar and I have not been well;

6.2 Res judicata does not apply to this case. The tribunal must consider whether the claimant withdrew of his own free will, and the motive for withdrawal by an unrepresented party who was sick and was making a claim for the first time;

6.3 According to AKO v Rothschild Asset Management 2002 IRC 899 the court can take into the account the factual circumstances of withdrawal in order to understand its meaning and effect and reasons for withdrawal, where reasons for withdrawal shed light on the crucial issue of whether the person was withdrawing the application and intended thereby to abandon his claim or course of action.

6.4 Rule 52 (a) was intended to help the court to deal with people who make an honest mistake.

6.5 I didn’t take legal advice; I was unwell, I didn’t get a solicitor. I stated it was not down to the strength of the case for technical reasons. There was no delay in filing the second complaint

6.6 A judge has a responsibility to make sure that a claim understood the effect of a decision to withdraw. He had a duty to make a reasonable inquiry as I was a litigant in person. A knowledgeable judge would have realised that I wanted to relitigate. It was my lack of knowledge of the court system.

6.7 Res judicata doesn’t apply. The claims in the first claim were substantially in time. Discrimination continued after December 2019.

6.8 The overriding objective requires the parties to be on an equal footing. I was unwell, trying to make an honest claim and to expand on it. In the interests of justice the clams should be kept alive.

6.9 There were serious issues going on, cover up; the whole case needs to go forward on the full facts.

The law

[7]The law is set out in rules 51 and 52 of the ETs (Constitutional & Rules of Procedure) Regs 2013 Sch. 1 End of claim 51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.’ Dismissal following withdrawal 52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless –(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claimant and the Tribunal is satisfied that there would be legitimate reason for doing so; or

(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.’

[8]I also made reference to rules 70-72 for the benefit of the claimant.

[9]I was referred to AKO v Rothschild Asset Management 2002 IRC 899 by the claimant. The respondent referred me to a relevant passage from the IDS handbook and Biktasheva v University of Liverpool, EAT 0253/19.

Conclusions

[10]When the Employment Judge signed the dismissal judgment on 26th February 2020 he had before him on the tribunal file the emails set out in full above at paragraphs 3.8 and 3.10. The claimant submits to me now that it is clear from his email that he had at that time no intention to abandon his claim. He relied on two phrases in particular in relation to the belief that he thought his claim could be struck out, it was “due to technical reasons with the claim rather than substance.” and “As time allows a new case has [been set] out.”

[11]The claimant did indeed file another, fuller claim in the London South Tribunals on 9th March 2020, case no. 2300941/2020 (the second claim) .

[12]The respondent claims that this second claim of 9th March 2020, is entirely res judicata or otherwise caught by the principle of Henderson v Henderson which is that where there is a new cause of action that could and should have been brought in previous proceedings, but was instead brought in the new proceedings, it is likewise estopped. I have given this considerable thought. A lot hangs on it from both parties’ points of view. My conclusions are as follows:

[13]I am unable to ignore the dismissal judgment of EJ Midgely and proceed with hearing the other issues in this Open Preliminary Hearing. As it stands, the elements of the second claim which are found in, and are repetitive of, the first claim are, in law, res judicata. There is nothing I can do about that. I cannot overturn the judgment of EJ Midgely as I do not have the jurisdiction to do so.

[14]At the time that EJ Midgley signed the dismissal judgment on 26th February 2019, two weeks after the claimant’s email withdrawing the claim, he will have seen the email exchange between the claimant and Ms Daw and the claimant’s email of withdrawal in the tribunal case file. He will also have been aware of rule 52. I must assume that EJ Midgley signed the dismissal judgment with rule 52 in mind and he did not consider that the claimant had reserved his right, adequately or at all, to bring such a further claim, especially in view of the warning that Ms Daw had given the claimant – a warning to seek legal advice. I must also assume that EJ Midgley did not believe issuing the judgment was not in the interests of justice.

[15]The case law to which I have been referred is clear. Cause of action estoppel prevents a person from bringing a claim that raises a cause of action that is identical to that which has been previously determined. EJ Midgley’s dismissal judgment was a determination. Even though there may be new evidence relating to the same causes of action, there can still be no re-litigation.

[16]The two possible courses of action for the claimant at the time of the dismissal judgment would have been to have left his claim form filed with the Bristol tribunal and provided further and better particulars of his claim when they were requested by the respondent and ordered by the tribunal.

[17]The alternative and equally appropriate course of action for the claimant to have taken, would have been apparent to him if he had taken legal advice or done his research at the time – he could have made an application under rules 72 and 72 within 14 days after 26th February 2020 seeking a reconsideration of the dismissal judgment by EJ Midgley. Had EJ Midgley revoked his dismissal judgment following an application for a reconsideration, the problem of res judicata would not arise. A withdrawal of claim without a dismissal judgment leaves the claim potentially ‘live’ because there has been no judicial determination. Once a dismissal judgment is made under rule 52, the claim is extinguished.

[18]Unfortunately the claimant did not make that application. A year later, he is now out of time unless he can persuade the relevant judge it would be in the interests of justice to extend time. If it is not possible for EJ Midgley to consider a reconsideration application, under rule 72(3) a Regional Judge can appoint another judge if it is not reasonably practicable for EJ Midgley to consider a reconsideration application.

[19]I should add for the avoidance of doubt that there is no discretion that I can exercise to get around the res judicata point relating to the first ET1 dismissal judgement. I have no discretion to exercise on the res judicata point under “in the interest of justice” as the claimant submits. It is a strict application of the law and of the tribunal rules. The possibility to exercise discretion arose earlier under S52 (a) and (b) with another judge, Employment Judge Midgley. Only he can rebut my assumption that he had taken into account the emails on the tribunal file when he made his decision.

[20]The situation in summary is therefore that the second claim, the current ET1 2300941/2020 grounds of complaint cannot be pursued; they are res judicata to the extent that they are repetitive of the first claim case no.140641/2019.

[21]New information and new causes of action can be pursued provided they do not rely on the already pleaded facts and causes of action in the first ET1. The respondent submitted yesterday that virtually if not all of the grounds of complaint in the current second claim relate back to the first claim and are therefore res judicata/ or Henderson v Henderson applies – ie. that the claims could and should have been raised in the first claim and were not, and they are therefore estopped.

[22]The claimant did not respond at any of those submissions which cross referenced the complaints as identified by the respondents in the second claim, with the complaints in the first claim.

[23]I have read the first and the second claims and I have read the cross referencing between the by the Respondent.

[24]The cross references related to fourteen paragraphs in the first claim which we numbered manually during the course of the hearing 1 - 14, and the 28 claims which had been identified by the respondents in the second claim and set out helpfully in the respondent’s submissions.

[25]The grounds of complaint of the second claim were lengthy and combined a mixture of causes of action/allegations, statements of law, statements of fact observations and opinions on the respondents’ conduct. The claimant did not object to the respondent’s identification of the 28 complaints within the narrative of the second claim grounds of complaint, as were set out in a schedule contained in Mr Burke’s submissions and provided to the claimant.

[26]I took detailed full note of the respondent’s submissions identifying each claim in the second claim having been either claimed in, or having its origins in, the claims set out in the first claim. There was no immediately identifiable shortfall in the exercise undertaken by the Respondent. The claimant did not challenge either the identification of his claims in the second claim form, nor the submissions made by the respondents that each of the identified claims related back to the first claim either in cause of action or because of being based in the same pleaded facts. Nor did he raise any objection to the points where the respondent had relied on Henderson.

[27]The claimant was on notice of the respondent’s approach to the res judicata point which obviously needed further detailed consideration by the claimant; it is for him to identify where his claims are new and not subject to res judicata or the Henderson principle.

[28]The respondents’ submissions have been carefully thought through. The claimant focussed in his submissions on how the Employment Judge issuing the dismissal judgment should have acted differently. With regard to an analysis of the cross referencing between the causes of action and facts pleaded in the first and second claims, the claimant’s view it was “was in interests of justice to allow the case to go ahead in full. Just go ahead and don’t deal with this amount of detail”. In the absence of anything but a blanket comment from the claimant that I should not bother with all this detail and no contribution from the claimant to the analysis of his claims by the respondent, my decision is that the second claim [2300941/2020] is res judicata and cannot be pursued. For the avoidance of doubt, I have accepted that the constructive unfair dismissal claim was, in title, a new claim but it relies on allegations pleaded in the first ET1. Therefore Henderson applies.

[29]The claims are dismissed in their entirety. The other issues to be determined now fall away.

Conclusions

[1]This is an application by the respondent in respect of its costs for defending proceedings brought by the claimant under the above case number.

[2]It is necessary to explain a little about the background to this application.

[3]By a claim form presented to the Bristol Employment Tribunal on 26 December 2019 (“claim 1”) the claimant brought claims of whistleblowing detriment and disability discrimination.

[4]On 4 February 2020, the respondent filed its response to claim 1 and requested that the matter should be listed for a preliminary hearing to consider an application to strike out the whistleblowing claims, or in the alternative, a deposit order.

[5]On 9 February 2020, the claimant emailed the respondent’s solicitor, Ms Daw, to say [sic]: After seeking advice over the weekend, I can confirm I wish to withdraw my employment tribunal in its entirety. It would seem your view is correct that this case could be [struck] out on technicality. However as you properly aware its not down to the strength of the case. As you are objection to the case, I’m advised I’m still in time to raise these concerns and will get a solicitor to do my F1 form if no settlement can be reach through early resolution.

[6]On 10 February 2020, Ms Daw wrote to the Bristol Employment Tribunal forwarding the claimant’s email of 9 February 2020 and inviting the Employment Tribunal to dismiss the claim upon the claimant's withdrawal. Ms Daw added in her email that the claimant had been copied in on her email, advising that he should set out his objections in writing as soon as possible if he objected to the dismissal application. Ms Daw also confirmed that the claimant should seek legal advice if he was unclear about the matter.

[7]In response to Ms Daw’s email, the claimant emailed the Employment Tribunal on 10 February 2020 stating: I can confirm that I believe the solicitor Catherine Daw was correct in her assumption that this case on the balance of [probability] would be struck out. However this is due to technical reasons with the claim rather than substance. Consequently I’m happy to confirm that I wish to withdraw the tribunal claim I wrote on 26th December 2019. As time allows a new case has [been set] out.

[8]On 12 February 2020, an Employment Tribunal clerk acknowledged receipt of the claimant’s notice that he had withdrawn his claim, and confirmed that the file would be retained until February 2021 and then destroyed. It stated that a dismissal judgment would follow in due course.

[9]Two weeks later on 26 February 2020, a dismissal judgment was signed by Employment Judge Midgeley.

[10]On 9 March 2020, the claimant presented a further claim to the Employment Tribunal (“claim 2”).

[11]On 3 and 4 April 2021, claim 2 was listed before Employment Judge Richardson to consider whether it should be struck out on the grounds of res judicata because it was a repeat of claim 1. As a result of that hearing, claim 2 was struck out for the above reason.

[12]The claimant sought a reconsideration of Employment Judge Richardson’s decision to strike out claim 2 on 8 March 2021. This application was refused on 29 March 2021 as there was no reasonable prospect of the judgment being varied or revoked.

[13]On 10 May 2021, the claimant applied for a reconsideration of Employment Judge Midgeley’s dismissal judgment on claim 1. He also lodged an appeal in the Employment Appeal Tribunal (“EAT”) against Employment Judge Richardson’s decision on claim 2.

[14]On 26 January 2022, the claimant withdrew his appeal to the EAT, which was then dismissed upon withdrawal.

[15]The claimant informed me at the costs hearing that the previous day he had submitted a renewed application for reconsideration of claim 2.

[16]The application before me is an application by the respondent for an order that the claimant pay a contribution to its costs. I say contribution because the respondent seeks £20,000 in unassessed costs (£20,000 being the capped amount). The respondent’s actual costs of defending this claim total £90,048.50 excluding VAT.

[17]The respondent brings its application under Rule 76(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 (“ET Rules”) due to the unreasonable manner in which the claimant has conducted the proceedings. B. THE HEARING

[18]This hearing was conducted using CVP with the consent of both parties. Due to technical difficulties, the claimant participated by telephone, which he was content to do.

[19]Prior to the hearing, the claimant had indicated that he believed the costs hearing should be postponed due to there being an outstanding application for further reconsideration on claim 2.

[20]I therefore heard the claimant's application to postpone today’s hearing as a preliminary issue.

[21]The claimant was asked about the basis of his application for further reconsideration. As well as making serious accusations against solicitors and Counsel representing the respondent, which formed part of his grounds for reconsideration, the claimant tended to reargue the very same points that had been aired before Employment Judge Richardson.

[22]I was surprised that the claimant had left it until the day before the costs hearing to present his application for further reconsideration, given that he could have presented his application well before then.

[23]The respondent was opposed to any postponement. Mr Burke submitted that the application for further reconsideration raised no new matters. It was in any event almost a year out of time. The claimant had exhausted all avenues of appeal, the EAT appeal having been withdrawn, and the application for costs should proceed.

[24]Before reaching my decision on the postponement application I read some of the papers on file, including the strike out judgment, which also set out in detail the submissions made by both parties. I also considered carefully the overriding objective contained in the ET Rules.

[25]I could see no merit at all in postponing the costs hearing and did not consider that a postponement was in accordance with the overriding objective. I could not see any immediate merit in the application for further reconsideration. I agreed that such an application would be considerably out of time. Further delay would increase costs for the respondent and given the current listing delays, it could be many months, indeed more than a year, before it was relisted. I therefore refused the application to postpone this hearing.

[26]I asked the claimant whether he was inviting me to take into account his means when deciding whether to make an order for costs, and if so, how much he should pay. He said that he did. He therefore gave evidence at the hearing under oath.

[27]The solicitor for the respondent, Ms Daw, also gave evidence and was questioned by the claimant.

[28]Both parties provided their own document bundles for the hearing. C. FINDINGS OF FACT

[29]The claimant is a registered mental health nurse. He has been working through an agency but for the past six weeks has not worked because he has been unwell. He has the capacity to earn a significant amount of money and told Employment Judge Midgley at a previous hearing that he was earning £6,000 a month. He lives with his girlfriend who currently supports him and pays all of the outgoings. He has one child and his partner has three children. He has no savings or assets. When asked what he did when he needed money, he said that he received some money from his father.

[30]The content of Ms Daw’s witness statement was not challenged in cross examination. I therefore accept that evidence as fact. She said that throughout the conduct of this case the claimant engaged in extensive email correspondence. Her firm had received in excess of 12,000 emails from the claimant during the life of the claim and beyond. On occasions the claimant sent emails in quick succession, sometimes only minutes apart, some containing inappropriate content about the respondent, Ms Daws and Mr Burke. Some of the emails contained jokes and others song lyrics, with the words changed to comment on the respondent, solicitors and counsel.

[31]The claimant was asked on a number of occasions to reduce the level of his correspondence, to be respectful, not to send draft documents, not to send correspondence relating to other unrelated organisations about whom the claimant wished to complain, not to contact the respondent directly and not to email the respondent’s counsel. The claimant was warned that the respondent did not consider the level of correspondence to be reasonable and he was warned that their position on costs would be reserved. The level of correspondence affected Ms Daw’s ability to work.

[32]As well as excessive numbers of emails, the content of them has been offensive and inappropriate. Ms Daw gave the following extracts from emails by way of examples in her evidence [sic]: ▪ Email of 5 May 2020 “show some bloody humility” and “Disgrace – Get lost” ▪ Email of 21 May 2020 “You and your client are twisted in the head” and “your client is sick” ▪ Email of 25 June 2020 “Your client is lowest of low” ▪ Email of 25 June 2020 “sam allen is not a leader she is a danger to the public”, “she allows her directors to manipulat and lie with evidence” and “Sam Allen is a veil evil woman” ▪ Email of 28 July 2020 “Typical solicitor thinks thru a step above normal people” ▪ Email of 29 July 2020 “The conduct of Catherine daw and your client is utterly disgusting” ▪ Email of 29 July 2020 “She is scum” ▪ Email of 2 September 2020 “Trouble there is a huge flaw in their bull shit” ▪ Email of 25 January 2021 “Sam Allen is utterly corrupt and dishonest” ▪ Email of 25 January 2021 “bachers mafia”…”trying to manipulate the hearing” ▪ Email of 26 January 2021 Claire Webster “appalling abuser”…”absolute disgrace” ▪ Email of 26 January 2021 “Brachers the lowest of all solicitors. Morally bankrupt…Abusing with every nasty desperate trick” ▪ Email of 26 January 2021 “mafia boards” ▪ Email of 26 January 2021 “sam allen leads discriminatory mafia”…”sam allen mafiasto” ▪ Email of 26 January 2021 “change pf respondent name lingad v mafia” ▪ Email of 26 January 2021 “mafia board”…”I stand by it” ▪ Email of 26 January 2021 “i stand by these comments, sam allen is mafia leader…bachers are abusers”…”covering up for sure” ▪ Email of 27 January 2021 “mafia boards and solicitors” ▪ Email of 4 March 2021 “gutter trash pleadings” ▪ Email of 10 March 2021 “Catherine daw mafia solicitor stealing from the public purse” ▪ Email of 20 January 2022 “Boring” ▪ Email of 20 January 2022 “in my eyes you are the devil defending these monsters” ▪ Email of 20 January “I write emails as I hate you and what u did” ▪ Email of 21 January 2022 “What I’mSaying is your personal behaviour as a solicitor has lots to do with the pure hatred from me” ▪ Email of 22 February 2022 “Stop chatting nonsense love” ▪ Email of 22 February 2022 “Ur not very good. Ur not very good, ur not very good”…”Another day another daw dirty scam” ▪ Email of 22 February 2022 “Cheat, cheat, cheat” ▪ Email of 22 February 2022 “I told mr burke to block me! Another crook” ▪ Email of 23 February 2022 “Daw is such a dishonest crook” ▪ Email of 23 February 2022 “U lot are a bunch of white collar con artists mate” ▪ Email of 25 February 2022 “It’s immotive for me. I have pure hatred for Burke.” ▪ Email of 25 February 2022 “Pair of you are sick in the head” ▪ Email of 26 February 2022 “lingard moves in for kill” ▪ Email of 26 February 2022 “I Uber aggressive” ▪ Email of 26 February “She is lying again. Catherine daw – she’s lying again” ▪ Email of 27 February 2022 “Next how you vaxatious to defend to kill u” ▪ Email of 1 March 2022 “Every offensive remark about Burke is meant. Corrupt piece of dirt” ▪ Email of 1 March 2022 “Lingard ups Burke professional assault further as preparation intensifies” ▪ Email of 1 March 2022 “We can damage you further” ▪ Email of 2 March 2022 “U have deserved every single email” ▪ Email of 2 March 2022 “Brachers will focus on emails – we will explain the hatred”

[33]Some of the claimant’s email messages were copied to third parties.

[34]They indicated his enjoyment in the process and reference is made to emails in which the claimant said: “This is kind of fun” and “U’m going in for the kill to win tribunal I doing it for the t[h]rill”.

[35]The claimant was warned about his behaviour by Employment Judge Richardson at the hearing on 3 and 4 April 2021, yet took no notice of this and continued sending the same abusive emails.

[36]In addition to emails, the claimant resorted to leaving abusive voicemail messages.

[37]In his defence to Ms Daw’s evidence, whilst not challenging the accuracy of it, the claimant referred to PTSD caused by childhood trauma and abuse. He referred me to documents supporting this diagnosis. There is evidence that he had become pre-occupied, perhaps even obsessed, with “work and past events”. There is no doubt that the claimant was also angry about what he perceives happened to him in the workplace and which was the subject matter of his claims. D. LAW

[38]The Employment Tribunal’s powers to make an award of costs are set out in the ET Rules. Any application for costs must be made pursuant to those rules. The relevant rules are set out below: 74(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purposes of or in connection with attendance at a tribunal hearing). 76(1) A tribunal may make a costs order or a preparation time order and shall consider whether to do so where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) had been conducted; or

(b) any claim or response had no reasonable prospect of success.

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins. ……… 84. In deciding whether to make a costs, preparation time or wasted costs order and, if so, in what amount, the Tribunal may have regard to the paying party’s ability to pay.

[39]As the Court of Appeal reiterated in Yerrakalva v Barnsley Metropolitan Borough Council anor

2012 ICR 420

, CA, costs in the Employment Tribunal are still the exception rather than the rule. It commented that the tribunal’s power to order costs is more sparingly exercised and is more circumscribed than that of the ordinary courts, where the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation.

[40]A litigant in person should not be judged by the same standards as a professional representative, as lay people may lack the objectivity of law and practice brought to bear by a professional adviser and this is a relevant factor that should be considered by the Tribunal.

[41]A tribunal is not obliged by Rule 84 to have regard to ability to pay — it is merely permitted to do so. However, if a tribunal decides not to take into account a party’s ability to pay after having been asked to do so, it should say why. If it does decide to take into account ability to pay, it should set out its findings on the matter, say what impact these have had on its decision whether to award costs or on the amount of costs, and explain why. While lengthy reasons are not required, a succinct statement of how the tribunal has dealt with the matter and why it has done so is generally essential.

[42]There is no requirement that the costs awarded must be found to have been caused by or attributable to any unreasonable conduct found, although causation is not irrelevant. What is required is for the Tribunal to look at the whole picture of what happened in the case and to identify the conduct; what was unreasonable about the conduct and its gravity and what effects that unreasonable conduct had on the proceedings. E. ANALYSIS, CONCLUSIONS AND ASSOCIATED FINDINGS OF FACT

[43]I determined this application by asking myself the following questions: 43.1. Are there grounds for making an award of costs in favour of the respondent? 43.2. If so, should I exercise my discretion in favour of making an award? 43.3. If there are grounds, and I have exercised my discretion in favour of making an award, what award should be made?

[44]When considering each of the questions at 43.2 and 43.3 above, I considered the claimant's means and ability to pay.

[45]Having listened carefully to the evidence of Ms Daw, together with the submissions by Mr Burke, I was shocked at the manner in which the claimant had conducted this case and the level of abuse suffered by the respondent and those representing them. It is wholly unacceptable; they should not have to tolerate the level and content of emails sent by the claimant, amounting in my view to harassment. There is no doubt in my mind that the claimant acted abusively, disruptively and unreasonably within the meaning of Rule 76(1)(a) of the ET Rules.

[46]I then considered whether to make an award for costs, noting that it was within my discretion not to make such an award even though the threshold under Rule 76(1)(a) had been met. In doing so, I considered the claimant's means and his mental health.

[47]Having considered carefully the documents shown to me by the claimant, I do not consider the claimant’s PTSD to be the cause of the claimant's behaviour and concluded that he was in control of what he did. However I do accept that it was a factor. I accept that there have been periods when he has not been well. Before me, the claimant was calm and polite albeit I sensed the anger he felt about the way he believes he has been treated. I was concerned about his continuing to make serious allegations about those representing the respondent, without any evidence of such claims.

[48]Regarding means, whilst the claimant is unable to work currently, he is fortunate to have a profession that he can return to and therefore has significant earning potential going forward, bearing in mind what he said about his previous earnings through agency work. He also currently has no outgoings and is being supported.

[49]I concluded, weighing everything up, that I should make an award of costs in this case.

[50]I bear in mind that an award of costs is intended to be compensatory, not punitive. Were it not for the claimant's background circumstances and mental health, an award at the upper end of the capped amount would have been fully justified, bearing in mind the level of costs incurred by the respondent as a direct result of the claimant’s behaviour. However, taking into account the claimant's means and disability, I have decided to make an award of £10,000, which is the amount the claimant must pay the respondent. ………………………………………………

[1]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that an Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied or revoked.

[2]Rule 71 states that an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent (if later) and shall set out why reconsideration of the original decision is necessary. In this case, a reserved judgment dated 4 February 2022 was sent to the parties on 7 February 2022.

[3]Rule 72(1) states that an Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless Case Number: 2300941/2020 there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

[4]Rule 72(2) states that if the application has not been refused under Rule 72(1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under Rule 72(1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. B. APPLICATION

[5]The application sent in by the claimant by email dated 14 April 2022 seeks a reconsideration of a judgment in which the claimant was ordered to pay £10,000 towards the respondent's costs. C.

Conclusions

[6]Despite the application for reconsideration running to some 18 pages, the claimant makes no reference to the judgment on costs at all, but instead attempts to re-argue matters that have already been litigated.

[7]There is no basis whatsoever to allow this application, which is therefore refused. ………………………………………………