Dr Williams v Ashford and St Peter's Hospital NHS Foundation Trust: 2301293/2022

EMPLOYMENT TRIBUNALS

Case No 2301293/2022

Between

Dr WilliamsClaimant

Ashford and St Peter's Hospital NHS Foundation TrustRespondent

Before

Employment Judge Robinson

Date 28 June 2024

JUDGMENT

The Claimant’s application dated 23 July 2024, for a reconsideration of the judgment

REASONS

[1]Rules 71 and 72 of the Employment Tribunals Rules of Procedure 2013 (as amended) give the Tribunal a broad discretion to decide whether reconsideration of a decision is appropriate.

[2]Having carefully considered the Claimant’s application (and bearing in mind the interests of both parties), I am not satisfied that there is any reasonable prospect of the judgment or any part of it being varied or revoked. This is because the Claimant has not said anything in his application for reconsideration which he did not say or have the opportunity to say at the hearing on 24 June 2024.

[3]There is therefore nothing to cause me to reconsider my judgment, which was made on the basis of the evidence of both parties at the hearing.

[4]Dealing with each of the three grounds set out in the reconsideration application in turn. 1. The reserved judgment contained inaccurate information

[5]I do not consider that there were any inaccuracies:a. Paragraphs 20 and 27 of the judgment are compatible, in that I recognise that the Claimant discovered the Occupational Health incident in January 2022 but that the act complained of took place in July 2021.

b. The ongoing absence from work, even taking the Claimant’s case at its highest, does not constitute a continuing state of affairs. The Claimant was asked in July 2021 to undertake mediation/reconciliation before he could return to work. There was an ensuing stalemate resulting from the Claimant’s refusal, during which he remained absent from work and then submitted his claim form some nine months later. That does not demonstrate to me, a reasonably arguable basis for there to be an ongoing state of affairs. It is clear to me that any discriminatory acts (if there were any) would have been in July 2021 i.e. out of time. 2. The application of the law

[6]The points made in this section of the reconsideration request are similar to those in the previous section. In my view, there was no prima facie case of anything discriminatory occurring after the cut-off date of 28 November 2021. It is clear that the working relationship was still in a state of disrepair (because the Claimant had not returned to work) but that is not the same as the Claimant alleging anything that is discriminatory on the part of the Respondent.

[7]Page 6 of the reconsideration request alleges that I have made a ‘merit’ judgment. However, that is not the case. My decision was based on what the Claimant alleges in his claim form, what the parties had sought to agree as a List of Issues (at no less than four previous Preliminary Hearings), and whether his prima facie case related to conduct beyond the date of 28 November 2021. In my view the Claimant has not (despite multiple opportunities and Trade Union representation) made out any case that appears to me to have reasonable prospects of success in relation to anything that occurred after 28 November 2021. 3. The outcome was disproportionate given the circumstances

[8]It is suggested that I preferred the Respondent to the Claimant because it is an NHS Trust. That is not correct. The Respondent’s situation was one of a number of factors (see paragraphs 29-37 of my judgment in which I set them all out), that I weighed in the balance in making my decision.

[9]I recognise the Claimant’s point about the need for caution when exercising strike-out and that there is a high threshold for doing so. However, I had factored that in when making my strike-out decision and in my view this case satisfies the threshold for the reasons given in my original judgment and above.

[10]The application for reconsideration is therefore refused. Written reasons

[11]The Claimant also requests full written reasons for the judgment sent to the parties on 9 July 2023. I can confirm that those were the full written reasons, which set out the decision reached and why. ............................................................

List of Issues

[12]In the case of Robertson v Bexley Community Services

[2003] IRLR 434

the Court of Appeal stated that time limits are exercised strictly in an employment law context and that: “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.”

[13]This is in essence a matter which is in the Tribunal’s discretion and the onus is on the Claimant to convince the Tribunal to exercise that discretion. Findings of Fact and Conclusions

[14]My findings and conclusions relate only to the time limit issues I had to consider. I have made these findings on the balance of probabilities having:a. heard oral evidence from the Claimant,

b. heard oral evidence from Ms P Bains on behalf of the Respondent, and

c. reviewed the documentary evidence. Which complaints occurred after 28 November 2021 and are in time?

[15]There is a List of Issues that was discussed and agreed at a number of previous Preliminary Hearings on 11 August 2023, 26 October 2023 and 8 April 2024.

[16]This case has been extensively case-managed, in order to determine what are the issues. The Claimant and his Trade Union representative have been at each of these Preliminary Hearings and had ample opportunity to set out the allegations that are being made.

[17]The latest amended List of Issues runs to 13 pages (pages 185-197 of the bundle). The vast majority of the allegations relate to matters from 2020 which are clearly, by themselves, long out of time.

[18]In the long list of allegations, there are only a few that relate to a time in 2021. They are:a. failure to have regard to Occupational Health reports in January and February 2021,

b. the outcome of the addendum to the original grievance which was provided in February 2021,

c. the investigation process, which was completed in April 2021, and

d. requiring the Claimant to undertake mediation/reconciliation sessions in July 2021.

[19]However, all four of those matters are out of time too given they take place before the cut-off date of 28 November 2021.

[20]There is just one reference to a matter occurring after the cut-off date of 28 November 2021. It relates to the Claimant discovering in January 2022 that Ms Rankin (Chief Executive of the Respondent) had made an enquiry (in July 2021) about the Claimant with Occupational Health. That is the only matter potentially post-dating the cut-off date of 28 November 2021. However, it actually relates to an enquiry made by Ms Rankin in July 2021, but which the Claimant became aware of in January 2022.

[21]In considering this matter, I have relied upon the recent decision of the EAT (Worcestershire Health and Care NHS Trust v Allen

[2024] EAT 40

) in which it was held that: “for there to be conduct extending over a period there must have been ongoing discriminatory conduct. It is not enough that incidents are linked, and later events would not have occurred but for the earlier events, there must be something in the conduct that involves continuing discrimination.”

[22]Even if Ms Rankin made enquiries with OH in July 2021, it seems clear to me from the documentary evidence (page 540 of the bundle in particular) that the doctor to whom the enquiry was made (Dr Hashtroudi) has confirmed that there was no attempt to obtain any confidential medical information relating to the Claimant. Dr Hashtroudi confirms that the nature of the enquiry was about them; not about the Claimant. This is not linked to the previous alleged discrimination complained of by the Claimant.

[23]Even if I were to conclude that this matter took place in January 2022 (when the Claimant discovered it), there is nothing in the Respondent’s conduct that (as per the Worcestershire Health and Care NHS Trust v Allen case) that “involves continuing discrimination”. In any event, I find it more likely that this matter should be interpreted as occurring when the request to Dr Hashtroudi was made (July 2021) and is therefore out of time too.

[24]It is my conclusion that the Claimant has sought to allege that his January 2022 discovery of Ms Rankin liaising with OH is somehow discriminatory conduct, in order to seek to manufacture an ongoing course of conduct to get around the fact that the claim has been made out of time.

[25]I therefore conclude that the Claimant has made no complaints that occurred after 28 November 2021. Were the complaints that occurred before 28 November 2021 conduct extending over a period?

[26]I find that the Claimant has made a number of allegations dating back to April 2020 and up to July 2021 that, if proven, would amount to conduct extending over a period. If so, was the claim made to the Tribunal within three months (plus early conciliation period) of the end of that period?

[27]On this question, I find that the claims were not made within the three month time limit (even taking account of early conciliation) because the cut-off date is 28 November 2021 and the last act complained of was in July 2021. If not, were the claims made within a further period that the Tribunal thinks is just and equitable?

[28]For this issue, I have considered in particular why the claim was not presented in time.

[29]When giving evidence under oath, the Claimant provided no credible explanation for waiting until April 2022 to bring his claim. I acknowledge that the Claimant has a diagnosis of bipolar affective disorder but in his witness statement and in his oral evidence he did not mention this condition once as being a factor in why he delayed in bringing his claim.

[30]In any event, the Claimant has been represented by the General Secretary of the Equal Justice Union throughout all of the matters complained about, going back to April 2020 and through the grievance and investigation processes. The Claimant is also a doctor i.e. a qualified professional, who I would expect to have an understanding of time limits, particularly given the Trade Union involvement.

[31]When asked repeatedly in cross-examination why a claim was not brought in April or July 2021 (or even in 2020 when the majority of the Respondent’s conduct complained about took place), the Claimant simply repeated that he believed that there were continuing acts, so time limits were not an issue.

[32]I do not consider that the Claimant’s general feeling that he is not being treated well by the Respondent is sufficient to constitute ongoing discriminatory treatment.

[33]I have factored in to my decision-making that the Claimant will of course suffer the disadvantage of having his claims struck-out. However, I have also taken account of the impact on, and prejudice to, the Respondent. The Respondent is an NHS trust which would be adversely impacted by a 13 day hearing that is taking place four years after most of the events complained about. I accept Ms Bain’s witness evidence that many of the individuals have moved on and would not be available for the hearing, and nor would those individual’s potentially relevant emails and documents.

[34]The length of the delay is of course not entirely due to the Claimant, but he has contributed to it by not bringing his claim promptly, and within the statutory time limit.

[35]These time limits have been set by Parliament in order to limit the delay between acts complained of and a hearing at which they can be heard.

[36]Finally, I have also had regard to the overriding objective, in Rule 2 of the Employment Tribunals Rules of Procedure 2013. Part of dealing with cases fairly and justly is about requiring parties (particularly represented ones) to adhere to time limits and not just assume that a Tribunal will exercise its discretion in their favour.

[37]In addition, the parties themselves are obliged assist the Tribunal in furthering the overriding objective. It is my conclusion that the Claimant and his representative have not done so in this case because they could have assisted with “avoiding delay” (Rule 2(d)) and “saving expense” (Rule 2(e)) by bringing the claims sooner and within the required statutory time limits.

[38]For all of the above reasons, and having considered all of the factors I consider relevant and those that were made by the Claimant in his oral evidence, I have exercised the wide discretion afforded to Tribunals in relation to the “just and equitable” extension and determined that time limits should not be extended in this case.

[39]All of the Claimant’s claims are therefore struck-out.