Dr C Johnson (registered as Dr I Ivanov) v Aintree University Hospital NHS Trust: 2406455/2019
EMPLOYMENT TRIBUNALS
Case No 2406455/2019
Between
Dr C Johnson (registered as Dr I Ivanov)ClaimantAintree University Hospital NHS TrustRespondentDate 2 March 2023
JUDGMENT
The claimant’s application titled “motion to restore victimisation” and sent by email dated 14 July 2021, for reconsideration of the judgment sent to the parties on 26 June 2021, is refused.
REASONS
[1]I have undertaken preliminary consideration of the claimant's letter, emailed to the Tribunal on 14 July 2021 and titled “Motion to restore victimisation”. I have treated this letter as an application to reconsider the judgment dismissing the claimant’s claim of victimisation.
The Law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily”[5]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. Achieving finality in litigation is part of a fair and just adjudication. Case No: 2406455/19 The Application[6]The claimant in this case confirmed to the Tribunal that he was withdrawing his claim of victimisation. The claim was, accordingly, dismissed. It is that dismissal the claimant seeks to have revoked.[7]A claim of victimisation under the Equality Act 2010 has a very specific meaning which does not reflect common usage of the word ‘victimisation’. It can only be made if a claimant alleges mistreatment specifically in response or retaliation to them having done a ‘protected act’. A ‘protected act’ must relate in some way to a breach of the Equality Act.[8]This was explained, in part, to the claimant at the hearing. It was not explained fully as the claimant interrupted, apparently understanding the point, part way through the explanation. The claimant at that time stated, clearly and emphatically, that he was withdrawing his claim of victimisation. This was understood to be because the events he sought to rely on as a ‘protected act’ related to infection control issues, which are in no way connected to the Equality Act 2010.[9]The claimant was then asked, and confirmed, his withdrawal of his victimisation claim. It is noted that the acts which the claimant complains about continue to be relied on is support of his other claims. No other claim was withdrawn.[10]Accordingly, there is no prospect that the dismissal judgment will be reconsidered.
Conclusion
[11]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original dismissal judgment being varied or revoked. The application for reconsideration is refused.
Conclusion
[1]By a letter dated 18 January 2023 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because the manner in which the proceedings have been conducted by or on behalf of the claimant had been scandalous, unreasonable or vexatious, in that the claimant had failed to attend the second day of the final hearing on 17 January 2023 having made an unsuccessful application for that hearing to be postponed.[2]The letter required the claimant to provide specific medical evidence supporting his contention that he had been unable to attend the hearing due to medical reasons. Whilst the claimant has provided some further correspondence and a further brief letter from his GP, he has failed to provide medical evidence which complies with the order made by the Tribunal.[3]The Judge has taken into account additional representations made by the claimant in correspondence but considers that these do not, given the circumstances and history of this case, contain any good reason why the case should not be struck out. The claimant has not requested a hearing.[4]Therefore, of the Tribunal’s own motion, and under Rule 37 Employment Tribunal Rules of Procedure 2013 the claim is struck out due to the fact that the claimant has conducted the proceedings in an unreasonable manner and has failed to comply with the requirement to provide medical evidence set out in the Tribunal’s letter of 18 January 2023.
Conclusion
[1]I made a Judgment striking out Dr Johnson’s claim which was sent to the parties with full written reasons on 3 March 2023. Broadly, the claim was struck out after Dr Johnson unsuccessfully applied for a postponement of the final hearing and failed to provide satisfactory medical evidence as to why he had been unable to participate. Further details are set out in my Judgment on the postponement application and my Judgment striking out the claim.[2]On the same day that the Judgment was sent out, Dr Johnson replied by email, failing to copy the respondent, saying that he wanted to appeal against the decision. On my direction a reply was sent informing him that any appeal would lie to the Employment Appeal Tribunal which has its own procedures, but that he could apply for a reconsideration of the decision. Any application for reconsideration would have to comply with Rule 71 Employment Tribunal Rules of Procedure 2013, including that it would have to be copied to the respondent. (Dr Johnson has a history in these proceedings of omitting, or refusing, to copy correspondence to the respondent).[3]On 10 March 2023 Dr Johnson wrote the Tribunal in the following terms: “I’m applying regarding above case decision to be reconsidered, as it violates laws, rules and regulations. Best regards Dr Clive Johnson.” This application is compliant with Rule 71 in the sense that it was made within the 14-day time limit and was, on this occasion, copied to the respondent. It is questionable whether the sweeping and generalised Case No: 2406455/2019 allegation is contains complies with the requirement to “set out why reconsideration of the original decision is necessary”.[4]In any event, Rule 72(1) of the 2013 empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[5]Dr Johnson has provided no basis at all on which the decision should be varied or revoked. If the decision is, indeed, in violation of any laws, rules or regulations he has failed to identify them or explain what the violation is said to be. The fact that a decision has gone against Dr Johnson and he does not like that is not a valid ground for reconsideration. In those circumstances, I refuse the application.