Mr C Echendu (Administrator of the Estate of O Chigozie Iwuchukwu) v South Tyneside and Sunderland NHS Foundation Trust and Dr I Martin: 2500019/2023
EMPLOYMENT TRIBUNALS
Case No 2500019/2023
Between
Mr C Echendu (Administrator of the estate of Obiukwu ChigozieClaimantSouth Tyneside and Sunderland NHS Foundation Trust and Dr I MartinRespondent
Before
Employment Judge AspdenNot represented for claimantMs C Millns (instructed by Counsel) for respondentDate 24 May 2023
JUDGMENT
[1]The following claims are struck out as an abuse of process:1.1 the claims made under the Equality Act 2010 complaining of race discrimination, disability discrimination and victimisation;1.2 the claim for damages for breach of contract, insofar as it is made under the Employment Tribunals (Extension of Jurisdiction) Order 1994.[2]The following claims are struck out as the Employment Tribunal does not have jurisdiction to consider them:2.1 the claim alleging negligence at common law and/or breach of a duty of care;2.2 the claim for damages for breach of contract, insofar as it is made other than under the Employment Tribunals (Extension of Jurisdiction) Order 1994;2.3 the claims complaining of victimisation, insofar as the claim is made other than under the Equality Act 2010.[3]The claimant must pay to the first respondent £8946 in respect of costs incurred by the first respondent. JUDGMENT having been sent to the parties on 7 June 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This was a public preliminary hearing to consider: 1.1. the claimant’s application to amend the claim form contained in a letter to the tribunal of 15 March 2023. 1.2. The respondent’s application to strike out the claims. 1.3. The respondent’s application for costs.[2]The claimant did not attend. Nor did he arrange to be represented.[3]Rule 47 of the Employment Tribunal Rules of Procedure 2013 says this: ‘If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.’[4]The claimant made an application to postpone this hearing and stay proceedings on 12 May. That application was refused on 15 May by Judge Loy.[5]On 16 May the claimant made a further application for postponement. On this occasion the application was made on the ground that he was grieving the recent sudden death of his father on 12 May. He said he would not be attending the hearing for the following reasons ‘I am presently bereaving and am emotionally down that I cannot do anything meaningfully now…I am not in a good mental state to attend the hearing.’ That application was refused by Judge Loy on 17 May.[6]The claimant made a third application for postponement on 18 May. Judge Loy refused that application on 19 May.[7]The claimant did not contact the tribunal again. Mr McHugh confirmed that the claimant had not been in touch with the respondent or the respondent’s representative recently.[8]I considered whether to ask the administration to try to make contact with the claimant by telephone to ask him about his non-attendance. After considering the history of the case, however, I decided that was unnecessary. In particular: 8.1. I had no doubt that the claimant knew the hearing was going ahead. 8.2. There was no reason for me to think that the claimant’s circumstances had changed since his application for a postponement had been refused just a few days earlier. If they had, the claimant knew that he needed to provide evidence to the tribunal of that fact. 8.3. If the claimant’s circumstances had not changed then there would have been no basis for us to adjourn this hearing. Doing so would have entailed setting aside the decisions of Judge Loy. The Employment Appeal Tribunal has made it clear in the case of Serco Ltd v Wells [2016] ICR 768 that that should only be done where there has been either a material change of circumstances or where the order has been based on either a misstatement (of fact and possibly, in very rare cases, of law) or an omission to state relevant fact. None of those circumstances applied here.[9]Under rule 47, one option open to me was to hear the case in the claimant’s absence. Another option was to dismiss the case. I decided on the former. Background to claim[10]Mr Echendu brought a claim by a claim form received on 4 January 2023. In paragraph 2 of the particulars of claim Mr Echendu says he is the administrator of Mr Iwuchukwu’s estate and he is bringing this claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. For the avoidance of doubt, there is no suggestion by Mr Echendu that this is an action under section 1 of the Fatal Accidents Act for the benefit of any of the specified dependants of Mr Iwuchukwu as are defined in the Act.[11]In the claim form the complaints are described as claims of race/disability discrimination and victimisation-malicious/fraudulent acts causing the death of Mr Iwuchukwu including common law negligence. In a subsequent email of 15 March in which he made an application to amend the claim Mr Echendu also referred to breach of contract.[12]The respondent submitted that the claims should be struck out as an abuse of process on the following grounds: 12.1. The claims attempt to relitigate matters that have already been disposed of by virtue of a decision of a previous tribunal and are res judicata and estopped from proceeding. 12.2. The claims seek to advance matters that could have been raised in earlier proceedings but were not. 12.3. The claims amount to a collateral attack on a previous Tribunal decision in that they seek to present and rely upon as fact matters which are inconsistent with an earlier tribunal judgment.[13]The earlier tribunal judgment is in proceedings allocated claim number 2500964/2015. In that claim Mr Iwuchukwu made claims of race discrimination, harassment, victimisation, public interest disclosure detriment, automatic unfair dismissal for TUPE reasons and automatic unfair dismissal for having made a protected disclosure and unfair dismissal. One of the complaints of victimisation succeeded as did the claim of ordinary unfair dismissal. The other complaints were dismissed, the Tribunal having concluded they were not well founded.
Legal framework
[14]The Law Reform (Miscellaneous Provisions) Act 1934 addresses the effect of the death of an individual on causes of action. It says at Section 1: ‘(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against or as the case may be for the benefit of his estate. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person :— … (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either—(a) proceedings against him in respect of that cause of action were pending at the date of his death; or(b) the cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation.[15]The effect of this is that an employee (or former employee) has died or a former, any employment claims brought by the deceased may be continued by personal representatives of the deceased and any claims that could have been brought by the deceased may be instituted by personal representatives, subject to what is said at subsection (3).[16]This applies to claims under the Equality Act 2010. That has been confirmed by the Court of Appeal in Harrison v Lewisham and Guys Mental Health Trust 2000. I have no reason to think it does not apply also to claims for breach of contract that could be made by an employee under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[17]The deceased’s personal representative can only bring a claim that the deceased could have brought himself in the Employment Tribunal. It is appropriate to note in this regard that the Employment Tribunal’s jurisdiction is not at large like that of the civil courts. We do not have jurisdiction in the Employment Tribunal to consider common law claims unless that jurisdiction has expressly been conferred on us by Parliament by statute or statutory instrument. The Employment Tribunals do not have jurisdiction to consider common law breach of contract claims except as set out below. Nor does the Tribunal have jurisdiction to consider claims for damages for the tort of negligence, or statutory torts such as breach of health and safety at work legislation, or claims for fraud.[18]In his email of 15 March, Mr Echendu seemed to be suggesting that employees are entitled to bring claims of breach of contract under the Equality Act 2010. If an employer breaches an employee’s contract of employment in a way that involves discrimination or victimisation, as defined in the Act, then the employee could bring a claim for discrimination or victimisation under section 120 of the Equality Act 2010. Section 120 gives the Employment Tribunal jurisdiction to determine a complaint by an employee that they have been discriminated against, victimised or harassed by their employer or by one of their employer’s other employees. The only other jurisdiction the Employment Tribunal has in respect of breach of contract concerns claims under section 127 in respect of equal pay between men and women, which is not relevant in this case. Beyond that, contrary to what Mr Echendu seems to be suggesting, there is no broader entitlement to bring claims of breach of contract under the Equality Act that involve no discrimination or victimisation or harassment.[19]The Equality Act sets out the time limits for bringing claims under section 120 at section 123 which says that proceedings on a complaint within section 120 may not be brought after the end of the period of three 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.[20]The other statutory provision that is relevant to claims of breach of contract is the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The Order enables former employees to bring proceedings before an Employment Tribunal for the recovery of damages for breach of a contract of employment or for recovery of a sum due under a contract of employment. However, certain types of claim are excluded from the Tribunal’s jurisdiction. In particular, claims cannot be brought for damages in respect of personal injuries. There are certain other conditions that must be satisfied for claim to be brought under the 1994 Order. The time for such proceedings is dealt with in Article 7 of that Order. In essence there is a three month time limit for claiming. The three month period runs from the effective date of termination of the contract of employment. A claim can only be brought outside that time limit if the Tribunal is satisfied it was not reasonably practicable for the complaint to be presented within the relevant three month time limit.[21]Any subsisting causes of action that are within the scope of the provisions of the Equality Act and the 1994 Order that I have referred to above survive for the benefit of Mr Iwuchukwu’s estate under the 1934 Act. As noted above, however, The deceased’s personal representative can only bring a claim that the deceased could have brought himself in the Employment Tribunal.[22]The principle of res judicata was considered by the Supreme Court in the case of Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2014] 1 AC 160. Lord Sumption set out his analysis of the various principles making up the overarching principle of res judicata. He said that term is a portmanteau term which is used to describe a number of different legal principles with different judicial origins. They include cause of action estoppel, the doctrine of merger, issue estoppel and the rule in Henderson v Henderson. Lord Sumption explained the following principles. He added that there is a more general procedural rule against abusive proceedings which may be regarded as the policy underlying all of the above principles outlined below, with the possible exception of the doctoring of merger. 22.1. Cause of action estoppel means that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. 22.2. Where a claimant succeeds in the first action and does not challenge the outcome he may not bring a second action on the same cause of action, for example to recover further damages. That was set out in the case of Conquer v Boot [1928] 2 KB 336. That principle appeared not to be in issue here because the claim that Mr Echendu seeks to pursue is in respect of matters that did not succeed at the prior hearing. 22.3. The doctrine of merger is an element of res judicata. This doctrine treats a cause of action as extinguished once Judgment has been given on it and the claimant’s sole right as being the right on the Judgment. This is a substantive rule about the legal effect of an English Judgment which is regarded as of a higher nature and therefore as superseding the underlying cause of action. 22.4. The principle of issue estoppel means that where a cause of action is not the same in the later action as it was in the earlier one, but some issue is necessarily common to both was decided on the earlier occasion, the earlier decision is binding on the parties. It is normally essential where this issue is raised as a defence in subsequent proceedings that the issues in those proceedings are identical with those that were determined in the earlier proceedings and also that the findings of fact in the Judgment in the earlier proceedings are clear and precise. If they are not then a plea of issue estoppel will not succeed; it will not bar subsequent proceedings. It is also essential that the findings in the first proceedings were necessary for the decision in that case. 22.5. The rule in Henderson v Henderson is a rule which precludes a party from raising in subsequent proceedings matters which were not but could and should have been raised in the earlier ones.[23]Lord Sumption explained that, where res judicata or cause of action estoppel applies the bar is absolute bar to relitigating the issue. Special circumstances cannot provide an exception to the operation of the rule.[24]In relation to the principle in Henderson v Henderson, there is no strict rule that the proceedings that could have been brought in earlier proceedings are barred. However, it may be that proceedings will be determined to be an abuse of process if the subject matter of the new claim is related to the original proceedings and is one which could with reasonable diligence have been put forward at the original hearing. In the case of Henderson v Henderson where that principle was set out, Sir James Wigram the VC at the time said: ‘Where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction the court requires the parties to that litigation to bring forward the whole case and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest but which was not brought forward only because they have through negligence, inadvertence, or even accident omitted part of the case. A plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation and which the parties exercising reasonable diligence might have brought forward at the time.’[25]The terms in which that principle was set out in Henderson v Henderson might suggest that the only consideration is whether the claim now sought to be pursued could have been brought in the earlier proceedings. However, subsequent cases have made it clear that it’s not the test. It is a form of estoppel based on abuse of process and it involves the court striking a balance between a claimant’s rights to bring before the court genuine and legitimate claims and balancing that with a defendant’s right to be protected from being harassed by multiple proceedings where one should have sufficed. But the public interest underpinning the rule in Henderson v Henderson is the same as in cause of action estoppel and issue estoppel. It is that there should be finality in litigation and that a party should not be twice vexed in the same matter to avoid the oppression of subjecting a defendant unnecessarily to success of actions.[26]Lord Bingham in Johnson v Gore-Wood & Co [2002] 2 AC 1 set out what is regarded as the leading formulation of the principles to be applied when determining whether a claim should be struck out as an abuse of process under the rule in Henderson v Henderson. He said the onus is on the party alleging abuse to satisfy the court that the claim should have been raised in the earlier proceedings if it was to be raised at all. It would be wrong however to hold that because a matter could have been raised in earlier proceedings it should have been. What is required is a broad merits based judgement taking into account the public and private interests involved and the facts of the case focusing attention on the crucial question of whether in all the circumstances a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.[27]The principle in Henderson v Henderson may apply even if the parties are not the same in the two actions. The claimants may be different as may the defendants. However, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one party should be binding proceedings to which the other is a party. Application to this case[28]There are a number of categories of claim that the claimant is seeking to make in the second proceedings. I accepted Ms Mills’ submission that the complaints being made are those set out in paragraph 67 of the grounds of claim. Those are the things said to be unlawful by the claimant, although the claimant does not specify in those paragraphs which law has been breached by the respondent in doing those things. I considered that the fact that the claimant had not clarified his claim in this regard was not a barrier to me considering this matter. Complaints of race discrimination and victimisation under the Equality Act[29]It appeared to me that the claimant appeared, firstly, to have made complaints under the Equality Act of race discrimination and possibly victimisation. I say ‘possibly victimisation’ because I was mindful that the claimant may be using that word colloquially rather than in the sense understood in the Equality Act. To the extent he is referring to section 27 of the Equality Act, the matters complained about are those set out in paragraph 67.[30]I was satisfied that these matters were complaints made in the original proceedings and have been determined. That means that the cause of action that existed and that was put before the Tribunal in the previous proceedings merged with the Judgment in those proceedings. The cause of action therefore no longer exists. That being the case nothing vests in the personal representatives under section 1(1) of the 1934 Act. The doctrine of merger, which is an element of res judicata, means that this claim cannot be pursued. It did not vest in the claimant.[31]Even if that were not the case, cause of action estoppel applies in this case. The principle applies to a claim by personal representatives in the same way it would have applied to a new claim brought by the claimant. To the extent that cause of action estoppel does not apply, issue estoppel certainly would. The fact that the consequences of the alleged discrimination are now said to be different or more extensive is immaterial. The cause of action remains the same.[32]Those complaints are struck out. Complaints of disability discrimination[33]As far as complaints of disability discrimination are concerned, again the complaints are unclear. Looking at the claim form, I consider that that the complaints made are set out in paragraph 67H and possibly G of the grounds of claim. On reading the grounds of claim, it does occured to me that perhaps Mr Echendu had confused disability as a cause of treatment with disability being a consequence of treatment. Nevertheless I took the case at its highest and approached the matter on the basis that the complaint is of disability discrimination within the scope of the Equality Act.[34]Complaints of disability discrimination were not made in the original proceedings. However in so far as the complaint concerns the making of unmeritorious allegations and false information being submitted I find that such a claim is barred by the principle of issue estoppel. In the earlier proceedings the Employment Tribunal found that the factual basis of such allegations was not made out. That matter cannot be re-opened by Mr Echendu now in fresh litigation.[35]As far as the complaint about failure to comply with a duty to make reasonable adjustments is concerned, that is a different matter. Again it was not part of the original claim. It is not barred by cause of action estoppel or issue estoppel because it simply was not an issue that was litigated and such findings of fact as were made do not debar this claim.[36]However the Henderson v Henderson principle is in play. This is a claim that could have been made in the original proceedings. Those proceedings were brought after the claimant was dismissed. The claim concerns pre-dismissal conduct. No reason has been given for not including that in the original claim. No reason has been given for not applying to amend the claim to include that in the original proceedings. The suggestion made by Mr Echendu is that now that Mr Iwuchukwu has died that is something that somehow affects the claim. I do not accept that is the case. On a generous interpretation of the claim, it may be that he is saying that the full extent of Mr Iwuchukwu’s injury was not known before. However, that did not prevent Mr Iwuchukwu bringing a claim earlier. He could have brought the claim sooner. A claim being brought now is well outside the three month time limit in the Equality Act. I take into account the public and private interests involved, including the interest of the public and the parties in finality of litigation, the fact that previous proceedings were extensive and involved multiple factual considerations that overlap with the facts needed to establish to make reasonable adjustments, the fact that the claimant himself did not bring a claim at any point in the long period of time between the claim initially being made, the Judgment in that claim and his passing away. Throughout all of that time the claimant himself has not brought a claim and now the disadvantage to the respondents is even greater. The passage of time disadvantages them greatly.[37]In all the circumstances I find that Mr Echendu, in pursuing this claim, is seeking to misuse or abuse the process of the tribunal by seeking to raise before it an issue which could and ought properly, if a claim was to be pursued, have been raised before. In so far as the claim requires amendment to make such a claim, I do not allow that amendment for those reasons. In so far as the claim does not require amendment to pursue such a claim then I strike out the claim on the grounds that it is an abuse of the process to make the claim now. Breach of contract[38]I approach this matter on the basis that it may be possible to interpret the claim as originally presented as including a complaint of breach of contract given that there was a reference to common law, and it is generally accepted that it is an implied term in a contract of employment that the employer will provide a safe system of work and arguably that implied term mirrors tortious duty towards employees. It is arguable that such a claim is included in the original claim form. If not, the claimant wishes to pursue such a claim by amendment if it is not part of the original claim.[39]As noted above, the only breach of contract jurisdiction the Tribunal has is conferred by the 1994 Order. The Equality Act does not confer general breach of contract jurisdiction.[40]As far as the 1994 Order is concerned, that enables claims post-termination for damages for breach of contract of employment made by an employee. However, the fundamental issue here, and an insurmountable obstacle for Mr Echendu, is that the 1994 Order does not apply to claims for damages in relation to personal injury. The claim here concerns damaged for personal injury. The Tribunal has no jurisdiction in respect of such claims. For that reason the Tribunal has no jurisdiction and the claim is struck out.[41]In so far as the claim is not in relation to personal injury the res judicata principle applies. This was not a claim made in the original proceedings so cause of action estoppel does not apply. Issue estoppel does in so far as the allegation concerns matters that were found not to have incurred by the earlier Tribunal. In so far as the allegations are broader than those determined by the original Tribunal then issue estoppel does not apply. However, the rule in Henderson v Henderson. As with the complaint about disability discrimination the claim could have been brought sooner. It is well outside the three month time limit.[42]It is an abuse of process to make this claim now. If the claim is part of the existing claim filed by Mr Echendu without the need for amendment it is struck out for that reason. If an amendment is required to pursue that claim then for the same reasons I do not allow the amendment. Other claims[43]Finally, the claimant refers to common law negligence. In his application to amend he also refers to a breach of other statutory duties in relation to health and safety. In addition he refers in this claim form to ‘malicious/fraudulent acts.’ The Tribunal has no jurisdiction over those matters to the extent that those complaints are made in the original claim they are struck out for that reason and for the same reason no amendment is permitted to the extent an amendment is sought to allege breach of statutory duties in relation to health and safety negligence. Costs[44]The claim made by Mr Echendu had no prospect of success for the reasons set out above.[45]Rule 76(1) of the Employment Tribunals Rules of Procedure provides that a Tribunal may make a costs order, and shall consider whether to do so, where it considers that a claim had no reasonable prospect of success.[46]I considered that it was appropriate to exercise my discretion to make an award of costs. The respondent had set out the legal position clearly from the outset. Mr Echendu cannot have reasonably believed the claim had any merit.[47]Mr Echendu had not provided any information about his means for me to take into account.[48]The respondent had set out the costs incurred ahead of the hearing. I considered the costs to have been reasonably incurred except for costs in relation to preparation of the costs schedule which I disallowed.