Dr V Isorna v Frimley Health NHS Foundation Trust: 3314120/2020
JUDGMENT
The claimants’ claims are dismissed.REASONS
[1]The claim with the above case number (3314120/2020) was mostly a repetition of a claim made previously, with case number 3328125/2019. The latter claim (“the first claim”) was struck out by Employment Judge Gumbiti-Zimuto on 1 October 2020 on the basis that the claims made in the claim form were out of time so that the tribunal had no jurisdiction to consider them.[2]The claims which were the subject of the hearing of 18 February 2022 (i.e. case number 3314120/2020) were in addition about the manner in which the first claim had been responded to in the grounds of resistance to the first claim. That was the only new aspect of the claim which was the subject of the hearing of 18 February 2022, i.e. case number 3314120/2020.[3]On 24 February 2021, in a letter written on behalf of the tribunal office, this was said: “On the Tribunal’s own initiative and having considered any representations made by the parties, Employment Judge Gumbiti-Zimuto is considering striking out the claim because ... it has no reasonable prospect of success. If you wish to object to this proposal, you should give your reasons in writing or request a hearing at which you can make them by 10 March 2021.”[4]The claimant responded to that letter by sending an email to the tribunal on 2 March 2021 in the following terms: “I am writing with regard to the letter dated 24 February concerning Strike out Warning. In the interests of Justice I would like my claim to proceed. I want justice and feel that the only way I will get that is through the courts. All the lies said about me damaged my reputation and I want my reputation restored. The lies need to be exposed and it is only in court that it can be done, in order for my reputation to be restored. I want Justice.”[5]On 26 June 2021, a notice of the hearing of 18 February 2022 was sent to the parties. It started with these words: “Employment Judge Gumbiti-Zimuto has directed that there will be a Preliminary Hearing to determine the following issue: Whether the claim should be struck out on the grounds it has no reasonable prospect of success Case management orders may be made at the conclusion of the preliminary hearing.”[6]I conducted that hearing. At 23:49 on the day before the hearing, so at 23:49 on 17 February 2022, the claimant sent this email to the tribunal, copying it to the respondent’s solicitors: “Dear Sir/Madam, With regards to hearing tomorrow 2pm I am unable to attend hearing tomorrow as tested positive for COVID. Please see attached written representation and list of management orders Thankyou for your attention in this matter Kind Regards Veronica Isorna”[7]The claimant did not attend the hearing of 18 February 2022. In the circumstances, rule 47 of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”) applied. That provides: “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.”[8]It appeared clear to me from the claimant’s email sent at 23:49 on 17 February 2022 that the claimant was not asking for the hearing of 18 February 2022 to be postponed to a later date, and in any event it appeared to me to be very much in the interests of justice for me to dismiss the claim. That was for the following reasons.[9]In so far as this claim was a repeat of the first claim, it was an abuse of process to press this claim. That was because of the doctrine of res judicata: the matter had already been determined finally by a decision of the tribunal.[10]In so far as this claim concerned the content of the grounds of resistance to the first claim, this claim was covered by judicial proceedings immunity. That was the clear effect of the decision of Underhill P in Parmar v East Leicester Medical Practice [2011] IRLR 641, which so far as relevant was confirmed by HHJ Auerbach in paragraph 107 of his judgment in Aston v The Martlet Group Ltd [2019] ICR 1417.[11]In the circumstances, the claimant having been given a reasonable opportunity to make representations in response to the proposal to strike out the claim, I could have struck it out under rule 37 of the 2013 Rules.[12]In all of the above circumstances, I decided that the claim should be dismissed.[1]Unfortunately, when the judgment dismissing the claimant’s claims under rule 47 of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”) was, on 3 March 2022, originally sent to the parties, it was sent to an incorrect email address for the claimant. I refer below to that judgment as “the original decision”.[2]The claimant then sent an email to the tribunal (only) on 21 May 2022 the body of which was in these terms (only): “Please could I have an update with regard to my case”. On 23 May 2022 a (named) member of the tribunal’s staff responded in these terms: “Good Afternoon, The case has been closed and Judgement was sent to the parties on 3rd March 2022.”[3]On the same day, but later, the claimant wrote in reply (to the tribunal only): “Dear Sir/Madam I was not sent any judgment. Please forward judgment and the options I know I have”.[4]On 8 August 2022 the claimant then wrote to the tribunal (only) in these terms: “Dear Sirs Please could I have an update on the review I requested in June. I was only told case closed in May after requested update and was not sent a judgement. I don’t know on what information the decision was made, I sent two documents to ETT one week before the hearing in February and another slightly different document one day before, as I was not able to attend hearing on 18th February 2022. I cannot see a reason why claim was struck out and I want it reinstated.”[5]On 13 October 2022, at 06:37, the claimant wrote again (also to the tribunal only): “Hi Please could I have an update with regards to the review I requested. I want the claim re-instated.”[6]At 3:56pm on the same day, the claimant sent an email in these terms to the tribunal (only): “Dear Sirs I requested a reconsideration in May and have received no contact from the employment tribunal. I was only told the case was closed after I requested an update and I was not sent a judgement. I don’t know on what information the decision was made as I was not present at the hearing. I attach document sent 17th February to employment tribunal. I cannot see a reason why claim was struck out and I want it reinstated. Please confirm receipt of email. Please send me a copy of judgement”.[7]The document enclosed with that email had the file name “Response to strike out application 17 Feb 2022.pdf”.[8]The claimant was then on 27 October 2022 sent the original decision via her actual email address. That email was copied to the respondent’s solicitor.[9]I can only (on behalf of His Majesty’s Courts and Tribunals Service) apologise to the claimant for the failure to send the original decision to her on 3 March 2022 and for the failure, before 27 October 2022, to remedy that error.[10]On 29 October 2022 the claimant sent an email to the tribunal and the respondent’s solicitor in the following terms: “Dear Sirs I have copied all parties into this email. As I said in previous email 13 October I want a re-consideration and I want the case re-instated. I attach document I sent to ETT on 17 May. Kind Regards Veronica Isorna”.[11]The document enclosed with that email that the claimant said she had sent on 17 May 2022 had the file name “Response to strike out application 17 Feb 2022.pdf”. That document was before me when, in the original decision, I dismissed the claim under rule 47 of the 2013 Rules.[12]What I did not say in the original decision was that the parties were informed on 1 February 2022 that the hearing of 18 February 2022 would be held by video and not in person. Thus, it would in all probability have been open to the claimant to apply for the hearing to be postponed, in the sense that she could in all probability in practice have joined the hearing by video and made that application. However, she did not do so but in any event, as I said in paragraph 8 of my reasons for the original decision, it appeared to me that the claimant was content to rely on written representations. Those written representations were in the document of which the claimant sent a further copy to the tribunal on 29 October 2022 as the basis for her application for a reconsideration of the original decision.[13]In those circumstances I could not see any justification for the revisiting of the original decision. I could not see any basis for concluding that it was in the interests of justice within the meaning of rule 70 of the 2013 Rules to reconsider that decision. In any event, in my view, paragraphs 9-11 of my reasons for that decision were still entirely apt. Accordingly I have concluded that the claimant’s application for reconsideration has no reasonable prospect of success because (using the words of rule 72 of the 2013 Rules) “there is no reasonable prospect of the original decision being varied or revoked”.