Dr A Ahari v The University of Glasgow and others: 4104541/2018 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104541/2018Venue GlasgowHearing 4th and 5th February 2019
Between
Dr A AhariClaimantThe University of Glasgow and othersRespondent
Before
Employment Judge M WhitcombeDate 13 April 2019
JUDGMENT
The judgment of the Tribunal is as follows.(1) The claims identified in Schedule A to this judgment are struck out under rule 37(1)(a) of the ET Rules of Procedure because they have no reasonable prospect of success, either: (a) because they are res 25 judicata; or (b) because they are allegations that an individual aided discriminatory acts which are themselves res judicata.(2) The claims identified in Schedule B to this judgment are time-barred because they were presented outside the periods specified in section 30 123 of the Equality Act 2010 or section 48(3) of the Employment Rights Act 1996. They are therefore dismissed because the Tribunal has no jurisdiction to hear them.
REASONS
Introduction and background Case No.: 4104541/2018 & 16 others Page 2 Claims currently proceeding in Scotland[1]Dr Ahari is the claimant in 17 claims currently proceeding in Scotland against various respondents. Those respondents include a number of NHS bodies, the University of Glasgow, the British Medical Association, three individual 5 doctors and a professor associated with those bodies. Several of the respondents face more than one recently issued claim.[2]Most of the claims are for direct race discrimination and/or victimisation contrary to the provisions of sections 13 and 27 of the Equality Act 2010, 10 although Dr Ahari sometimes refers to predecessor legislation. The claim numbers are 4104541/2018, 4122620/2018, 4123363/2018, 4122634/2018, 4123337/2018, 4104542/2018, 4122619/2018, 4123364/2018, 15 4123520/2018, 4104544/2018, 4122580/2018, 4123074/2018, 4122635/2018, 4123034/2018, 4104543/2018, 4122656/2018 and 4122779/2018.[3]Some claims also allege that Dr Ahari has been subjected to a detriment as 20 a consequence of having made a protected disclosure. Claim numbers 4123337/2018 against the University of Glasgow, 4123363/2018 against National Waiting Times Centre Board and 4123364/2018 against NHS Education for Scotland fall into that category.[4]In very broad terms, the allegations made in the claims currently under consideration span the period from 2001 until late 2018. Other recent claims[5]Additionally, claim number 4122526/2018 was commenced in Scotland but has now been dismissed on withdrawal because Dr Ahari accepted that he was unable to give a valid address for service of the claim form (ET1) on the respondent Dr Nicholas Bruce Scott, who has apparently retired and whose Case No.: 4104541/2018 & 16 others Page 3 whereabouts are currently unknown.[6]Additionally, Dr Ahari attempted to commence some other claims in Scotland against NHS Trusts in England. Those claims were rejected on the basis of territorial jurisdiction. I understand that some or all of them may now be 5 proceeding in Employment Tribunals in England. Previous claims[7]In order to understand the essential background to this preliminary hearing it 10 is important to understand something of Dr Ahari’s previous litigation in Employment Tribunals in Scotland. For the purposes of this preliminary hearing the respondent relies on up to 8 previous claims. None of those claims were successful. Although Dr Ahari sought to challenge some of the judgments by way of review, reconsideration and/or appeal, none of those 15 challenges were successful and the first instance decisions stand. The relevant decisions can be summarised as follows.a. “Prior claim 1”. Claim number S/102470/2001, submitted on 11th May 2001 against the University of Glasgow and HCI (Scotland) Ltd. The 20 latter body is the predecessor of the National Waiting Times Centre Board. Unanimously dismissed by Chairman Ms F Eccles (now EJ Eccles) and members Mr Love and Mr Meechan in a judgment sent to the parties on 27th January 2005.b. “Prior claim 2”. Claim number S/100890/03, submitted on 3rd March 2003 against the University of Glasgow and Ayrshire and Arran Acute Hospitals NHS Trust. Struck out by Chairman Ms L Crone (now EJ Wiseman) as having no reasonable prospect of success in a judgment sent to the parties on 7th November 2005.c. “Prior claim 3”. Conjoined claim numbers S/1078750/04 and S/100601/05, submitted against the University of Glasgow on 20th December 2004 and HCI (Scotland) and Golden Jubilee National Case No.: 4104541/2018 & 16 others Page 4 Hospital on 7th February 2005, struck out as having no reasonable prospect of success by Chairman Mr S Patrick in a judgment sent to the parties on 25th January 2006.d. “Prior claim 4”. Claim number S/113819/06, submitted on 12th July 5 2006 against the University of Glasgow and The National Waiting Time Centre Health Board also known as the Golden Jubilee National Hospital. Claim dismissed by Chairman Mr H Murphy in a judgment sent to the parties on 30th October 2007.e. “Prior claim 5”. Claim number 2203606/2006 submitted on 23rd August 2006 against the University of Glasgow, The General Medical Council and three individual respondents. The outcome of the case is not clear although I have been informed that it did not succeed against any respondent. I have seen a letter confirming the withdrawal of the claim 15 against two of the individual respondents and the University of Glasgow, but I have not seen a judgment dismissing those claims. I have not seen a judgment dealing with the remaining claims. No doubt for those reasons, Mr Hardman did not ultimately rely on “Prior claim 5” in support of his submissions.f. “Prior claim 6”. Claim numbers S/106644/03, S/106655/03, S/101344/06 and S/113923/06 all brought against the British Medical Association. Struck out by Chairman Ms F J Garvie (now EJ Garvie) and members Mr Headon-Smith and Mr Hunter in a judgment sent to 25 the parties on 14th August 2007. The hearing ran for 7 days before culminating in an order striking out Dr Ahari’s claims for breach of a Tribunal order.g. “Prior claim 7”. Claim number S/117813/07 against the British Medical 30 Association. Dismissed by EJ Garvie as time-barred in a judgment sent to the parties on 20th April 2009. Case No.: 4104541/2018 & 16 others Page 5h. “Prior claim 8”. Claim number 4112921/2015 against the British Medical Association. Withdrawn by the claimant on or about 23rd December 2015 and dismissed on withdrawal by EJ Eccles in a judgment sent to the parties on 23rd December 2015. Purpose of this preliminary hearing[8]This preliminary hearing has been arranged in order to consider two common issues arising in the above claims:a. Res judicata;b. Jurisdictional time limits.[9]I would normally prefer to use plain English rather than legal Latin but there really is no convenient plain English substitute for the phrase res judicata. 15 This is not a case in which the use of that phrase caused any disadvantage to the parties, who frequently used it themselves. I set out below the collection of legal principles arising. Unfortunately, the cases explaining the concept and its principles import several additional Latin maxims. I will attempt to put all of them into plain English. Representation[10]For the purposes of this preliminary hearing the respondents instructed a single advocate (Mr Hardman) and a single solicitor coordinated matters on 25 behalf of all respondents (Mr Watson of NHS Central Legal Office). Dr Ahari represented himself. Materials[11]The claimant’s bundle of documents for this preliminary hearing ran to 682 pages. The respondents’ bundle filled two bound volumes totalling 1106 pages. Those bundles included a chronology. Although the description of Case No.: 4104541/2018 & 16 others Page 6 events in that chronology was not agreed in every respect, it nevertheless serves as an accurate record of the current litigation and the relevant prior litigation.[12]For the purposes of this hearing the respondents also provided a helpful list 5 and bundle of authorities. Submissions[13]Directions were given for the preparation of sequential written submissions in 10 advance of this hearing. Sequential exchange was a measure intended to assist Dr Ahari as a litigant in person. I wanted Dr Ahari to see the way in which the respondents developed their arguments before setting out his own. Both sides supplied written submissions dealing separately with res judicata arguments and with time points. They were bound into a single file which also 15 included a chronology.[14]Dr Ahari complained about the respondents’ alleged failure until shortly before the start of this hearing to comply fully with the relevant direction. I was satisfied that no prejudice resulted to Dr Ahari regardless and he conceded 20 that he was ready and able to begin the hearing. I arranged for the Tribunal clerk to help Dr Ahari by printing out a revised version of the written submissions he had already sent to the Tribunal. By the time the hearing started, I was in possession of all of the written submissions on which Dr Ahari intended to rely.[15]Both sides also made oral submissions. Largely, Mr Hardman was content to introduce and then to rely upon his written submissions.[16]During the afternoon of the second day of the hearing, at a point when Dr 30 Ahari would have been about 60-90 minutes away from finishing his oral submissions according to his own estimate, he told me that he was too tired to continue and that he required an adjournment and at least a month’s rest before the hearing could continue. I asked for an explanation of the problem Case No.: 4104541/2018 & 16 others Page 7 since it had not been raised at any previous point during the hearing and I wanted to investigate whether other less drastic measures could ensure that a fair hearing was completed on this occasion. Dr Ahari referred to a number of different physical health problems which caused pain and disturbance of his sleep such that he was tired and unable to concentrate. He said that a 5 mid-afternoon break in the hearing would be insufficient to address the problems of fatigue and impaired concentration.[17]After some discussion I granted the adjournment but directed that Dr Ahari should complete his submissions on jurisdictional time points in writing within 10 the following 10 days. By that stage he had already completed his oral submissions on the res judicata points and had begun his submissions on time points. I was satisfied that no unfairness resulted from that approach, which avoided the considerable additional cost and delay of a further hearing in order to complete 60-90 minutes of oral submissions. Both sides agreed to 15 that approach. Further details appear in the order itself.[18]Dr Ahari did not send in any additional written submissions in accordance with that direction. On the final day of the 10 day period allowed for them he applied for a further extension of time, essentially because of back and neck 20 pain. The application was not supported by medical evidence, still less medical evidence explaining why those issues had made it impossible to prepare suitable written submissions within the 10 day period allowed. I refused the application for reasons given in writing on 15th February 2019. As I indicated in those reasons, Dr Ahari had been given a generous and agreed 25 period in which to submit yet further written submissions, which would have been his fourth set of written submissions for this preliminary hearing. Since no further written submissions were received from Dr Ahari before the deadline later that day I proceeded on the basis of my note of his oral submissions at the hearing and the three sets of written submissions lodged 30 by him at, or prior to, that hearing.[19]Much more recently, I have become aware of the judgment of EJ Richardson sitting in Birmingham on 15th February 2019 in case number 1301512/2018, Case No.: 4104541/2018 & 16 others Page 8 Dr A Ahari v University Hospitals Birmingham NHS Foundation Trust. It would appear from that judgment that Dr Ahari was appearing in other litigation in Birmingham on the day he sought an extension of time in these proceedings on grounds of ill health. That fact, if correct, played no part in my decision because I was not aware of it at the time. (A) Res Judicata
Legal Principles
[20]There was agreement between the parties regarding the applicable legal principles. Dr Ahari said that he accepted that the principles outlined by Mr Hardman in his submissions on behalf of the respondents were those which must be applied.[21]Since this case has something of a cross-border element, involving some firms of solicitors and respondents based in England, I should emphasise that I have been concerned with res judicata principles as they apply in Scotland. The res judicata doctrine in England and Wales is very similar, but not precisely the same. The closely associated concepts of issue estoppel and 20 the rule in Henderson v Henderson (1843) 3 Hare 100 applicable in England and Wales do not apply in Scotland, although that is to some extent balanced by the breadth and flexibility res judicata doctrine as understood in Scotland.[22]The policy behind the doctrine is a concern for finality in litigation between the 25 same parties, the need to avoid a multiplicity of identical proceedings and a desire to prevent abuse of the legal processes which guarantee access to justice. The Latin phrase “res judicata” simply means “a matter [already] judged”. In Virgin Atlantic Airways Ltd v Zodiac Seats UK Limited [2013] UKSC 46, an appeal to the Supreme Court emanating from the territorial 30 jurisdiction of England and Wales, Lord Sumption described it as “a portmanteau term which is used to describe a number of different legal principles with different juridical origins” (paragraph 17). Case No.: 4104541/2018 & 16 others Page 9[23]As far as Scottish principles are concerned, the key principles are as follows.a. The doctrine is rooted in the public policy against repeated litigation between the same parties “on substantially the same basis”. The court 5 should not concentrate on the specific terms of the conclusions or the pleas in law, but should instead look to “the essence and reality of the matter”, simply enquiring “what was litigated and what was decided” (Durkin v HSBC Bank [2016] CSIH 93 and Grahame v Secretary of State for Scotland [1951] SC 368).b. Simply putting forward new facts to support a claim previously refused will not prevent res judicata principles from applying (Phosphate Sewage Co Ltd v Molleson (Res Judicata) (1879) 4 App. Cas. 801).c. The applicability of the doctrine depends on: i. a prior determination by a court of competent jurisdiction; ii. pronounced in a contested action where the parties were fully heard on the merits (“in foro contentioso”); iii. the subject matter and the chain of reasoning (“media concludendi”) being both the same; and that iv. (save for “decrees in rem” which have no application in the present case) the parties are the same, or representative of the same parties, with the same interest (Primary Health Care 25 Centres (Broadford) Ltd v Ravangave [2009] CSOH 46, Lord Hodge and Durkin v HSBC Bank [2016] CSIH 93, paragraph 11, McPhee v Heatherwick [1997] SLT (Sh Ct) 46 approved by Lord Macfadyen in Irving v Hiddleston [1998] SC 759 at 770 F-H).d. The modern tendency is to focus on the essence of the matter rather than technical form (Durkin v HSBC Bank [2016] CSIH 93, paragraph 11). The court must look at the essential substance of the two claims Case No.: 4104541/2018 & 16 others Page 10 Holmes v Greater Glasgow Health Board (UKEATS/0045/11/BI, 8th March 2012, Lady Smith).[24]The English and Welsh “rule in Henderson v Henderson (1843) 3 Hare 100” is that a party should not be able to raise in subsequent litigation points which 5 could and should have been raised in earlier litigation between the parties. It has the same underlying public interest as the doctrine of res judicata. It applies to points not raised through negligence, inadvertence or even accident. It applies to every point properly belonging to the subject of the litigation, which the parties, exercising reasonable diligence, might have 10 brought forward at the time.[25]The view of the authors of Harvey, which I adopt, is that while the Scottish doctrine of res judicata does not directly embrace the rule in Henderson v Henderson the position is nevertheless broadly similar to that in England and 15 Wales (Harvey on Industrial Relations and Employment Law, Division PI, paragraph [1037]).[26]Further, in British Airways plc v Boyce [2001] IRLR 157, the Court of Session held that in practice the restriction on claimants litigating claims 20 which should have been brought in earlier proceedings should be similar in both jurisdictions. In that case a race discrimination case based on “national origins” was held to be subject to the res judicata doctrine when the same claimant had previously brought an unsuccessful claim against the same respondent based on “ethnic origins”. Once again, the Inner House of the 25 Court of Session held that the proper approach was encapsulated by the question “what was litigated and what was decided”, as identified in Grahame v Secretary of State for Scotland [1951] SC 368. In the Employment Tribunal system, what was litigated should in general be taken as “covering everything in the legislation, both in its legal and factual aspects, which is 30 pertinent to the act or acts of the employer made the subject of complaint” (paragraph 8). In the absence of special circumstances all legal arguments relevant to a complaint of race discrimination should therefore be raised in a Case No.: 4104541/2018 & 16 others Page 11 single application to an employment tribunal.[27]In my judgment the effect of the Court of Session’s judgment in British Airways plc v Boyce [2001] IRLR 157 is that in many and perhaps most situations the result in Scotland will be the same or very similar to that in 5 England and Wales, including in cases where the rule in Henderson v Henderson might have been relied upon if the litigation had been in England and Wales. The Court of Session in British Airways v Boyce considered their own approach to be consistent with that taken by the Court of Appeal in Divine-Bortey v London Borough of Brent [1998] IRLR 525, which was 10 itself concerned with the rule in Henderson v Henderson. Application to the current claims Case No.: 4104541/2018 (against the University of Glasgow)[28]The respondents argue that paragraphs 9-36 were decided in prior claim 1, that paragraphs 37-45 were dealt within in prior claim 2, that paragraphs 46-49 were dealt within in prior claim 3 and that paragraphs 50-51 were dealt within in prior claim 4.[29]Any attempt to summarise a claim described over 15 single-spaced sides of A4 and supplemented by a further 9 pages of “further details” risks inaccuracy. I will attempt to confine myself to the passages central to the respondents’ submissions.[30]What follows is intended to be a very brief summary of paragraphs 9-36. The allegations arise from a period during which Dr Ahari was working in a joint clinical research fellowship in cardiac anaesthesia. That clinical research fellowship was jointly held by the University and HCI Clydebank Ltd. Dr Ahari 30 alleges that his decision to cease doing locum work for HCI led to him being bullied, harassed and discriminated against, being called names in front of patients, relatives and staff. In particular, he alleges that on 27 October 2000 he was called “Sheik” and “Sultan of Iran”. Dr Ahari complained to Professor Case No.: 4104541/2018 & 16 others Page 12 Kenny and to the University. On 19 January 2001 Professor Kenny made allegations to Professor Farthing that Dr Ahari had not attended a list and that the list had been cancelled. Dr Ahari alleges that in a subsequent meeting Professor Kenny had suggested that the allegations against Dr Ahari would be closed if he withdrew his complaint of harassment against HCI. On 21 5 February 2001 Dr Ahari alleges that his employment was terminated on the basis of Professor Kenny’s allegations. An investigation into the harassment complaint was commenced on 22 February 2001. Dr Ahari alleges that various individuals conspired against him in order to construct a case and a referral to the GMC.[31]I now turn to “Prior Claim 1”. Having read the judgment of the Employment Tribunal chaired by Ms F Eccles dismissing the claims, together with the relevant ET1 submitted to the tribunal on 11 May 2001, I am satisfied that in many (but not all) respects substantially the same matters were litigated in 15 those claims and were the subject of that judgment. The judgment dismissing the claims followed a hearing by a tribunal of competent jurisdiction of the merits of the claims. While the dismissal of the claims took place part-way through the final hearing after 4 days of evidence, it resulted from Dr Ahari’s failure to attend following an unsuccessful application for a postponement on 20 medical grounds. It is no less a final determination of the claims at a hearing of the merits giving rise to res judicata principles.[32]The judgment was a final judgment reached well within with the ET’s powers at a hearing listed to consider the merits. That was confirmed by the EAT 25 (HHJ McMullen QC and members) on 31st August 2005 when dismissing Dr Ahari’s appeal against the dismissal of his claims.[33]I find that the respondents’ submission is well-founded in relation to paragraphs 9 to 27. While Dr Ahari emphasised that he had acquired “new 30 knowledge” of these matters since the original hearing (which he sought to contrast with new information in a way that I found unconvincing), that has no bearing on the applicability of res judicata principles. I refer back to the summary of the applicable legal principles set out earlier in these reasons. Case No.: 4104541/2018 & 16 others Page 13[34]In relation to paragraph 28, Dr Ahari explained that it is not intended to make an allegation of unlawful treatment. In relation to paragraph 29, Dr Ahari said in oral submissions that it was an allegation of victimisation. If so, then I cannot see that it formed part of Claim 1, or that it is so closely connected as 5 to fall within British Airways plc v Boyce [2001] IRLR 157 principles. It is not res judicata. I make the same finding in relation to paragraphs 30 and 31 for the same reasons. Dr Ahari explained that paragraph 32 was intended to be background rather than an allegation of discrimination. If so, then it cannot be res judicata. Paragraphs 33 to 36 post-date the ET1 in Prior Claim 1 and 10 were not part of it. The allegations in those paragraphs are not res judicata.[35]Paragraphs 37-45 concern Dr Ahari’s allegation that Dr Wilson, allegedly an employee of the University, refused various opportunities for employment because of Dr Ahari’s previous complaints and tribunal claims of race 15 discrimination. Dr Ahari believes that Dr Wilson has played a key role in preventing Dr Ahari from recommencing his career over the last 15 years. Further, he alleges that Professor Kenny and Dr Scott made false allegations which caused the termination of his employment. Dr Ahari alleges that Professor Farthing, Ms McLachlan, Professor Cochran and Dr Wilson 20 conspired and interfered with the administration of justice in employment tribunal claims. These allegations of discrimination span the approximate period December 2002 until March 2003.[36]Turning to “Prior Claim 2”, I have read the judgment of the Employment 25 Tribunal comprised of Chairman Ms Crone (sitting alone) striking out all of the claims as having no reasonable prospect of success. I have read it in conjunction with the relevant ET1 setting out the claims considered by Ms Crone and the ET3 setting out the respondent’s response. It is clear that the matters considered by Ms Crone, and dismissed by her in their entirety, are 30 substantially the same as those now raised by paragraphs 37-42. Dr Ahari emphasised differences of detail but I am satisfied that they are in essence the same claims. Case No.: 4104541/2018 & 16 others Page 14[37]Once again, the fact that Dr Ahari claims now to be in possession of new and revealing information about these claims has no bearing on the applicability of res judicata principles.[38]I reach a different conclusion in relation to paragraphs 43-45. I do not know 5 whether in those paragraphs Dr Ahari intends to refer to Ms Crone’s hearing or to others, but certainly I cannot see any aspect of Ms Crone’s judgment which deals with allegations of conspiracy or interference with justice in 2003. Those paragraphs are not subject to res judicata principles.[39]As for paragraphs 46 to 49, Dr Ahari conceded that paragraphs 46, 47 and 48 were covered by the res judicata doctrine. While paragraph 46 seems to me to be background narrative without any specific allegation of unlawful treatment, I agree that paragraphs 47 and 48 were clearly determined by Chairman Mr Patrick in “Prior Claim 3”. That judgment struck out the claims 15 against all respondents as having no reasonable prospect of success. The claims concern alleged delays by the University in providing a form for the purposes of GMC registration during 2004. Paragraphs 56 and 57 of Mr Patrick’s judgment contain the key passages for present purposes.[40]While Dr Ahari did not make the same concession in relation to paragraph 49, I do not see that it actually contains any specific allegation of discrimination or victimisation. Dr Ahari conceded in submissions that it was “just background”. If it is limited in that manner then it is not res judicata since no claim of any sort is contained within that paragraph. 25[41]Finally, paragraphs 50 and 51, which related to Dr Scott’s statement in 2006 to a GMC Fitness to Practise Panel hearing. It is alleged that the statement contained inaccurate or false allegations and amounted to victimisation or direct race discrimination. I am satisfied that substantially the same 30 allegations were dismissed by the judgment of Chairman Mr Murphy following a hearing on 15th and 16th October 2007. In so far as these allegations concern the university, they are res judicata. Case No.: 4104541/2018 & 16 others Page 15 Case No.: 4122634/2018 (against the University of Glasgow)[42]The respondent seeks to strike out paragraphs 35-49 of the ET1 as having been dealt with in Prior Claim 1.[43]Dr Ahari concedes as much in relation to paragraph 35. I find that it is subject to res judicata principles.[44]In relation to paragraph 36, Dr Gilbe was not an employee of the University. I also note that the resulting harassment is only alleged against HCI and not 10 against the University. Dr Ahari alleges that Dr Gilbe was an employee of the Royal Brompton Hospital and not the University. While those matters clearly raise a serious question as to how the University could ever be vicariously liable for anything that Dr Gilbe did, that is not a matter for resolution at this hearing. While I cannot see that Prior Claim 1 was directly concerned with 15 allegations about Dr Gilbe, if it is now alleged that the actions of Dr Gilbe in 2000 in some way gave rise to liability on the part of the University then those allegations could and should have been part of Prior Claim 1. Harassment while Dr Ahari was employed by the University in 2000 was the essence of Claim 1, and the principles in British Airways plc v Boyce [2001] IRLR 157 20 therefore apply. The wider principles of res judicata considered in that case mean that Dr Ahari cannot now bring a claim in relation to Dr Gilbe’s actions, even if they were not a clear and distinct allegation in Prior Claim 1. All of the factual matters pertinent to the complaint of harassment by the University during that period are covered by the wider res judicata principles.[45]On its face, paragraph 37 does not raise an allegation of discrimination or victimisation at all. In oral submissions Dr Ahari maintained that it was an allegation of race discrimination. If that is accepted as informal clarification, then I cannot see that any allegation of race discrimination by Fiona 30 McLachlan in around 14th June 2000 was part of Prior Claim 1. It is not subject to res judicata principles.[46]Paragraph 38 does not contain any additional allegation of discrimination, Case No.: 4104541/2018 & 16 others Page 16 rather it describes the way in which Dr Ahari became aware of allegedly false allegations. Dr Ahari said that this was part of a claim now proceeding in the West Midlands ET. I cannot detect any allegation of discrimination against the University. It follows that there is nothing which might be subject to res judicata principles.[47]In relation to paragraphs 39 to 43 and 49 Dr Ahari says that he does not intend allege any discrimination against the current respondents in those paragraphs. Limited in that manner, no issue of res judicata arises in respect of those paragraphs. 10[48]Dr Ahari disputes that the allegation in paragraph 44 was determined by Prior Claim 1. It concerns a failure by Professor Farthing to meet with Dr Ahari following a request dated 14th March 2001 to discuss allegedly false allegations made by Professor Kenny. I think that Dr Ahari is strictly correct, 15 but I find that the wider application of res judicata principles considered in British Airways plc v Boyce [2001] IRLR 157 covers the point. The claim form was not lodged until 11th May 2001 and so the response to the request dated 14th March 2001 could and should have been part of the claim regarding false allegations considered in Prior Claim 1. See for example the 20 penultimate paragraph of the narrative section of the ET1 in Prior Claim 1 which deals with Dr Ahari’s attempts to challenge the termination of his contract. The link between the termination of his contract and Professor Kenny’s allegations is made clear by paragraph 43 of the narrative section of the current claim form. It seems to me that any other attempts to address the 25 allegedly false allegations, such as the request to meet with Professor Farthing, were so closely associated with the same theme that res judicata principles now apply.[49]Paragraph 45 does not contain an allegation of unlawful treatment, rather it 30 identifies a protected act.[50]Paragraph 46 concerns an alleged act of victimisation by Professor Kenny by refusing in a letter dated 16th July 2001 to provide Dr Ahari with a reference. Case No.: 4104541/2018 & 16 others Page 17 Dr Ahari is quite correct that it was not determined in Prior Claim 1. The allegation post-dates the ET1 which, as far as I am aware, was never amended to include subsequent allegations. The res judicata doctrine therefore has no application.[51]Paragraph 47 is alleged to be a further act of victimisation occurring in 2001 after the termination of Dr Ahari’s employment with the University. It concerns the building of a case for a reference to the GMC. I cannot see that it formed part of Claim 1 as the respondent alleges, nor that it is so closely connected as to fall within British Airways plc v Boyce [2001] IRLR 157 principles. It 10 is not res judicata.[52]I make the same finding in relation to paragraph 48, which appears to relate to paragraph 47.[53]Dr Ahari conceded that paragraph 49 does not contain an allegation of discrimination. It is part of the factual narrative associated with the preceding two paragraphs.[54]Next, the respondent contends that paragraphs 57-63 were resolved by Prior 20 Claim 2. Dr Ahari accepted that all of those paragraphs were subject to res judicata principles save for paragraph 57 which he says contains no allegation of discrimination. I agree, and adopt the concession on res judicata as one of my findings.[55]Next, the respondent argues that paragraph 68 is res judicata having regard to the judgment in Prior Claim 3. Dr Ahari concedes that res judicata principles apply, and I therefore make the same finding.[56]The respondent argues that paragraphs 64-67 and 72-73 are res judicata 30 having regard to the judgment in Prior Claim 4. Dr Ahari says that paragraph 64 is just background information rather than an allegation of unlawful treatment. Given that limitation there is no scope for the application of res judicata principles. In relation to paragraphs 65 to 67 Mr Hardman conceded on reflection that res judicata did not apply. Case No.: 4104541/2018 & 16 others Page 18[57]In relation to paragraphs 72 and 73. Dr Ahari’s point is that these paragraphs make allegations about Professor Kenny and Dr Lal whereas Claim 3 was a judgment in relation to the actions of Dr Scott. Mr Hardman’s response is that the allegation still falls within the wider res judicata principle. I agree. If Dr 5 Ahari wished to bring additional claims against the University based on the very same witness statement, allegedly now co-authored by others, then this should have formed part of prior claim 4. The allegations in paragraphs 72 and 73 are res judicata in accordance with British Airways plc v Boyce [2001] IRLR 157. Claim no.: 4104541/2018 (against the National Waiting Times Centre Board)[58]The respondent alleges that paragraphs 9-36 are res judicata having regard to Prior Claim 1, paragraphs 37 to 45 are res judicata having regard to Prior 15 Claim 2, paragraphs 46 to 49 are res judicata having regard to Prior Claim 3 and paragraphs 50 to 51 are res judicata having regard to Prior Claim 4.[59]When addressing this aspect of the case on the second day of the preliminary hearing Dr Ahari wanted to discuss the broad history of the litigation. He 20 wanted me to look at evidence. Eventually, I persuaded him to engage with the substance of the respondent’s argument. Once he did, he made a great many concessions.[60]Dr Ahari conceded that paragraphs 9 to 27 were res judicata. He clarified that 25 paragraph 28 is not intended to make an allegation of unlawful treatment.[61]In relation to paragraphs 29 to 36 I find as follows.a. Paragraph 29 does not make any allegation of unlawful treatment, 30 although in oral submissions Dr Ahari said that it was an allegation of victimisation. I cannot see that it formed part of Claim 1 as the respondent alleges, nor that it is so closely connected as to fall within British Airways plc v Boyce [2001] IRLR 157 principles. It is not res Case No.: 4104541/2018 & 16 others Page 19 judicata.b. Paragraphs 30 and 31 allege discriminatory treatment in the building of a case against Dr Ahari with a view to making a reference to the GMC. Those allegations were not part of Prior Claim 1 as the respondent alleges, nor so closely connected as to fall within British 5 Airways plc v Boyce [2001] IRLR 157 principles. They are not res judicata.c. Paragraph 32 is said by Dr Ahari to be background rather than a distinct allegation of discrimination. As such, it is not res judicata.d. Paragraph 33 concerns Professor Kenny’s refusal to give a reference. 10 As outlined above, this allegation was not determined in Prior Claim 1. The allegation post-dates the ET1 which, as far as I am aware, was never amended to include subsequent allegations. The res judicata doctrine has no application.e. Paragraphs 34 to 36 contain allegations which were not part of Prior 15 Claim 1. Whether any claim can properly be brought in respect of evidence given on oath in legal proceedings is not a point for resolution at this hearing. For the purposes of this hearing, these allegations are not res judicata.[62]In relation to paragraphs 37 to 45 and Prior Claim 2, the National Waiting Times Centre Board were not a party to Prior Claim 2. No res judicata issues arise in those circumstances since the parties in the current litigation and the relevant prior litigation were not the same.[63]In relation to paragraphs 46 to 49 and Prior Claim 3, Dr Ahari conceded that paragraphs 47 and 48 were res judicata. He also explained that paragraphs 46 and 49 were only intended to be background rather than distinct allegations.[64]In relation to paragraphs 50 and 51, and Prior Claim 4, Dr Ahari conceded that they were res judicata. Claim No.: 4122620/2018 (against National Waiting Times Centre Board) Case No.: 4104541/2018 & 16 others Page 20[65]The respondent seeks an order striking out paragraphs 14, 15 and 28-33 as having been dealt with in Prior Claim 1, paragraphs 17-26 as having been dealt with in Prior Claim 4 (a correction of the written submissions, which referred to a different prior claim) and paragraph 27 as having been dealt with 5 in Prior Claim 3.[66]In relation to paragraphs 14, 15, 28-33 and Prior Claim 1, Dr Ahari conceded that paragraphs 14 and 15 were res judicata and clarified that he does not intend to raise any allegations of unlawful treatment in paragraphs 28-33.[67]In relation to paragraphs 17-26 and Prior Claim 4, I find as follows.a. The only allegation of unlawful treatment in paragraphs 17 and 18 is that Dr Scott and Professor Kenny had made false allegations about 15 Dr Ahari to Dr Frame in between the termination of Dr Ahari’s employment and 11th December 2002. Prior Claim 4 was concerned with allegations dating from 2006, but not earlier (see paragraph 1 of Chairman Mr Murphy’s reasons). The allegations in paragraphs 17 and 18 are not res judicata on account of Prior Claim 4 as suggested.b. Dr Ahari accepted that paragraphs 19 to 23 were res judicata.c. Dr Ahari described paragraph 24 as “not relevant”. Certainly it does not contain any allegation of discrimination.d. Paragraphs 25 and 26 describe matters which are of recent origin, dating from 2018, and which have not been the subject of any 25 judgment. They are not res judicata.[68]In relation to paragraph 27 and Prior Claim 3, while Dr Ahari disputed that it had been dealt with in any previous judgment, he also clarified that he does not now intend to bring any claim in respect of the incident in 2004. Rather 30 paragraph 27 was intended to provide context for paragraphs 25 and 26, which I have found not to be res judicata. Claim Nos. 4104543/2018 and 4122656/2018 against Dr Paul Wilson Case No.: 4104541/2018 & 16 others Page 21[69]The respondent seeks an order striking out both claims in their entirety on the basis that they were dealt with in Prior Claim 2.[70]Dr Ahari’s argument is that the relevant respondent in Prior Claim 2 was 5 Cross House Hospital, which had been sued in relation to Dr Wilson’s acts. That is not quite correct, the relevant respondent was Ayrshire and Arran Acute Hospitals NHS Trust, which was the NHS Trust responsible for that hospital at the relevant time.[71]Dr Ahari conceded that the claims were res judicata in so far as they related to the acts of Dr Wilson. With respect to Dr Ahari, I do not think that is right in law and I cannot accept his concession. Since Dr Wilson was not a party to prior claim 2, any res judicata points arising do not assist him directly. If Mr Hardman intends to rely in this instance on the wider concept of res judicata 15 in British Airways plc v Boyce [2001] IRLR 157 then in my judgment it is still not wide enough to assist him since that case was concerned with closely connected claims which could and should have been brought against the same respondent. I was not taken to any authority demonstrating that the principles in British Airways plc v Boyce give rise to res judicata points in 20 favour of individuals who were not even a party to the original litigation. Certainly the rule in England and Wales known as the rule in Henderson v Henderson would not go so far.[72]However, the claims against Dr Wilson are doomed to fail for another reason. 25 It concerns the legal means by which an individual doctor such as Dr Wilson can be sued.[73]Dr Wilson did not himself owe Dr Ahari any duties under the Race Relations Act 1976. Those duties were owed, allegedly, by Dr Wilson’s employer, 30 Ayrshire and Arran Acute Hospitals NHS Trust. If the actions of Dr Wilson, for which Ayrshire and Arran Acute Hospitals NHS Trust was allegedly responsible under section 32 of the Act, caused Ayrshire and Arran Acute Hospitals NHS Trust to act in breach of the Act, then it would be open to Dr Case No.: 4104541/2018 & 16 others Page 22 Ahari to argue that Dr Wilson had knowingly aided that breach in accordance with section 33(2). The difficulty for Dr Ahari is that the question of the primary liability of Ayrshire and Arran Acute Hospitals NHS Trust was resolved against him and is now res judicata. It follows that there is no possibility of a successful claim against Dr Wilson, because there is no possibility of a finding 5 of discrimination which he might have aided.[74]For those reasons, the claims relating to Dr Wilson’s actions on 3rd December 2002 have no reasonable prospect of success and will be struck out.[75]Claim 4104543/2018 also includes some fresh allegations in relation to Dr Wilson dating from 2018. Essentially, they are that Dr Wilson “failed to attend to the issues raised” by documents relating to the meeting of 3rd December 2002, when Dr Ahari sent those documents to Dr Wilson on 28th March 2018. As Mr Hardman accepts, that allegation is not res judicata.[76]To the extent that other, later, allegations of discrimination are made in either claim form, the associated paper apart and the statement of further details of claim, they are not res judicata. Claim No.: 4104544/2018 (against the BMA)[77]The respondent alleges that paragraphs 7-23 should be struck out as res judicata having regard to the judgment in Prior Claims 7 and 8 (the written submission referred only to Prior Claim 8).[78]Dr Ahari conceded that paragraphs 7 to 14 were res judicata. Paragraphs 15 to 20 do not appear to contain any allegations of unlawful treatment. Paragraphs 21 and 22 may do, and if they do then they concern allegations dating from 2016. Paragraph 23 does not contain allegations of unlawful 30 treatment. Prior Claim 7 was promulgated in April 2009 and was not concerned with any allegations arising in 2016. Any allegations in paragraphs 21 and 22 relating to events in 2016 cannot be res judicata on account of the judgment in Prior Claim 8 either since the ET1 in that case was lodged on Case No.: 4104541/2018 & 16 others Page 23 12th October 2015 and was never amended to include subsequent allegations, as far as I am aware. Claim No.: 4122580/2018 (against the BMA)[79]The respondent contends that paragraphs 15 to 43 are res judicata having regard to Prior Claims 7 and 8 (the written submission referred only to Prior Claim 8).[80]Dr Ahari accepted that all of those paragraphs save for paragraphs 32 and 43 were res judicata. He clarified that paragraph 43 was not intended to raise any allegation of discrimination. As for paragraph 32, that raises an allegation that on 9th August 2008 a Mr Melvin lied under oath and committed the 15 criminal offence of perjury. Dr Ahari alleges that to be an act of victimisation.[81]I accept Mr Hardman’s submission that paragraph 32 is caught by the wider concept of res judicata in British Airways plc v Boyce [2001] IRLR 157. The allegation certainly should have been part of the many other allegations made 20 against the BMA in Prior Claim 8 since it has a close connection to those allegations. Claim No.: 4123074/2018 (against the BMA)[82]As refined in oral submissions, the respondent contends that paragraphs 15-27 are res judicata having regard to Prior Claims 7 and 8.[83]Dr Ahari concedes that all of those paragraphs save for 20, 26 and 27 are res judicata.[84]As for those, paragraph 20 once again relates to allegedly false evidence given under oath by Mr Melvin, and my findings are as set out above. The allegation falls within the wider res judicata principles since it should have been litigated along with the many other allegations against the BMA in Prior Claim 8. Case No.: 4104541/2018 & 16 others Page 24[85]Paragraphs 26 and 27 make allegations against Mr Coates, Ms Jenkins and Mr Millar QC during 2008. Presumably Dr Ahari’s argument would be that they acted as the agents of the BMA for the purposes of vicarious liability, since at least two of those individuals are independent members of the legal 5 profession. I accept Mr Hardman’s argument that the principles in British Airways plc v Boyce [2001] IRLR 157 apply: any allegations of that sort could and should have been part of prior claim 8, in which the claim form purported to deal with “actions/omissions of actions by the BMA during the period between 2010 and 2015”. Claim No.: 4123034/2018 (against Ayrshire & Arran Health Board)[86]The respondent contends that paragraphs 34-42 are res judicata having regard to Prior Claim 2.[87]Dr Ahari concedes that those paragraphs are res judicata and must be struck out. Claim No.: 4122635/2018 (against Ayrshire & Arran Health Board)[88]The respondent contends that paragraphs 33-42 are res judicata having regard to Prior Claim 2.[89]Once again, Dr Ahari concedes that the respondent’s analysis is correct and 25 that those paragraphs must be struck out. Claim No.: 4122779/2018 (against Professor Michael Farthing)[90]Confusingly, Dr Ahari has lodged three separate papers apart in connection 30 with this claim. The original claim was at [911-918]. The amendment was at [905-907]. The document at [908-910] was essentially superfluous and represented an earlier attempt to amend.[91]The respondent’s solicitor had initially objected to any express or implied Case No.: 4104541/2018 & 16 others Page 25 application to amend but Mr Hardman withdrew that objection on the basis that Dr Ahari only intended to add allegations in paragraphs 8 and 9 at [409] and nothing else by way of new allegations. In other words, the only new allegations added by way of a Prakash type amendment related to events in November and December 2018 which could not conceivably be res judicata.[92]Mr Hardman’s revised application was that paragraph 22 of the original claim should be struck out as res judicata having regard to Prior Claim 1. This is the allegation that Professor Farthing failed to reply to Dr Ahari’s letter of 14th March 2001 requesting a meeting.[93]Dr Ahari conceded that this was covered by res judicata principles but once again I am unable to accept that concession because I believe it to be wrong in law. Professor Farthing was not a party to Prior Claim 1 and so no question of res judicata arises as against him directly.[94]However, and for the reasons set out in more detail above in the context of the claims against Dr Wilson, the claim against Professor Farthing fails for other reasons. Any claim against the University regarding Professor Farthing’s actions would be caught by the wider concept of res judicata 20 considered in British Airways plc v Boyce [2001] IRLR 157. In short, it could and should have been brought in Prior Claim 1 even if it was not.[95]Since the claim against the University in respect of liability for Professor Farthing’s actions is res judicata, it follows that there is no reasonable 25 prospect of a finding of discrimination on the part of the University, and therefore no unlawful act capable of being aided by Professor Farthing himself. Since Professor Farthing owed no duties to Dr Ahari under the Race Relations Act 1977 himself, there is no reasonable prospect of a successful claim against him. (B) Jurisdictional Time Limits Legal Principles Case No.: 4104541/2018 & 16 others Page 26[96]Section 123 of the Equality Act 2010 governs the jurisdictional time limits applicable to Dr Ahari’s discrimination claims.[97]Section 123(1) effectively provides that a claimant must present their complaint to the Tribunal within the period of 3 months starting with the date 5 of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. That period must now be modified, where appropriate, to take account of any extensions of time due under the ACAS Early Conciliation provisions (see sections 140B and section 123(1) of the Equality Act 2010).[98]Section 123(3)(a) provides that conduct extending over a period is to be treated as done at the end of the period. Section 123(3)(b) provides that a failure to do something is to be treated as occurring when the person in question decided upon it. Subsection (4) provides that in the absence of 15 evidence a person is to be taken to decide on failure to do something when he does an act inconsistent with doing it, or, where there is no such inconsistent act, on the expiry of the period in which he might reasonably have been expected to do it.[99]A number of acts, or failures to act, by a given respondent may amount to conduct extending over a period provided that those acts amount to “an ongoing situation or continuing state of affairs” in which there was unlawful discrimination. The question is whether that was conduct extending over a period as distinct from a succession of unconnected or isolated specific acts, 25 for which time would begin to run when each specific act was committed. See for example Hendricks v Metropolitan Police Commissioner [2003] IRLR 96, CA, at paragraphs 49-52.[100]Before going any further, it is important to emphasise what is not argued. Dr 30 Ahari does not argue that it would be just and equitable for any complaints which are out of time to be heard late. In other words, he does not rely on section 123(2)(b) of the Equality Act 2010. While I had noted at the preliminary hearing for case management on 13th August 2018 that this would Case No.: 4104541/2018 & 16 others Page 27 be an issue, Dr Ahari subsequently indicated during further case management on 10th December 2018 that he no longer pursued those arguments. On the first day of this hearing he confirmed once again that he did not raise questions of justice and equity. The preliminary hearing proceeded on that basis.[101]All of Dr Ahari’s arguments are therefore directed to showing that all of his complaints against each of the respondents amount to “conduct extending over a period” for the purposes of section 123(3)(a) of the Equality Act 2010, such that the claims were each brought within 3 months (plus any extension 10 of the time limit due as a result of the ACAS early conciliation provisions) of the end of that conduct.[102]The respondents contend that the claimant’s complaints against them are in truth a catalogue of acts by different people in different places over a long 15 period. Where capable of being discrimination or victimisation, it is submitted that the acts are described in a manner which suggests that they are isolated and unconnected.[103]Finally, I will outline the rather different test applicable to the public interest 20 disclosure claims. Jurisdictional time limits are set out in section 48(3) of the Employment Rights Act 1996, which provides that an ET “shall not consider” a complaint unless it is presented before the end of the period of 3 months beginning with the date of the act or the failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, 25 the last of them. Section 48(4) provides that where an act extends over a period the “date of the act” means the last day of that period, and a deliberate failure to act shall be treated as done when it was decided upon.[104]Dr Ahari does not argue that it was “not reasonably practicable” for any of the 30 public interest disclosure complaints to be presented outside the primary time limit (section 48(3)(b) of the Employment Rights Act 1996. His argument is simply that there was a “series of similar acts” for time limit purposes. Case No.: 4104541/2018 & 16 others Page 28 Application to the current claims[105]It was agreed between the parties that the claimant could not rely on matters which were res judicata as being part of conduct extending over a period. In that sense, the two issues resolved by this preliminary hearing have a 5 cumulative effect. However, I have concluded that many of the claims found above to be res judicata could alternatively be dismissed on the basis that they are out of time and that the Tribunal has no jurisdiction to hear them. Claim Nos.: 4104541/2018, 4122634/2018 and 4123337/2018 against the University of Glasgow[106]The first two claims allege harassment and discrimination because of Dr Ahari’s race. Claim number 4123337/2018 alleges also that Dr Ahari has suffered detriments because he had made a protected disclosure, in breach of section 47B of the Employment Rights Act 1996.[107]Claim number 4104541/2018 was presented on 8th May 2018. EC notification had been received on 7th April 2018 (“Date A”) and the certificate was issued on 3rd May 2018. Having regard to the effect of early conciliation, the earliest date on which an act could be in time is 8th January 2018 (3 months less a 20 day before Date A). I do not accept the respondent’s submission that the cut off is 12th January 2018.[108]The claimant alleges a number of matters over the period between 2000 and 2018. Unhelpfully, they are not in chronological order.[109]My finding is that any allegations of discrimination on or post-dating 8th January 2018 are in time. While the respondent submits that no allegations of discrimination are identified after 12th January 2018, I do not necessarily agree. On the face of it, many of the incidents later in 2018 are capable of 30 being direct discrimination or victimisation. The respondent may well be right that further clarification is required, but I must do the best I can on the information currently available. I am not deciding any questions of the substantive merits at this hearing. Case No.: 4104541/2018 & 16 others Page 29[110]Once the paragraphs which I have found to be res judicata are discounted, along with those which raise no allegation of discrimination, all that remains are paragraphs 29-31 and 33-36 regarding events in 2001 and 2002, paragraphs 43 to 45 alleging a conspiracy against Dr Ahari in about 2003, 5 paragraph 52 which makes an additional allegation against Dr Wilson in 2006 regarding a communication to Stoke Mandeville Hospital, complaints about the handing by Jill Young of complaints and queries in 2015 and 2016, and a separate tranche of allegations in 2018 following much further contact between Dr Ahari and the University. I note that Jill Young is said to be the 10 CEO of HCI and is not clearly associated with the University. On the face of it, the 2015/2016 allegations may not concern the University at all, but I will assume for present purposes that they might.[111]Although I find that, by the end of a hearing on the merits, it is possible that 15 the 2018 allegations might be found to be a single example of conduct extending over a period beginning and ending in 2018, I find that the relevant conduct would not extend so far back as to include the 2015/2016 events, still less any earlier events. The actors on each occasion were almost entirely different and they are very clearly separated in time.[112]I do not accept the general thrust of Dr Ahari’s approach, which is to rely on little more than the raising of a complaint about treatment many years earlier, or to reiterate that complaint, and to argue that the original treatment and all subsequent responses to complaints about it are therefore part of the same 25 “conduct extending over a period” for time limit purposes. That might theoretically be possible on certain facts, but I find that it is not the position in this case. There were instead a series of allegations occurring in distinct and clearly separated periods. Each had their own time limit. Only allegations dated 8th January 2018 or later are in time.[113]I make the equivalent findings in relation to claim 4122634/2018. Once allowance is made for allegations which I have found to be res judicata, and other paragraphs which make no allegation at all, the only other complaints Case No.: 4104541/2018 & 16 others Page 30 against the University appear to be allegations about events in September 2018 to October 2018. They are in time given that the complaint was presented on 10th November 2018. For the avoidance of doubt, any complaints in claim 4122634/2018 earlier than 31st July 2018 are out of time. 31st July 2018 is the relevant date because it was 3 months less one day prior 5 to “Date A” on which ACAS received EC notification (30th October 2018), the claim having then been presented to the Tribunal promptly on 10th November 2018.[114]As for claim number 4123337/2018, EC notification was received on 27th 10 November 2018 and the certificate was issued on 28th November 2018. The claim was lodged with the tribunal on 30th November 2018. It follows that any act earlier than 28th August 2018 will be out of time, unless part of a series of similar acts ending no earlier than 28th August 2018.[115]In fact, there are allegations in this claim which clearly postdate 28th August 2018. They are in time and will proceed beyond this preliminary hearing.[116]However, none of the allegations about earlier events are in time because I find that they are not capable of being found to be part of “a series of similar 20 acts” (for the purposes of the Employment Rights Act 1996), or “conduct extending over a period” (for the purposes of the Equality Act 2010), ending on or later than 28th August 2018. The 2018 allegations are distinct and separate from anything that went before. There is a very substantial gap between those allegations and the previous allegedly unlawful acts by the 25 University in about 2007. The 2018 allegations derive from a new and separate batch of letters of complaint by Dr Ahari, and his current claims are based on the response, or lack of response, to those complaints. It takes something more than merely writing to the alleged perpetrator of a discriminatory act around 17 or 18 years later, and for them to fail to reply, to 30 amount to a “series of similar acts” spanning a 17 or 18 year period, or to “conduct extending over [that] period”, such that some extremely aged claims fall within the Tribunal’s jurisdiction. Case No.: 4104541/2018 & 16 others Page 31[117]In summary, it is therefore my ruling that in relation to all three claim forms concerning the University, only the 2018 allegations proceed beyond this preliminary hearing. The Tribunal has no jurisdiction to hear any earlier allegations and they must be dismissed. Claim Nos. 4104541/2018, 4122620/2018 and 4123363/2018 against National Waiting Times Centre Board[118]This respondent is the successor of HCI (Scotland) Ltd, which operated the 10 Golden Jubilee Hospital when it was in private hands. While the distinctions between those bodies are potentially important at a later stage of this litigation, for present purposes it suffices simply to understand why the actions of one might now lead to a claim against another.[119]The first two claims allege breaches of discrimination legislation, the last additionally alleges that Dr Ahari was subjected to a detriment because he had made a protected disclosure. I have already set out above the applicable legal principles, and the ways in which they differ.[120]In relation to claim 4104541/2018 my findings mirror those made above in relation to the claims against the University. Once again, only claims post-dating 8th January 2018 are in time. There do appear to be at least some complaints post-dating 8th January 2018 – for example paragraphs 60, 62, 66 and 68 seem to allege victimisation or race discrimination on the part of Ms 25 Young, CEO of the Golden Jubilee Hospital. However, I reject the argument that those “in time” allegations are just the latest aspects of conduct extending over a period, so as to bring earlier allegations within time. The next most recent allegations against this respondent dated from 2016, and I find that the separation in time renders them distinct and different acts, with their own time 30 limits.[121]Only the allegations post-dating 8th January 2018 will proceed further. The earlier allegations are out of time and the ET has no jurisdiction to hear them. Case No.: 4104541/2018 & 16 others Page 32[122]In relation to claim number 4122620/2018, EC notification was received on 30th October 2018 and the certificate was issued on 1st November 2018. The ET1 was lodged on 8th November 2018. The date of the earliest act that would be in time is therefore 31st July 2018. The pleaded allegations in October 2018 post-date that and are in time, but there is no basis upon which I could 5 find them to be part of the same conduct extending over a period as the allegations dating from 2007, 11 years earlier. Ms Young’s response, or lack of response, to correspondence received in late 2018 is in no sense the same as the primary complaints more than 11 years earlier, still less any allegations dating from 2000 or 2001.[123]Only the allegations post-dating 31st July 2018 will proceed beyond this preliminary hearing. The earlier allegations are out of time and the ET has no jurisdiction to hear them.[124]In claim number 4123363/2018 EC notification was received on 27th November 2018 (“Date A”) and the certificate was issued the next day on 28th November 2018. The ET1 was lodged on 30th November 2018. The date of the earliest act that would be in time is therefore 28th August 2018, 3 months less a day prior to “Date A”. It should be remembered that this claim form 20 raises “whistleblowing” complaints under the Employment Rights Act 1996 as well as direct race discrimination and victimisation claims under the Equality Act 2010. The ET1 has been completed ambiguously and uses the language of all three types of claim.[125]The only allegations which are potentially in time concern communications between Dr Ahari and Ms Young and Dr Higgins in October and November 2018. They all allege detriment flowing from a failure to investigate complaints raised by Dr Ahari, or to attend to his concerns. If those paragraphs allege detriment on grounds of having made a protected disclosure or a claim under 30 the Equality Act 2010 then they are in time.[126]However, and even if they do, there is in my judgment no sound basis for a finding that those complaints are a “series of similar acts” including much Case No.: 4104541/2018 & 16 others Page 33 earlier allegations, so as to bring them within time for the purposes of the detriment claim under the Employment Rights Act 1996. I make the equivalent finding in relation to “conduct extending over a period” for the purposes of the Equality Act 2010 claims. The earlier events were of a different nature, involved different actors, and were confined to the period 5 2001 to 2006. There is accordingly a 12 year gap in what Dr Ahari argues is a series of similar acts, or conduct extending over a period. I reject that argument.[127]Only the allegations relating to October and November 2018 are in time. The 10 earlier allegations must be dismissed because the ET has no jurisdiction to hear them. Claim Nos.: 4104542/2018, 4122619/2018, 4123364/2018 and 4123520/2018 against NHS Education for Scotland[128]All of these claims make allegations of breaches of the Equality Act 2010. Claim number 4123364/2018 additionally alleges that Dr Ahari has been subjected to detriments because of having made one or more protected disclosures. In each claim I calculate the date of the earliest act which would 20 be in time by counting backwards 3 months less one day from the date of EC notification (“Date A”). Those dates are, in order: 8th January 2018, 31st July 2018, 28th August 2018 and 28th August 2018.[129]In claim number 4104542/2018 the only allegations post-dating 8th January 25 2018 are in paragraphs 31-33. Once again, the nature of each allegation is that Dr Ahari wrote to an individual associated with the respondent asking them to investigate matters which had occurred in the period 2001 to 2006. Dr Ahari alleges that the lack of response amounts to race discrimination or victimisation. Dr Ahari maintains that for 16 years the respondent has 30 discriminated against him by failing to assist him in returning to education, work and progression within the NHS.[130]My reasoning is essentially the same as is set out already several times Case No.: 4104541/2018 & 16 others Page 34 above. Although certain allegations dating from 2018 are in time, I see no basis for a finding that there was here conduct extending over a period so as to bring allegations from 2006 and earlier within time. The actors were different, the nature of the acts was different and there is a very substantial temporal separation between the allegations. I find that there was no conduct 5 extending over a period from 2001 or 2006 until 2018, even if all were proved to be acts of unlawful discrimination. Only the 2018 allegations will proceed further, the earlier allegations must be dismissed because they are out of time and the ET has no jurisdiction to hear them.[131]I make the same findings in relation to claim 4122619/2018 for the same reasons. Only the 2018 allegations will go forward. All earlier allegations will be dismissed on the basis that the ET has no jurisdiction to hear them.[132]As for claim 4123364/2018, again I make the equivalent findings for similar reasons. Whether the claim is put as one of race discrimination, victimisation, or of being subjected to a detriment because of having made a protected disclosure, only the 2018 allegations in paragraphs 45-49 will go forward. All earlier allegations are out of time and are neither part of a “series of similar 20 acts”, nor one instance of “conduct extending over a period” ending later than 28th August 2018. Those earlier allegations will be dismissed because the ET has no jurisdiction to hear them.[133]Finally, claim 4103520/2018. The only allegations relating to events post 25 dating 28th August 2018 are in paragraphs 14-16, 19 to 22 and 24-28. Those complaints are all in time. However, none of the other earlier allegations in the period from 2001 to 2017 are in time because they cannot conceivably form part of conduct extending over a period including, and ending with, the 2018 allegations. The allegations concerning events in the period 2001 to 30 2017 have their own time limits, which have now expired. They must be dismissed because the ET has no jurisdiction to hear them. Claim Nos.: 4104543/2018 and 4122656/2018 against Dr Wilson Case No.: 4104541/2018 & 16 others Page 35[134]Both claim forms bring claims under the Equality Act 2010. The dates on which ACAS received EC notification were 7th April 2018 and 26th October 2018 respectively. The ET1s were presented promptly after that. It follows that the dates of the earliest acts which would be in time are 3 months less 1 5 day prior to each “Date A” – 8th January 2018 and 27th July 2018 respectively.[135]As for claim number 4104543/2018, the only allegation post-dating the cut-off date is that Dr Wilson “failed to attend to the issues that had been raised” when contacted on 28th March 2018 and sent copies of a meeting more than 10 15 years earlier. Even if that were found to be a discriminatory omission on Dr Wilson’s part in 2018, I see no prospect that it could be held to be part of the same “conduct extending over a period” as Dr Ahari’s other complaints about Dr Wilson in 2016 and 2002. The nature of the act is very different (at least in relation to the 2002 matters) and there is a very significant temporal 15 separation between all of them. The only realistic finding is that the 2018 allegation would be regarded as a discrete and separate act, such that the earlier allegations had their own time limits. Those time limits have now long since expired.[136]Only the 2018 allegation will go forward. The earlier allegations are dismissed because the Tribunal has no jurisdiction to hear them.[137]As for claim number 4122656/2018, precisely the same points arise. The additional allegation is that Dr Ahari again wrote to Dr Wilson, this time on 25 21st October 2018. That was less than a month prior to submission of the ET1 and therefore well within time. As for “conduct extending over a period”, I repeat the reasoning set out above in relation to claim number 4104543/2018. Only the 21st October 2018 allegation will go forward. The earlier allegations will be dismissed as time-barred. Claim Nos.:4104544/2018, 4122580/2018 and 4123074/2018 against the BMA[138]All of these claims are brought under the Equality Act 2010. Applying the Case No.: 4104541/2018 & 16 others Page 36 same process as above, the relevant “Date A”s are 7th April 2018, 30th October 2018 and 20th November 2018. It follows that earliest acts which could be in time in each case were 8th January 2018, 31st July 2018 and 21st August 2018.[139]As for claim number 4104544/2018, the claim form contains allegations deriving from Dr Ahari’s letters to Mr Ward on 17th January 2018 and 4th April 2018. Once again, the allegation is that Mr Ward failed to deal with those complaints, presumably in a way which amounted to unlawful discrimination. Those complaints are in time.[140]However, no earlier aspect of the claims against the BMA is in time because I see no basis upon which it could be found that Mr Ward’s acts were part of conduct extending over a period so as to include other, earlier allegations. There is just one earlier allegation against Mr Ward, relating to pension in 15 2016. The subject matter of that complaint (if it is a complaint of discrimination at all) is very different and significantly older. The other allegations against the BMA involve different individuals altogether and date from 2016 or earlier. My view is that there is no prospect that the 2018 allegations could be found to be part of any more extensive conduct extending over a period.[141]The allegations raised in claim number 4122580/2018 include several post-dating the cut-off date of 31st July 2018. They are all in time. The very similar allegation deriving from a letter to Mr Tucker on 4th June 2018 could conceivably be found part of conduct extending over a period which included the post-31st July 2018 matters, so as to bring it within time too. That is the 25 maximum extent of any conceivable finding of conduct extending over a period. The other allegations are at least two years older, and that gap makes it impossible to regard them as part of the same conduct extending over a period. All allegations earlier than 4th June 2018 are out of time.[142]As for claim number 4123074/2018, allegations on or post-dating the cut-off date of 21st August 2018 include the BMA’s handling of correspondence from Dr Ahari in the period 1st September 2018 to 20th November 2018. As the respondent concedes, those allegations are in time. Case No.: 4104541/2018 & 16 others Page 37[143]However, the next most recent allegation against the BMA concerns Viv De-Feu in 2016. That is significantly older, and the rest of the allegations are older still. I see no realistic prospect that they could be found to be part of conduct extending over a period ending on or after 21st August 2018. Claim Nos.: 4123034/2018 and 4122635/2018 against Ayrshire and Arran HB[144]The dates on which EC notification was received (“Date A”) were 18th November 2018 and 30th October 2018 respectively. It follows, using the 10 same reasoning as above, that the earliest act which would be within time would be 19th August 2018 in the first claim and 31st July 2018 in the second claim.[145]As for claim number 4123034/2018, the allegations relating to 23rd October 15 2018 and 16th November 2018 are clearly within time. However, I am not persuaded that any earlier allegation could form part of conduct extending over a period which included those timeous allegations. None of them involve Mr Burns, and they are significantly earlier. The upshot is that all allegations except those concerning events on 23rd October 2018 and 16th November 20 2018 are out of time.[146]Claim number 4122635/2018 adds nothing of significance. It includes the 23rd October 2018 matter, but that is already covered above. Otherwise, I find no conduct extending over a period so as to bring earlier allegations within time. 25 My reasoning is as set out in the preceding paragraph. Claim No.: 4122779/2018 against Professor Farthing[147]EC notification was received on 26th October 2018 and the ET1 was presented promptly after that, so in order to be in time an allegation must be 30 no earlier than 27th July 2018 (3 months less a day before “date A”).[148]The only allegations which are in time are those relating to Professor Farthing’s failure to reply to correspondence from Dr Ahari dated 19th and 23rd Case No.: 4104541/2018 & 16 others Page 38 October 2018, and a letter written by Dr Ahari on Christmas day 2018.[149]I reject the argument that those timeous allegations form part of conduct extending over a period including allegations dating from 2016 and earlier. The separation of time is too significant for me to find that they are anything 5 other than discrete and separate acts, each with their own time limit. The time limits for the earlier allegations have long since expired and the tribunal has no jurisdiction to hear them. Next steps[150]Further case management will now be necessary. First it will be necessary to organise the claims into suitable groups for that purpose, and for further hearings. My provisional view is that:a. it would now be appropriate for all remaining claims against a particular respondent to be consolidated, managed and heard together.b. The claims against individual doctors and professors should probably 20 be managed and heard along with the claims against whichever organisation which is alleged to have been vicariously liable for their actions.c. Otherwise, the claims should now be managed in those separate 25 groups, and this should be the last hearing of all claims together.[151]No doubt the parties will have alternative or additional proposals. I know that at least some respondents intend to apply for orders for expenses or costs, and that some respondents will seek further preliminary hearings to decide 30 whether any of the remaining claims should be struck out as having no reasonable prospect of success, or whether deposits should be ordered.[152]Given that so many allegations have now been struck out, dismissed, or Case No.: 4104541/2018 & 16 others Page 39 characterised by Dr Ahari as background rather than as allegations of unlawful treatment, I would also welcome proposals for reducing the considerable bulk of the claim forms, further details of claims and so on. Concise agreed lists of the remaining allegations might be an appropriate way of bringing focus and furthering the overriding objective.[153]The parties are asked to set out their suggestions in writing within 14 days of receipt of these reasons so that further directions can be given and hearings fixed. I suspect that in most cases a further case management hearing will be inevitable. Employment Judge: M Whitcombe Date of Judgment: 13th April 2019 Entered in register: 15th April 2019 and copied to parties Case No.: 4104541/2018 & 16 others Page 40 Schedule A The following claims are struck out under rule 37(1)(a) of the ET Rules of Procedure because they have no reasonable prospect of success. 4104541/2018 (against University of Glasgow) Paras 9-27, 37-42, 46-48, 50-51. 4122634/2018 (against University of Glasgow) Paras 35-36, 44, 58-63, 68, 72-73. 4104541/2018 (against National Waiting Times Centre Board) Paras 9-27, 47-48, 50-51. 4122620/2018 (against National Waiting Times Centre Board) Paras 14-15, 19-23. 4104543/2018 and 4122656/2018 (against Dr Paul Wilson) All allegations concerning events in 2002. 41045441/2018 (against the BMA) Paras 7-14. 4122580/2018 (against the BMA) Paras 15-42. 4123074/2018 (against the BMA) Paras 15-27. 4123034/2018 (against Ayrshire and Arran Health Board) Paras 34-42. Case No.: 4104541/2018 & 16 others Page 41 4122635/2018 (against Ayrshire and Arran Health Board) Paras 33-42. 4122779/2018 (against Professor Farthing) Para 22. Case No.: 4104541/2018 & 16 others Page 42 Schedule B The following claims are dismissed because they are time-barred and the Tribunal therefore has no jurisdiction to hear them. Against the University of Glasgow 4104541/2018 all allegations pre-dating 8th January 2018. 4122634/2018 all allegations pre-dating 31st July 2018. 4123337/2018 all allegations pre-dating 28th August 2018. Against National Waiting Times Centre Board 4104541/2018 all allegations pre-dating 8th January 2018. 4122620/2018 all allegations pre-dating 31st July 2018. 4123363/2018 all allegations predating 28th August 2018. Against NHS Education for Scotland 4104542/2018 all allegations pre-dating 8th January 2018. 4122619/2018 all allegations pre-dating 31st July 2018. 4123364/2018 all allegations pre-dating 28th August 2018. 4123520/2018 all allegations pre-dating 28th August 2018. Against Dr Wilson 4104543/2018 all allegations pre-dating 8th January 2018. 4122656/2018 all allegations pre-dating 27th July 2018. Against the BMA 4104544/2018 all allegations pre-dating 8th January 2018. 4122580/2018 all allegations pre-dating 4th June 2018. Case No.: 4104541/2018 & 16 others Page 43 4123074/2018 all allegations pre-dating 21st August 2018. Against Ayrshire and Arran Health Board 4123034/2018 all allegations pre-dating 19th August 2018. 4122635/2018 all allegations pre-dating 31st July 2018. Against Professor Farthing 4122779/2018 all allegations pre-dating 27th July 2018.