Dr A Ahari v NHS Education for Scotland and Dr P Wilson: 4104542/2018 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104542/2018, 4104543/2018, 4122656/2018Venue GlasgowHearing 14 August 2019
Between
Dr A AhariClaimantNHS Education for Scotland and Dr P WilsonRespondent
Before
Employment Judge M WhitcombeMiss H Craik for respondent(Solicitor) for respondentDate 20 November 2019
JUDGMENT
The judgment of the Tribunal on the preliminary issues is as follows.(1) Dr Wilson was not at any relevant time the employee or agent of NHS Education for Scotland for the purposes of sections 109 and 110 of the Equality Act 2010.(2) Consequently, all remaining claims brought against NHS Education for Scotland on the basis of vicarious liability for the acts or omissions of Dr Wilson are struck out under rule 37(1)(a) of the Employment Tribunals Rules of Procedure on the basis that they have no reasonable prospect of success.(3) Consequently, all remaining claims brought against Dr Wilson personally are also struck out under rule 37(1)(a) of the Employment Tribunals Rules of Procedure on the basis that they have no reasonable prospect of success.(4) Consequently, and by consent, Dr Wilson is removed from the parties to the proceedings under rule 34 of the Employment Tribunals Rules of Procedure.(5) Dr Ahari is ordered to pay expenses/costs of £2,500 to NHS Education for Scotland (who have also borne Dr Wilson’s legal expenses) under rule 76(1)(b) of the Employment Tribunals Rules of Procedure on the basis that none of the claims brought against either (a) Dr Wilson personally or (b) NHS Education for Scotland in respect of the acts or omissions of Dr Wilson had a reasonable prospect of success.
REASONS
[1]Oral reasons were given in the presence of the parties at the end of the hearing on 14 August 2019. These written reasons have been provided at Dr Ahari’s subsequent request. I have taken this opportunity to correct the phrasing of paragraph (1) above under rule 69 of the ET Rules of Procedure. It was incorrectly phrased in the original document sent to the parties as a result of an accidental slip on my part, for which I apologise. Procedural background[2]Dr Ahari is the claimant in 17 claims currently proceeding in Scotland. The respondents include various parts of the NHS, the BMA, the University of Glasgow and a number of individual doctors and academics associated with those bodies. Most of those respondents face more than one claim. Most of the claims are brought under the Equality Act 2010 for direct race discrimination (section 13) and/or victimisation (section 27). Some also allege detrimental treatment because Dr Ahari had made protected disclosures (sections 47B of the Employment Rights Act 1996). Additional claims have either been commenced in, or transferred to, England. Claims already struck out or dismissed[3]It is not necessary to set out the complicated procedural history in full, but it is relevant to refer to my previous judgment following a hearing on 4 and 5 February 2019 (copied to the parties on 15 April 2019). In that reserved judgment I found that a great many of the allegations brought by Dr Ahari were either res judicata having been the subject of prior ET judgments, or fell outside the jurisdiction of the ET having regard to the applicable statutory time limits, or both. The claims identified in the two schedules to that judgment were either struck out or dismissed accordingly. The purpose of this hearing[4]This preliminary hearing was listed to deal with the respondents’ application to strike out the claims brought by Dr Ahari against NHS Education for Scotland (“NES”) in respect of the acts or omissions of Dr Wilson, and also the claims brought against Dr Wilson personally in respect of those same acts or omissions. All of those claims are brought by Dr Ahari under the Equality Act 2010.[5]Following careful discussions lasting an hour, it was agreed at the start of this hearing that the effect of my previous judgment was that the only remaining allegations in relation to Dr Wilson’s conduct were dated 28 March 2018 and 21 October 2018.[6]All of the earlier allegations in relation to his conduct had been found to be time-barred and/or res judicata (see paragraphs 69-76, 134-137, Schedule A and Schedule B of my previous judgment, sent to the parties on 15 April 2019). Respondents’ argument[7]The respondents’ point can be summarised simply. The respondents argue that it can very easily be demonstrated that Dr Wilson was neither the agent nor the employee of NES at the time of the only remaining allegations in relation to Dr Wilson’s conduct in 2018. For that reason, NES cannot be vicariously liable for any acts or omissions of Dr Wilson under section 109 of the Equality Act 2010, and consequently Dr Wilson cannot personally be liable under section 110 of the same Act either. On that basis, the respondents argue that the claims against Dr Wilson personally and against NES in relation to Dr Wilson’s conduct have no reasonable prospect of success and should be struck out under rule 37(1)(a) of the ET Rules of Procedure 2013.[8]Those are the arguments pursued by the respondents at the hearing. Certain other arguments set out in the respondent’s written submissions were not pursued. I had indicated that those other arguments were not in my view appropriate for summary determination and would have to be left to a full hearing. There is no need to say any more about them here. Claimant’s argument[9]The claimant’s argument is that Dr Wilson was the agent, or alternatively the employee, of NES at all relevant times and that therefore it cannot be said that his claims against NES and Dr Wilson have no reasonable prospect of success. Applicable statutory provisions[10]I will set out the relevant parts of sections 109 and 110 of the Equality Act 2010, since they are of central importance. 109 Liability of employers and principals(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. [the remainder of the section is not relevant] 110 Liability of employees and agents (1) A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).[11]It is very clear from those sections that the principles of vicarious liability in section 109 depend upon the actor being at the time of the relevant act or omission an employee or an agent of the principal. There is no vicarious liability for the acts or omissions of those who are former employees, or former agents, at the time of the alleged discrimination.[12]This should not be confused with the effect of section 108, which deals with relationships which have ended. Section 108 provides for situations in which, for example, a former employer discriminates against its former employee. The relevant relationship in such a case is therefore the one between claimant and respondent. However, that has no bearing on the question of vicarious liability, and the type of person for whose acts the former employer might be liable and through whom it might discriminate. Vicarious liability only arises in respect of the current employees or agents of the former employer (or other relevant respondent, such as a qualifications body or employment service provider). That is obvious from the statutory wording.[13]In summary, a viable claim for discrimination or victimisation under the Equality Act 2010 can only be based on the actions of those who are themselves, at the relevant date, the employee or agent of the alleged discriminator. That is the fundamental legal principle at the heart of this case. Dr Ahari did not argue otherwise.[14]None of the parties suggested that section 111 of the Equality Act 2010 (instructing, causing or inducing contraventions) or section 112 (aiding contraventions) had any relevance to this hearing or to these claims. Dr Ahari has not put his claims on either of those bases. The hearing was concerned with sections 109 and 110 only. Legal principles applicable to striking out[15]The vicarious liability issue outlined above is to be determined in the context of an application to strike out under rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013 on the basis that the claims have no reasonable prospect of success. Previous versions of the ET Rules have applied the label “misconceived” to claims which have no reasonable prospect of success, and it remains a convenient shorthand, especially since the phrase appears in many of the leading authorities. An exceptional course in discrimination cases[16]Since giving oral reasons in the present case the decision of the President of the EAT, Choudhury J, in Malik v(1) Birmingham City Council(2) Trickett (UKEAT/0027/19/BA) has become available on the EAT website. It provides a valuable summary of the principles below. I mention it for the sake of completeness but nothing in it changes the legal principles I have applied and I did not think that fairness required any additional submissions from the parties.[17]It is well established that Tribunals should be very cautious about striking out discrimination claims at a preliminary stage. It should only be done in the clearest of cases. See for example the classic case of Anyanwu v South Bank Students’ Union [2001] UKHL 14, especially paragraph 24 in the speech of Lord Steyn, and also Mechkarov v Citibank NA [2016] ICR 1121, EAT, for a more recent summary of principles. Cases which are misconceived on the facts[18]Only in exceptional cases is it appropriate to strike out a claim where the central facts are in dispute and the evidence in relation to them has not yet been heard (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). One example would be where the facts asserted by one party were clearly and directly contradicted by contemporaneous documentation. If, however, the relevant factual issues can only be resolved by hearing evidence, then it will generally be inappropriate to strike the case out even if there are obvious weaknesses in the claimant’s case (see A v B and C [2010] EWCA Civ 1378).[19]However, there is certainly no absolute bar to striking out discrimination claims and in other cases the courts have held that a Tribunal should not be deterred from striking out a discrimination claim where the factual basis for inferring discrimination was considered to be simply too weak to establish an arguable case (ABN AMRO Management Services Ltd v Hogben (UKEAT/0266/09)). Similarly, in Community Law Clinics Solicitors Ltd & Ors v Methuen (UKEAT/0024/11) it was said that claims could be struck out when appropriate and that the resources of ETs ought not be taken up by having to hear evidence in cases that are bound to fail.[20]It is acceptable in some cases to hear evidence on the core disputed facts before reaching a conclusion on the prospects of success. It is not always necessary to assume for the purposes of argument that all of the facts asserted by the claimant in the ET1 are true. For example, in Eastman v Tesco Stores Ltd [2012] All ER (D) 264 (Nov) the EAT endorsed the approach of the Employment Tribunal which included hearing evidence on the core factual dispute and then resolving that dispute. Having done so, and having resolved that dispute against the claimant, the ET permissibly struck the claim out as having no reasonable prospect of success. HHJ Peter Clark expressly rejected the submission made to the EAT that it was not open to the Employment Judge to resolve a central dispute of fact by hearing evidence on a strike out application. HHJ Peter Clark contrasted the position with that in Ezsias where central facts remained in dispute at the preliminary hearing. Cases which are legally misconceived[21]There are also many examples of cases in which claims, including discrimination claims, have been struck out at a preliminary stage without hearing evidence because the claims are found to be legally misconceived (see Hawkins v Atex Group Ltd [2012] IRLR 807).[22]In summary, there are really two routes to the exceptional step of striking out all or part of a discrimination claim. The first route is where it is quickly and easily established that the essential facts relied on by the claimant have no reasonable prospect of being established at a full trial. The second is where, even taking the claimant’s case at its factual highest and assuming that those essential facts are established, the correct application of the law means that there is still no reasonable prospect of success.[23]I have adopted the approach taken in Eastman v Tesco Stores Ltd (above). I have heard evidence (both oral and documentary) relevant to the following central issue: whether Dr Wilson was on the relevant dates in 2018 the employee or agent of NES. Having made the necessary findings of fact, I have then applied the law in sections 109 and 110 of the Equality Act 2010 in order to assess whether the claims have a reasonable prospect of success.[24]By taking that course I have not conducted an “impromptu mini trial of oral evidence to resolve core disputed facts”, an approach disapproved by Mitting J in Mechkarov v Citibank NA [2016] ICR 1121, EAT. This hearing has not been limited to oral evidence but has also taken into account all of the documentary evidence which the parties put before me. It has not been a “mini-trial”, it is the determination of Dr Wilson’s status as an agent or employee of NES as a preliminary point. The merits of the claims have been assessed for the purposes of rule 37(1)(a) in the light of that finding.
Evidence
[25]I turn to review the evidence. I heard from the following witnesses, all of whom gave evidence on oath or affirmation and were cross-examined. Dr Wilson[26]The first witness was Dr Wilson, one of the respondents. He is a retired consultant anaesthetist formerly employed both by Ayrshire and Arran Health Board and by the predecessor of that organisation. He was also the sometime specialty advisor to the relevant Deanery and the organisation which in due course became NES. There is no evidence before me at all to suggest that Dr Wilson was ever employed by NES. However, he was subject to a service level agreement with NES. In that capacity, it is accepted that he was certainly once an agent of NES and its predecessor. The question is for how long he remained the agent of NES.[27]Dr Wilson says that he held that position for only 3 years, from 1 January 2002 until 1 January 2005, when he resigned the role because it was incompatible with another role he had accepted with the Royal College of Anaesthetists. Dr Wilson says that he has not held any other position with NES since 1 January 2005.[28]Dr Ahari asserts that this evidence is false, on a basis which I will explore below. Professor McLellan[29]The next witness was Professor McLellan. He is currently the relevant Postgraduate Dean and has held that role since 2012. He corroborates Dr Wilson’s evidence in all relevant respects. He is quite clear that Dr Wilson has not acted as an agent of NES since 2005, and that Dr Wilson was certainly was not acting as agent of NES on the relevant dates in 2018. Once again, Dr Ahari contends that this evidence is false on a basis I will explore below, but he did not suggest in cross-examination or submissions that Professor McLellan had any reason to lie about the matter. Dr Ahari[30]The third and final witness was Dr Ahari, the claimant, who firmly believes that Dr Wilson continued to act as agent of NES until at least the two relevant dates in 2018 and maybe longer. He also disputes the accuracy of Dr Wilson’s claimed retirement date from Ayrshire and Arran Health Board, although that is not the central issue. Assessment of the evidence[31]As always, my findings of fact were made on the balance of probabilities. As it turned out, the burden of proof had no real part to play because the evidence pointed overwhelmingly to a particular conclusion.[32]Dr Ahari had some difficulty in focusing on the relevant issues, which were discussed, agreed and emphasised before the evidence started. I queried several times during evidence the relevance of the questions Dr Ahari was asking and the relevance of some of the evidence Dr Ahari proposed to give himself. Dr Ahari’s questions and evidence were almost all concerned with periods prior to 2018, which is the only relevant period for present purposes. Sometimes Dr Ahari’s questions or evidence concerned events in 2002, 16 years prior to 2018. For example, Dr Ahari played a covert recording of a conversation he had with Dr Wilson in 2002, although it remains unclear to me how anything said in that conversation shed light on the existence of a relationship of agency between Dr Wilson and NES some 16 years later in 2018.[33]I was concerned that Dr Ahari was exploring other matters of interest to him rather than taking on board my clear and repeated reminders of the need to focus on the relevant issues for this preliminary hearing, namely the relationship, if any, between Dr Wilson and NES in 2018. My reminders became increasingly firm but there was no real change in Dr Ahari’s approach, or his tendency to revisit topics which had already been dealt with.[34]Eventually, I adopted the following approach to Dr Ahari’s cross-examination of witnesses and his own evidence in chief. I asked Dr Ahari how long he wanted to complete his cross examination of a witness, or his own evidence in chief. I established his view of the fair period and I then allowed him all of the time he requested, despite my concerns about relevance and repetition. However, those time limits were then enforced in accordance with rule 45. It was very much then for Dr Ahari to decide how best to use the time he had requested, and which questions he should ask during that period.[35]Dr Ahari complained that he could have brought additional documentary evidence, but the decision not to do so was entirely his. As an experienced litigant he is well aware that courts and Tribunals can only decide cases on the evidence available to them, the evidence brought forward by the parties at the hearing. They cannot decide a case on assurances about the content of other evidence which might have been brought as well, or instead. Dr Ahari took responsibility for preparing his own bundle of documents and he decided what should be included in that bundle. He is an extremely experienced litigant in person and has litigated many Employment Tribunal claims in Scotland and elsewhere since 2001. Factual conclusion and reasoning[36]As already stated, on behalf for the respondent, there is clear, firm and corroborated oral evidence that Dr Wilson’s role as an agent of NES ceased in 2005, more than 13 years before the relevant dates. Dr Ahari asks me to find that Dr Wilson was still the agent of NES in 2018. By implication Dr Ahari is suggesting that that Dr Wilson and Professor McLennan are both lying, since they could hardly be honestly mistaken about 13 additional years of alleged activity on behalf of NES.[37]As a matter of impression, Dr Wilson and Professor McLennan both struck me as careful, thoughtful and honest witnesses. They engaged with the questions asked of them and their patient answers were always supported by cogent and logical reasons. I did not find any significant inconsistency between their oral evidence and the documentary evidence. They did not contradict themselves and their evidence was coherent and plausible.[38]I will deal now with the various points made by Dr Ahari in his own evidence, in cross-examination of the respondents’ witnesses and in submissions.[39]First, Dr Ahari refers to Dr Wilson’s speciality advisor contract, the first page of which is included in Dr Ahari’s own bundle. Dr Ahari points out that the contract was for a fixed but extendable term of five years and that it was possible for the contract to continue for longer than that. I accept that an extension was a possibility, but the point in this case is that Dr Wilson is saying it did not happen. Indeed, he says that he resigned before the expiry of the initial fixed term of five years. That is not inconsistent with the terms of the contract. The contract does not preclude earlier termination by resignation or agreement. That is precisely what Dr Wilson claims to have done. I therefore find that there is nothing in the terms of the contract to suggest that Dr Wilson’s evidence as to the duration of his role with NES is incorrect.[40]Even if Dr Ahari’s point were well-founded, it would only take matters up to 1 January 2007 when the five year fixed term expired. There is no evidence before me of a formal renewal or extension of the contract at that stage, or at any other stage. Given that the real issue is whether Dr Wilson was the agent of NES in 2018, Dr Ahari’s point about the fixed term is of no real assistance.[41]Next, Dr Ahari makes a point about a document which appears at page 4 of his bundle. It is a printout of a web download made by Dr Ahari on 22 August 2005, as appears from the information in the footer and as he confirmed in his own oral evidence. The document certainly lists Dr Paul Wilson as a speciality advisor or training programme director in the department of anaesthetics at Crosshouse Hospital as at the date of download. However, I find that this does not help Dr Ahari. First, the existence of this document is entirely explicable by some delay in updating online information to reflect Dr Wilson’s resignation and the appointment of a replacement. Second, and even if that were not the case, it would only establish the position in August 2005. Dr Ahari has no similar document any later than August 2005. He does not have a similar printout for 2006, 2007 or any subsequent year up to and including 2018, the year containing the relevant dates for present purposes. Taking it at its highest, the document at page 4 proves nothing of assistance to Dr Ahari in relation to 2018. I am not prepared to draw any inferences about the position in 2018 from a document downloaded 13 years earlier.[42]Dr Ahari highlighted that Dr Wilson held office on the board of the West of Scotland Society for Anaesthetics (“the Society”) and also attended its meetings, whether as a board member or in a personal capacity. There is no factual dispute about that, but I find that it is of no relevance at all. Dr Wilson’s tenure on the board of the Society or his participation in its activities cast no doubt on the truth and accuracy of his evidence in relation to his involvement with NES. Quite simply, the Society is not NES. It is not a subsidiary of NES, it is not run or managed by NES, it is quite separate from NES. NES and the Society both have an interest in providing continuing education for doctors but that overlap in objectives certainly does not mean that they can be equated, or that the officers or members of the Society are, by virtue of that, agents of NES.[43]For similar reasons, I am not attracted to Dr Ahari’s argument that the continuation of Dr Wilson’s status as an agent of NES beyond 2005 is demonstrated by the fact that, from about 2017, Dr Ahari was excluded from Society meetings. Dr Ahari asserts that the reason for his exclusion was an instruction given by Dr Wilson. The source of that belief is apparently a comment made to Dr Ahari by a Dr Goudie. However, Dr Goudie was not called to give evidence. I only have Dr Ahari’s hearsay account and I am not inclined to accept it given that there is no obvious reason why Dr Goudie could not have been called to give evidence himself, and to face crossexamination.[44]However, even if I had accepted Dr Ahari’s hearsay evidence that Dr Wilson did in some way cause him to be excluded from Society meetings, that would be entirely compatible with Dr Wilson’s role and involvement with the Society. It simply has no bearing on the essential question whether in 2018 Dr Wilson was the agent of NES. Once again, Dr Ahari appears either to equate the Society with NES, or to assume some involvement behind the scenes for which there is no evidence. There is simply no evidential basis for a conclusion that NES controlled attendance at Society meetings, such that Dr Wilson could have been acting on behalf of NES, if indeed he brought about Dr Ahari’s exclusion from Society meetings as alleged. There is no evidence at all to contradict the natural presumption that the Society is an autonomous body with its own officers making their own decisions. If any decision to exclude Dr Ahari was made by Dr Wilson as an officer or member of the Society, then I find that he did not do so as an agent of NES.[45]Dr Ahari submitted, without any supporting objective evidence, that Dr Wilson did not really retire in 2011 and that he really retired in 2016. That argument is based on some speculative points about salary, pension, and an assumption on Dr Ahari’s part that Dr Wilson would necessarily work for as long as he was contractually able to in order to maximise his NHS pension. In fairness to Dr Wilson, his evidence was that he did locum work after retirement in 2011. Dr Wilson’s evidence was simply that he retired from his substantive role in 2011 and there is no evidence to contradict that. Even if there had been, I find that the point does not help Dr Ahari. Even if Dr Ahari were right that Dr Wilson did not retire from his consultant post until 2016, that would demonstrate nothing in relation to the key question whether he was also acting as an agent of NES at any particular time, still less anything of relevance to the critical dates in 2018.
Conclusion
[46]My conclusion on the pertinent issue of fact is therefore that I accept Dr Wilson’s evidence regarding his involvement with NES, evidence which is corroborated by Professor McLellan. Dr Ahari’s criticisms of their evidence are not well-founded.[47]I find that Dr Wilson was neither the agent nor the employee of NES on the relevant dates in 2018. The evidence in support of that conclusion is clear and is in no way undermined by Dr Ahari’s points. Implications for strike out[48]This is one of those strikeout applications in which it is possible to make findings of fact on a single issue which then leads to the disposal of the claim. Having made the factual finding above, I also find that there is no reasonable prospect that:a. NES would be found vicariously liable for the alleged acts or omissions of Dr Wilson in 2018 under section 109 of the Equality Act 2010; or thatb. Dr Wilson would himself be found personally liable since the test in section 110(1) of the Equality Act 2010 is not satisfied.[49]All of the remaining allegations against NES based on vicarious liability for the acts or omissions of Dr Wilson in 2018 are therefore struck out as having no reasonable prospect of success. Further, the equivalent claims against Dr Wilson personally are also struck out as having no reasonable prospect of success. In both respects, this is one of the very clear cases recognised in Anyanwu as ones which might properly be struck out. The claims are bound to fail.[50]Having heard further submissions from the parties, it was agreed that in light of those conclusions Dr Wilson should no longer be a respondent in these proceedings. NES will remain a respondent because Dr Ahari also claims against them on other bases. Expenses/costs[51]NES (which also bears Dr Wilson’s legal costs) has applied for expenses under rule 76(1)(b). A Tribunal may make an expenses order and shall consider whether to do so where it considers that any claim or response had no reasonable prospect of success. This is such a case.[52]The respondent does not base its application on a submission that Dr Ahari has acted unreasonably or vexatiously in bringing or conducting the claims (rule 76(1)(a)).[53]It is often said that awards of expenses or costs are rare, and it is sometimes said that they are the exception rather than the rule. Certainly costs do not follow the event, and do not follow automatically just because a claim has been struck out.[54]For the avoidance of doubt, the respondent sought an order for expenses not just in relation to the claims struck out today, but also in relation to the claims against or in relation to the acts of Dr Wilson which were dismissed or struck out as a result of my previous judgment on the issues of res judicata and jurisdictional time limits.[55]I approach this application in three stages.a. First, is the threshold test to trigger my power to award expenses met?b. Second, and if so, should I exercise my discretion to award expenses? I am certainly not obliged to award expenses simply because I have the power to do so and there is no presumption one way or the other.c. Third, if I decide in principle to make an award, how big should it be?[56]I have taken into account the submissions made by both sides and I have also taken into account what Dr Ahari has told me about his financial means, although I am not necessarily required to do so (see rule 84).[57]Dr Ahari is living in social housing. Housing benefit is paid direct to his landlord. He says that his only income is Job Seeker’s Allowance of £190.70 per month (less than the standard rate), that he has no savings, an overdrawn bank account and no valuable assets. He has used a laptop, a wireless speaker and a smart phone during these proceedings but tells me that they are of little value. When I asked him how he had travelled to other cases in England he acknowledged rail fares of £250-300 to Birmingham and about £350 to London. I have some difficulty understanding how Dr Ahari was able to afford such expensive, undiscounted, peak fare rail tickets if the information given about his financial means is accurate, but for present purposes I accept his unchallenged evidence on that. Threshold[58]On the first question, I am satisfied that I do have jurisdiction to make an award of expenses. My reasons are as follows.a. For the reasons already set out above I have found that the claims against Dr Wilson and against NES in relation Dr Wilson’s actions or omissions in 2018 never had a reasonable prospect of success, and that is why I have struck them out today. The vicarious liability point was misconceived in so far as it related to any allegation later than 1 January 2005. The relevant allegations were more than 13 years later than that.b. It is also necessary to refer to my previous judgment on jurisdictional time limits, since claims dismissed on that occasion are also in issue. The claims against Dr Wilson and against NES in relation to his acts and omissions in the period 2002 until 2016 also lacked reasonable prospects of success, given that they were so very substantially out of time. It should be noted that Dr Ahari did not seek to rely on any just and equitable extensions of time. His sole argument was that all relevant acts amounted to one instance of conduct extending over a period. For the reasons given in paragraph 135 of my last judgment, I find that Dr Ahari’s “continuing act” argument had no reasonable prospect of success. Whether to make an order[59]When deciding whether, as a matter of discretion, I should make an award I bear in mind the following matters. Although the claims with which I am concerned lacked a reasonable prospect of success, considerable effort and expense will have been necessary on the respondents’ parts to defend them, and to secure an order disposing of them without the further costs of a full trial. I also bear in mind that Dr Ahari is an extremely intelligent and highly educated man with considerable experience of litigation in the Employment Tribunal. I have only been concerned with his most recent 17 claims in Scotland, but I am aware of at least 5 prior claims in Scotland since 2003, as well as other litigation in Employment Tribunals south of the border. Dr Ahari also has experience of applications for costs/expenses. He could not remember the number of awards which had been made against him in the past, but he remembered at least one. He did not pay it because he could not afford to do so. There have been several preliminary hearings in this litigation which have discussed and defined the issues. Dr Ahari has been aware of the respondent’s position from an early stage, and of the intention of several respondents to apply for costs. I was referred to Kovacs v QMW College [2002] EWCA Civ 352, [2002] ICR 919, CA and other authorities which remind Tribunals that a lack of means is not of itself a defence to an application for expenses or costs, since otherwise a litigant who lacked means could act with impunity. A lack of means is just one factor to be considered, and does not of itself mean that no order should be made (see e.g. Chadburn v Doncaster and Bassetlaw Hospital NHS Foundation Trust (2015)(UKEAT/0259/14)). I also bear in mind that Dr Ahari is not certified unfit to work and therefore has the capacity to gain employment to pay off any award made against him. He also continues to pursue many other Employment Tribunal claims in which he claims sums which would dwarf the award of expenses sought by the respondent in this case. He claims to be entitled to compensation which would make an award of expenses today entirely affordable.[60]On balance, I have concluded that it would be just to make an award of expenses in the respondent’s favour. It would be fair for Dr Ahari to bear some of the financial consequences of his decision to bring claims which had no reasonable prospect of success. Amount[61]Miss Craik claimed expenses in the total sum of £5,720. There is no VAT on that sum. I assessed it summarily in accordance with rule 78(1)(a). Miss Craik responded in detail to my questions about the bill of costs. I was satisfied that all of the costs claimed were reasonably and properly incurred, that the hourly rates were appropriate and that the costs incurred were proportionate to the importance and complexity of the issues. She confirmed that all of the sums claimed were ones which her clients were liable to pay. Indeed, they had already been billed and paid, save for the costs of this hearing.[62]Having regard to Dr Ahari’s limited means I have decided that he should be ordered to pay £2,500 of those costs to NES. That is a meaningful proportion of the total claimed, but less than half of what I might have ordered. That reduction is a concession to Dr Ahari’s financial circumstances and is intended to achieve justice between the parties on this issue.
Conclusion
[1]This was a Preliminary Hearing (PH) to consider a number of issues identified in a Case Management Note issued by Employment Judge Whitcombe on 21 October 2019. For the avoidance of doubt, Employment Judge Whitcombe’s Case Management Note applied to all the cases currently brought by the claimant in Scotland, and this PH was fixed to consider all the cases currently brought by the claimant in Scotland (4104542/2018, 410453/2018, 4123364/2018, 4123520/2018, 4122619/2018, 4122635/2018, 4123034/2018, 4104544/2018, 4123074/2018, 4122580/2018, 412620/2018, 4123363/2018, 410451/2018, 4122634/2018, 4123337/2018, 4122779/2018)[2]The matters to be considered at this PH are specified in paragraph 13 of the Note issued by Employment Judge Whitcombe as follows:-a. To take evidence on oath or affirmation from the claimant as to the recordings he made or tribunal proceedings. Findings of fact will then be recorded in the reasons for any resultant judgement or order.b. To give the respondents an opportunity to cross examine the claimant on those matters if they wish to do so.c. To consider whether the claimant should be permitted to rely on any such recordings as evidence in any of these proceedings.d. Whether any of the claims should be struck out under rule 37 of the ET Rules of Procedure on the basis that the making of the recordings amounts to scandalous, unreasonable or vexatious conduct of the proceedings.e. In order to resolve those issues, it may be necessary for the Tribunal to consider whether the claimant has made recordings in breach of section 9 of the Contempt of Court Act 1981 (the definition of ‘court’ in section 19 includes ‘tribunals exercising judicial power of the State’).[3]The claimant appeared in person, and the respondents were represented by Mr Hardman, counsel. Preliminary Matters[4]There were three preliminary matters which the Tribunal had to deal with. The first was the claimant’s application that this hearing should be conducted before a full Tribunal. The application was made by the claimant on the basis that a full Tribunal was required in order to consider issues of fact.[5]It was clearly in the mind of the Employment Judge fixing this PH that evidence would be heard. The claimant has already made an application for a full Tribunal, which has been refused, and there is nothing said by the claimant in support of his renewed application which would cause this Tribunal to consider that it is necessary for the Hearing to be conducted by a full Tribunal. It is in any event not necessary that a full Tribunal sits in cases where evidence is taken and there is a dispute on facts.[6]The claimant made an application to be permitted to record all Tribunal hearings. It was explained to him that the Tribunal could only make a determination of his application in relation to this hearing.[7]The application was made on two grounds. The first is that the claimant submitted that in the past there have been issues regarding a number of witnesses who gave evidence on oath, and he found that the Employment Tribunal had difficulty in documenting the facts.[8]The claimant also submitted that he had a difficulty in hearing. He referred the Tribunal to medical records dated from 1997,2005, and 2006 sent under cover of an email of 8 November 2019, and which included an audiogram. The claimant submitted that the judgments from the Social Security Tribunal referred to by the respondents were concerned only with his ability to work, rather than a disability. The Tribunal should a have appointed a medical advisor to look at these.[9]The respondents resisted the application on the basis that it was unnecessary for the proceedings to be recorded. Mr Hardman referred to two decisions from a Social Security Tribunal, provided by the claimant, and included in the bundle at pages 35 and 39. The first judgment dated August 2018 included a statement to the effect that while the claimant has some issues with his hearing this did not impede his ability to function. The second judgment also dated August 2018 included a statement to the effect that the claimant had reduced hearing in his left ear but normal function in his right ear, and he could communicate clearly and understand communication both verbally and nonverbally.[10]The Tribunal was not persuaded that it was consistent with the overriding objective in the Rules to grant the claimant’s application that these proceedings be recorded. The claimant’s perception that Employment Tribunals have a difficulty in documenting facts is not a basis upon which to grant an application to record proceedings. The medical evidence which the claimant provided undercover of his email in November dates back to 1997, 2005 and 2006. These medical records refer to a number of investigations being carried out, including a referral for an MRI scan in 2006, however there was no updated medical report before the Tribunal and there is no medical report before the Tribunal which supports the conclusion that the claimant will have difficulty in hearing what was said in the course of these proceedings. In contrast to that, judgments issued by the Social Security Tribunal in 2018 both suggested that the claimant was able to communicate and understand verbal and non-verbal communication. The Tribunal accordingly refused the claimant’s application to record these proceedings.[11]The Tribunal notes that claimant said that the adjustment he sought was that he sits on the left-hand side of the respondent’s agents and that people speak loudly. These seating arrangements were put in place.[12]On the few occasions during the course of the hearing the claimant asked for things said to be repeated, however other than on those occasions, he was able to fully engage in the proceedings, to make submissions and to answer questions put to him.[13]The third preliminary matter related to the intimation of the bundle which the respondents wished to use for the purposes of this PH to the claimant on the morning of the PH. The claimant submitted that the bundle was lodged late, and the respondents had failed to comply with Presidential Guidance for the production of documents, by producing the documents on the morning of the Hearing. He submitted this was relevant, even if he had seen the documents before.[14]Mr Hardman accepted the documents were produced on the morning of the PH, however he submitted that the documents were to be used for the purposes of cross-examination only. Furthermore, all the documents, bar one, were all documents which the claimant had previously seen.[15]Albeit the documents were lodged late, the Tribunal was satisfied that it was consistent with the overriding objective in the Rules to allow the documents to be produced, given the limited purpose of cross-examination for which the documents are to be used, and taking into account the fact that the claimant has previously received or had sight of all but one of all the documents in the bundle. The bundle comprises of correspondence which the claimant has sent, been copied into or received, together with copies of Tribunal Orders, Notes and a Judgment in proceedings to which the claimant was a party. The Tribunal notes that the one document which the claimant had not seen before was not referred to in the course of the hearing.
Background
[16]The claimant has presented 18 claims against various NHS bodies, the University of Glasgow, and the British Medical Association, and a number of individuals associated with those bodies. The majority of the claims are brought under the Equality Act 2010 for direct race discrimination (section 13) and or victimisation (section 27). The claimant in some claims also alleges detrimental treatment on the grounds that he made protected disclosures (section 47B of the Employment Rights Act 1996).[17]While it is unnecessary to go into the procedural history of these claims in detail, as a result of an earlier judgment issued by EJ Whitcombe following a two-day hearing in February 2019 a great many of the allegations brought by the claimant were found to be either res judicata, having been the subject of prior ET judgements, or to fall outside the jurisdiction of the Employment Tribunal having regard to the applicable stationery time limits, or both.[18]Following a Hearing on 14 August, in a judgment issued on 21 August 2019, EJ Whitcombe, held that the claimants claims against Dr P Wilson, and all claims brought vicariously against NHS Education for Scotland on the basis of vicariously liability for the acts or omissions of Dr Wilson, were struck out under rule 37 (1) (a) of the Employment Tribunals Rules of Procedure (the Rules) on the basis that they had no reasonable prospects of success[19]The claimant’s remaining 17 claims have been listed for a series of Final Hearings, commencing on 25 November over a period until 6 December.[20]An issue has arisen regarding the possibility of the claimant making unauthorised and covert recordings of ET proceedings, both historically, and in the proceedings presided by Judge Whitcombe in August 2018.[21]The claimant wrote to the Tribunal on 26 September 2019, stating that he wished to seek permission from the Tribunal to send ‘my evidence’ including his tape recordings of hearings at the Employment Tribunals to the Tribunal and to the BMA. The claimant stated that his reasons for recording the hearings included that he had a hearing impairment, the Tribunal was acting in an improper manner, and the respondents and their representatives were acting in an improper manner and he felt that things were progressing ‘wrongly’.[22]On 26 September Employment Judge Whitcombe directed the claimant to confirm by return, and by no later than 1 October 2019 whether he had recorded any ET Hearings, and if so, whether the judge or panel at each relevant Hearing, gave permission for the recording to be made. Employment Judge Whitcombe warned the claimant in that communication that no recordings should have been made without the express permission of the Employment Judge or Tribunal panel concerned, and that unauthorised or covert recordings of Court or Tribunal proceedings raise important issues which would require further thought and submissions.[23]No satisfactory response was received to that communication, and Unless Order was issued under Rule 38 of the Rules by employment Judge Whitcombe on 21 October in the following terms:- ‘Unless Dr Ahari provides written answers to each of the following questions, and to each responded, by no later than 4 November 2019, the claims will be dismissed without further order in accordance with rule 38 (1) of the ET Rules of Procedure 2013.a. Has Dr Ahari made any recordings of any sort of Employment Tribunal proceedings? If so, please provide the case numbers the presiding judge, the dates for recordings made, the place or places where those recordings and any copies are currently stored and the format of the recording.b. Was permission granted for any recordings made? If so, please state when and by whom.c. If recordings were made, does Dr Ahari admit any breaches of section 9 of the Contempt of Court act 1981?[24]The claimant responded to that Unless Order on 4 November 2019. He identified three cases in which recordings had been made. Those were; Dr A Ahari v University of Glasgow/ the HCI. Case number 102470/2001 -presiding judge Employment Judge Patrick. Dr A Ahari v The British Medical Association. Case number S/10664/2003 and others-presiding judge Employment Judge Garvie. Dr A Ahari v Dr Paul Wilson and NHS Education for Scotland; 4104541/2018 and others- Employment Judge Whitcombe.
The Hearing
[25]The claimant give evidence, and a Bundle of Documents was produced by the respondent. From the information before at the Tribunal with the following findings in fact. Findings in Fact[26]The claimant is a litigant in person in a number of claims against various NHS bodies, the University of Glasgow, and the British Medical Association, and a number of individuals associated with those bodies. The majority of the claims are brought under the Equality Act 2010 for direct race discrimination (section 13) and or victimisation (section 27). The claimant in some claims also alleges detrimental treatment on the grounds that he made protected disclosures (section 47B of the Employment Rights Act 1996).[27]The claimant has appeared in a number of Employment Tribunal proceedings in Scotland and in England.[28]On three occasions in Employment Tribunal proceedings in Scotland the claimant has a recorded the proceedings and has done so without the consent of the presiding Judge. The proceedings which the claimant had recorded without consent in Scotland are:- Dr A Ahari v University of Glasgow/ the HCI . Case number 102470/2001- presiding judge Employment Judge Patrick. The hearing took place in March 2002 Dr A Ahari v The British Medical Association. Case number S/10664/2003and others-presiding judge Employment Judge Garvie. The hearing took place in August 2007. Dr A Ahari v Dr Paul Wilson and NHS Education for Scotland; 4104541/2018 and others- Employment Judge Whitcombe. The hearing took place in August 2019.[29]The claimant asked Employment Judge Garvie if a recording of the proceedings could be made by the Employment Tribunal Service however no recording was made. The claimant did not ask Employment Judge Garvie if he could record the proceedings. He did not ask Employment Judge Patrick or Employment Judge Whitcombe if he could record the proceedings.[30]The claimant made these recordings without permission because he thought that things were ‘proceeding wrongly’.[31]The President of the Employment Tribunals in Scotland wrote to the claimant on 7 June 2019 informing him that; ‘parties to proceedings in the Employment Tribunal (just as in civil courts) are not permitted to record proceedings without consent.’ The President informed the claimant in June 2019 that if the this was done without permission, then ‘serious issues arise’.[32]The claimant wrote to the respondent’s solicitor, Ms Craik, on 30 September 2019 (page 67) stating ‘Dr Wilson fabricated allegations against me to the G M C when he was an adviser for Prof Corcoran. You, Dr Wilson and Prof MacLennan conspired in relation to judicial proceedings of the HMCTS which was about my civil rights. One may infer that your conduct amounted to criminal conduct. ‘[33]Ms Craik responded refuting the allegations as being without foundation and defamatory in nature. The claimant responded to Ms Craik thereafter on the 7 October 2019 (page 66) referring to her to his recording of the Tribunal proceedings, which he then sent her, stating ‘Have you not read my evidence and heard your own voice, Dr Wilson and Prof Millen’s voice on oath?’[34]The claimant used his recording of Employment Tribunal proceedings when writing to Prof Muscatelli of the University of Glasgow on 3 October 2019 (page 59) to make a complaint and requesting an investigation into Professor Kenny. The claimant attached copies of his recording of transcripts of Tribunal proceedings with that letter. He stated he could prove a number of conspiracies and criminal conduct by evidence.[35]The claimant requested a reconsideration of a decision issued by Employment Judge Whitcombe’s on 9 September 2019 (page 14 to 22). Part of his reconsideration application was made on the basis that the respondents and their solicitors, Dr Wilson, and Professor McClellan were engaged in a conspiracy. Part of the reconsideration application included the claimant’s transcript of proceedings which had been recorded in August 2019 without the consent of the Employment Judge. The claimant stated in that application that Dr Wilson had knowingly and deliberately lied on oath, and that he presented this as part of his ‘falsehood’.[36]The application for reconsideration was refused by Employment Judge Whitcombe (page 45), on the basis, among other things, that the Employment Judge had made an assessment of the credibility of the witnesses, and had dealt with that in his reasons; and that he had found no evidence of the criminal offence of perjury, collusion, or lying on oath, as alleged in the claimant’s application for reconsideration. The Employment Judge also did not see any evidence of impropriety on the part of the NHS legal Central Legal office, including, Ms Craik during the Hearing, and did not see anything in the application for reconsideration which may substantiate that allegation.[37]The claimant made a judicial complaint against EJ Whitcombe which was rejected by the President of the Employment Tribunals in a letter dated 10th October 2019 (page 72/74). In making this complaint the claimant produced something which purported to be a recording of the transcript of part of the ET hearing which took place before EJ Whitcombe on the 14th of August 2019. Part of the claimant’s complaint asserted that EJ Whitcombe was ‘dishonest in the conduct of the judicial proceedings.’ This complaint was dismissed by the President on the basis that she found it to be not only without substance but vexatious.[38]The claimant has recorded two sets of Employment Tribunal proceedings in England in which he has been engaged without seeking the permission of the Employment Judge. The fact that the claimant recorded these proceedings in England was not disclosed by him in the answers he produced in response to the Unless Order Note on Evidence[39]The claimant stated that the reason he made recordings of the Tribunal proceedings were because he had a hearing difficultly, and because he felt that the Tribunal proceedings were ‘proceeding wrongly’.[40]The Tribunal on balance concluded that it was this second reason, rather than a hearing difficulty, which was the claimant’s reason for covertly recording the Employment Tribunal proceedings.[41]In reaching this conclusion the Tribunal take into account that the medical records from 1997, 2005 and 2006, recount investigations carried out about the claimants hearing, but not provide clear medical evidence to support the conclusion that the claimant would have had difficulty in hearing what was said in the course of Employment Tribunal hearings in 2002, 207 and 2019. Furthermore, it did not appear to the Tribunal to be plausible that in the event the claimant had difficulty in hearing what was said in the course of the hearings, he would not have asked for permission to record the hearings. There would be no reason for him not to make this request.[42]The claimant said he did not make this request because he anticipated it would be refused; this however in the Tribunal’s view was not a convincing reason. Had the claimant genuinely had difficulty in hearing as was said in the course of the hearings, then it would have been open to him to produce medical evidence to support that, and to ask the Employment Judge that he be permitted to record the Hearing. The fact that he did not do so, coupled with the use to which the claimant has put his transcripts of the proceedings, (to make allegations of wrongdoing against others involved in the litigations), supported the Tribunal’s conclusion that the claimant covertly recorded the Employment Tribunal proceedings because of his perception that the Hearings were, as he put it, ‘proceeding wrongly’. Failure to Comply with Unless Order Respondents Submissions[43]The purpose for which this PH was fixed was identified in a Case Management Note of 21 October issued to the parties. In the course of giving evidence however it became apparent that the claimant has recorded two sets of Tribunal proceedings in England, and that he did not disclose the fact that he had done so in response to the Unless Order issued on 21 October 2019 with the compliance date of 4th November 2019.[44]Mr Hardman submitted that notwithstanding the limited parameters of this PH, the Tribunal is required in terms of Rule 38 to dismiss the claim in the event of non-compliance with Unless Order.[45]Mr Hardman submitted that there could be no doubt that the claimant had not complied with the Unless Order and therefore the effect of this is that the claim is dismissed. He referred to the case of Scottish Ambulance Service v John Laing UKEATS/0038/12/B1, and the judgment of Lady Smith in that case which supported the proposition that an Unless Order is a conditional judgment, and the Tribunal has no discretion other than to confirm dismissal of the claim in the event of non-compliance by the claimant. Mr Hardman referred the Tribunal to paragraph 35/36 of the judgment, which cautions against conflating what would be considerations in a Rule 18 (7) strike out, with the exercise which is required where an Unless Order has been granted. By the time such an order has been granted the Tribunal has already addressed the question of whether strikeout should fall on the party against whom the Order is made and decided that unless a particular direction is complied with, it should. Mr Hardman also referred to the case of Wentworth -Wood and Others v Maritime transport Ltd UKEAT/0316/15/JOJ in support of his position.[46]Mr Hardman submitted that relief from the consequences of failure to comply with the Unless Order should not be granted for the same reasons which he advanced in support of his application for strikeout of the claim under rule 37 (1). Claimants Submissions[47]The claimant submitted that he had complied with the Unless Order. The Scottish Tribunal did not have jurisdiction over the English Tribunal. The issue arose when he identified three Scottish Tribunal cases where he wished to introduce recordings. He was being asked about proceedings in Scotland and he had responded honestly about the Scottish Tribunal proceedings which he had recorded.
Consideration
[48]Rule 38 of the Rules states;(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. The Tribunal was satisfied that it requires to consider the issue of noncompliance with the Unless Order, notwithstanding that this was not identified as one of the issues for this PH. The reason for that is that the Unless Order is in effect a conditional judgment. The relevant law is set out in paragraphs 15 to 26 of Lady Smith’s judgment, in Scottish Ambulance Service. At paragraph 15 Lady Smith states:(3) ‘In the case of the ‘Unless Order’, the tribunal has no discretion – notice has been given in the order itself and if the order is not complied with then the claim or response struck out as at the date of non-compliance without any further procedure being required or indeed provided for under the Employment Tribunal Rules. The recipient of an ‘Unless Order’ should be under no illusion – his claim or response will be struck out without further ado if he does not do as the tribunal directs him. Further, partial compliance will not do: see e.g. Royal Bank of Scotland v Abraham UKEAT/0305/09/ DM. If there is a failure to comply whether wholly or partially, tribunal cannot revisit a decision that failure to comply result in automatic strikeout. 16. In the case of Uyanwa-Odu v Schools Offices Services Ltd UKEAT/0294/05HHJ Peter Clark said: ’25. In our view, a Rule 13(2) unless order amounts to a conditional judgment. He becomes a final termination of the proceedings if the party fails to comply with the underlying order’. 48 On the basis of the facts found the claimant had recorded two sets of Employment Tribunal proceedings in England, and did not disclose this in his response to the first question in the Unless Order, which asked him had he made any recordings of any sort of any Employment Tribunal proceedings?[49]This question does not distinguish between Employment Tribunal proceedings in Scotland or England, but clearly encompasses any Employment Tribunal proceedings. The claimant in failing to disclose that he has recorded two sets of proceedings in England, therefore failed to comply with the Unless Order. The Unless Order applied to all of the claims identified in paragraph 1 above, and the consequence of this failure to comply, is that all of these claims are dismissed.[50]Mr Hardman asked the Tribunal to reject an application for relief from the consequences of the Unless Order on the same basis that it should strikeout the claims under Rule 37 (1) of the Rules. He made submissions as to why the claimant should be struck out under rule 37 (1).[51]The Tribunal however was not satisfied that this was an appropriate course for it to adopt at this stage, given that no application for relief has been made under Rule 38(2), and further, that in terms of Rule 38(2) the claimant may apply to the Tribunal within 14 days of the date on which notice is sent to him requesting that the Order is set aside. That time-limit runs from the date upon which notice is sent to the claimant, and the claimant was not given notice in the course of the Hearing that his claim was dismissed.[52]The Tribunal however has already taken evidence and heard parties’ submissions on the issue of strikeout under rule 37(1)(a) of the Rules identified in the Case Management Note of 21 October 2019, and in the event the Tribunal requires to revisit the question of strike out in the basis identified in that Note, then a further Hearing will not be necessary.