Allen v Belfast Health & Social Care T... [2013] NIFET 00109

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 109/12 FET

179/12

CLAIMANT: Thomas Allen

RESPONDENT: Belfast Health & Social Care Trust

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is as follows:-

The Tribunal does not have jurisdiction to consider the claims of the claimant in the above-entitled proceedings. The claimant’s claims are therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mrs A Ward, Solicitor, of Directorate of Legal Services.

Reasons

1.1 This pre-hearing review was arranged to consider the preliminary jurisdictional issue:-

“Whether the Tribunal has jurisdiction to consider the claims of the claimant in the above-entitled proceedings, having regard to the doctrine of res judicata and/or the doctrine of issue estoppel.”

1.2 In addition, a pre-hearing review had also been arranged to consider and determine, in the alternative, the respondent’s application that the Tribunal should make an Order that a deposit be paid, pursuant to Rule 17 and 19 of the Fair Employment Tribunal Rules of Procedure, contained in Schedule 1 of the Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’). At the outset of the hearing, it was agreed that the respondent’s application for a Deposit Order should not proceed, pending the determination by the Tribunal of the jurisdictional issue referred to above. Further, it was agreed, following and subject to the Tribunal’s determination of the jurisdictional issue, that the respondent, if necessary and appropriate, could renew its application for a Deposit Order; and, in that event, a Case Management Discussion would be arranged to enable the Tribunal to give such further directions and/or orders, as might be necessary and relevant, for the purposes of any such Deposit Order Hearing.

1.3 The claimant gave evidence and also made oral submissions. The respondent did not call any evidence but the respondent’s representative made oral and written submissions. I also had regard to the documentary evidence submitted by the claimant and the respondent’s representative.

2.1 In order to determine this matter it is necessary to set out in some detail the history of the proceedings brought by the claimant in this matter. The claimant, who at the relevant time was employed by the respondent as the Court Liaison Officer, issued proceedings on 12 August 2011 against the respondent and also Ms H Walker, whom it was not disputed was an employee of the respondent and at all relevant times was acting in the course of her employment with the respondent. In these proceedings (2011 proceedings), which were given by the Tribunal the Case Reference Nos: 99/11 FET and 1857/11, the claimant made claims of discrimination on the grounds of age, sex, disability and religious belief, as well as bullying, harassment and victimisation – arising out of a number of incidents, approximately 12 in number, which it was alleged by the claimant occurred from in or about August 2009 to January 2011. At the commencement of these proceedings, the claimant was represented by Mr T Brownlee, a trade union official from NIPSA, until he came off record on 17 November 2011. Napier & Sons, Solicitors, came on record on behalf of the claimant on 24 November 2011. The respondent and Ms Walker presented a response to the said claims on 6 October 2011, in which the claims of the claimant were denied.

2.2 Following the presentation of the said response, the Tribunal then sought to arrange, in accordance with its normal practice, a Discrimination Case Management Discussion; but, by consent, the Case Management Discussions arranged by the Tribunal were postponed on various dates during November/December 2011. However, a Discrimination Case Management Discussion was arranged to take place on 6 February 2012. But, by letter dated 31 January 2012, the claimant’s solicitors, Napier & Sons, wrote to the Tribunal as follows:-

“We refer to the above matter which is listed for a CMD on 6^th of February 2012 at 10.00 am.

We act on behalf of the claimant who has now indicated that he wishes to withdraw his current claims before the Tribunal.

We would therefore ask that this matter is therefore dismissed.

… .”

2.3 As a consequence of the said letter the Case Management Discussion, due to take place on 6 February 2012, did not take place. A decision was then issued by the Tribunal, which was registered on 8 February 2012 dismissing the said claims following their withdrawal. It was not disputed by the claimant that there were no conditions attached to this withdrawal and no indication was given by him and/or his representative, that the claimant intended to conduct any further litigation either before this Tribunal or before any other forum or jurisdiction, in relation to the matters the subject-matter of the 2011 proceedings.

2.4 The decision of the Tribunal dismissing the claimant’s claims was in accordance with Rule 21 of the Fair Employment Tribunal Rules of Procedure, contained in Schedule 1 of the Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘2005 Rules of Procedure’):-

“21(1) A claimant may withdraw all or part of his claim at any time. This may be done either orally at a hearing or in writing in accordance with Paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the Office of the Tribunals of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondent the claim is being withdrawn.

(3) The Secretary shall inform other parties of the withdrawal. Withdrawal takes effect on the date on which the Office of the Tribunals (in the case of written notification) or the Tribunal (in the case of oral notification) receives notice of it. Withdrawal does not affect proceedings as to costs preparation time or wasted costs.

(4) Where the whole or part of the claim is withdrawn, the proceedings or the relevant part of the proceedings so withdrawn are brought to an end against the respondent on that date and the Tribunal or Chairman shall dismiss the proceedings or the relevant part of the proceedings so withdrawn. The claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action in the Tribunal (unless the decision to dismiss is successfully reviewed or appealed).”

It should be noted that the equivalent Rule in Great Britain, namely Rule 25 contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (‘2004 Rules of Procedure’), contains differences to the terms of Rule 21 of the 2005 Rules of Procedure. For reasons set out elsewhere in this decision, I am satisfied that, on the facts of this case, these differences are of no relevance to the determination of the jurisdictional issue in this matter.

2.5 The claimant issued ‘new’ proceedings on 19 September 2012 against the respondent and are the subject-matter of this hearing. These proceedings (2012 proceedings) were given by the Tribunal, as set out above, the Case Reference Nos: 109/12 FET and 1797/12. In these 2012 proceedings, the claimant again made claims of discrimination on the grounds of age, sex, disability and religious belief as well as bullying, harassment and victimisation, and he again referred to the same alleged incidents which had been set out in the 2011 proceedings. Indeed, the manner in which they had been set out in the 2012 proceedings was almost identical to the way in which they had been set out in the 2011 proceedings, albeit there was some further limited detail given in relation to some of the incidents. In addition, the claimant made some reference to documents which he had received by making subject access requests under the Data Protection Act 1998 (‘DPA’) and to which further reference shall be set out elsewhere in this decision. However, the claimant fairly and frankly, during the course of giving his evidence to the Tribunal, acknowledged and accepted that the 2012 proceedings were the same or substantially the same as the 2011 proceedings. The claimant did not appeal or review the decision dismissing the 2011 proceedings upon withdrawal.

2.6 Prior to the withdrawal by the claimant of the 2011 proceedings, neither the claimant nor his representatives issued any Notices and/or applied for any Orders for Additional Information and/or Discovery and Inspection and/or Written Answers to Questions. By way of contrast, the respondent had issued Notices for Additional Information and/or Discovery and Inspection on 7 December 2011, but these had not been replied to prior to the said withdrawal. In this context, it must be recalled that a Case Management Discussion had been arranged for 6 February 2012, which I am satisfied, if it had continued to be listed, but for the withdrawal letter, would have dealt with such matters.

2.7 The claimant made a subject access request to the respondent on 30 July 2011 to which the respondent replied on 15 September 2011. The claimant was dissatisfied with this reply and wrote again on 6 October 2011, which was after he had presented the 2011 proceedings to the Tribunal, and received further replies from the respondent on 11 October 2011, 31 October 2011 and 14 December 2011. In the final letter, in the above series of correspondence, the claimant was specifically told by the respondent that the respondent believed that the claimant had all the relevant information to which he was entitled. The claimant continued to be dissatisfied with the documents he had received from the respondent on foot of the said request. Indeed, he accepted, in evidence during this hearing, that he made his representatives fully aware, prior to the withdrawal, not only of the contents of this series of this correspondence but also his dissatisfaction with what he had received. Whilst there might be some dispute about the relevance of some or all of the documents requested by the claimant in this series of correspondence, to the subject-matter of the claimant’s claims, I am satisfied it would have been possible for the claimant and his representatives to have pursued his outstanding requests by way of interlocutory orders from the Tribunal, prior to any withdrawal of his claim. This was not done. Indeed, it was not until a letter dated 29 March 2012, some two months after the withdrawal of the 2011 proceedings, that the claimant again wrote to the respondent indicating his dissatisfaction. The respondent replied initially on 4 April 2012 and more substantively on 24 May 2012. I am satisfied that the matters set out in the reply by the respondent on 24 May 2012, could also have been satisfactorily resolved, if the claimant had raised Notices for Additional Information and/or Discovery and Inspection and, if necessary, applied for Orders of the Tribunal, prior to any withdrawal of his claim. During the course of his evidence at this hearing, the claimant emphasised that he had not obtained from the respondent, during the course of this correspondence, his letter of complaint made by him in October 2010. In its reply dated 24 May 2012, the respondent had replied that it could not locate anything in relation to the letter of complaint made by him in October 2010. However, as the claimant accepted in evidence, he always had a copy of this letter of complaint and therefore any failure of the respondent to locate his letter was of no significance or relevance for the purposes of the 2011 proceedings. The claimant subsequently took up the matter with the Information Commissioner’s Office (‘ICO’) on 11 April 2012 and received a comprehensive reply on 27 December 2012. The ICO had the opportunity to consider all the relevant correspondence and submissions and noted that it was unlikely the respondent had fully complied with the Data Protection Act, in that it did not comply with the 40 days timescale and that, as a consequence, there had been some breaches of the terms of the data protection legislation. However, the ICO concluded that it was satisfied the respondent took its obligations under the Data Protection Act seriously and that it did not intend to take regulatory action. That letter was sent some eight days after the issue of the 2012 proceedings. In those circumstances, I am not satisfied that the said letter could have been the reason that the claimant decided to bring the 2012 proceedings. Indeed, during the course of his evidence to this Tribunal, the claimant could not point to any relevant document and/or information which he received, following the withdrawal of the 2011 proceedings, the potential existence of which he was not aware prior to the said withdrawal of the 2011 proceedings. As I pointed out to the claimant, issues about breaches (if any) by the respondent of the data protection legislation is not something that falls within the jurisdiction of this Tribunal. Indeed the claimant was advised by the ICO in its letter dated 20 September 2012 of the correct forum to pursue such matters, if he considered it appropriate to do so.

3.1 The doctrine of res judicata (or cause of action estoppel) which, if successfully pleaded, puts an end to an entire cause of action, and issue estoppel – relating to a particular issue – are summarised in Harvey on Industrial Relations and Employment Law, Volume 3, Division P1 Practice and Procedure:-

“1011 The effect of a judgment of an employment tribunal is that it is binding as between the parties so as to prevent them from litigating the same issues over again in any future legal proceedings; or to put it more precisely, such a judgment is covered by the doctrine of res judicata (or cause of action estoppel) and issue estoppel. The rationale of this doctrine is that there must be finality of litigation and the avoidance of multiplicity of proceedings on the same issue.

1012 The term ‘res judicata’ is used to describe a defence, pleaded by way of estoppel, to an entire cause of action, the grounds of it being that the whole of the legal rights and obligations of the parties in relation to that cause of action have already been determined as between the parties by an earlier judgment of a court of competent jurisdiction; this is also known as cause of action estoppel known as ‘cause of action estoppel’ (see Crown Estate Commissioners v Dorset County Council [1990] CH 2097. The term ‘issue estoppel’, on the other hand, is used to describe a defence, likewise pleaded by way of estoppel, to a particular issue raised in legal proceedings, the basis of such defence also being the same issue has already been judicially determined, finally and with certainty, in earlier proceedings between the same parties … application of these principles to employment tribunals is beyond doubt : see Munir v Jang Publications Ltd [1989] IRLR 224.

1013 Therefore where an employment tribunal has made a final determination on an issue, the parties are bound by the decision in any subsequent proceedings between themselves, whether in an employment tribunal or in a court of law.”

In Barber v Staffordshire County Council [1996] IRLR 209, the Court of Appeal held that the principles of res judicata (cause of action estoppel) or issue estoppel applied to the dismissal of an application by a Tribunal following its withdrawal by the claimant. The Court stated that there was nothing which stipulates that the doctrine of estoppel can only apply in cases where a Tribunal has given a reasoned decision on the issues of fact and law. Although this decision was given, pursuant to Rule 25(4) of the 2004 Rules of Procedure, which are applicable in Great Britain, as referred to above, I am satisfied that the decision also applies to the proper interpretation of Rule 21(4) under the 2005 Rules of Procedure, which apply in Northern Ireland. Under Rule 21(4) of the 2005 Rules of Procedure, in Northern Ireland, the Tribunal has no discretion whether or not to make a decision to dismiss a claim following withdrawal. It must do so. This is in contrast to the position, in Great Britain, where under Rule 25(4) of the 2004 Rules of Procedure an application to dismiss, following withdrawal, has to be made to the Tribunal before any such decision to dismiss can be made. Regardless of when or how the decision to dismiss is made by the Tribunal, the decision in Barber makes it clear the doctrine of res judicata (or issue estoppel) does not arise until a decision to dismiss is made by the Tribunal. A mere withdrawal, in itself, would not be sufficient. In this particular case, as set out above, the Tribunal made the said decision to dismiss the claimant’s claims following their withdrawal on 8 February 2012.

4.1 The claimant, in the course of his evidence and in submissions to the Tribunal, as stated previously, did not seek to suggest that the 2012 proceedings were different to the 2011 proceedings. Having considered the claim form in the 2011 and 2012 proceedings, I am satisfied that both sets of proceedings are the same or substantially the same. The same causes of action have been raised and the alleged incidents, the subject-matter of those causes of action, are the same in both sets of proceedings. In the circumstances, I am satisfied that this is an impermissible attempt by the claimant to re-litigate matters upon which a Tribunal gave a final judgment. There was nothing in the manner of the claimant’s withdrawal of the claim which would disapply the doctrine of res judicata (or cause of action estoppel). In these circumstances, I was not satisfied that the doctrine of issue estoppel arises and I have therefore not considered it further. In any event, as set out in Rule 21(4) of the 2005 Rules of Procedure where a claim is dismissed upon withdrawal, a claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action in the Tribunal, unless the decision to dismiss is successfully reviewed or appealed. There was no review or appeal of the 2011 proceedings. In my judgment, the 2012 proceedings are the same or substantially the same as the 2011 proceedings and therefore the claimant was not entitled to commence the 2012 proceedings.

5.1 The Tribunal therefore has no jurisdiction to consider the claims of the claimant in these 2012 proceedings and they must be dismissed.

Chairman:

Date and place of hearing: 8 January 2013, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Allen v Belfast Health & Social Care T... [2013] NIFET 00109_12FET (11 January 2013) URL: http://www.bailii.org/nie/cases/NIFET/2013/109_12FET.html Cite as: [2013] NIFET 00109_12FET, [2013] NIFET 109_12FET

Fair Employment Tribunal Northern Ireland Decisions