EAT hold Tribunal was correct to dismiss claim 3 years after it was withdrawn
In the recent decision of Secretary of State for Health and The Practice Surgeries Ltd v Dr Srivatsa (UKEAT 01212/15/RN) the EAT held that the Tribunal had been right to issue a judgment dismissing an old Tribunal claim even where the reason the Respondent sought the judgment was to estop the claimant from pursuing High Court proceedings.
Background
In 2011 the Claimant, a General Practitioner, issued a claim in the Employment Tribunal against Surrey Primary Care Trust and against The Practice Surgeries Limited. He claimed he had suffered a campaign of bullying which amounted to unlawful discrimination and a breach of contract. Dr Srivatsa subsequently withdrew his claim and both Respondents applied, in October 2011, for a judgment dismissing the claim. The Tribunal failed to deal with the application and no judgment was issued.
Some time later, Dr Srivatsa issued a High Court claim against the same Respondents complaining of the same matters that he had raised in his withdrawn Tribunal claim. The Respondents raised the issue of estoppel: was Dr Srivatsa prevented from pursuing litigation in the High Court which he had already raised and abandoned in the Employment Tribunal? To establish such an estoppel usually requires a judgment dismissing the Tribunal claim. In Dr Srivatsa’s case, because the Tribunal had not dealt with the application in 2011, there was no dismissal judgment.
The Secretary of State for Health (who had by then assumed Surrey Primary Care Trust’s legal liabilities) contacted the Tribunal in September 2014, seeking the dismissal judgment. Although it was 3 years since the original application had been made and the Tribunal file had since been destroyed, the Employment Tribunal issued a judgment dismissing the claim.
Dr Srivatsa then asked the Tribunal to reconsider that decision to issue the dismissal judgment, arguing that the Respondents would use the judgment as a weapon to have his High Court claim estopped. The Tribunal judge agreed and revoked the dismissal judgment.
Decision on appeal
On appeal to the Employment Appeal Tribunal, Secretary of State for Health and The Practice Surgeries Ltd v Dr Srivatsa (UKEAT 01212/15/RN), Slade J ruled that the Tribunal had been wrong to revoke the dismissal judgment and that the dismissal therefore stood. The Tribunal judge should not have revoked the dismissal judgment because it might be used to estop the High Court claim. That was not a relevant consideration. Whether the dismissal would estop the High Court claim was a matter for the High Court to decide.
Although it was unusual for an application to be determined 3 years after it was made, the Tribunal Rules of Procedure have no time limit for the determination of an application. If the Tribunal had properly dealt with the application in 2011 it would have dismissed the claim: the evidence showed that the Claimant had intended to abandon his claim when he had withdrawn it.
Thomas Cordrey, acted on behalf of the Respondent, the Secretary of State for Health.
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