The Employment Appeal Tribunal (EAT) has confirmed in Watkins v British Medical Association (BMA) that once a matter has been considered by a court (in this case by the certification officer), it cannot be reconsidered under the principle known as res judicata, which is defined as a matter that has been adjudicated by a competent court and, therefore, may not be pursued further by the same parties.
Basic facts
After elections for the deputy chair of the BMA Council in the summer of 2017, Dr Watkins posted on a BMA message board known as “listserver” which he addressed personally to the successful candidate, Dr Hedderick. This was automatically copied to all council members. In it, he asserted that Dr Hedderick, who he described as the least experienced of the candidates, had been elected simply to deprive another candidate of support.
Following a successful complaint about the posting by Dr Dearden, the BMA treasurer, Dr Watkins was suspended in October 2017 from all BMA committees and other elected roles, and his access to listserver was removed for 12 months.
In January 2018, Dr Watkins circulated a document entitled Manifesto for a Better BMA, which he had written along with others. Another member, Sir Sam Everington, then complained that it was inappropriate for Dr Watkins to circulate the manifesto while suspended. Ultimately, however, the BMA did not take any action concerning this complaint.
In July 2018, Dr Watkins complained to the certification officer (CO) about the handing of the Dearden and Everington complaints. In all, seven issues were identified, one of which was struck out and some of which were accepted by the BMA. In the end, three of his complaints were considered:
- That he should not have been suspended before the Dearden complaint had been decided.
- That the way in which the Everington complaint had been handled had resulted in constructive debate being stifled, contrary to Principle 17 of the BMA’s complaints process.
- That the BMA should not have upheld the Dearden complaint.
These were all dismissed by the CO in October 2019. Dr Watkins’ appeal against that decision before the EAT was rejected except for one aspect relating to the Principle 17 complaint, which was remitted back to the CO for reconsideration.
Dr Watkins then applied to the CO to amend two of his complaints, arguing that it was only when he read the appeal tribunal’s judgment that he realised they would have succeeded had they been worded differently.
CAC decision
In June 2021, the CO refused the application to amend on the basis that he had agreed the wording of the complaints, and she did not have the power to reconsider any part of them except for the one aspect relating to the Everington complaint that had been remitted to her following the EAT judgment. She ultimately dismissed this complaint on the basis that although Principle 17 was engaged, the BMA complied with it when it dismissed the complaint in January 2018
Dr Watkins appealed.
EAT decision
Dismissing the appeal, the EAT confirmed that the CO had no powers of review other than to correct accidental errors. It pointed out that Dr Watkins could and should have brought all his challenges in the original appeal against her decision which he had submitted in time.
This appeal was now “long out of time” and constituted an abuse of process as the complaints had been finally determined in the first EAT judgment and could not be reconsidered (known as the principle of res judicata). As such, even if the EAT was minded to extend time, the appeal would be bound to fail.