Dr Stephen John Watkins v British Medical Association

A statutory decision-maker cannot reopen complaints which it has finally determined unless it has statutory power to do so. Final determinations are subject to res judicata, including the rule that a party must advance, in the original proceedings, matters which could and should then have been raised. A later wish to have framed a complaint differently is not a special circumstance justifying reopening it.

An appeal from the Certification Officer under the pre-amendment statutory scheme lay only on a question of law. Findings as to whether a trade-union complaint risked stifling debate, and whether the response achieved compliance with the governing principle, were factual findings. They could not be disturbed absent legal error or perversity.

Dr Watkins made complaints to the Certification Officer concerning the British Medical Association’s handling of disciplinary complaints under its living our values procedure. In 2019 the Certification Officer dismissed the material complaints. An earlier appeal to the Employment Appeal Tribunal before Bourne J failed except that the complaint alleging breach of Principle 17 was remitted.

Dr Watkins then sought to amend two complaints which had already been determined, and brought a further appeal against the 2019 decision. The Certification Officer also dismissed the remitted Principle 17 complaint, finding that the relevant risk did not arise until 22 January 2018 and that dismissal of the underlying complaint on 30 January 2018 achieved compliance. The EAT had to decide whether the amendments or second appeal could proceed, and whether those factual findings disclosed an error of law.

1. All three appeals were dismissed. The Certification Officer was entitled to refuse the proposed amendments. The early-suspension and Dearden complaints had been finally determined, and the latter had also been finally disposed of by the earlier EAT appeal. There was therefore nothing left to amend.

2. The doctrine of res judicata applied both to the Certification Officer’s determinations and to the earlier judgment of Bourne J. Applying the principles explained in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, the EAT held that any materially different grounds also could and should have been advanced in the original complaint. Dr Watkins’ agreement to the complaints’ wording after extensive correspondence, followed by a wish to plead them differently after reading the earlier judgment, was not a special circumstance under Henderson v Henderson.

3. The Certification Officer’s office is statutory. It has no general power to review a completed determination, apart from correction of accidental errors. No statutory power authorised reconsideration of either the wording or merits of the two completed complaints.

4. The second appeal against the 2019 decision was very late. There was no good explanation for the delay or exceptional basis for an extension of time. It was also an abuse of process because the complaints had already been finally determined, so it would have failed even if time had been extended.

5. Under section 108C of the Trade Union and Labour Relations Act 1992, as applicable to these appeals, the EAT could intervene only on a question of law. The Certification Officer’s findings on the timing of engagement of Principle 17 and the adequacy of the BMA’s response were factual findings open to her. Dr Watkins identified neither an error of law nor perversity. The respondent’s purported cross-appeal was only an alternative basis for upholding the decision and required no determination.

• Employment Appeal Tribunal: This judgment dismissed the amendment appeal, the second appeal against the 2019 Certification Officer decision, and the Principle 17 appeal: [2023] EAT 23.
• Certification Officer: On 3 November 2021, dismissed the remitted Principle 17 complaint.
• Employment Appeal Tribunal (Bourne J): On 6 April 2021, dismissed the earlier appeal except for remitting the Principle 17 complaint to the Certification Officer.
• Certification Officer: On 14 October 2019, dismissed the material complaints after the BMA conceded the first complaint.