Employment Tribunal Rejects Race Discrimination and Unfair Dismissal Claims

OUTCOME: Dismissed

Case No. 2401163/2023 2403404/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted] 2. NHS England

HELD AT:

Manchester (in public, by CVP) ON: 23 September 2025 BEFORE: Regional Employment Judge Franey (sitting alone)

REPRESENTATION:

Claimant: [redacted] Did not attend [NAME_3], Counsel

JUDGMENT

The allegation of direct race discrimination in relation to an e-mail sent by [NAME_5] on 2 March 2021 is struck out under Rule 38 because it has no reasonable prospect of success.

REASONS

Introduction 1. Doctors hoping to progress to consultant grade in the NHS undergo a training programme over several years during which they are known as Specialty Trainees. The training programme has different stages known as “ST1” etc. Progression from one stage to the next is determined by an Annual Review of Competence Progression (“ARCP”) meeting, which is arranged and managed by NHS England, the second respondent. However, the Specialty Trainees are employed by a specific NHS trust as the lead employer for all such trainees in the region. In this case the employer was

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2 the first respondent. The Speciality Trainees undergo training by a series of placements in other trusts known as the host organisations.

2. The claimant specialised in anaesthetics and participated in that programme over several years, progressing to stage [NAME_7] in August 2019. That stage is the second of two intermediate years of training, and once completed is followed by three years of higher and advanced training at levels ST5-ST7.

3. In October 2022 the claimant received a negative outcome from her ARCP which, if upheld, would mean that she was excluded from the training programme and her employment with the first respondent would therefore end. She lodged her first Employment Tribunal complaint in January 2023. At that time her appeal against the outcome was pending, but the appeal was unsuccessful and her employment and participation in the specialty training programme ended in February 2023. She presented her second claim form in March 2023.

4. Between them the two claim forms raised a number of different complaints. There was a complaint of unfair dismissal, and complaints of discrimination arising out of the protected characteristics of age, disability and race. The race element reflected the fact that the claimant is from Belarus and English is her second language.

5. Following a preliminary hearing on 10 October 2023 Employment Judge Holmes determined that the claimant had not been a disabled person at the material time. Her disability discrimination complaints were subsequently struck out by Employment Judge Johnson following a hearing on 17 May 2024. In addition Employment Judge Johnson struck out some of the sex and age discrimination complaints, meaning those that survived were restricted to harassment related to sex and/or race, direct age discrimination and unfair dismissal.

6. Those matters came before Employment Judge Rhodes for case management on 15 January 2025, and have been listed for a final hearing between 10 and 13 February 2026.

7. In the meantime the claimant appealed against the decision of Employment Judge Johnson. Only one aspect of her appeal was allowed to proceed at the sift stage by Judge Susan Walker KC in the Employment Appeal Tribunal (“EAT”). Judge Johnson had decided that the claimant had no reasonable prospect of success in showing that her allegation about feedback provided by [NAME_5] about her in early 2021 had been brought within time. Judge Walker KC allowed the appeal to progress to a final hearing to determine whether Judge Johnson had erred in law by failing to take into account the possibility of a just and equitable extension of time.

8. Subsequently the parties reached agreement that there should be an order from the EAT remitting that matter to the Employment Tribunal to consider further whether it should be struck out. The order from the EAT to that effect was sealed on 21 May 2025. Subsequently the respondent confirmed in correspondence that it still intended to pursue its application to strike out this allegation as having no reasonable prospect of success.

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3 9. I pause here to observe that the claimant asserted in an e-mail of 4 June 2025 that the agreement had been that the allegation in question would go to a final hearing, but that is not consistent with the signed consent order or the terms of the order actually made by the EAT. It must have been a misunderstanding by the claimant of what had been agreed. I was satisfied that the application could still be pursued by the respondent. This Hearing 10. Once it became clear that the respondent was still pursuing the application which had been remitted by the EAT, I sought to arrange an early public preliminary hearing given that the final hearing is due to take place in February 2026. By e-mail of 5 August 2025 the parties were notified that the hearing would be listed for a full day and would start at 10:00 am on Tuesday 23 September 2025.

11. There ensued a series of e-mails in which the claimant pointed out that she was now working in Dubai, had clinical responsibilities and was unable to take annual leave because she was still in her probationary period, and therefore could not attend the hearing until 2:00 pm and would have to leave it by 3:00 pm because of childcare obligations. The respondent opposed any suggestion that the hearing should be reduced in length because of the issues to be considered. The matter was considered by Employment Judge Ross who noted that the claimant was not making any application to postpone the hearing.

12. Subsequently the claimant said she would be able to attend the hearing by video if it was listed on a Friday. I offered three Friday dates in September and October when the hearing could be held and said that I would consider moving it if both sides agreed. The respondent said that none of those dates were convenient for its representative, and that in any event it strongly opposed delaying the final hearing any further. The grounds for opposing further delay were well-founded and I confirmed the hearing would proceed at 10am on Tuesday 23 September 2025.

13. It had been made clear prior to the hearing that it was open to the claimant to rely on any written submissions if she was unable to attend the start of the hearing. The claimant had responded by an e-mail of 10 September saying that everything was written in the bundle and she did not need to bring any new evidence. It was clear to me prior to the hearing from reading the series of e-mails between June and September 2025 put forward grounds on which she resisted this application. In particular she raised two points about vicarious liability which I put to [NAME_8] in the course of her oral submissions, and which I took into account in making my decision.

14. Overall I was satisfied that the claimant had had a reasonable opportunity to make representations, either in writing or by attending this hearing, and therefore that it was fair to proceed.

15. I should add that as this was an application to strike out part of the claim I assumed that the facts were as the claimant asserted them to be. The facts set out below are taken from her own documents or from contemporaneous documents. There is one matter which was unclear which I have assumed in her favour in paragraph 31 below.

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4 16. [NAME_8] confirmed at the start of the hearing that the application was being pursued on three bases. The first was that there was no reasonable prospect of success in showing that the e-mail in question amounted to direct race discrimination. The second was that there was no reasonable prospect of establishing that the respondents were vicariously liable even if there had been direct race discrimination by [NAME_5]. The third was that the claimant had no reasonable prospect of persuading the Tribunal to extend time to enable the allegation to be considered.

17. The information available to me at this hearing consisted of the Tribunal’s file of documents, which included all the e-mails to which I have referred above, and a bundle of documents which ran to 632 pages which had been prepared by the respondent. That included almost all the documents to which I had to refer during the hearing and any references to page numbers in these reasons is a reference to that bundle of documents. Summary of the Facts 18. My decision in this case has been based on the following facts which are either a matter of record, drawn from the claimant’s account, or (in one respect) assumed to be in her favour.

19. References to the claimant’s communication skills, related to her accent, had arisen earlier in her training. Her CV (page 612) recorded that in April 2017 the claimant undertook an accent reduction course for non-native speakers run by [NAME_121].

20. An assessment form (page 338) from July 2018 completed at Aberdeen Royal Infirmary recorded a suggestion by a colleague that her English-speaking skills and consequently her ability to communicate clearly and accurately were often difficult and inadequate. The same form made reference to her accent and monotonicity making it a challenge when she was trying to say different things.

21. In November 2018 a form recording consultant feedback (page 340) recorded that “language barrier significantly affects practice” and that she needed to work on communication skills.

22. The ST training programme took the claimant to a number of placements in the North West and between February and May 2021 she was placed at [COMPANY_55]. That was part of the Northern Care Alliance NHS Foundation Trust (“the [NAME_10]”). The [COMPANY_11] for anaesthesia was [NAME_12]. The role is also called Educational Supervisor. The [COMPANY_11] is responsible for the overall supervision and management of the educational progress of the trainee during the placement at the host trust. [NAME_15] was employed by the [NAME_10], not by either of the respondents in this case. 23. [NAME_5] was also employed by the [NAME_10]. His contract of employment with a predecessor trust appeared at page 327. He was not employed by either of the respondents in this case.

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5 24. On 22 February 2021 (page 358) [NAME_15] e-mailed a number of consultants in the department, including [NAME_5], saying that the claimant had ongoing issues relating to communication, teamwork and leadership, and that the group of consultants she would be working with had been narrowed down to the recipients of the email. She said that the recipients should “feel free to e-mail … with any additional feedback”. 25. [NAME_5] e-mailed [NAME_15] on 2 March 2021 (page 359). His e-mail set out some positive feedback about the claimant. It then had a list of points which were “not so positive”. They included being late to start her list of patients, causing unnecessary distress to patients on two occasions, and a need to improve prioritisation. It also included this paragraph: “She is incredibly difficult to understand. A mix of a very strong [NAME_16] accent and English as a second language. I do wonder whether she would make herself understood easily in an emergency situation.” 26. The e-mail was not sent to the claimant.

27. Other consultants provided feedback in a series of e-mails which appeared (in anonymised form) at pages 577-582. They combined positive with negative feedback. A number of them mentioned issues with communication.

28. On 21 April 2021 the consultant [NAME_17], another [COMPANY_11], e-mailed the consultants saying that the claimant was moving on to [NAME_21] and thanking them for their individual feedback. She asked the consultants to complete a feedback form to enable the information to be summarised. [NAME_5] responded about an hour later (page 569) attaching the form which appeared at pages 570-571. For each of the three component parts of communication and teamwork he ticked the box indicating that it required improvement, and in the section with text expressing his overall opinion he said: “Her number one issue is that her communication skills are dire (especially when stressed). They are lacking in clarity, prioritisation and sometimes can be expressed in what can appear to be a confrontational stance.” 29. The feedback forms were compiled into a summary form which appeared at pages 572-575. It was signed by the consultant [NAME_22]. It was dated 4 May 2021. It included a copy of some of the text comments received on the individual feedback forms, and a number of those entries referred to communication skills. None of the comments reproduced made express reference to her nationality.

30. On 3 April 2021 (page 584-585) the claimant e-mailed [NAME_15] and others to say that she had found a specialist in phonetics to give her lessons. Her CV confirmed that she had a total of 23 lessons between May and December 2021.

31. On 6 May 2021 [NAME_22] sent the claimant the summary of her feedback from [NAME_9] for her portfolio. I have assumed in the claimant’s favour that she did not see the individual feedback form completed by [NAME_5], but only the summary which had been completed by [NAME_22], so she did not see in 2021 any reference to her nationality. The claimant responded the same day saying that there were some issues to discuss, asking for more details about concerns about

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6 communication, and pointing out that her course was “accent softening” rather than “elocution”.

32. It is clear, therefore, that the claimant was aware that there were concerns held by other consultants about her communication skills and that she was making efforts to remedy these by taking lessons during the remainder of 2021. She did not pursue any grievance or Employment Tribunal complaint or make any recorded allegation that this amounted to any form of discrimination because of race.

33. Following the outcome of the [NAME_24] in late 2022, the claimant presented her first claim form in January 2023. Amongst the boxes she ticked was that for race discrimination, and she said there had been “multifactorial discrimination” on grounds including the fact that she was a “foreign female”. The narrative referred to “multiple anonymous feedback assessments”. She referred to her trainers having marked her negatively on teamwork, leadership and communication. Her narrative ended by saying that discrimination on race was evident.

34. In February 2023 the claimant received the result of a Subject Access Request in which she saw for the first time the anonymised version of the e-mails which appeared at pages 576 to 582. They included the anonymised e-mail from [NAME_5] (page 576) which was the only one that mentioned her nationality.

35. The second claim form was presented on 12 March 2023. It was primarily triggered by the rejection of her appeal against the ARCP assessment, and the consequent termination of her training and employment on 24 February 2023. She made reference in box 8.2 to a period at Salford from February 2021 and included this in her grounds of complaint: “It came to light that college tutors were specifically collecting negative feedback about me, did not share with me and submitted to the [NAME_25]. I got the letters via SAR in February 2023. They contained notes of DISCRIMINATORY character, about my accent, communication, childcare, gender. …” 36. The claimant provided a seven-page document summarising why she said her dismissal was unfair, which included details of her discrimination allegations (pages 68-75). On the fifth page she made specific reference to the e-mail from [NAME_5], quoting the phrase about her Belarussian accent. She said that message amounted to race discrimination. At a case management hearing before Employment Judge Howard on 10 July 2023 the allegation was identified and recorded as one of direct race discrimination in relation to the e-mail sent by [NAME_5].

37. As I indicated above, that allegation was struck out by Employment Judge Johnson, but following the decision of the EAT the question of whether it should be struck out or proceed to a final hearing was remitted to be determined at this hearing. Relevant Legal Principles 38. I will summarise the law only briefly here because it was set out at some length in the reserved judgment and reasons of Employment Judge Johnson issued following the hearing on 17 May 2024. Rule 37 of the 2013 Rules of Procedure, which applied

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7 at that time has now been replaced in identical terms by Rule 38 of the Employment Tribunal Procedure Rules 2024.

39. Rule 3 of the 2024 Rules sets out the overriding objective of dealing with cases fairly and justly.

40. Rule 38 provides, so far as is relevant: (1) At any stage of the proceedings…. on the application of a party, a Tribunal may strike out all or part of a claim … on any of the following grounds- (a) that it … has no reasonable prospect of success; … (2) A claim … may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

41. Discrimination complaints are highly fact-sensitive. There is a strong public interest in such claims proceeding to a final hearing so that the evidence can be properly examined. Striking out such a claim on the ground that it has no reasonable prospect of success is reserved for the clearest of cases. The alleged facts must be taken at their highest unless there is some particularly compelling reason for thinking that the tribunal will reject them. Where there is a central core of disputed fact, it is highly unlikely that should strike it out. See Eszias v. North Glamorgan NHS Trust [2007] EWCA Civ 330 as authority for these propositions.

42. As a result it will only be in a plain and obvious case that it is appropriate to strike out a complaint of discrimination at a preliminary hearing on the ground of its prospects of success: Anyanwu v. South Bank Student Union [2001] UKHL 14.

43. In Ahir v. British Airways [2017] EWCA Civ 1392, Underhill LJ stated at paragraph 16: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary for liability being established, and also provided they are keenly aware of the danger of reaching such conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities.” 44. To put it another way, “the need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit”: [NAME_26] v. Ministry of Justice & others [2023] EAT 41.

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8 45. I applied that legal framework to each of the three strands of this application, being (a) the merits, (b) vicarious liability and (c) time limits. I will address each strand in a separate section, referring as appropriate to provisions in the Equality Act 2010. Merits 46. [NAME_8] argued that the allegation that the e-mail from [NAME_5] of 2 March 2021 amounted to direct race discrimination had no reasonable prospect of success.

47. Section 13 prohibits direct discrimination which arises where, because of a protected characteristic, the person treats the person less favourably than that person treated or would have treated others.

48. Section 9 defines “race” as including colour, nationality and ethnic or national origins.

49. The concept of less favourable treatment involves a comparison, and under Section 23 there must be no material difference between the circumstances relating to each case.

50. The claimant did not identify an actual [NAME_27] and therefore her case relies on a hypothetical [NAME_27]. Because there must be no material difference in the circumstances of that person, the [NAME_27] must be a person at the same stage in their training perceived by [NAME_5] to have the same communication issues but who is of a different nationality, such as British. Approaching the question in this way allows the Tribunal to focus on the real issue in this part of the case: did the fact the claimant is from Belarus have any material influence, consciously or subconsciously, on the decision of [NAME_5] to provide his negative feedback about her communication skills.

51. The claimant has never identified anything else said or done by [NAME_5] that she relies on to support an inference that her nationality or race was a factor in his decision to send this e-mail. Her case is based solely on the fact that in his email he referred to her being from Belarus.

52. I was satisfied that from the text of the email alone the fact that the claimant is from Belarus appears to have had no material influence on his decision to provide feedback expressing his concerns about her communication skills and other matters. The references to her being from Belarus, and English not being her first language, are part of the background. Some of the negative feedback is not related to nationality. Some of the feedback is positive.

53. Further, even if the claimant could identify something which shifted the burden to the respondent to show an entirely non-discriminatory reason for sending the email, it is plainly a response to a request for feedback made by [NAME_15] about a trainee with whom issues about communication had been identified.

54. Overall I was satisfied that there was no reasonable prospect of the Tribunal concluding that sending the e-mail amounted to a contravention of Section 13 by [NAME_5]. The only realistic conclusion is that he would have sent the same email

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9 for a British trainee with equivalent communication issues for a different reason. I therefore struck out this allegation because it had no reasonable prospect of success. Vicarious Liability 55. [NAME_8] also submitted that there was no reasonable prospect of the claimant establishing that the second respondent could be liable even if there had been direct race discrimination by [NAME_5].

56. She took me to the documents to which I have referred above which show that [NAME_5] was an employee of [NAME_10] at the relevant time, not an employee of the second respondent. Nor did he hold the role of [COMPANY_11]. He was simply a consultant with whom the claimant worked during this part of her training.

57. On that basis I concluded that there was no reasonable prospect of the claimant showing that he was an employee of NHS England under Section 109(1) Equality Act 2010.

58. There were, however, two arguments for the claimant which I raised with [NAME_8]. Both had been raised by the claimant in her e-mails between June and September 2025, albeit not in legal language.

59. The first was the suggestion that the Tribunal at the final hearing might find that [NAME_5] acted as the agent of the second respondent in being part of the process by which information about the claimant’s performance was gathered and evaluated. I took account of the case law on when an agency relationship under section 109(2) of the Equality Act 2010 could be established. That case law included the decisions of the Court of Appeal in [NAME_28] v Ministry of Defence [2014] ICR 625, and UNITE the Union v Nailard [2018] IRLR 730. These cases confirm that the reference to “agency” in the Equality Act is a reference to the ordinary common law principle. The common law definition refers in general to the situation where the agent may directly affect the legal relationships of the principal in relation to other people by acts which the agent is said to have the principal’s authority to perform. The power of the agent arises from a manifestation by the principal of willingness to have their legal position changed by the actions of an agent.

60. I concluded that the claimant had no reasonable prospect of establishing at the final hearing that [NAME_5] acted as the agent of the second respondent in that sense simply by sending feedback to the [COMPANY_11]. The e-mail in question was a voluntary response, albeit in reply to an invitation to provide feedback. There was no sense in which [NAME_5] could affect the legal relationship between the second respondent and the claimant, since all he was doing was providing information which would be fed into their ARCP process. It was the decision of the ARCP which would affect the legal relationship and he was not party to that decision. I therefore rejected the contention that there was any basis for relying on agency under Section 109(2) Equality Act 2010.

61. The second point for the claimant was that to reach a conclusion in those terms would undermine the purpose of the Equality Act and leave her with no effective remedy. The claimant expressed in e-mails her concern that there must be some way

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10 in which those in the position of [NAME_5] could be liable if they acted in a discriminatory way in providing feedback about a trainee doctor.

62. I was satisfied, however, that ultimately my conclusion on the agency issue did not undermine the purpose of the Equality Act. The claimant would have three other ways of establishing liability should a discriminatory e-mail of this kind be sent in this situation.

63. The first would be to take issue with the ARCP decision based on that (and other) feedback. That is a claim which the claimant has pursued and which will be heard on its merits at the final hearing.

64. The second would be to pursue proceedings against the host trust (the [NAME_10]) on the basis that the claimant had been a contract worker and the [NAME_10] was a “principal” within Section 41 Equality Act 2010. That is not a claim which has been pursued and it would now be pointless for the claimant to try and raise it: it is too late to add [NAME_10] as a respondent and the email was not discriminatory anyway.

65. The third would be to have brought proceedings against the author of the e-mail individually, arguing that there had been a contravention of either Section 111 Equality Act 2010, arguing that the author induced a subsequent contravention of Section 13 by the second respondent, or Section 112, arguing that the author knowingly helped the second respondent to contravene the Equality Act. These are also claims which have not been pursued and it would again be pointless for the claimant to try and raise them: it is too late and the email was not discriminatory anyway.

66. Accordingly I concluded that there was no reasonable prospect of the claimant establishing that the second respondent could be liable even if [NAME_5] had committed direct race discrimination in sending the e-mail in question. The complaint also had no reasonable prospect of success for that reason. Time Limits 67. As I had already decided that the complaint should be struck out it was not necessary for me to consider time limits in detail.

68. Broadly, however, I was satisfied that although the claimant knew of concerns about communication skills for some time, and was well aware of the gist of the concern in May 2021, resulting in her taking 23 lessons during the remainder of the year, it was not until she saw the redacted copy of the e-mail from [NAME_5] in February 2023 that the overt and express mention of her nationality became apparent to her. That gives her an argument for extending time, though equally it is arguable the link to nationality was implicit in 2021.

69. Had it been a live issue therefore, I would not have struck out this complaint on time limits alone but would have required the claimant to pay a deposit on the basis she would have little reasonable prospect of success in persuading the Tribunal at the final hearing to extend time on the basis it was just and equitable to do so. But that is academic as this complaint has been struck out.

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11 Case Management 70. Having given oral judgment as above, I queried the position in relation to case management. It appears that all is on track and the parties are due to exchange witness statements on 31 October 2025 prior to the final hearing between 10 and 13 February 2026.

71. The claimant has said that she is going to travel back to the UK for that final hearing and therefore there should be no issues about giving evidence by video from overseas, which creates a diplomatic issue.

Approved by

Regional Employment Judge Franey

25 September 2025

JUDGMENT AND REASONS SENT TO THE PARTIES ON

6 November 2025

FOR THE TRIBUNAL OFFICE

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Case No. 2401163/2023 & 2403404/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents:

[redacted] (2) NHS England

Heard at:

Manchester On: 10-13 February 2026 Before: Judge [NAME_30] [NAME_32]:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties and written reasons having been requested by the claimant in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

1. The claimant brought claims of unfair dismissal contrary to Section 94 of the Employment Rights Act 1996, direct discrimination on grounds of age contrary to Section 13 of the Equality Act 2010, and harassment on grounds of sex and age contrary to Section 26 of the Equality Act 2010.

2. The Tribunal heard evidence from the claimant. For the respondent [NAME_47], [NAME_37], [NAME_40] and [NAME_43] gave evidence.

FACTS

3. The panel found the following facts.

Case No. 2401163/2023 & 2403404/2023

2 4. The claimant is a medical doctor now living and working in Dubai. She gives her date of birth [DATE]. She is a citizen of Belarus, and her first language is Russian. She also identifies as a single mother.

5. The claimant qualified as a doctor in Belarus in 2001. She moved to the UK in August 2005 and resumed her practice as a doctor here in 2009. She then elected to embark upon consultant grade training as a Speciality Trainee in anaesthetics.

6. This specialist training programme extends over a number of years and typically a total of seven years if the various stages are passed according to the programme.

7. The second respondent ([NAME_46]), NHS England, has responsibility for the specialist training of post-graduate doctors.

8. [NAME_47] is currently Head of [COMPANY_48] for NHS England and was Associate Head of [COMPANY_49] from 2022 to 2024 with responsibility for the Manchester part of the [COMPANY_48].

9. The Head and the Associate Head of [COMPANY_49] are responsible for the training of anaesthetists in training. The [COMPANY_48] has a responsibility for producing anaesthetists who are able to deliver the safe care of patients at a consultant level at the end of their training. Those who complete the programme are expected to be experts who can practice independently across a wide range of anaesthetic settings.

10. As with all speciality training for postgraduate doctors in England the training of anaesthetists is carried out in accordance with a GMC-approved speciality curriculum.

11. The claimant began her anaesthetist training on 1 August 2012 although she did so with the NHS in Scotland and not with NHS England. She continued her speciality training under the auspices of NHS England from 1 February 2017. At this time anaesthetic training in England was carried out in accordance with the Curriculum for a CCT in Anaesthetics (2010) and this was updated in August 2021. The Royal College of Anaesthetists ([NAME_50]) is responsible for the GMC approved training curriculum.

12. The 2010 curriculum provided a training programme broken down into three distinct stages:

• Core Training • Intermediate Training • Higher/Advanced Training

13. Core level training covers modules CT1 and CT2. Intermediate training covers modules ST3 and [NAME_7]. Higher training covers ST5 and ST6, with Advanced training covering ST7.

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3 14. The claimant completed Core Training in Scotland and embarked upon ST3 in London.

15. This speciality training is professionally demanding comprising examinations and work placements. Trainees have to undergo a competitive application process to progress to the next stage and of course must successfully complete each stage before progressing to the next.

16. At each stage of training trainees undertake a series of clinical units in general anaesthetists, obstetrics and cardiac anaesthesia. These take place at different “host” hospitals.

17. As one would expect the stages of training become increasingly demanding. Core trainees are closely supervised while managing moderate-risk patients. As trainees progress to the Intermediate and Higher/Advanced stages the emphasis on non-clinical skills becomes greater and is of more importance to those training or supervising trainee anaesthetists. There is also significant difference in the skills required for elective ie. planned surgery and the skills needed in emergency situations such as in A&E or Emergency Departments. Emergency medicine environments demand a particular ability to work under pressure and unsupervised. It is these skills which become more important in the later stages of training and where the claimant was deemed to have been struggling.

18. Non-technical skills of particular importance are leadership, teamwork, communication and situational awareness. Again, the vital importance of such non- technical skills is obvious in emergency, critical care or surgical environments consultant anaesthetists are routinely required to work in.

19. A requirement of successfully completing the training programme is demonstrating the ability to manage increasingly complex and high-risk patients, particularly in emergency settings, with gradually reduced supervision.

20. The aforementioned then is the demanding training programme the claimant volunteered for, and she did so in the full knowledge of what was expected of her if she was to complete it.

21. Anaesthetic training is arranged in accordance with a guide called A Reference Guide for Postgraduate Speciality Training in the UK, which is more commonly known as the “[NAME_51]”.

22. Aside from laying down the roles and responsibilities of those organisations involved in postgraduate medical training, the [NAME_51] lays down the procedures and processes used to appraise a trainee’s progression to the end of training. The same appraisal process applies to all such trainees.

23. Progression from one stage of training to the next is determined at an “Annual Review of Competence Progression” (ARCP) meeting, which is arranged and managed by NHS England.

Case No. 2401163/2023 & 2403404/2023

4 24. [NAME_46], NHS England, is responsible for the postgraduate doctor’s training, they are not the trainee’s employer. Specialty trainees are employed by a specific NHS trust as the lead employer for all such trainees in a region. In the claimant’s case her employer was the first respondent ([NAME_52]).

25. [NAME_52] paid her salary but played no part at all in her progress through the [NAME_53]. [NAME_52] did not fulfil the role of a conventional employer.

26. [NAME_52] had no power to determine whether the claimant passed or failed her training, but it was a fundamental term of her employment with [NAME_52] that it was conditional upon continuing to hold a place on an approved postgraduate training programme.

27. The claimant was removed from the [NAME_53] by [NAME_46] and after unsuccessfully appealing against that decision [NAME_52] terminated her employment with effect from 24 February 2023.

28. The route to removal from training and dismissal of course requires closer examination. In simple terms the claimant claims that she was unfairly dismissed because she was unfairly removed from the training programme.

29. Linked to this she claims she suffered direct discrimination on the basis of her age. Originally the claimant asserted that she was treated less favourably than other trainees because of her race, namely being a Russian speaking person from Belarus and because of disability on the basis of neurodiversity. Both of these claims were struck out at earlier stages of these proceedings.

30. The ACRP meeting is a critical part of the trainee appraisal process. These reviews take place annually and are based on evidence in the form of feedback from a variety of sources at the host or placement hospitals, but primarily from experienced anaesthesia consultants who are either the trainee’s Education Supervisor ([NAME_54]) or [NAME_50] tutors.

31. The ACRP meeting is conducted by a panel of at least two members of the [NAME_50], although additional professional or lay members may also participate. The ACRP panel will award the trainee an outcome which will determine the trainee’s next steps in their training pathway. The outcomes are:

• Outcome 1 – Satisfactory progress – achieving progress and the development of capabilities at the expected rate

• Outcome 2 – The trainee’s progress has been acceptable overall but there are some capabilities that have not been fully achieved and need to be further developed. It is not expected that the rate of overall progress will be delayed or that the prospective date for completion of training will need to be extended or that a period of additional remedial training will be required.

• Outcome 3 – The [NAME_24] has identified that a formal additional period of training is required that will extend the duration of the training programme.

Case No. 2401163/2023 & 2403404/2023

5

• Outcome 4 – There has been insufficient progress over a defined period in meeting previously identified educational objectives when additional support (which may include additional training time) has been provided and the trainee is released from the training programme.

32. After placements at [COMPANY_55] and [COMPANY_57] the claimant was graded Outcome 1 at ST3 level at her July 2019 ACRP 1 and so she was approved for progression to [NAME_7] at [COMPANY_58].

33. Her next ACRP was on 1 October 2020 where she was graded at [NAME_7] level and was awarded an Outcome 2 on the basis that she needed to improve her organisational skills but no particular concerns about her progress and practice were raised.

34. The next ACRP was delivered on 22 July 2021 and covered the claimant’s placements at the [COMPANY_59], [NAME_56], [NAME_9] [NAME_21] from 5 August 2020 to the date of the ACRP meeting. On this occasion she was assessed at the higher grade and more demanding grade of ST5. [NAME_71] and [NAME_60] (then Head of [COMPANY_49]) were the panel members along with [NAME_63]. On this occasion the claimant was awarded an Outcome 3.

35. In the panel’s judgement the claimant had shown inadequate progress and additional training time was required. The reasons given were that “Feedback from both [NAME_21] is that [NAME_67] needs to develop leadership, teamworking and communication skills in the next six months in order to populate her stage 2 equivalent certificate.”

36. She was set a number of “SMART” (i.e. Specific, Measurable, Attainable, Relevant) objectives for the next reporting period. She was to demonstrate that she could work on the senior on call rota effectively. She had to “Do an MSF in the next six months in [NAME_21]” (an MSF being a Multi-Source Feedback report on the trainee consultant from multidisciplinary colleagues) and she also needed to receive direct contemporaneous feedback and regular lists with her Educational Supervisor ([NAME_54]) [NAME_68].

37. It was decided that her progress would be reviewed in January 2022. On this next occasion the panel consisted of [NAME_71], and consultants [NAME_72], [NAME_74] and [NAME_76]. Again, the claimant was awarded an Outcome 3 on the basis that she “needed to develop leadership, teamworking and communication skills to work on the on-call rota independently. There have been areas of an [sic] considerable improvement since her last ARCP but she is still not able to work at the level of an ST5 or work on the call rota independently.”

38. The panel agreed that an Outcome 3 was required for a further 6 months. In that time, she was expected to demonstrate evidence of developing her leadership, teamworking and communication skills for Stage 2 sign off and to work on the senior on call rota effectively. This second Outcome 3 period was to begin on completion of the previously awarded Outcome 3, from 21 March 2022 to 6 November 2022.

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6

39. In reaching their two Outcome 3 decisions the panels relied upon supervisors’ reports about the claimant.

40. The next ACRP meeting was on 22 July 2022, and the panel members were [NAME_71] and [NAME_78]. This was an educational review for the purpose of checking the claimant’s progress against the objectives set at the previous ACRP review. Based on consultant and other feedback the panel found that despite some improvements the claimant was still not working at the level of an ST5. It was decided that she still had issues with communication and lacked situational awareness, and she was still not “acting up” at a more senior level, especially during emergency situations. The ACRP states that “[NAME_34] was informed that if improvements were not made by her next review in October/November 22 then she would be issued with an outcome 4.”

41. The claimant made representations to the ACRP which included that she believed she was not given timely enough feedback and so it was agreed that [NAME_71] would contact the claimant’s [NAME_54] to ask that she received daily feedback. The Tribunal was not provided with evidence to suggest this was not done.

42. The thrust of [NAME_34]’s evidence was that the feedback she received was unfair, inaccurate or was given too much weight when considered against positive feedback she received.

43. At this ACRP the same objectives as before were set in regard to leadership, teamworking and communication skills and effective senior on call rota working. Further consultant feedback was also required before the end of October, and the Tribunal found that this meant positive feedback.

44. The claimant’s next and final review took place on 20 October 2022. [NAME_71] and [NAME_78] were again the panel members. On reviewing the claimant’s MSF and consultant feedback the panel concluded that the claimant had not made the necessary progress or had not sufficiently met the objectives set for her at the previous review. She was therefore issued with an Outcome 4 and released from the training programme.

45. At this point [NAME_52] wrote to the claimant on 20 October 2022 notifying her that she was at risk of her employment being terminated if the Outcome 4 decision was not successfully appealed. The claimant did appeal.

46. [NAME_46] permits trainee’s two appeal opportunities. During any appeal process a trainee remains in employment and remains in training.

47. The first appeal was in the form of a review of the ACRP decision to issue the Outcome 4. This took place on 22 November 2022 and was carried out by a five- person panel including [NAME_71], [NAME_78], [NAME_80] (Associate Dean), and two others, including a representative from [NAME_52]. The claimant was permitted to raise specific objections to the Outcome 4 decision and each of these was considered by the review panel. After consideration of the points raised by the claimant the Outcome 4 decision was upheld.

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7

48. Following this decision the claimant went to ACAS for early conciliation with [NAME_52] and when this failed, she submitted her first ET claim against [NAME_52], alleging unfair dismissal and discrimination on grounds of age, race, sex and disability.

49. The claimant then lodged a further appeal against the Outcome 4 decision. This was heard on 16 February 2023. The appeal was chaired by [NAME_147].

50. At this second appeal hearing the [NAME_50]’s case was presented by [NAME_71]. The claimant attended and was represented by the [NAME_84]. A detailed record of that appeal hearing and the evidence and information considered by the appeal panel was provided to the Tribunal in evidence. After deliberating on the evidence and submissions from the parties, [NAME_85] gave the panel’s decision which was to uphold the Outcome 4 decision. The claimant’s employment was terminated by [NAME_52] with effect from 24 Feb 23.

51. On 12 March 2023 the claimant submitted her second ET claim. In support of this she included a written statement about the alleged unfair dismissal.

52. The claimant produced seven versions of this statement. The seventh version of was produced on 26 June 2023. In this version she added a complaint in regard to [NAME_40]. She wrote “Also Dr KB said that being a consultant is not suitable for me as I am ‘a single parent and from different cultural background’.”

53. When giving evidence on this allegation the claimant was vague and inconsistent. Her recollection of the alleged comments, if made at all, was unclear. When cross-examined about the alleged comment made by [NAME_86] the claimant said that [NAME_86] would not have made the comment directly, but it is how she interpreted what she meant.

54. There was no dispute about the context of this conversation which took place in early July 2022 before the claimant’s next ACRP. [NAME_86] was the claimant’s [NAME_54] at [NAME_87]. [NAME_86] was attempting to prepare the claimant for the worst possible outcome which was withdrawal from training. In evidence [NAME_86] said she did so because she was afraid that the claimant might find herself out of a job and so she suggested other posts that might be available to her.

55. [NAME_86] emphatically denied making any comments about the claimant being a single mother or about her cultural background. As a witness on this point, she was more convincing than the claimant whose evidence was far from consistent or unequivocal.

56. The claimant’s credibility on this point was further undermined because it took seven iterations of her claim statement before she decided this alleged incident was worth mentioning. This complaint against [NAME_86] was more likely than not prompted by a WhatsApp message from [NAME_86] to the claimant on 13 June 2023. It was evident from messages between the claimant and [NAME_88], that [NAME_86] was still providing a degree of support to the claimant. [NAME_86] agreed to act as a referee for the claimant who at that time was interested in a Speciality and Associate

Case No. 2401163/2023 & 2403404/2023

8 Specialist (SAS) anaesthetist vacancy at [COMPANY_90]. [NAME_86] told the claimant she was welcome to apply for the post but made it clear that the Certificate of Eligibility for Specialist Registration (CESR) route was not open to her. It is clear from the messages that followed that the claimant was not happy with [NAME_86]’s response.

57. The Tribunal found that no comments about the claimant’s cultural background were made on the occasion in question, as alleged or at all. [NAME_86] was merely trying to help and support the claimant by suggesting options that might suit her should she be withdrawn from training and which might better suit her personal circumstances, which included childcare responsibilities. Any indirect reference to the claimant’s personal circumstance was not said in a pejorative way and not in connection with her potential to be a consultant.

58. In regard to the claimant’s withdrawal from training and her performance up to that point, evidence was led by [NAME_46] and the claimant. This was largely in the form of Multi Source Feedback (MSF) forms and Multiple Trainer Reports (MTR). Some of the feedback in these reports was anonymous and some of it was from staff other than consultants, such as nurses and non-anaesthetist specialists.

59. The Tribunal accepted that the claimant received positive feedback on a number of occasions from supervising consultants. But against this evidence were multiple examples of negative feedback and the pervasive theme throughout the material relied upon for the ACRPs were a number of experienced consultants felt her communication, leadership and teamworking skills were not to the standard expected and that she was not demonstrating an ability to work without close supervision or not at the level expected of an ST5.

60. The claimant pointed out that six out of twelve consultants who contributed to her 27 September 2022 MTR from [NAME_87] opined that she was making satisfactory progress at her stage of training. The Tribunal did not agree that a 50% approval rating for such a highly responsible and safety critical role amounts to a ringing endorsement of her competency and potential to complete the training programme.

61. On the evidence provided the Tribunal found no basis upon which the decision of [NAME_46] could be deemed in any way unreasonable. The claimant was on a highly structured, highly assured training programme, run and administered by highly experienced medical practitioner and trainers. It is undoubtedly a very demanding training programme and there will always be a degree of trainee attrition on such programmes. The fact [NAME_34] did not progress beyond [NAME_7] and was withdrawn from training does not mean she is anything other than a very competent doctor. She was simply unable to meet the standards set by the [NAME_50] and it has to be said that those of us who reside in the UK and rely upon the services of the NHS demand nothing less than the highest training and competency standards from its medical professionals and certainly specialists such as anaesthetists.

62. Turning then to the question of age discrimination. The claimant has been unable to produce any evidence at all that her age played any part in the way she was treated by [NAME_52] or [NAME_46]. She may have been the oldest trainee in her cohort in her

Case No. 2401163/2023 & 2403404/2023

9 early to mid-40s. However, she contradicted her own argument on this point when in evidence she said that those she worked with thought she was younger than she was.

63. Although she may have been older than the rest (no conclusive data on this point was provided), [NAME_34] told us that the earliest a doctor could begin the training programme would be at about 25 and they would be about 32 if they completed it within the seven years. She accepted that many trainees would be older than this which means that it would not be uncommon for trainees at [NAME_7] or ST5 level to be in their mid-30s. Without more, the Tribunal could not see how a difference of perhaps 10 years in the claimant’s case would in any way count against her. [NAME_71] was emphatic about not knowing her age, and without any evidence to the contrary from the claimant the Tribunal was not satisfied she was treated less favourably than any other trainee, at all, or because of her age.

64. Finally, the Tribunal heard from the claimant about why she did not bring the harassment claim against [NAME_86] in time. It was not in issue that it was out of time by several months.

65. She said she did not do so for various reasons. She said she was concentrating on the other elements of her complaints. She said he was “bereaved” at the time although she clarified that she meant she was unsettled and upset at being withdrawn from training rather than suffering the loss of a loved one. She said that as a standalone claim she would not have bothered bringing it against [NAME_86] but later in evidence she said she did not bring it sooner as she thought she might succeed in her appeal and it would not go well for her if she made a claim against her [NAME_54].

The Law

66. The relevant law on unfair dismissal is to be found in the Employment Rights Act 1996 (“the ERA”) at:

Section 94

(1) An employee has the right not to be unfairly dismissed by his employer.

Section 98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it—

Case No. 2401163/2023 & 2403404/2023

10 (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

67. The relevant law on direct discrimination and harassment is contained in the Equality Act 2010 in the following sections:

Section 13 Direct Discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Section 26 Harassment

(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of—

(i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Applying the law to the facts

68. Unfair Dismissal. The claimant was dismissed by [NAME_52], and the reason was Some other Substantial Reason, namely being withdrawn from training by [NAME_46].

69. This reason for dismissal was a fair reason because the claimant’s employment was conditional upon her holding the training place on an approved postgraduate training programme. [NAME_52] had no control over whether or not the claimant remained in training. It had no control over her removal. The claimant was well aware of this fundamental condition of her employment and so [NAME_52] acted

Case No. 2401163/2023 & 2403404/2023

11 reasonably in all the circumstances in treating removal from training as sufficient reason for dismissal.

70. The Tribunal was also satisfied that [NAME_46] did not act unfairly in removing the claimant from training. It did not do so suddenly, but only after a thorough competency review process which relied on multiple sources of evidence from trainers and supervisors who had the necessary knowledge, skills and experience to appraise the claimant’s performance and potential. The claimant was set clear SMART objectives. She was supported and mentored, and she was given extensions to her training. To help her get through her training [NAME_46] transferred her to [NAME_21], a hospital considered to be particularly good at supporting postgraduate trainees. [NAME_46] did all that could reasonably be expected to assist the claimant in reaching the minimum standard expected.

71. The Tribunal rejected the suggestion that there were any malicious motives on [NAME_91]’s part or anyone else’s part in removing the claimant from training. On the contrary, the fact the claimant had been admitted to the programme and made it as far as she did suggests that [NAME_71] and others wanted her and her contemporaries to succeed, especially as so much time and resource had been invested in her.

72. It was asserted by the claimant that when she was moved to [NAME_21], she was not given a clean start and that staff at the hospital knew about her difficulties and therefore did not give her a fair opportunity to prove herself. But the claimant could not adduce any cogent evidence to contradict [NAME_46]’s evidence on this point, which was that only the claimant’s [NAME_54] and two college tutors were aware of the claimant’s Outcome 3, and this did not act as an obstacle to her meeting the objectives set for her.

73. The claimant was not unfairly dismissed. She failed to meet the standard required to complete a long and highly demanding training programme. She was given as much help and support as could reasonably be expected, but despite that assistance, she failed and was withdrawn from the programme. Her employment with [NAME_46] was conditional upon being on a recognised training programme. The claimant fully understood this. Efforts were made, particularly by [NAME_86], to assist the claimant in finding an alternative role which would allow the claimant’s employment to continue. [NAME_52] and [NAME_46] were under no obligation to assist the claimant in this way but ultimately these efforts were unproductive, and the claimant’s employment was fairly terminated in accordance with her terms and conditions of employment.

74. Direct Age Discrimination. The claimant was removed from training by [NAME_46], and her employment was consequently terminated by [NAME_52]. In respect of her removal from training, she was not treated less favourably than any other trainee anaesthetist. She was subjected to exactly the same training regime and appraisal process as the rest of her cohort. She had to meet the same competencies and was given the same range of placement opportunities to develop them. Her age in no way affected her ability to satisfy the stringent requirements of the training programme, either directly or indirectly.

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12 75. The claimant was not treated less favourably by [NAME_52], [NAME_46] or anyone else involved with her training, at all or due to her age. She was perhaps the oldest trainee in her cohort but not by a substantial margin or to such extent that it might give cause for bias. She was not therefore discriminated against because of age or at all.

76. Harassment. This claim was brought out of time. It was a standalone claim and did not form part of a continuing act.

77. The Tribunal considered whether it was just and equitable to extend time so that it could be heard. The Tribunal considered the reasons given by the claimant and was satisfied they are insufficient to satisfy the just and equitable requirement to extend time. The fact she was concentrating on other elements of her claim was not a convincing reason for delay nor was her state of upset at the time as this did not prevent her from submitting her other complaints in time.

78. She had some considerable time to think about her options and what to include in her claim, and so it was entirely reasonable for her to include the harassment claim along with the rest. The suggestion that she was afraid she might incur the displeasure of [NAME_86] was unconvincing and even if true was not sufficient to make an extension just and equitable because such concerns must be commonplace in cases such as these, and it would make the granting of extensions in such circumstances virtually inevitable.

79. Therefore, the claim was brought out of time, and it was not just and equitable to extend the time limit. The Tribunal therefore did not have jurisdiction to hear this claim.

80. The Tribunal went on to consider the merits of this claim in case it was wrong not to accept jurisdiction.

81. The Tribunal found that [NAME_86] did not make the comments alleged by the claimant and she did not say or do anything which might be considered to have the purpose or the effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. On this point the claimant’s evidence was particularly poor and the fact it took seven iterations of her claim statement before including the allegation undermined her credibility. The Tribunal found [NAME_86]’s evidence to be more convincing. It was evident that she went above and beyond what was expected of her. She was genuinely concerned that the claimant would find herself out of a job if she was withdrawn from training and any remarks made by [NAME_86] in conversation with the claimant about her prospects were intended to help the claimant, who later misconstrued or misrepresented those comments in order to bolster her claim against [NAME_52] and [NAME_46].

For these reasons the claimant was not harassed.

Judge C J Cowx

14 April 2026

Case No. 2401163/2023 & 2403404/2023

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REASONS SENT TO THE PARTIES ON

12 May 2026

FOR THE TRIBUNAL OFFICE

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Reserved Judgment

Case Numbers: 2401163/2023 & 2403404/2023

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EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondents: [redacted]

(2) NHS England

Heard at: Manchester On: 10 October 2023

Before: Employment Judge Holmes (sitting alone)

Representatives

For the claimant: [redacted] For the respondent: [redacted]

RESERVED JUDGMENT

It is the judgment of the Tribunal that:

1.The claimant’s application for permission to adduce further evidence, and for a postponement to obtain and serve further medical evidence is refused.

2.The claimant was not at the material times a person with a disability.

NOTICE OF HEARING 3. There will be a further public preliminary hearing on 17 May 2024 , at 10.00 a.m. listed for one day, at [ADDRESS], [POSTCODE] in person , to determine :

1. Whether any or all of the claimant’s claims should be struck out and/or the claimant should be ordered to pay a deposit as a condition of continuing with any of the claims; and

2. To give further case management directions and identify the issues to be determined; and

3. Whether the final hearing should be postponed.

Reserved Judgment

Case Numbers: 2401163/2023 & 2403404/2023

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REASONS

1.The Tribunal convened to hear a number of preliminary issues, and applications, the first of which was whether the claimant was at the material time a person with a disability.

2. The Tribunal heard evidence from the claimant , and was hearing her closing submissions, when she indicated that she may wish to adduce further medical evidence in the form of an autism assessment (which she has not yet had) and , possibly, a further witness statement from herself.

3. To the extent that this was an application to postpone the hearing , and adduce further, as yet unavailable, evidence , [NAME_8] for the respondents objected to it, given that it was a very late application, and the claimant had previously been advised at a previous preliminary hearing of what evidence she needed to adduce, and this very issue had been discussed.

4. The claimant , however, considered that she had been misled by a statement in the medical report that she had relied upon to the effect that her condition was “covered by the Equality Act 2010”, a statement that the Employment Judge considered was ambiguous and potentially went too far, as the determination of whether a condition which is not a prescribed disability such as cancer or HIV, amounts to a disability is a matter for the Tribunal.

5. As the hearing was drawing to a close and could not be concluded, the Employment Judge reserved judgment. He did so until 7 November 2023, during which period if the claimant wished to obtain and adduce further medical evidence, and possibly seek to make and admit a further witness statement , she could do so. The respondents would be entitled to make objections, and the Employment Judge would then consider whether to admit the new evidence, and make any consequential orders necessary.

Further developments after the postponement.

6. Following the hearing the claimant wrote to the Tribunal, duly copying the respondent as required. There appear to be two occasions upon which she did so. The first was on 16 October 2023, when she sent an email to which was attached a further statement, dated 13 October 2023 from the claimant herself. There then was a further email of 20 October 2023, to which the claimant attached more evidence , in the form a screen shot from a mobile phone, and other documents.

7. By email of 23 October 2023 the respondent responded to the claimant’s recent communications , objecting to the admission of any new evidence, and inviting the Tribunal to determine the issue of disability upon the evidence that it already has.

Discussion and ruling upon the claimant’s applications.

8. By her email to the Tribunal of 16 October 2023 the claimant simply attached her further statement, for the attention of the Employment Judge.

Reserved Judgment

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9. In this statement the claimant says that she has have familiarised herself with a Diagnostic and Statistical Manual, fifth edition ([NAME_94]) , we she says is the most common test for ASD assessment. The [NAME_94] now includes a condition called 'social communication disorder', separate to 'autism spectrum disorder'. This diagnosis would be given where someone exhibits social interaction and social communication difficulties but does not show restricted, repetitive patterns of behaviour, interests or activities.

10. The respondent makes the valid point that the claimant now seeks to introduce a new condition, which she relies upon as her disability.

11. The claimant goes on to inform the Tribunal that ASD assessments take 8+ weeks to get a report, and the results may be inconclusive. She asked the Tribunal to let her know if it would be helpful for her case to go ahead with this assessment. It is not for the Tribunal to take decisions for parties. The Tribunal has no better idea of whether such a report would “help her case” than the claimant does. The claimant was given the opportunity, at the 11th hour of the hearing, to seek a further report, she has apparently not done so, notwithstanding that she could probably have one by now if she had actioned this quickly. If she has not taken that opportunity, she must accept the consequences.

12. In terms of the further witness statement, the Employment Judge agrees that this does indeed seek to introduce a new condition as the relevant disability. In terms of the other matters set out in the statement, the claimant has not explained why these matters were not in her previous statement. The case management orders made by EJ Howard on 10 July 2023 were very clear, and specified precisely what needed to be in the claimant’s witness statement for disability. She has not explained why these further matters were not.

13. A further consideration is that , if this further statement is to be admitted, the claimant will have to be re-called to be cross – examined upon it, in a further, oral, hearing. The final hearing listed for 5 days commencing on 3 June 2024. If a further hearing on disability is required, given that further case management is required, particularly the List of Issues being outstanding, there is a risk that this date will be jeopardised. Re-listing a five day hearing is likely to take it well into 2025, if not beyond it.

14. It is appreciated that to deny the claimant’s applications may weaken her case on disability. That is unfortunate, but must be set in context. The claimant brings claims other than disability discrimination claims, so failure on the issue of disability would not mean that she cannot proceed with her claims. She has claims of unfair dismissal, and age and race discrimination, all of which are proceeding. This is highly relevant to the proportionality of whether to grant the claimant’s applications.

15.The Employment Judge , for all these reasons, accordingly refuses the claimant permission to adduce further witness evidence on the issue of disability, and her application for a further postponement to adduce any further medical evidence. The Tribunal will determine this issue on the material before the Tribunal in the hearing. The Employment Judge apologises for the delay in the promulgation of this reserved judgment, occasioned initially by the non – referral to him of the claimant’s further

Reserved Judgment

Case Numbers: 2401163/2023 & 2403404/2023

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materials, and the respondent’s response thereto, and then subsequently by pressure of judicial business.

The disability issue: the evidence before the Tribunal:

16. Turning to the issue of disability then, the Tribunal had before it a bundle, containing 726 pages . The claimant gave evidence. She confirmed her witness statement dated 12 August 2023, and was cross – examined upon it by [NAME_8]. The Tribunal finds the following facts relevant to the issue of disability:

16.1 The claimant is a consultant anaesthetist . She lived in Belarus for 27 years before moving to the UK.

16.2 She was having difficulties when she started working in NHS in 2009, as sometimes she did not , as she puts it, meet multiple expectations. In 2012 she started Core Anaesthetic training. After that her [COMPANY_11] at that time said to her that he thought she had a communication problem. She sought medical help in [NAME_95] on weekend, she spoke to a psychiatric nurse and she gave her SSRI to cope with stress (due to what she considered backstabbing at work). She was on these tablets for about 8 months. She did not , however, have depression, it was a response to what she described as covert mistreatments at work.

16.3 The claimant commenced her ST3 training in London in February 2017. In August 2018, she relocated to train in the North West. On 1 October 2018 her employment transferred to the respondent.

16.4 Between August 2018 and February 2019, the claimant undertook a placement at [COMPANY_55], part of the Northern Care Alliance NHS Foundation Trust. Between February 2019 and August 2019, she then undertook a placement [COMPANY_57], part of Manchester University NHS Foundation Trust.

16.5 Between August 2019 and October 2020, the claimant undertook a placement at [COMPANY_58], part of [COMPANY_59].

16.5 Between November 2020 and February 2021, the claimant returned to [COMPANY_57]. Between February 2021 and May 2021, the Claimant was placed at [COMPANY_55], part of the Northern Care Alliance NHS Foundation Trust.

16.6 Between May 2021 and August 2021, the claimant undertook a placement at [COMPANY_96], part of Lancashire Teaching Hospitals NHS Foundation Trust. The Claimant remained at [COMPANY_96] until February 2022.

16.7 In early 2022, a further Outcome 3 was awarded, with six months of additional training time. The claimant undertook this additional training time between February 2022 and November 2022, at [COMPANY_97], part of East Lancashire Hospitals NHS Trust.

16.8 During her time in North West she found it harder to cope in tertiary ICU environment, as she found that this environment does depersonalise even

Reserved Judgment

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experienced doctors. She had particular issues at handover time. She felt like her every word was being scrutinised and then criticised.

16.9 In April 2021 , [COMPANY_98], said to her that someone had called her “Autistic”. It was the first time in her life that she was actually described in this way.

16.10 She considered that her personality was being criticised and not accepted, and that , in order to make a case for her dismissal viable, her anonymous assessors in ELHT/Salford criticised her for every minor single trivial thing , unfairly, which would have gone unnoticed in other, “normal”, trainee doctors.

16.11 The claimant also said “The rest is already known to the ET”. It is unclear what she means by that , but in terms of what her medical condition is, and whether it amounts to a disability, what is known to the Tribunal is solely that which is in her impact statement, her oral evidence to the Tribunal, and the documentary evidence before the Tribunal.

16.12 In addition to her impact statement the claimant sent an email to the Tribunal and the respondent on 11 September 2023 (page 378 of the bundle) in which she says this:

“This is how it affects me, I am being religiously criticised and my career is being jeopardised, I am having unfair treatment at work for being different and having different thoughts processes and perceptions.

That does not mean that I cannot hoover or cook or drive, etc.

There are invisible disabilities and I am qualifying for [NAME_101] help, they already replied and offered help, as soon I am employed again (I am not wanted as employee).

constant criticism and stalking at work did not help my wellbeing and mental health, especially in anonymous feedbacks (excessive and numerous), and reports behind my back to college tutors, on their requests(the reasons were ridiculous and minor). The allegations were unfair, with distortion and twisting of facts. My sleep was suffering badly for one year (time in [NAME_21]), after I made an appeal to O3, in January-22, my sleep had become marginally better. I submitted earlier the witness statement from family friend, how badly the situation at work affected me in my free time. My child also suffered from my stress.

That means, mobbing out of employment for about 2 years did give me a lot of mental strain, I was angry and upset.

This is how my day to day life was affected.”

16.13 In terms of medical evidence, this has not been collated well in the bundle. Taking the medical evidence chronologically, the first is a letter, produced , it is assumed by the claimant , from [NAME_103] dated 20 May 2014 (page 142 of the bundle), which refers to the claimant reporting a few months of a stress related disorder in May 2014. Whilst work related stressors were identified, there were also non – work related ones. The resolution of the [NAME_99] , however, was

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stated to hopefully lead to an improvement in her condition. It was recorded that she had no past history of psychological disorder.

16.14 The next medical evidence in time is an [NAME_107] report, from the time when the claimant was working in Inverness, from [NAME_108], dated 29 May 2015 (pages 271 to 272 of the bundle). That records the claimant as having confidence issues, following an unsuccessful application for a training course. It says very little about her condition, its prognosis or its effects upon her ability to carry out day to day activities.

16.15 In June 2021 the claimant was referred to [NAME_111], for a telephone consultation following a referral from management. The report is at pages 143 to 145 of the bundle. The claimant at that time was reporting that she did not have problems at work, and had moved to a new host on 16 May 2021. The possibility of a neurodiversity assessment was discussed, the claimant seemingly wanting to prove to her employer that she did not have autism, or any other learning disorder or disability. In general, this assessment found no features in the claimant’s presentation which suggested she had any form of condition which required management.

16.16 In anonymised feedback from colleagues (pages 147 to 151 of the bundle) there are references to the claimant’s communication skills, and this is discussed. Reference is made to her communication being poor, but there is also discussion as to whether this may because of her nationality, in terms of her accent, or her “thinking in Russian”.

16.17 The Training Assessment dated 25 July 2021 (pages 152 to 154 of the bundle) resulted in the claimant getting an outcome at level 3 : “Inadequate progress by the trainee – additional training time required.” In the detailed reasons section (page 153 of the bundle) it was noted that the claimant needed to develop “leadership, teamwork and communication skills” in the next 6 months. In the Explanatory notes (page 154 of the bundle) this is recorded:

“Trainee struggles with non technical skills e.g. Communication and Leadership for level of training. Time can now be spent on working on improving these skills to enable progression.”

16.16 The claimant was next assessed by [NAME_112] on 16 September 2022, in a telephone consultation. The ensuing report is at pages 727 to 729 of the bundle. In it the unidentified assessor reports that the claimant was stating that she was managing at work, and could work nights , if not scrutinised. He opined that there was no underlying medical condition affecting the claimant’s work. She was awaiting an assessment for neurodiversity.

16.17 The claimant duly underwent that assessment, and has produced a Confidential Diagnostic and Cognitive Assessment Report from [NAME_113], a psychologist, dated 18 December 2022. It is in two parts. The first, some 8 pages is at pages 176 to 183 of the bundle, and the second, a full account of the various tests carried out for the Report s at pages 283 to 322 of the bundle. This is a very comprehensive document. Its conclusions (page 285 of the bundle) are :

“The assessment concluded that [NAME_67] has a neurodivergent cognitive profile. Furthermore, based on [NAME_67]’s self-report and personal history, there is evidence of

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underlying autistic characteristics which warrant further formal assessment, should [NAME_67] consent to this.

Without adequate aware or adjustments, [NAME_67]’s neurodivergence is likely to have a substantial, long-term impact on her performance in the workplace.”

16.18 More specifically (at page 287 of the bundle) :

“[NAME_67]’s profile can lead to some tasks being more difficult for her than they would be for someone who is not neurodivergent. The following are examples.

Finding change more stressful than her peers – [NAME_67] may require additional time and support to adjust to new environments, people and ‘rules’.

Verbal communication with colleagues – particularly with people she is less familiar with;

Working at speed with visually complex information – [NAME_67] demonstrates a preference for working methodically and accurately, which is advantageous given her clinical role.

Completing reading tasks in English at speed; this is understandable given that English is not [NAME_67]’s first language.”

16.19 Later in the report (page 289 of the bundle) [NAME_114] says this, under the heading “[NAME_101]”:

“Neurodivergent conditions are covered under the Equality Act of 2010. [NAME_67] would therefore likely be entitled to support under the government's [NAME_101] programme. [NAME_101] is a scheme that helps people with a range of disabilities/difficulties in the workplace. It can provide funding or part funding towards adjustments, including physical equipment and coaching……”

16.20 Later in the Report, this appears (page 290 of the bundle), under the heading “Disclaimer”:

“Please note that the above recommendations and suggested strategies are examples of good practice and cannot be construed as reasonable adjustments if they are not part of a workplace needs assessment. Involvement with a professional body/consultant cannot automatically be construed as ‘reasonable adjustment’ and does not constitute legal advice about any duty to make reasonable adjustment within the meaning of the Equality Act 2010.

This report is not intended for use in legal proceedings.

If any of these recommendations are unclear, or if you want to discuss this further, please do not hesitate to contact me directly.”

16.21 In the ensuing details of the assessment, the following is recorded (pages 293 to 294 of the bundle):

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“[NAME_67] stated that her current areas of difficulty are:

Social communication

Dealing with change: [NAME_67] thought that she found the process of rotating and adjusting to a new environment, new people, and new rules more stressful than her peers.

Eye contact: [NAME_67] reported that her colleagues have commented on how [NAME_67] does not maintain eye contact during conversation. [NAME_67] told me that when she consciously tries to maintain eye contact, she feels like she is “staring”. [NAME_67] added that she thought that maintaining eye contact during conversation was a British social norm. Growing up with her family in Belarus, this was not something she was taught was important.

Understanding ‘British social norms’ and adjusting communication style: [NAME_67] explained that she has found it challenging to adjust her communication style to ‘fit in’ with the expectations of the British culture. This can include being overtly “friendly” and “making small talk”. When [NAME_67] communicates in this way, she feels as though it is “an act” and it takes a lot of energy from her. As this way of communicating is effortful for [NAME_67], she finds it difficult to sustain this communication style, particularly when she is already stressed or under pressure.

Sensitivity to criticism and others’ tone: [NAME_67] acknowledged that she can often perceives (sic) others as aggressive and overly critical, particularly when she does not know the person well.

Managing emotions: [NAME_67] can feel overwhelmed when she feels criticised by others, and can find it hard to manage her emotions within this context.

Planning and organisation

Multitasking; [NAME_67] reported that she has had some anonymous feedback from her colleagues that multitasking is a relative area of need. [NAME_67], however, holds a different view and reported that she is able to manage the various demands of her work, training and raising her daughter as a single parent.

Leaving tasks until the last minute; for tasks which are not important or of interest to [NAME_67], she reported a tendency to leave these until the last moment.

Memory and attention

[NAME_67] reported difficulty remembering appointments (due to the volume of these) for herself and her daughter. [NAME_67] will write appointments down in a diary/calendar to support her memory with this.”

16.22 In terms of autism, the Report concluded that it was not possible to provide a definitive view on whether the claimant’s condition was one of autism, and further tests were advised if this was to be explored.

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16.23 There followed , dated 27 September 2022, a Multiple Trainers’ Report (“MTR”) which is at pages 155 to 166 of the bundle. This was completed by 12 participants, who are not identified. They were evenly split as to whether the claimant was making satisfactory progress for her stage of training. Amongst the comments made were:

The claimant could be a bit abrupt or rude in her communication , which could be interpreted as being rude;

Communication with colleagues had not developed much and she needed to be clearer when communicating with Consultants, although there was no concern over her communication with patients, whilst another participant did note that patients did not always understand what she was saying, compounded if she was wearing a mask;

The claimant did not handover and communicate succinctly;

The claimant found the subtilties of non – verbal communication frustrating;

No problems with communication skills in theatre were encountered;

The claimant at times appeared to lack confidence;

The claimant was improving her communication skills , but there remained issues when working with the wider team;

The claimant could appear slow to react to changing scenarios, and was less confident in emergency situations;

16.24 The claimant herself accepted that she found certain social interactions difficult. In particular she did not find it easy to engage in “smalltalk”, and could not understand the British fascination with the weather. She believes this may be cultural, as when she was growing up in Belarus people did not chat about such a topic.

17. Those, then , are the relevant facts as found by the Tribunal. The Employment Judge would remark that parts of the bundle were not very clear, and were not , in fact referred to. Pages 168 to 175 , for instance, are redacted and undated comments about the claimant from colleagues. They appear to relate to her time at Salford, where she was taken off night shifts. There is not much that turns upon them, save to note again the theme of difficulties with communications, and speculation as to whether this may be cultural and/or because of the claimant’s accent.

The Submissions.

18. For the respondent , [NAME_8] submitted that the claimant had not satisfied the test under s.6 of the Equality Act 2010. The claimant has the burden of proving that she has a disability, and the Tribunal had in the previous preliminary hearing told the claimant what she needed to do to prepare her case on disability.

19. The claimant had, and this was not to be critical of her, conflated the effects of the respondent’s alleged treatment of her with the impact of her impairment. There was a lack of clarity too as to the extent to which certain aspects of her symptoms

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were due to any mental impairment or were because of her race, her social upbringing, and/or her strong accent.

20. There are different types of neurodiversity, one could not just attach that label here, caution was necessary. The instances that the claimant had referred to of being criticised were not necessarily accepted by her as being the result of her neurodiversity. She had differences of opinion, and difficult interactions with colleagues at work. Such matters might be day to day activities, but these are very high ranking colleagues in a particular medical environment. The claimant has not identified any other day to day activities which are affected by her condition. Her witness statement was largely a rehearsal of events that had occurred, and was not what had been directed by the previous Employment Judge.

21. The claimant has given no evidence herself of how her communication is affected by her disability. Her condition is on a scale, which can vary from there being no disability within the meaning of the Act to there being a very obvious one. [NAME_8] questioned whether the claimant would even have pursued this type of claim had it not been for the reference in the Report to the Equality Act 2010. That may have led the claimant to believe that she has such a disability now, but did she at the time to which the claims relate?

22. The claimant in her statement (page 378 of the bundle) had made reference to [NAME_101]. She has not produced any evidence of any assessment by that organisation.

23. Whilst the claimant had disclosed the letter at page 142 of the bundle, that was in 2014, and relates to a stress related disorder, which is nit the condition that she is relying upon in these proceedings.

24. The documents at pages 147 to 151 of the bundle were anonymised feedback from colleagues. The claimant disagreed with some of this feedback, where it is negative. This evidence, she submitted, did not help the claimant establish her disability.

25. The Training Assessment at pages 152 to 154 did not establish any link between her communication skills and her condition. Further, the entry on page 154 refers to the claimant improving these skills, which is not the same thing as saying that she lacked them.

26. [NAME_8] addressed the Report that the claimant relies upon. She urged great caution in the Tribunal’s approach to it. On page 180 of the bundle the Report refers to the claimant finding change more difficult, but there is no linkage to the reasons for this being linked to the condition. The third “arrow” point – working at speed - is unclear and reveals only a preference, not a problem. Reading at speed, the fourth point is explained by the claimant having English as her second language, and is not linked to her condition.

27. In terms of social interaction, smalltalk and talking about the weather, she submitted that the Report did not revel very much, and these matters were as likely to be cultural as the symptoms of the condition. In fact, the claimant disagrees with some of the conclusions, for example that she had planning or organisational issues. Many

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of the scores that the claimant achieved do not assist her – those for cognitive abilities, page 287 of the bundle, for example. The graph summarising cognitive ability on page 303 is not helpful, it is unclear what it means. The other entries in the Report at pages 306 and 307 do not assist the claimant , and other difficulties encountered have a cultural or language – related factor.

28. The report of [NAME_111] of September 2022 suggested there were no medical issues.

29. In short, the claimant has failed to discharge the burden of proving that her condition amounts to a disability.

The claimant’s submissions.

30. The claimant , not being a lawyer, and being unrepresented, did not make structured submissions. In essence, she relied upon the her impact statement, the documents in the bundle and the Report of [NAME_115]. The latter was, understandably, a major part of her case. She contended that her neurodiversity did satisfy the definition of disability under the Equality Act 2010. It affected her communications, her response to rapid changes and interaction with her colleagues.

31. The claimant’s submissions, however, were overtaken by her application, referred to above, for permission to adduce further medical evidence, discussed above.

32. The claimant, however, had, the Employment Judge considered, said what she wanted to say in support of her case on disability. To the extent that she may not have done so, however, the Employment Judge has considered any other points that she could have made when determining the issue of disability.

Discussion and findings.

33. The starting point, of course, is the definition of disability in s.6 of the Equality Act 2010, which is in these terms:

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

34. In addition, the Tribunal has considered the [NAME_29] on Matters to be taken into account in determining questions relating to the definition of disability (2011), issued by the Secretary of State.

35. In particular, the following provisions apply to the definition of impairment:

Meaning of 'impairment'

A3.

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The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.

A4.

Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person's ability to carry out normal day-to-day activities. An exception to this is a person with severe disfigurement (see paragraph B24). It is not possible to provide an exhaustive list of conditions that qualify as impairments for the purposes of the Act. Any attempt to do so would inevitably become out of date as medical knowledge advanced.

A5.

A disability can arise from a wide range of impairments which can be:

• sensory impairments, such as those affecting sight or hearing; • impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;

• progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia;

• auto-immune conditions such as systemic lupus erythematosis (SLE);

• organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease;

• developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia;

• learning disabilities;

• mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post traumatic stress disorder, and some self-harming behaviour;

• mental illnesses, such as depression and schizophrenia;

• produced by injury to the body, including to the brain.

A6.

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It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.

36. Section D relates to normal day – to – day activities. Sections D2 to D6 are of particular relevance:

Meaning of 'normal day-to-day activities' D2. The Act does not define what is to be regarded as a 'normal day-to-day activity'. It is not possible to provide an exhaustive list of day-to-day activities, although [NAME_29] on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, D4. The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning.

37. The Employment Judge has considered carefully the extent to which the claimant has demonstrated that her condition (and for these purposes he does not consider that it matters greatly what precise diagnosis is ascribed to it) has had the requisite effect upon her ability to carry out normal day to day activities. His conclusion is that she has not satisfied the burden of proving that the condition does have (or did have) this effect.

38. A major problem for the claimant’s case on disability is the evidence she relies upon. Her own impact statement is vague and unclear, she fails to link her condition to any effects upon her day to day activities.

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39. The Report from [NAME_114] did initially seem to offer the prospect of the claimant being able to satisfy the tests for disability. That was mostly so in the activity of communication and interaction with the claimant’s colleagues at work. As the [NAME_29] states:

Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews But it continues : The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning.

40. All the evidence (and that includes historical evidence of the claimant’s interactions with colleagues before she was placed with the respondents) suggests that the claimant’s difficulties in communication are not general, and communication with patients , and in theatre settings , has been satisfactory. Where problems are noted is in communication with senior colleagues, often in stressful situations, in the course of medical procedures. These are not, the Tribunal considers, normal day to day activities. They are so for a small group of people, and that group is of highly specialised medical professionals.

41. Thus if the claimant’s condition can only be shown to have this effect upon those activities, the Tribunal would not regard them as normal day to day activities.

42. There is, however, a further issue for the claimant’s case on disability. She relies heavily upon the report of [NAME_114], but this expert has expressly issued a disclaimer that her report is not to be relied upon in legal proceedings. The claimant has, nonetheless, relied upon it. Quite why [NAME_114] has issued this disclaimer is unclear, but it does lead the Tribunal to question the extent to which it can or should rely upon her conclusions, in the light of this express reservation.

43. That she has erroneously stated (page 289 of the bundle) that neurodivergent conditions are covered by the Equality Act 2010, when they clearly are not, further undermines the Tribunal’s confidence in the extent to which it can rely upon [NAME_114]’s expertise.

44. There is, however, a further aspect of [NAME_114]’s Report which the Tribunal considers is unsatisfactory, and upon which , had she been called to give oral evidence , further questions would have arisen. The claimant comes from Belarus, and mention has been made of her accent, and , to some extent, of her social upbringing, which has resulted in her experiencing different cultural norms. She vividly illustrated this by her evidence of her view of the British obsession with the weather, which she

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does not share, and which she indicated she considered was a very British trait. She similarly finds “smalltalk” difficult, but this too may be a cultural, rather than a medical, issue.

45. In her report, when considering , for instance, the claimant’s abilities in terms of completing reading tasks in English at speed, [NAME_114] qualifies her findings by reference to the claimant not having English as her first language, finding that the claimant’s scores in that regard were acceptable , given that limitation. By contrast, however, when considering the claimant’s oral communications [NAME_114] seems to make no such allowances.

46. It is clear from all the evidence, that many of those who have experienced communication difficulties with the claimant have queried whether these have their origins in her nationality, or her cultural background, and/or her accent.

47. [NAME_114], however, has ascribed these difficulties to the claimant’s condition, and not any other factors. Why she has taken one view on the claimant’s abilities in reading and writing, but another in connection with her personal interactions, and oral communication, is unclear.

48. There are other aspects of the claimant’s activities upon which [NAME_114] does comment , and suggests that her condition has impacted upon them. These are :

49. The Tribunal does not consider these activities amount to normal day to day activities. The ability to adapt to change is not one of the activities of which examples are provided in the [NAME_29] (although the examples are not exhaustive) , people respond to change in a variety of ways, and many people find it stressful. The reference to “peers” suggests that this is in the context too of the claimant’s working environment, which is a very specialised one. The second issue, verbal communication with colleagues is the same point as discussed above. The third, working with speed with visually complex information is not a normal day to day activity, though it is doubtless an aspect of the claimant’s working environment. As it is, all [NAME_114] says is that the claimant “demonstrates a preference” for working in a particular way, which is not the same thing as the claimant being unable to carry out that activity, or only being able to do so with difficulty.

50. The upshot of this is that Tribunal does not draw from [NAME_114]’s Report the conclusion that the claimant’s condition meets the definition in s.6 of the 2010 Act . It might do, but the claimant has to satisfy the Tribunal on a balance of probabilities that it actually does so.

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51. The Tribunal notes that the claimant has the benefit of assistance through the [NAME_116], but the Tribunal has been provided with no evidence as to how the claimant applied for, or qualified for , this scheme. Qualification for the [NAME_116] may involve the claimant establishing a disability , but it is not an automatic pre – requisite of the scheme that the applicant has a condition which satisfies the test in s.6 of the Act.

52. In the final analysis, the Tribunal does not consider that the precise diagnosis of the claimant’s condition, and whether it does or does not meet the criteria for autism, actually matters. Whatever the condition, it is its effects that have to be considered. The claimant has, on the evidence, failed to establish that she has a disability within the meaning of the Equality Act 2010.

53. There remain other applications which require determination, and a further preliminary hearing is required. As the Employment Judge has only determined the disability issue, he sees no reason why the next hearing need be before him, although it equally well can be.

54. It is appreciated that the final hearing looms, and regretted that the next preliminary hearing cannot be held any sooner. Clearly, that may have consequences for the final hearing.

Employment Judge Holmes

DATE: 14 March 2024

JUDGMENT SENT TO THE PARTIES ON

14 March 2024

FOR THE TRIBUNAL OFFICE

(1) Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies shall be liable on summary conviction to a fine of £1,000.00.

(2) Under rule 6, if this Order is not complied with, the Tribunal may take such action as it considers just which may include (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 37; (c) barring or restricting a party’s participation in the proceedings; and/or (d) awarding costs in accordance with rules 74-84.

(3) You may apply under rule 29 for this Order to be varied, suspended or set aside.

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1

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

NHS England (2)

Heard at: Manchester (in private) On: 17 May 2024

Before: Judge Johnson (sitting alone)

Representatives For the claimant:

[redacted] For the respondent: [redacted]

[NAME_119] (solicitor)

RESERVED JUDGMENT

The judgment of the Tribunal is that:

Disability discrimination

(1) Following the decision of Judge Holmes dated 14 March 2024 that the claimant was not at the material times a person with a disability in accordance with section 6 Equality Act 2010, it is necessary to strike out those complaints of discrimination which involve the protected characteristic of disability.

(2) The complaints of discrimination arising from a disability contrary to section 15 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success.

(3) The complaint of a failure by the respondents to comply with their duty to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of

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2 Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success.

Those complaints which do not involve disability

(4) Those complaints which remain and which are the subject of the respondents’ application seeking an order for strike out under Rule 37(1)(a) and/or a deposit order under Rule 39 are dealt with below.

Sex discrimination

(5) The complaint of indirect sex discrimination contrary to section 19 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

(6) The complaint of direct sex discrimination contrary to section 13 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

Harassment by reason of sex and/or race

(7) The complaint of harassment contrary to section 26 Equality Act 2010 by reason of the claimant’s sex and or race does have a reasonable prospect of success and it will not be struck out under Rule 37 or subject to a deposit order under Rule 39.

(8) This complaint will be restricted to the allegation that on a date in July 2022, [NAME_40] made reference to the claimant being a single Mum and stated that she did not see the claimant as a consultant due to that and her different cultural background.

Age discrimination

(9) The claimant is advancing a complaint of direct age discrimination contrary to section 13 Equality Act 2010 which does have a reasonable prospect of success and it will not be struck out under Rule 37 or subject to a deposit order under Rule 39.

(10) The complaint involves the sole allegation that the claimant was subjected to less favourable treatment when the respondents decided to dismiss her and as a medical trainee over 40 years of age, she compares herself with younger medical trainees in the 27 to 34 year old age bracket.

(11) For the avoidance of doubt the claimant has failed to assert that she has been subjected to indirect age discrimination contrary to section 19 Equality Act 2010 and any such complaint is struck out under Rule 37 having not been particularised and therefore having no reasonable prospects of success.

Direct race discrimination

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3 (12) The complaint of direct race discrimination contrary to section 13 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

Unfair dismissal

(13) The complaint of unfair dismissal brought against the first respondent does have reasonable prospects of success and shall not be struck out under Rule 37 or subject to a deposit order under Rule 39.

The remaining complaints

(14) The remaining complaints of:

(a) harassment by reason of sex and/or race;

(b) direct age discrimination; and,

(c) unfair dismissal

will remain in these proceedings and the final list of issues, the listing of the case for a final hearing and the consideration of case management orders will be considered at a preliminary hearing case management on a date to be confirmed.

REASONS

Introduction

1) This was a preliminary hearing which was listed by Judge Holmes once he had concluded the question of whether or not the claimant was disabled within the meaning of section 6 Equality Act 2010 on 10 October 2023.

2) Because of time constraints with the available listing for the hearing, he had made a partial determination of a number of matters which he had been listed to hear on that date. He made the following orders:

1. The claimant’s application to adduce further evidence and for a postponement to obtain and serve further medical evidence is refused.

2. The claimant was not disabled at the material time.

3. The case will be listed for a preliminary hearing on 17 May 2024 to deal with the remaining matters which he had been asked to consider, which are as follows:

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4 i) Whether some or all of the complaints raised should be struck out and/or whether deposit orders should be made.

ii) Further case management orders as appropriate.

iii) Whether the final hearing listed for 3, 4, 5, 6 & 7 June 2024 should be postponed.

3) Judge Holmes had recorded that as he had dealt with a separate matter involving disability in its entirety, another Judge could hear the balance of the matters which remained to be resolved.

4) This decision will inevitably impact upon the decisions I am being asked to make in relation the outstanding application made by the respondents as I no longer have jurisdiction to hear the complaints of disability discrimination now that the claimant can no longer rely upon the protected characteristic of disability.

5) This was an in person hearing in which the parties attended and participated. The respondent had completed a preliminary hearing bundle and a bundle of case authorities in support of their applications for strike out and/or deposit orders. The claimant had provided a document called ‘Claims explained – brief summary and itemisation’.

6) The first matter that I dealt with was the question of the final hearing and having briefly discussed the case with the parties, I was satisfied that it was not reasonably practicable for the case to be ready for a final hearing next month and it was in the interests of justice to postpone this final hearing date.

7) Additionally, this was a case where it was difficult to make as much progress with the matters under consideration as I had hoped. Consequently, other than the hearing date, I was unable to progress the case further than hearing the arguments from both sides concerning the applications for strike out and/or deposit orders. Given the draconian nature of the sanctions being sought by the respondent, it was in the interests of justice to ensure that sufficient time was spent hearing from the parties and especially the claimant as the subject of the applications and being an unrepresented party who spoke English as a second language and who had some health issues.

8) However, following the decision being made in this judgment, it will be appropriate for there to be a further preliminary hearing case management before a Judge sitting alone to consider the questions of a final list of issues, listing for final hearing and case management orders.

Final Hearing postponed.

9) The final hearing listed to take place on 3, 4, 5, 6 & 7 June 2024 is postponed.

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5 10) The parties will be provided with details with a further hearing date in due course for the preliminary hearing case management.

Case Summary

Introduction

11) This is a brief summary of the case intended to help Employment Judges who make case management decisions. It is not a substitute for the contents of the claim and response forms, or the witness statements on both sides. The parties are not bound by the contents of this summary.

12) The case arises from the claimant’s employment as a ST5 doctor in training from 1 August 2018 until her employment ended on 17 August 2022. She had been placed with the claimant by [NAME_121] in order that she could complete her training as an anaesthetist and this involved several placements in the North West.

13) The relationship between the claimant and the respondents is complicated, but essentially, she was placed with the first respondent by the second respondent so that she could receive the necessary training. The first respondent was her employer and the second respondent was her qualification body.

14) The respondents say that the claimant’s employment was terminated when she completed the placements that she had been allocated.

The first claim

15) The claimant presented her first claim form on 10 January 2023 following a period of early conciliation from 16 November to 13 December 2022 and naming the first respondent. She indicated that her complaints were unfair dismissal and discrimination relating to her age, race and sex. She provided brief background information in section 8.2 and noted that she was still employed but was due to attend a stage 2 appeal on 16 February 2023.

16) The claim was described as relating to ‘prolonged harsh management by “educators”, using multiple anonymous feedback assessments, leading to unfair dismissal.’ The remaining text on the continuation page for section 8.2 was confusing, but essentially it involved a perception of intense criticism received through anonymous feedback to her supervisors. Additional information was also provided in section 9.2 and section 15 of the claim form, but which reflected the matters already addressed in 8.2.

17) A response and grounds of resistance were presented by the first respondent on 15 February 2023. In paragraph 2 of the grounds of resistance they described themselves as ‘the Lead Employer for over 12,000 doctors undertaking speciality training of all types across a number of localities.’ They referred to the tripartite relationship with [NAME_121] (‘[NAME_122]’ and

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6 who had not yet been added as a party to the proceedings), the claimant and themselves as employer.

18) In paragraphs 9 to 13, the respondent Trust explained that at the end of each year, speciality trainees such as the claimant were subject to an [NAME_24] meeting which is arranged by [NAME_122] and which consists of NHS consultants involved in the speciality training. Their role is to determine whether the trainee had performed satisfactorily and to make one of six possible outcomes. These outcomes can determine whether further training is required based upon how satisfactorily they have performed or whether they should be released from training either with or without completing the necessary competencies.

19) Importantly, the first respondent trust asserts that they have no control over the decision making carried out by the [NAME_24], as ‘this falls entirely within the remit of [NAME_122] and the Postgraduate Dean.’

20) The first respondent provided details of the training required in anaesthetics and the claimant’s time spent with them. She was described as undertaking a number of placements from 2018 to 2022 with [NAME_123] allowing her training to continue but with issues being raised concerning her progress. In late October 2022, the [NAME_24] awarded her an Outcome 4 which released her from the training programme. This would mean that the first respondent would have to terminate the employment that had been agreed and the claimant began a grievance process.

21) The first respondent resisted the claim and raised questions relating to jurisdiction (time limits) and argued that the claimant had not been dismissed and that further particulars were required for the complaints being raised in the claim form.

The second claim

22) The claimant then began a second period of early conciliation naming [NAME_122] and ‘[NAME_124] (and [COMPANY_48]), [NAME_122]’ as prospective respondents on 7 March and which was concluded on 9 March 2023. A further claim form was issued on 12 March 2023 and which named the first respondent trust, the [NAME_125] as second respondent.

23) In the claim form, the claimant confirmed that her employment had terminated on 24 February 2023 and repeated the complaints that she had made in her first claim form together with a breach of contract complaint. She completed section 8.2 and although the background information provided was confusing, she appeared to repeat the allegations of negative anonymous feedback. She said that she wanted to be restored to her job with the first respondent trust.

24) The claimant also produced a lengthy 7 page document where she attempted to provide details of the allegation which she relied upon on. It was entitled ‘Unfair dismissal claim’, but included a number of headings, each with several

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7 paragraphs of text. They were Discrimination – part of unfair dismissal, details of her protected characteristics and victimisation. Interestingly, she concluded that since the Russian invasion of Ukraine, which she referred to as the ‘Special Military Operation’ (which was the term originally used by the Russian government to describe the invasion), she had been excluded for being the ‘wrong nationality’. I understood that this related to her Byelorussian nationality, whose government are supportive of Russia’s invasion of Ukraine from March 2022 onwards.

25) A schedule of loss was also produced on 16 April 2023 which contained a lot of description but recorded a basic award of £4282.50 and compensatory award of £93,878.00. The claimant did not provide figures relating to injury to feelings or other losses relating to her claim.

26) The claim was accepted, the two claims combined and a final hearing date was listed over 3 days for 4, 5 & 6 June 2024.

27) A response from was presented on 17 May 2023 by the first respondent trust and NHS England on behalf of the second respondent. A joint ground of resistance was also presented. In paragraph 2 of the grounds of resistance, it was explained that NHS England was the correct name for the second respondent as this was where [NAME_122] and [NAME_125] were incorporated within. The tripartite relationship for the training of doctors was again explained.

28) They described the claimant’s grievance which she submitted to the first respondent trust and complaints which she raised with the second respondent. They confirmed that the appeal against Outcome 4 was heard and the original decision upheld.

29) The first respondent’s employment of the claimant was described in paragraph 36 of the grounds of resistance as being conditional upon her holding a place on an approved postgraduate training programme with the second respondent. The removal of the claimant from training meant that that the first respondent terminated her employment in accordance with section 13 of Schedule 11 of the Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016 version 11. It was asserted that a doctor’s employment can be terminated without notice in cases where a doctor is removed from a GMC approved training programme.

30) The respondents argued that jurisdiction remained an issue and the claimant had still not provided clear particulars concerning her discrimination complaints. Disability was not admitted.

Subsequent case management

31) The claimant updated her ‘Unfair dismissal claim’ document referred to above which now included an addendum and a document called ‘Chronology of Career Loss’. In her case management agenda for the first preliminary

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8 hearing, the claimant identified complaints in addition to unfair dismissal of discrimination, victimisation, harassment, and failure to make adjustments.

32) In relation to the unfair dismissal complaint, it was asserted that only the first respondent as employer could be a party as the second respondent was not an employer. Further particulars were also sought concerning the breach of contract complaint. In the Issues section of this document, the claimant referred to several allegations which appeared to be as follows:

1. Unfair dismissal

2. Discrimination (disability, sex, race, age) – linking personal qualities to ‘patient safety concern’.

3. Allegations made against HR regarding a failure to investigate a grievance about bullying at work. It was not clear what complaint this related to.

4. Allegations made against the [NAME_25] about breach of training agreement. It was not clear what complaint this related to.

5. Victimisation following criticism of the training process, although detriments were not clear.

6. Harassment on grounds of race/nationality and age regarding anonymous assessments behind her back.

33) Judge Howard consider the case at a preliminary hearing case management on 10 July 2023 and extended the final hearing length to 5 days for 3, 4, 5, 6 & 7 June 2024. Although her Note of the Preliminary Hearing clearly indicated a lengthy discussion regarding the list of issues, Judge Howard was unable to agree a definitive list of issues with the claimant. However, she identified the following complaints:

1. Discrimination arising from disability (section 15 EQA)

2. Failure to make reasonable adjustments (sections 20 &21 EQA)

3. Indirect sex discrimination (section 19 EQA) – 3 allegations relating to her status as a single parent. But the PCP remained unclear.

4. Direct sex discrimination (section 13 EQA) – a single incident relating to criticism from a consultant regarding ‘airway skills’.

5. Harassment related to sex and race (section 26 EQA) – a single allegation against [NAME_40] who referred to

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9 the claimant’s status as a single mum and that she could not see her as a consultant because of her cultural background.

6. Direct/indirect age discrimination (sections 13 & 19 EQA) – the claimant being treated less favourably than compared with younger trainees by their supervisors.

7. Direct race discrimination (section 13 EQA) – two allegations were mentioned relating to criticism of the claimant in relation to her accent.

8. Unfair dismissal (Part X ERA).

34) Although some time was spent discussing the claimant’s disability, following Judge Holmes’ recent decision, it is not necessary to explore these issues further. Judge Howard listed the case for a further preliminary hearing to consider the matters which were partially considered by Judge Holmes as described above. It was clear at this point that there were concerns raised regarding the prospects of success for the claimant’s claim and no other case management orders were made.

35) In paragraph 14 of her case summary, Judge Howard stated as follows:

‘Considering today’s discussion, [NAME_126] (respondent’s counsel), indicated that a strike out/deposit order application would be made in respect of some elements of the claims. I decided that it was not proportionate to order disclosure and an amended response and to give further directions until the issue of disability (if necessary) and the strike out/deposit application (if made) were decided.’

The respondents’ application for strike out and/or deposit order (pp342-366)

36) This was prepared by the respondents for the preliminary hearing before Judge Howard and revised for the further hearings where it was listed to be considered. Several matters were considered by the respondents and they can be summarised below.

37) The question of time limits was raised. In relation to the first claim, given that the claimant notified ACAS of a potential claim against the first respondent on 16 November 2022, any allegations which took place before 17 August 2022 could be considered out of time. In relation to the second claim, given that the claimant notified ACAS of a potential claim against the first respondent and (effectively), the second respondent on 7 March 2023, any allegation which took place before 8 December 2023 is out of time.

38) The respondents then considered the contents of the claim form and the preliminary hearing before Judge Howard.

Relevant Law

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10

Strike out under Rule 37

39) Rule 37(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that:

(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –

1. That it is scandalous or vexatious or has no reasonable prospect of success. …

40) Cox v Adecco Group UK & Ireland [2021] ICR 1307. The EAT provided [NAME_29] on striking out, particularly in relation to whistleblowing claims. [NAME_8] made specific reference to paragraph 21 to 32. I noted that paragraph 24 and 25 reminded Tribunals’ of chapter 1 of the Equal Treatment Bench Book relating to the particular stresses experienced by litigants in person when dealing with legal concepts. However, while a decision to strike out should not be taken lightly, it remains a power available to the Tribunal and the emphasis (paragraph 32), is that litigants in person ‘should focus on their core claims rather than trying to argue every conceivable point.’

41) CLFIS (UK) Limited v Reynolds [2015] IRLR 562 CA. [ADDRESS] of Appeal decision of Underhill LJ was referred to by [NAME_8] where in paragraph 36 he explained that an individual employee who was responsible for an alleged act of discrimination, must themselves have been motivated by the protected characteristic.

42) Ashmore v British Coal Corporation [1990] IRLR 283. This was an equal pay case dealing with amongst other things, genuine material difference (as it was under the old legislation). However, of relevance to the case before me is paragraph 12 where we are reminded that a claimant has their right to litigate their claim provided it is not frivolous, vexatious or an abuse of process. In considering whether such a situation exists, the Tribunal must consider all of the circumstances and what is in the interests of justice.

43) North Glamorgan NHS Trust v Ezsias [2007] EWCA Civ 330, [2007] IRLR 603. [NAME_8] referred to paragraph 29 and the comments of Kay LJ which explains that strike out for no reasonable prospects of success would only succeed in exceptional circumstances when the central facts are in dispute. The example they referred to was when the alleged facts are wholly inconsistent with contemporaneous documentation and that was not in dispute.

44) A v B [2010] EWCA Civ 1378. [NAME_8] referred to the decision by [NAME_128] LJ at paragraph 8, 9 and 11 where they considered and endorsed Kay LJ’s comments in [NAME_129] (above). However, reference is also made to paragraphs

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11 59 and 61 where relevant issues of fact that need to be heard, if more than fanciful, should result in the complaint being allowed to proceed.

45) Ahir v British Airways [2017] EWCA Civ 1392. [NAME_8] referred to paragraph 16 of the decision of Underhill LJ and his view that Tribunals are able strike out claims which include discrimination complaints if they are satisfied there is no reasonable prospect of the necessary facts being established which would prove liability. Nonetheless, Tribunals are also reminded of the dangers of reaching such a conclusion where evidence has not been heard and the test to be applied when considering strike out is a high one, when compared with that which applies to the making of a deposit order.

46) [NAME_26] v Ministry of Justice [2023] EAT 41. In this EAT case, [NAME_8] referred to paragraphs 18 to 23 and which consider the cases of [NAME_129] and [NAME_130] (above). In particular, the EAT notes that Rule 37(1)(a) is not just restricted to questions of law, but also questions of fact. However, while caution is once again recommended, it is nonetheless acknowledged that a Tribunal can strike out where a realistic assessment can be made by reason of the circumstances that exist in the case in question.

Deposit Orders under Rule 39

47) Rule 39(1) of the Tribunals’ Rules of Procedure provides the following: (1) Where at a preliminary hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

48) Hemdan v Ishmail [2017] IRLR 228. – this EAT case involves a consideration of the principles behind the making of a deposit order and are helpfully discussed at paragraphs 10 to 17. We are reminded that the requirement placed upon a party to pay a deposit is when those complaints with little prospect of success are identified and a deterrent is placed upon the party from continuing with them. This also recognises the costs, time and anxiety placed on the opposing party when being expected to defend a complaint which has little prospect of success. A parties’ means is considered and while the test of little prospect of success is less than that of no reasonable prospects of success applied to a strike out application, it nonetheless requires the Tribunal to give reasons when a deposit order is made. However, the order must be at a level that the paying party can pay and therefore must be proportionate as to their means, so as to avoid access to justice being impaired.

Time Limits

49) Section 123 Equality Act 2010 deals with the question of time limits when complaints of discrimination and victimisation are brought and says as follows:

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12 (1)…Proceedings on a complaint…may not be brought after the end of –

1. The period of 3 months starting with the date of the act to which the complaint relates, or 2. Such other period as the employment tribunal thinks just and equitable.

(2) …

(3) For the purposes of this section – a) Conduct extending over a period is to be treated as done at the end of the period; b) Failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – a) When P does an act inconsistent with doing it, or b) If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

50) Commissioner of Police of the Metropolis v Hendricks [2003] IRLR 96. In this Court of Appeal case, Mummery LJ at paragraph 48 when arguing continuing acts for the purposes of time limits, the burden rests with the claimant.

51) Robertson v Bexley Community Centre [2003] IRLR 434. [NAME_8] referred to this well known Court of Appeal case and the comments provided by Auld LJ at paragraph 25 that Tribunals should remember that time limits are to be exercised strictly. There is no presumption that they should exercise their discretion and the claimant must convince the Tribunal that it is just and equitable to extend time. However, I also reminded myself that at paragraph 33, it is recognised that Tribunals do have a ‘…very wide discretion in determining whether or not it was just and equitable effectively to extend time…’ and they should consider ‘…all the circumstances…’.

52) Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. In this Court of Appeal decision, Underhill LJ at paragraph 37 provides [NAME_29] to Tribunals when considering section 123 and the exercise of their discretion. This involves assessing all the factors which it considers relevant to whether it is just and equitable to extend time with an emphasis upon the length of and the reasons for the delay. Reference is made to Keeble (below) and the well known list of things to consider but cautions against using that list as a framework in the actual decision making process.

53) British Coal Corporation v Keeble [1997] IRLR 336. Consequently, [NAME_8] referred me to this case which was determined by the EAT and paragraph 8 which refers to section 33 of the Limitation Act 1980 and the requirement placed upon a court to consider factors (a) to (e).

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13

Respondent’s submissions (pp 353 – 363)

54) [NAME_8] confirmed that the application was made on behalf of both respondents.

55) She noted that the first claim form presented on 10 January 2023 included complaints of unfair dismissal and breaches of Equality Act 2010 relating to age, race, sex and disability. However, [NAME_8] observed that while referring to her protected characteristics of race, age and sex, no specific details of discrimination were provided.

56) [NAME_8] then moved onto second claim form and acknowledged that while the same boxes in section 8.1 were ticked as were identified in the first claim, the details focused upon unfair dismissal, ‘…anonymous negative feedback’ and their use in the decision to dismiss. While allegations of victimisation were made, Judge Howard had previously clarified with the claimant that the term was ‘…used in the colloquial, rather than legal sense.’

57) [NAME_8] then moved onto the chronology of the proceedings and explained that following Judge Leach combining the two claims, the claimant provided further details of her claim dated 3 April 2023 (p102-111) and a chronology dated 25 June 2023, (p112-3). Reference was made to the claimant criticising ‘…a very large number of individuals, across a number of different hospitals, some of whom are named, but some are not.’

58) [NAME_8] explained that the application for strike out and/or deposit orders in relation to the following surviving complaints:

1. Indirect sex discrimination.

2. Direct sex discrimination.

3. Harassment sex and race.

4. Age discrimination.

5. Direct race discrimination.

6. Unfair dismissal.

59) In summary, it was noted that the claim forms plainly focused upon complaints of unfair dismissal and disability discrimination. However, she also remarked that ‘[t]he many different allegations made by the Claimant against many different individuals undermines the strength of all her claims. It demonstrates the accuracy of the Respondent’s feedback that the Claimant had no insight, as she clearly cannot accept any criticism of her work whatsoever.’

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14 60) [NAME_8] argued that the first time that the claimant provided particulars of discrimination relating to age, sex and race was in the document which accompanied her second claim form and that the later list of issues frames the allegations differently.

61) In relation to indirect sex discrimination, it was noted that no PCP has yet been identified by the claimant, but that even if a properly pleaded complaint under section 19 could be identified, the respondent would succeed with a legitimate aim that changing shifts during the Covid pandemic was a proportionate means of achieving a legitimate aim. In any event, a change of shift would subject the claimant to greater scrutiny. The complaint appears to make allegations dating as far back as 2020, despite her pleadings refer to issues starting in February 2021. These allegations are argued to be stand alone complaints which are well out of time and where it is not just and equitable to extend time,

62) In relation to direct sex discrimination, [NAME_8] argued that the allegations raised by the claimant were ‘extreme/fanciful’. Moreover, it was submitted that the allegations identified the relevant discrimination being indirect rather than direct. Reference to women/people having smaller hands was explained by the claimant and no [NAME_27] was identified. The real issue it is submitted, arises from the claimant’s unwillingness to accept any criticism of her performance and that the allegations will be out of time.

63) In relation to harassment connected with sex and race, [NAME_8] argued that there was an inconsistency between what the claimant identified at case management and the later further details of claim. Moreover, it is noted that the claimant does not provide a link between the alleged comments and the decision to terminate her employment. It is disputed that the allegations are in time, are separate allegations and that it is not just and equitable to extend time.

64) In relation to age discrimination, [NAME_8] begins by arguing the complaint is not properly set out within the claims that she has brought, although it was noted that the box relating to age discrimination was not ticked ins section 8.1 of the claimant’s claim form. The allegations are described as being ‘incredibly wide’ and applying to many circumstances which suggests a lack of insight and a disproportionate scope of the claim. Reference is said to be made to ‘tropes regarding older workers which are frequently fought against by claimants bringing age discrimination complaints’. No [NAME_27] is said to be identified and [NAME_8] believes that an arguable case has not been identified.

65) Moving onto the direct race discrimination complaint there is a reference to a lack of details and focuses upon feedback which is submitted as being fairly raised and necessary given that it relates to patient safety. Reference is made to the claimant referring to taking lessons to soften her accent and within her second claim grounds of complaint, which suggested that she agreed it was a problem and then complained that raising her accent was an allegation of discrimination. Ultimately, the argument is that the

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15 claimant accepted feedback and then later decided to convert it to a complaint of discrimination and that the allegations do not amount to unfavourable treatment. It is also argued that no [NAME_27] is identified and that the complaints are historic and well out of time.

66) Finally, [NAME_8] considered the complaint of unfair dismissal and argues that it cannot succeed because the dismissal was not caused by the decision of a third party imposing its will on the first respondent employer but because ‘…the claimant no longer satisfied the criteria upon which her employment…was predicated.’ This was because she was dismissed following her unsuccessful appeal regarding her no longer being on an approved postgraduate training programme supported by the second respondent. The second respondent did not employ the claimant and could not be a respondent to an unfair dismissal complaint.

Claimant’s reply

67) The claimant is a litigant in person and I was conscious that she have an opportunity to provide a reply which insofar as she was able to, gave relevant replies to the submissions made by [NAME_8].

68) She provided a document at the beginning of the hearing entitled ‘Claims explained – brief summary and itemisation’ and which identified the complaints and page references in the bundle in the left hand column and in the second column additional explanatory information is provided.

69) The claimant was allowed to provide lengthy reply to [NAME_8]’s submissions of almost an hour in length.

70) Her opening argument was that time limits in relation to complaints should not be an issue because they all formed part a series of continuing acts. She argued that there was an arguable unfair dismissal complaint as alternative employment could have been investigated by the first respondent and they failed to do so.

71) She argued that the indirect sex discrimination complaint involved an allegation that her employer in moving her shifts failed to take account of her status as a parent.

72) She disputed that she did not have insight of the background to her complaints and that her direct discrimination complaints were clearly argued.

73) She did acknowledge however, that the allegations of age discrimination were ‘not a primary factor.’ However, she argued that nonetheless, there was evidence that she was treated differently to younger colleagues.

Discussion

Initial comments

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16

74) As I have already mentioned above, in considering these applications, I have taken into account the claimant’s unrepresented status, that she has a disability and also that she speaks English as a second language. This is in accordance with the relevant chapters of the Equal Treatment Bench Book.

75) Indeed, in paragraph [24] of Taylor HHJ’s decision in [NAME_131] v [NAME_132] (above), he reminds Judges of the following:

“[NAME_29] for considering claims brought by litigants given in the Equal Treatment Bench Book (“the ETBB”). In the introduction to chapter 1 it is noted, in a very well-known passage:

“Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

“The outcome of the case may have a profound effect and long-term consequences upon their life. They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.

“Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal.

“All too often, litigants in person are regarded as the problem. On the contrary, they are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants.””

76) However, I have paid close attention to the provisions of the overriding objective under Rule 2 and the need to deal with this case fairly and justly taking into account (amongst other things), ensuring the parties are on an equal footing, dealing with the case proportionality in relation to its complexity and importance of the issues, avoiding delay while being able to properly consider the issues and saving expense. This is a case which in its current form covers a lengthy period of time and refers to allegations across a number of work placements and with a number of different people. Overall, there is a lack of precision and in its current form a lengthy hearing could result with some complaints remaining difficult to understand and where their prospects of success are uncertain and indeed, doubtful.

77) While this might be the case, I have reminded myself of the strict test applied by Rule 37 and Rule 39 when deciding whether to strike out or make a deposit order. These are not decisions to be taken lightly and they should only be made when:

a) efforts have been made to identify the issues,

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17 b) the claimant has had time beyond the stress of a single hearing to articulate her case, c) reasonable care has been taken to consider the claimant’s pleadings and core documents, d) the case should be taken at its highest.

78) Nonetheless, they are tools which are properly available to Tribunals and in the right circumstances, they should be imposed so that the overriding objective is properly respected and a claimant is not left with an unwieldly claim which prejudices the respondent in terms of its understanding of what is being advanced and the levels of work and expense required to respond to it.

79) It should also be remembered that nobody benefits by truly hopeless cases being pursued to hearing and this is especially the case for the claimant, who may easily find themselves overwhelmed and focusing on issues which will not or are unlikely to yield ‘winning points’ (my emphasis). To this extent, by dealing with questions of strike out and deposit orders, a claimant may actually benefit from relinquishing those complaints which would otherwise serve as an unnecessary distraction.

80) I have however, reminded myself of the trap which Judges can fall into in these situations and identified by Tayler HHJ at paragraphs [29] to [30] and strike out not being treated by the Tribunal as ‘…a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues; doing so is a prerequisite of considering whether a claim has reasonable prospects of success.’

81) This potential scenario is not the case in these proceedings and the claimant has been given ample opportunity to identify and explain her claim and appropriate allowances have been made to take into account the additional challenges she faces by her particular circumstances.

The application and the issues as they currently stand

82) Dealing with each of the elements of the claimant’s claim as described by [NAME_8] in the respondents’ application, I will deal with each in the order that they were identified in the Note of Preliminary Hearing dated July 2023 produced by Judge Howard.

83) This was the first opportunity where the claimant as an unrepresented person, could be interrogated about her complaints by a Judge and where the basis of her complaints could be identified, even if additional time was required to finalise the list of issues, (pp127-136). By this stage, the claimant had provided considerable information about her claim and although there are problems with her general failure to identify or link allegations of discrimination to events which she was unhappy with, Judge Howard was able to broadly identify the complaints and allegations being brought.

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18 84) In particular, Judge Howard in paragraph (12) of her Note recorded the following:

‘We discussed each type of claim in turn. I [Judge Howard] explained to the claimant that pursuing claims of discrimination in the alternative (e.g. the decision to release her was discriminatory because of disability or race or sex or age) can be contradictory. Whilst the claimant understood the point being made she was adamant that she wished to proceed with all elements of all her claims.’

In referring to the complaints under consideration, Judge Howard referred to the 2 claim forms and further documents, ‘unfair dismissal claim, statement March 23’ and ‘chronology-ET’.

85) It should be noted that it was not possible for Judge Howard to finalise a list of issues and she did not believe it proportionate to make any further case management orders including disclosure until the issues had been clarified in relation to disability and the respondents’ strike out/deposit complaints.

86) In terms of the status of the second respondent, Judge Howard identified in paragraph (16), that they could be a respondent to the complaints of discrimination as a either an [COMPANY_133] (section 53 Equality Act 2010) or a Qualification Body (section 55). This status was not the subject of challenge within the respondents’ applications, other than that the second respondent could not be a respondent to the unfair dismissal complaint as they were never an employer of the claimant, (p129).

87) Ultimately, I agree with the respondent’s submission in their application that the claims were sufficiently identified by Judge Howard in her Note and at this point it was decided that no further particularisation was required until these applications and the question of disability were resolved.

Section 15 discrimination arising from disability

88) Given the decision by Judge Holmes dated 14 March 2024 that the claimant was not at the material times a disabled person within the meaning of section 6 Equality Act 2010, the Tribunal no longer has jurisdiction to hear this complaint and this complaint must be struck out under Rule 37.

Sections 20 & 21 Failure to make reasonable adjustments

89) Given the decision by Judge Holmes dated 14 March 2024 that the claimant was not at the material times a disabled person within the meaning of section 6 Equality Act 2010, the Tribunal no longer has jurisdiction to hear this complaint and this complaint must be struck out under Rule 37.

Sex discrimination: Indirect (section 19)

Case No: 2401163/2023 & 2403404/2023

19 90) The basis of this complaint is that the claimant is a single parent and that as women are more likely to be in this situation, PCPs being operated by an employer can potentially cause women particular difficulties.

91) As Judge Howard explained in paragraph 14.1.16, the claimant was not able to identify a PCP and it was speculated that there could possibly be a ‘practice’ that trainees were expected to have no limitations placed upon them through childcare arrangements.

92) The claimant’s allegations are that:

1. [NAME_134] raised concerns in December 2020 to the claimant’s [COMPANY_11] at [NAME_56] about her ability to manage her childcare arrangements and impact upon her and patients. 2. [NAME_137] raised similar concerns in February 2021. 3. In November 2020 she had to self isolate because her child had been exposed to Covid.

She explained that (a) and (b) were contributory factors which led to her being taken off night shifts and (c) caused resentment on the part of [NAME_140]

93) This is a problematic complaint for several reasons in that while the claimant has identified how being a single parent could relate to her sex, she has, (despite having had ample opportunity), failed to identify a PCP which could apply across the hospitals where she worked. Indeed, as [NAME_8] observed, the claimant even noted that circumstances could differ in each location, such as [NAME_21], (p55).

94) Furthermore, time limits are clearly an issue and as these appear to involve incidents ending by February 2021, it is unlikely to result in the claimant being able to persuade a Tribunal that it would be just and equitable to extend time in accordance with section 123 Equality Act 2010. Although this in itself would persuade me to impose strike out or require a deposit order as there remains the possibility that an application to extend time could succeed.

95) Additionally, the complaint is simply not constructed and explained by the claimant in a way which can be readily inserted into the structure of a section 19 complaint. It appears to relate to allegations of bias against the claimant as a parent with childcare responsibilities and does not involve the identification of ways of working which place the claimant as a disadvantage.

96) The respondent may also be able to argue that there is a legitimate aim, but before this is even considered, this complaint appears to have been added by the claimant at the point she could see she might be dismissed when Option 4 was decided by the respondents. This suggests a situation which is often encountered in claims where a dismissal or other detriment takes place and a claimant considers the entirety of their possible protected

Case No: 2401163/2023 & 2403404/2023

20 characteristics when trying to understand why the detriment has taken place. There has to be something more which could suggest that the protected characteristic played a role in the decision.

97) In this case, the claimant has identified a range of protected characteristics and while they may well be correct, they simply act as the gateway through which specific acts of discrimination can be identified under the Equality Act 2010. Further consideration needs to given as to the construction explained in the relevant sections of the Act, (in this case section 19) and an evaluation undertaken as to whether a logical complaint can be raised in relation to the protected characteristic under consideration, (in this case sex). Unfortunately, despite much opportunity, the provision of lengthy documents and encouragement by Judge Howard, the claimant has simply been unable to explain a workable complaint which could have any prospect of succeeding at a final hearing.

98) Judge Howard quite rightly cautioned the claimant about relying upon alternative protected characteristics and while it is understandable that the claimant may be reluctant to surrender and withdraw this complaint, I cannot see how there is an arguable case which can proceed to be determined at a final hearing.

99) Consequently, the complaint of indirect sex discrimination must be struck out in accordance with Rule 37(1)(a).

Direct sex discrimination (section 13)

100) A single incident was identified in relation to this particular form of discrimination and as described by Judge Howard in paragraph 14.1.7 of her Note, it dated from March 2021 when a consultant [NAME_141] raised concerns about the claimant’s ‘airway skills’ and that he could complete a procedure with one hand. The reason behind the allegation of detrimental treatment on grounds of the claimant’s sex, is that she believes the criticism was unfair and that as a man, the Mr [NAME_143] had larger hands than she had.

101) While there is some suggestion that this might be raised as an indirect sex discrimination complaint, it was not raised at the preliminary hearing before Judge Howard according to her Note. Moreover, the claimant has simply described a form of treatment which is not supported by a description of the words used and appears to rely upon a line of speculation which concludes that what was said was direct discrimination on grounds of sex.

102) This is a complaint which is raised considerably out of time and does not appear to form part of a series of continuing acts. It does not amount to a core argument of the claim and as described in [NAME_131] v [NAME_132] above, amounts to the claimant attempting to litigate ‘…every conceivable point’ [32]. This is not in the interests of justice, is nor proportionate and actually serves to prejudice the claimant by distracting her from focusing upon her better and arguable allegations in this claim.

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21

103) In any event, I have to agree with [NAME_8] that this is a complaint which is extreme and fanciful and as a consequence falls within Rule 37(1)(a) as having no prospects of success. The complaint of direct sex discrimination is therefore struck out.

Harassment on grounds of sex and/or race (section 26)

104) Judge Howard discussed this complaint in paragraph 14.1.8 and records that the incident arose in July 2022 when [NAME_40] suggested that as a single mother, she could not see the claimant as a consultant and this was also because of her different cultural background, (p131).

105) The source of this allegation is a document which was entitled ‘Unfair Dismissal’ and which appears to be based upon the claimant’s document of a same name which accompanied the second claim form, (pp53- 9). However, the second document has been revised and included the comments allegedly made by [NAME_144] as described by Judge Howard, (p105).

106) Although this allegation was not expressly set out within the claim forms or the grounds of complaint, it is an allegation which was clearly set out before Judge Howard and which relates to two of the protected characteristics identified. There is an issue relating to the question of time limits, but on balance it is sufficiently particularised to identify an arguable complaint and the application for strike out and/or deposit order is unsuccessful.

107) This is of course the limit of the alleged harassment under consideration and the claimant must now focus upon preparing for a future final hearing based upon this allegation of harassment and not seek to add further complaints under section 26 and relating to these protected characteristics.

Age discrimination (section 13 or 19)

108) In paragraph 14.1.9, Judge Howard recorded that at the time of preliminary hearing, the claimant was 45 years old and compared herself with younger medical trainees who were in the age bracket of 27 to 34 years, (p131).

109) The claimant was not recorded as identifying whether this complaint involved direct and/or indirect discrimination. The claimant has been given ample opportunity as submitted by [NAME_8] to set out this complaint although it does refer to the respondents being unhappy with her inability to accept criticism and to lack insight, which the claimant believes is attributable to her being older than typical medical trainees. As discussed at the preliminary hearing before Judge Howard, there was a concern that her supervisors were closer to the claimant in age and they were threatened by her speaking up, raising concerns and generally being challenging.

Case No: 2401163/2023 & 2403404/2023

22 110) The claimant was recorded by Judge Howard as confirming that this particular complaint ‘…is a contributory factor, not the primary reason, for the decision to release and dismiss her.’

111) Based upon all the circumstances, the available documents and the submissions that I heard from both parties in relation to this complaint, the complaint of age discrimination is additional to the other forms of discrimination/protected characteristics alleged and arises from the claimant’s deliberations as to why her employment was terminated.

112) The particulars are limited and while on balance, I do not find that there is a viable complaint of indirect age discrimination which has reasonable prospects of success, I was persuaded that the question of direct age discrimination required further consideration.

113) The only clear arguable allegation relates to the question of whether the claimant was subjected to less favourable treatment by reason of her age, when compared with younger medical trainees when she was dismissed, (with whom if possible named comparators should be identified who were placed with the first respondent and who were training at around the same time as the claimant).

114) The basis of this single complaint of direct discrimination under section 13 Equality Act 2010, is that the claimant is over 40 years old at the material time and that she compares herself with medical trainees undergoing the same type of training as her, aged in the 27 to 34 years age bracket as discussed in paragraph 14.1.9 of Judge Howards Note.

115) On balance, despite the claimant downplaying the relevance of this complaint, I concluded that there is a single allegation of direct age discrimination which remains arguable and should not be subject to strike out and/or a deposit order.

116) The claimant must therefore note that while her complaint of age discrimination is not being struck out and nor is it subject to a deposit order, the complaint involves a narrow matter and is restricted to the decision to terminate her employment. Moreover, the respondent is permitted to rely upon the ‘defence’ of a proportionate means of achieving a legitimate aim under section 13(2). This can be considered at the next preliminary hearing case management.

Direct race discrimination (section 13)

117) The claimant explained to Judge Howard that as a [NAME_16], her accent has placed her under scrutiny and criticism from those working with her and she believes that this has been identified as a communication difficulty. Two incidents were identified which the claimant believes amounted to unfavourable treatment connected with her race:

Case No: 2401163/2023 & 2403404/2023

23 a) [NAME_145] during February 2021 raising a concern with [NAME_12] who was her [COMPANY_11] when placed at Southport. This involved concern about being able to understand the claimant and how this might affect communication in an emergency scenario.

b) [NAME_60] was also described by the claimant as telling her she was difficult to understand when wearing a face mask.

118) There are no doubt circumstances where the claimant may have found that her nationality, not speaking English as a first language and having a [NAME_16] accent may have resulted in her being treated differently, even allowing for incredibly diverse composition of doctors, nurses and other staff across the NHS.

119) These two complaints, however, are in one case alleged to have happened almost a year before the first claim was presented and the second claim has not been particularised with a date. However, as [NAME_8] explained, both incidents are historic taking place with doctors at the Royal Salford hospital and on this basis, not only are they likely to be out of time, but also involve confusing particulars.

120) [NAME_8] referred to the claimant initially agreeing that her accent could be an issue in the context of communicating with medical colleagues while wearing masks and where she decides to take lessons to soften her accent. While she later becomes unhappy with these issues, she did not seek to raise Tribunal proceedings involving these matters until much later and I cannot see how they can be anything other than out of time under section 123 Equality Act 2010. She has not provided any convincing explanation why an application for time to be extended in relation to these allegations would succeed.

121) Consequently, these allegations must be struck out under Rule 37 and cannot be allowed to proceed. I cannot see how they have any reasonable prospects of success.

122) Once again, I am compelled to reflect upon the way in which the claimant has pursued her case and, in an attempt, to avoid missing out any possible complaint, she has not focused upon the core arguments in her claim.

123) These allegations relate to historic matters which were not sufficiently material at the time to persuade the claimant to begin a claim and they have been added to the considerable number of allegations which have provoked these proceedings and do not form part of the cored of her claim. Indeed, by striking out these complaints, the claimant may well be assisted in that she can focus upon her stronger and more arguable complaints and avoid being overwhelmed by peripheral and weaker arguments.

Unfair dismissal

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24 124) When discussing this matter with Judge Howard, the claimant believes she was targeted for dismissal by the first respondent because she was outspoken and this worsened when she raised complaints. Although the term victimisation was used, she explained to Judge Howard that this was not a stand alone complaint under the Equality Act 2010, but a perception of why she believed her dismissal did not rely upon a potentially fair reason under the Employment Rights Act 1996.

125) It is noted that in what was a sizeable preliminary hearing bundle, there was a letter (p326), sent by [NAME_122] to the first respondent and dated 23 February 2023. It confirmed that the appeal panel had upheld the decision to release the claimant from training. However, it did say what while the claimant, ‘…is no longer included on the training programme…you may wish to consider her continued employment.’

126) This did mean that while the first respondent may have had a reason for terminating the claimant’s employment, they were not required to do so and this suggested to me that there was an arguable claim relating to the complaint of unfair dismissal and the process which took place.

127) Accordingly, I do not accept that this complaint brought against the first respondent should be struck out under Rule 37 or that a deposit order under Rule 39 should be made. This complaint should proceed to a final hearing so that it can be determined based upon the evidence of the dismissing manager and other relevant witnesses.

Conclusion

128) This has been a difficult exercise and one which has hopefully served to provide clarity for the parties in understanding the arguable complaints which have reasonable prospects of success. Although this of course remains subject to the parties providing evidence in support of their arguments and that this evidence is sufficiently strong to persuade a Tribunal as to their merit.

129) In reality, this is a claim which has been prompted by decisions made about the claimant’s performance and which ultimately has led to her dismissal. This may well simply involve the jurisdiction of unfair dismissal and this is a complaint which should be allowed to proceed.

130) However, discrimination may have played a part in relation to the claimant’s dismissal and those which have be properly described and explained have been allowed to proceed. Some however, simply have no prospects of success either in relation to their substance or indeed their age and the question of time limits.

131) My decision is therefore as follows:

Disability discrimination

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25

1. Following the decision of Judge Holmes dated 14 March 2024 that the claimant was not at the material times a person with a disability in accordance with section 6 Equality Act 2010, it is necessary to strike out those complaints of discrimination which involve the protected characteristic of disability.

2. The complaints of discrimination arising from a disability contrary to section 15 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success.

3. The complaint of a failure by the respondents to comply with their duty to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success.

132) Which leaves the following decisions to be made in relation to the respondents’ application for strike out and/or deposit order:

Sex discrimination

(a) The complaint of indirect sex discrimination contrary to section 19 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

(b) The complaint of direct sex discrimination contrary to section 13 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

Harassment by reason of sex and/or race

(c) The complaint of harassment contrary to section 26 Equality Act 2010 by reason of the claimant’s sex and or race does have a reasonable prospect of success and it will not be struck out under Rule 37 or subject to a deposit order under Rule 39.

(d) This complaint will be restricted to the allegation that on a date in July 2022, [NAME_40] made reference to the claimant being a single Mum and stated that she did not see the claimant as a consultant due to that and her different cultural background.

Age discrimination

(e) The claimant is advancing a complaint of direct age discrimination contrary to section 13 Equality Act 2010 which does have a reasonable prospect of

Case No: 2401163/2023 & 2403404/2023

26 success and it will not be struck out under Rule 37 or subject to a deposit order under Rule 39.

(f) The complaint involves the sole allegation that the claimant was subjected to less favourable treatment when the respondents decided to dismiss her and as a medical trainee over 40 years of age, she compares herself with younger medical trainees in the 27 to 34 year old age bracket.

(g) For the avoidance of doubt the claimant has failed to assert that she has been subjected to indirect age discrimination contrary to section 19 Equality Act 2010 and any such complaint is struck out under Rule 37 having not been particularised and therefore having no reasonable prospects of success.

Direct race discrimination

(h) The complaint of direct race discrimination contrary to section 13 Equality Act 2010 is struck out under Rule 37(1)(a) because it has no reasonable prospect of success.

Unfair dismissal

(i) The complaint of unfair dismissal brought against the first respondent does have reasonable prospects of success and shall not be struck out under Rule 37 or subject to a deposit order under Rule 39.

133) The surviving complaints of harassment by reason of sex and/or race, direct age discrimination and unfair dismissal will remain in these proceedings. The identification of the final list of issues, the listing of the case for a final hearing and the consideration of case management orders will take place at a preliminary hearing case management on a date to be confirmed.

_____________________________

Employment Judge Johnson

Date___4 July 2024______

JUDGMENT SENT TO THE PARTIES ON

Date: 18 July 2024

FOR THE TRIBUNAL OFFICE

Public access to employment tribunal decisions

Case No: 2401163/2023 & 2403404/2023

27

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

Case No: 2401163/2023 11.6C Judgment – Reconsideration refused – claimant - rule 72

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

NHS England (2)

JUDGMENT

The claimant’s application dated 23 July 2024 for reconsideration of the judgment sent to the parties on 18 July 2024 is refused.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because:

(1) I have considered the claimant’s application and noted that the respondent while being served with a copy of that application, has chosen not to comment or object.

(2) I have noted that my original reserved judgment and reasons dated 4 July 2024 provided a detailed explanation concerning why I had made the judgment and consisted of 27 pages.

(3) The claimant has not addressed my reasons in her email dated 23 July 2024 which sought a reconsideration of the original judgment. She had not provided an identifiable ground or grounds of complaint supporting her application.

(4) I have considered the claimant’s identified health issues and her status as an unrepresented party in accordance with the relevant provisions of the Equal Treatment Bench Book and the overriding objective under Rule 2 of the Tribunals’ Rules of Procedure. However, even allowing for these circumstances, I am unable to identify arguments as part of the claimant’s application which would persuade me that there is any reasonable prospect of the original judgment being varied or revoked.

____________________________

Employment Judge Johnson

Date___20 August 2024____________

JUDGMENT SENT TO THE PARTIES ON

22 August 2024

FOR THE TRIBUNAL OFFICE

Case No. 2401163/2023 2403404/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondents:

[redacted] 2.

Mersey and West Lancashire Teaching Hospitals NHS Trust NHS England

HELD AT:

Manchester (in public, by CVP)

ON:

23 September 2025

BEFORE: Regional Employment Judge Franey (sitting alone)

REPRESENTATION:

Claimant: [redacted]

Did not attend [NAME_3], Counsel

JUDGMENT

REASONS

1

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the first respondent. The Speciality Trainees undergo training by a series of placements in other trusts known as the host organisations.

2

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9. I pause here to observe that the claimant asserted in an e-mail of 4 June 2025 that the agreement had been that the allegation in question would go to a final hearing, but that is not consistent with the signed consent order or the terms of the order actually made by the EAT. It must have been a misunderstanding by the claimant of what had been agreed. I was satisfied that the application could still be pursued by the respondent. This Hearing 10. Once it became clear that the respondent was still pursuing the application which had been remitted by the EAT, I sought to arrange an early public preliminary hearing given that the final hearing is due to take place in February 2026. By e-mail of 5 August 2025 the parties were notified that the hearing would be listed for a full day and would start at 10:00 am on Tuesday 23 September 2025.

3

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16. [NAME_8] confirmed at the start of the hearing that the application was being pursued on three bases. The first was that there was no reasonable prospect of success in showing that the e-mail in question amounted to direct race discrimination. The second was that there was no reasonable prospect of establishing that the respondents were vicariously liable even if there had been direct race discrimination by [NAME_5]. The third was that the claimant had no reasonable prospect of persuading the Tribunal to extend time to enable the allegation to be considered.

4

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24. On 22 February 2021 (page 358) [NAME_15] e-mailed a number of consultants in the department, including [NAME_5], saying that the claimant had ongoing issues relating to communication, teamwork and leadership, and that the group of consultants she would be working with had been narrowed down to the recipients of the email. She said that the recipients should “feel free to e-mail … with any additional feedback”. 25. [NAME_5] e-mailed [NAME_15] on 2 March 2021 (page 359). His e-mail set out some positive feedback about the claimant. It then had a list of points which were “not so positive”. They included being late to start her list of patients, causing unnecessary distress to patients on two occasions, and a need to improve prioritisation. It also included this paragraph: “She is incredibly difficult to understand. A mix of a very strong [NAME_16] accent and English as a second language. I do wonder whether she would make herself understood easily in an emergency situation.” 26. The e-mail was not sent to the claimant.

5

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communication, and pointing out that her course was “accent softening” rather than “elocution”.

35. The second claim form was presented on 12 March 2023. It was primarily triggered by the rejection of her appeal against the ARCP assessment, and the consequent termination of her training and employment on 24 February 2023. She made reference in box 8.2 to a period at Salford from February 2021 and included this in her grounds of complaint: “It came to light that college tutors were specifically collecting negative feedback about me, did not share with me and submitted to the [NAME_25]. I got the letters via SAR in February 2023. They contained notes of DISCRIMINATORY character, about my accent, communication, childcare, gender. …” 36. The claimant provided a seven-page document summarising why she said her dismissal was unfair, which included details of her discrimination allegations (pages 68- 75). On the fifth page she made specific reference to the e-mail from [NAME_5], quoting the phrase about her Belarussian accent. She said that message amounted to race discrimination. At a case management hearing before Employment Judge Howard on 10 July 2023 the allegation was identified and recorded as one of direct race discrimination in relation to the e-mail sent by [NAME_5].

6

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at that time has now been replaced in identical terms by Rule 38 of the Employment Tribunal Procedure Rules 2024. 39. Rule 3 of the 2024 Rules sets out the overriding objective of dealing with cases fairly and justly. 40.

Rule 38 provides, so far as is relevant: (1)

At any stage of the proceedings…. on the application of a party, a Tribunal may strike out all or part of a claim … on any of the following grounds- (a) …

that it … has no reasonable prospect of success; (2) A claim … may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

7

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45. I applied that legal framework to each of the three strands of this application, being (a) the merits, (b) vicarious liability and (c) time limits. I will address each strand in a separate section, referring as appropriate to provisions in the Equality Act 2010. Merits 46. [NAME_8] argued that the allegation that the e-mail from [NAME_5] of 2 March 2021 amounted to direct race discrimination had no reasonable prospect of success.

8

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for a British trainee with equivalent communication issues for a different reason. I therefore struck out this allegation because it had no reasonable prospect of success. Vicarious Liability 55. [NAME_8] also submitted that there was no reasonable prospect of the claimant establishing that the second respondent could be liable even if there had been direct race discrimination by [NAME_5].

9

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in which those in the position of [NAME_5] could be liable if they acted in a discriminatory way in providing feedback about a trainee doctor.

10

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Case Management 70. Having given oral judgment as above, I queried the position in relation to case management. It appears that all is on track and the parties are due to exchange witness statements on 31 October 2025 prior to the final hearing between 10 and 13 February 2026.

Approved by

Regional Employment Judge Franey

25 September 2025

JUDGMENT AND REASONS SENT TO THE PARTIES ON 6 November 2025

FOR THE TRIBUNAL OFFICE

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying [NAME_29], which can be found here: https://www.judiciary.uk/[NAME_29]-and-resources/employment-rules-and-legislation-practice- directions/

11

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents:

[redacted] (2) NHS England

HELD AT:

Manchester ON: 10 -13 February 2026 BEFORE: Judge C [NAME_30] [NAME_32]: Claimant: [redacted]

[NAME_34] represented herself [NAME_3] of Counsel

JUDGMENT

1. The claimant’s claim of unfair dismissal contrary to Section 94 of the Employment Rights Act 1996 is dismissed.

2. The claimant’s complaint of direct discrimination on grounds of age contrary to Section 13 of the Equality Act 2010 is dismissed.

3. The claimant’s claim of harassment on grounds of sex and age contrary to Section 26 of the Equality Act 2010 was presented out of time. It was also not presented within such other period as the Tribunal thought was just and equitable. The Tribunal therefore has no jurisdiction to hear this claim and it is struck out on this basis. If the Tribunal did have jurisdiction to hear this claim it would have found it to be without merit and dismissed it.

_____________________________

Judge Cowx

13 April 2026

Case No. 2401163/2023 & 2403404/2023

JUDGMENT SENT TO THE PARTIES ON

12 May 2026

FOR THE TRIBUNAL OFFICE

Notes

1. Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

2. Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.