Dr Razoq v Walsall Healthcare NHS Trust and Ms P Pedley: 1304564/2023
EMPLOYMENT TRIBUNALS
Case No 1304564/2023Venue Midlands WestHearing 23 August 2024
Between
Dr RazoqClaimantWalsall Healthcare NHS Trust and Ms P PedleyRespondent
Before
Employment Judge HardingIn person for claimantMr Baran (instructed by Counsel) for respondentDate 19 November 2025
REASONS
[1]At a public preliminary hearing on 23 August 2024, the respondent’s applications to strike out the claims/ order the claimant to pay a deposit as a condition of the claims proceeding were refused. Oral reasons were provided to the parties on the day of the hearing and the written judgment and order were following an application made by the claimant for written reasons on 1 September 2024.
The Claims
[2]The claimant makes complaint about one matter; his dismissal/the termination of his contract on 23 January 2023. A submission from the claimant that there were further claims contained within his claim form and/or in the alternative an application to amend to add further claims was rejected by Employment Judge Gaskell at an earlier case management hearing held on 8 February 2024.[3]Employment Judge Gaskell’s order, the claimant told me, is under appeal but for the purposes of this hearing the effect of that order is that, currently, all the claimant’s claims concern a single matter, namely the termination of his contract with R1.[4]The claims pursued by the claimant are: a claim against R1 of automatically unfair dismissal contrary to section 103A of the Employment Rights Act, a claim of direct race discrimination contrary to sections 13 and 39 of the Equality Act, which is pursued against both R1 and R2, a claim of victimisation contrary to sections 27 and 39 of the Equality Act, which is pursued against both R1 and R2, and a claim of detriment on the ground of having made a public interest disclosure contrary to section 47B of the Employment Rights Act, which is pursued against R2 alone. The issues to be dealt with[5]This one day preliminary hearing had been listed to deal with a number of preliminary issues as follows:5.1 Whether or not at any time material to the claims the claimant was an employee of the first respondent,5.2 The respondent’s application pursuant to Rule 37 for the claims to be struck out as having no reasonable prospect of success,5.3 In the alternative the respondent’s application that as a condition of continuing to pursue the claims the claimant should be ordered to pay a deposit under rule 39,5.4 And, subject to the discretion of the judge with conduct of the preliminary hearing, whether some or all of the claims should be dismissed for want of jurisdiction on the grounds they were out of time.[6]The Employment Judge who set up this preliminary hearing directed that evidence would not be heard at this hearing and that the applications/issues would be approached on the basis that the claimant’s case would be taken at its height based on the documents. Background to the employment status/ time limit Issues[7]Ms Pedley (R2) is an employee of R1. R1 does not run the statutory defence in relation to R2 and both are represented by the same legal representative. Whilst the respondents accept that the claimant was a worker and an employee of R1, in the sense of the wide definition under section 83 of the Equality Act, they do not accept that the claimant was an employee of R1 for the purposes of the more narrow definition contained in section 230 of the Employment Rights Act. In order to be able to pursue the section 103A claim of automatically unfair dismissal against R1, the claimant would need to be able to prove that he was an employee (narrow definition), as defined under the ERA. It is accepted by the respondents that the complaint concerning termination of the claimant’s contract can be pursued as a whistleblowing detriment claim, i.e. a claim under section 47B of the ERA, directly against R2 whatever the outcome of the employment status issue for the 103A claim.[8]The claim form against both respondents was lodged with the tribunal on 13 June 2023. As set out above, the date of the termination of the claimant’s contract was 23 January 2023. The primary time limit therefore expired on 22 April 2023. The claimant entered early conciliation, but he did so on different dates in respect of the two respondents. For R1 Day A was 29 April 2023 and Day B was 15 May 2023. For R2 Day A was 19 April 2023 and Day B was 31 May 2023. In respect of R2, therefore, it is accepted the claims are in time; with the necessary adjustment to the primary time limit for the time spent in early conciliation, the time limit against R2 expired on 30 June 2023.[9]The situation in relation to R1 is different. The claimant does not benefit from the extension of time to the primary limitation period for the time spent in early conciliation because he entered early conciliation in relation to R1 one week after the primary time limit had expired; as set out above the primary time limit expired on 22 April 2023 and Day A, the day the claimant entered early conciliation in respect of R1, was 29 April 2023. The Disclosure issue[10]After this hearing was set up a further issue arose between the parties in relation to disclosure. It is not disputed that the claimant was supplied to work for R1 via a locum agency. The claimant was ordered at the case management preliminary hearing that took place on 8 February 2024 to produce all documentation in his possession or control relating to the relationship between the claimant and the agency, Prestige Locum. He was ordered to produce this documentation by 8 March 2024. Some documentation was disclosed by the claimant. However, there was a reference within this paperwork to the claimant’s terms being governed by what was described as Prestige Locum’s umbrella company contract 2017.[11]The respondent then requested disclosure of this document from the claimant. I was told three requests were made but the document was not produced. This led, on 24 May 2024, to the respondent asking the Tribunal to make an order for specific disclosure against the claimant in respect of this document. The claimant, in response, in an email dated 27 May 2024, asserted that this was harassment of him by the respondent. An order for disclosure was duly granted by Employment Judge Battisby on 31 May 2024, ordering the claimant to produce the document by 4 June 2024. On 3 June 2024 the claimant emailed the tribunal requesting that the order be set aside on the basis that it was “arbitrary” and “offhand”. He also asserted that he did not have the document. On 5 June 2024 Employment Judge Broughton wrote to the parties explaining that it appeared that there was an umbrella contract between the claimant and the agency which would be relevant to the employment status question and further explaining that the respondent requesting a relevant document did not constitute harassment. It was explained to the claimant that if he was no longer in possession of a copy of the umbrella contract he should explain why and obtain a copy from the agency. As of today, this document still has not been produced.[12]After hearing from the parties I decided that I would deal with the respondent’s strike out application/application for a deposit first of all. This is because, unusually, whatever the outcome of the time limits point and the employment status point in relation to R1, the direct race discrimination, whistleblowing detriment and victimisation claims concerning the decision to terminate the claimant’s contract will all be proceeding against R2, for the reasons I have set out above. Neither of these preliminary issues, therefore, was a “knock out” blow, whereas the strike out application, if successful, would be and a deposit order might be, if a deposit was ordered and not paid. Accordingly, it seemed appropriate to focus on these applications first of all, as these might determine the course of the litigation in its entirety. Relevant background for the strike out application/ deposit order application[13]As I was not hearing evidence today I was not in a position to make findings of fact and so I simply summarise the relevant background as it appeared to be from the documentation.13.1 The claimant is a Consultant. Prior to the events with which this case is concerned the claimant had been employed by the Shrewsbury and Telford NHS Trust. Although the dates of his employment were not made clear to me, it appears that he may have worked for them on a number of different occasions over a period of several years. Ms Pedley was also employed by the Shrewsbury and Telford NHS Trust during the time that the claimant worked there. She was in a senior role; the claimant told me that she was Head of Medical Staffing. Ms Pedley started her employment with R1 on 2 February 2022, again in a senior role of Deputy Medical Workforce Manager.13.2 It is fair to say that the relationship between the claimant and his previous employer appeared to be, to put it as neutrally as possible, somewhat tense. The respondents, for their part, assert that several female Consultants had made complaints about the claimant’s conduct and behaviour. The claimant, on the other hand, tells me that he had serious concerns about a number of wide ranging issues including unsafe clinical conduct and patient safety concerns and also particular concerns about provision of PPE equipment and the risk of Covid transmission during the pandemic.13.3 On 20 December 2018 a Mr Kevin Eardley from Shrewsbury and Telford Hospital NHS trust sent an email stating that he wished to employ the claimant, but that he had been told that the claimant was “blacklisted” by the Trust, and he asked how to unblock him, page 4 of the claimant’s documents. Ms Pedley responded by email saying that she had serious concerns about employing the claimant, he was blacklisted and she strongly recommended the Trust did not employ him. She suggested that Mr Eardley speak to two colleagues who, she said, could remind him of the issues which led to the blacklisting. She said both of these colleagues had refused to work with the claimant. She described the claimant as being extremely rude and abusive to another member of the team, page 4 claimant’s documents. Asserted protected disclosures13.4 The claimant’s case is that he made a public interest disclosure (i.e. blew the whistle) on seven separate occasions to Shrewsbury and Telford NHS Trust. The vast majority of these disclosures were in 2020, between March and May 2020, and all of these asserted disclosures concerned PPE equipment and the risk of Covid transmission. There was one, much earlier, asserted protected disclosure which in broad terms raised concerns about patient safety.13.5 Whilst it is unnecessary for me to set out for the purposes of these reasons the detail of each and every disclosure two examples will suffice.13.5.1 On 1 December 2015 the claimant sent a detailed email complaining about both the clinical skills and attitude of a colleague, Dr Szczbrinska. He described her care in relation to one particular patient, identifying what he considered to be a total of nine separate failures in her approach to the patient which, he asserted, ultimately had led to an inaccurate diagnosis and the patient becoming seriously unwell, page 205. He described her as “outrageously deficient” and also attacked her on a more personal level, asserting she spent 95% of her time talking to patients about non-clinical matters such as what she had cooked the day before and patients’ dresses and shoes.13.5.2 On 26 March 2020 the claimant sent an email expressing concerns about the availability, and use of, PPE on Ward 9, page 223. He wrote that a patient who had tested positive for Covid had been in the middle of C bay the day before and that this highlighted the need to wear a mask at a minimum and, in fact, full protective kit when seeing patients even if they were not inside rooms. He said it raised a real risk of staff transmitted Covid infection as the patient was not displaying primarily respiratory symptoms, had not been flagged up as being under suspicion of having Covid, and had not been placed in a side room.13.5.3 He stated that he and others had on several occasions witnessed staff handling suspected Covid patients without wearing full protective equipment and he said that protective equipment was locked away in a supply cupboard with not enough being put out for use.13.5.4 He asserted that even when requests were made for protective equipment very little would be released and he singled out one woman in particular, Janet, who he said handled protective equipment in an unsafe manner and in such a way that it was no longer sterile. He also described Janet as having a rude attitude.13.6 Pausing there, this was, of course, at the height of the pandemic when hospitals and their staff were no doubt stretched to breaking point. Asserted protected acts for the purposes of the victimisation claim13.7 The claimant’s case is that he raised six protected acts to Shrewsbury and Telford NHS Trust; one in 2015, two in 2017, one in 2018 and two in 2020. Most of them were written but one was verbal. Once again I set out two examples:13.7.1 The verbal protected act was said to have taken place in August 2017. The claimant told me that he had raised a range of concerns in a lengthy meeting including raising concerns that he had been the victim of racism on the part of colleagues who were still working at the Trust.13.7.2 On 8 November 2020 the claimant wrote an email to Dr Rose of the Shrewsbury and Telford Hospital NHS trust, page 227. His email was sent in response to an email to him from Dr Rose in which various concerns had been raised about the claimant’s behaviour, page 228. The claimant, in his response, rejected the allegations about him as inaccurate and then went on to make complaints of his own. He stated that he was mistreated by one particular consultant who was Asian and who he felt was racist towards him and he said that he had complained about this treatment but nothing had changed. He said the consultant had resented him ever since and this had led to him being banned. He wrote that five years ago a consultant, Dr Ahmad, had discriminated against him and that when he raised concerns about this he was punished for having done that. Other relevant background13.8 The first respondent asserts that it has a policy when engaging locums that they must be sent from an agency approved under the Total Workforce Solutions (TWS) framework. Locums provided under the TWS will have been approved, rates of pay will have been agreed and the first respondent can be confident that they are working with compliant doctors. The first respondent asserts that using agencies that are not on the TWS framework could place the first respondent at significant legal and financial risk. In addition, the first respondent asserts that standard practice is for agencies to use the portal TempRe to access available roles with the Trust.13.9 Prestige Locum is not a TWS approved agency. The respondent asserts that in November 2022, contrary to standard practice, Prestige Locum made contact via email (ie not using the portal) with R1’s Medical Resource Officer enquiring about roles, and R1 confirmed that there may be some interest in taking on a Consultant within the Acute or Elderly departments. The claimant’s CV and references were submitted and R1’s Medical Resource Officer confirmed the respondent was interested in booking the claimant.13.10 It is accepted that Ms Pedley became aware of this in November 2022 and it is accepted that she raised concerns immediately, referencing her previous experience when working at Shrewsbury and Telford NHS Trust. It is asserted that amongst other matters she stated that she was aware that a number of female consultants had refused to work with the claimant.13.11 It is asserted that it was then confirmed by R1 to Prestige Locum that they would not be using the claimant. However, shortly after this another off framework agency, PE Global, made contact with a Medical Resource Officer of R1 in relation to the claimant. It is accepted that the second respondent again intervened and reiterated her earlier concerns.13.12 It is asserted by the respondents that Prestige Locum then contacted the first respondent directly again about the claimant. At this point, the respondents assert without the necessary paperwork having been provided, Tazeen Muneer of the first respondent, who was the first respondent’s Clinical Director and Acute Medicine Consultant, confirmed an assignment start date for the claimant of 23 January 2023.13.13 It is the respondents case that the claimant then attended for work stating that he had been booked for Acute medicine but was only comfortable working in care of the elderly. He was therefore asked to leave by Ms Joshi. An email was then sent later that day by the agency confirming that the claimant would now cover the Acute medical post and he would be happy to commence that role the next day.13.14 Ms Joshi, Deputy Divisional Director for Medicine and Long-Term Conditions, responded on 23 January saying that the claimant was not required as they would prefer to engage a Consultant trained in Acute medicine only, page 310. That email was copied, amongst others to Ms Pedley.13.15 In the bundle that was put before me for the purposes of today’s hearing there was an email sent by Ms Pedley on 24 January 2023, page 318. This email was sent to Prestige Locum and a number of people within R1 including Tazeen Muneer, Clinical Director and Acute Medicine Consultant and Rushi Joshi, Deputy Divisional Director for Medicine and Long-Term Conditions. In that email she wrote this (all original emphasis): “I am very disappointed that again you have tried to place Dr Razoq at this Trust. You are an off framework agency therefore we cannot use you and you should not be bypassing the medical staffing team and correct locum booking processes to get this Doctor into the Trust. As you know, as discussed with you some months ago, at my previous Shrewsbury and Telford we had serious concerns regarding this Locum and would not book him, the same applies to the Trust so please do not try to book this non-compliant Locum with this trust again”.13.16 There was also a Microsoft Teams chat on 10 February 2023, between Ms Pedley and a number of colleagues, page 322. During this conversation Ms Pedley said this: “you have got to give it (to) Dr Razoq. He doesn’t give up, the reason he can only come through off Framework is because no elements of this file are compliant, anyone seeing his name let me know as he and his agency approach consultants directly, there is good reason why he available (sic) and not placed with other Trusts”.
The Law
[14]Rule 37(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that all or part of a claim or response may be struck out on the grounds that it has no reasonable prospect of success.[15]Rule 39 states in so far as it is relevant that:(1) Where … 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 ... to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[16]The striking out of a claim is a summary determination of the merits without hearing evidence. It denies the claimant the opportunity for evidence to be heard and for it to be tested at a full hearing. It is well-established that striking out a claim of discrimination is considered to be a draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union [2001] ICR 391. The applicable principles were summarised by the Court of Appeal in the case of Mechkarov v Citibank N.A [2016] ICR 1121. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant’s case must ordinarily be taken at its highest;(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. Whistleblowing claims have much in common with discrimination claims and accordingly these principles are equally applicable to whistleblowing claims, Daly v Northumberland Tyne and Weir NHS Foundation Trust UKEAT/0109/16.[17]Of course, as the EAT noted in Cox v Adecco & Ors UKEAT/0339/19, paragraphs 32 and 33: That is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen UKEAT/0024/11, it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail.”[18]The principles applicable to the tribunal’s power to make a deposit order were summarised in the case of Arthur v Hertfordshire Partnership University NHS Foundation Trust UKEAT/0121/19 as follows;(1) the test for making a deposit order is distinct from the no reasonable prospect of success test which it is necessary to establish prior to striking out a claim, see Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14.(2) the purpose of the deposit order is to identify at an early stage those claims with little reasonable prospects of success and to discourage the pursuit of those claims by requiring the sum to be paid and by creating a risk of a costs order being made, Hemdan v Ishmail [2017] IRLR 228.(3) when deciding whether to make a deposit order tribunal is not restricted to considering purely legal questions, Wright v Nipponkoa Insurance [2014] UKEAT/0013/14. The tribunal is entitled to have regard to the likelihood of a party being able to establish the facts essential to its case. The tribunal, in doing so, is entitled to reach a provisional view as to the credibility of the assertions being put forward by a party. Submissions[19]The respondents had prepared a written skeleton argument and supplemented this with oral submissions. I summarise only the main points here. Mr Baran, for the respondents, acknowledged that strike out was confined to the clearest of cases but submitted that this was one of those cases. It was submitted that the claimant’s case was wholly dependent on establishing some sort of vendetta being pursued against him by Ms Pedley. Moreover, the claimant’s case was based on protected disclosures/acts which were made to a different Trust a number of years ago. How likely was it that disclosures/protected acts made years ago to a different Trust would have influenced the respondent when it made its decision?[20]Mr Baran submitted that I should consider each asserted protected disclosure individually. Whilst it was accepted that the claimant had prospects of establishing that some of his disclosures were protected disclosures, two of them, namely the WhatsApp messages of 23 and 26 March 2020 and verbal concerns raised in March/April 2020, were bound to fail. In any event, the issue, he submitted, was the linking of the protected disclosures to the detriments the claimant says he suffered. Mr Baran also suggested that the claimant would not be able to show he was blacklisted because he was signed up for work on 23 January. He submitted that the reason for terminating the claimant’s contract was because he had said he was not confident doing Acute medicine. It was submitted that it was Dr Joshi who made this decision, not Ms Pedley.[21]In relation to the victimisation claim Mr Baran acknowledged that the claimant might be able to establish that two of his asserted protected acts were protected acts, namely the email of 11 November 2015 and the email of 8 November 2020. He submitted the rest were bound to fail. He submitted there was no evidence to suggest that Ms Pedley was in any way influenced by the asserted protected acts.[22]In relation to the race discrimination claim he submitted there were no facts from which it could be inferred that the claimant’s treatment was because of race.[23]The claimant submitted that the threshold for strike out is extremely high and he reminded me that judges should not conduct a trial within a trial. He submitted that his claim was miles away from being unreasonable or vexatious. He reminded me that if there is a core disputed fact then a claim should not be struck out. He submitted that there was a central dispute of fact in this case, and, more generally there was significant factual dispute in relation to much of the case. He submitted that the case required a proper assessment and a proper hearing on the full evidence. Ms Pedley was involved, he submitted, and only cross examination would reveal this. He submitted there was no way the trial process could be circumvented as that would not be justice. He pointed out that Ms Pedley had been employed by both Trusts. He submitted that Ms Pedley had blocked him constantly for seven or eight years and would not ease her grudge and let him off the banned list. To say that she was not involved, he submitted, was ridiculous. There were emails, he reminded me, in which Ms Pedley had made it perfectly clear that she had issues with him. She was the one who had made the ban and then applied it.[24]In relation to whether he had made protected disclosures he pointed out that the respondent had accepted that he would likely establish that he had made a number of protected disclosures. He submitted they were textbook disclosures and that even if one did not meet the criteria then many would do. It was crystal clear, in relation to many of his disclosures, he submitted that he was raising issues about patient safety which were matters of significant public concern.
Conclusions
[25]I rejected the respondent’s application to strike out the claims/ order the claimant to pay a deposit. It could not be said, in my view, at this stage that the claims have no/little reasonable prospects of success.[26]The respondent, in its skeleton argument, suggested that I should go through each of the 13 protected disclosures/protected acts in turn and individually consider the prospects of the claimant establishing that each was a protected disclosure/protected act. I did not consider that to be a proportionate approach to what is, after all, a summary assessment of prospects of success.[27]Even if the claimant fails to establish a number of his asserted protected acts/protected disclosures, if there are some prospects he will succeed on others the claims cannot be said to be unmeritorious on this basis, in my view.[28]I concluded that the claimant has good prospects of establishing that at least some of the asserted disclosures were qualifying and protected disclosures. In many of them the claimant is clearly articulating health and safety concerns impacting both patients and members of staff. The vast majority of these concerns are based on what the claimant considered to be a lack of PPE and/or failure to use it properly on the wards during the midst of the Covid pandemic. It will be a straightforward matter, in my view, for the claimant to show that he reasonably believed he was making a disclosure that the health and safety of individuals was being or was likely to be endangered. Moreover, given the context in which most of the disclosures were made, raising concerns about patient and staff safety in a hospital in the midst of the Covid pandemic, it is also very likely he will prove that he reasonably believed that the disclosures were in the public interest, in my view.[29]The situation is, perhaps, slightly less clear cut in relation to the protected acts for the purposes of the victimisation claim. There is repeated mention of victimisation in the documents which form the basis of the asserted protected acts, although there will be some fact-finding required in relation to the context in which these statements were made to understand if this amounted to an allegation of contravention of the Equality Act or was meant in more general terms. However, there is certainly at least one asserted verbal protected act, in which, on the claimant’s case, he makes a clear complaint that he has been the victim of race discrimination. If that is proved that, very likely, will be found to be a protected act. There is also the claimant’s email of 8 November 2020 in which the claimant made a clear complaint of racist conduct on the part of a colleague. That, very likely, will be found to be a protected act.[30]The reality is, in my view, that this case will focus very much on the reason why the treatment complained of occurred. That is the subject of significant factual dispute between the parties and it is a dispute of fact that lies at the very heart of the case. That in itself is a powerful factor against striking out; it cannot be said that this element of the claims has no reasonable prospect of success when there is significant factual dispute and evidence will require to be heard to resolve that dispute.[31]Nor can it be said, in my view, that this is a case where the claimant’s case is conclusively disproved by the documents. To the contrary there are, on the face of it at least, inconsistent reasons contained in the respondents documents as to why they might have terminated the claimant’s engagement. The reason put forward to the claimant for the termination in the documents is that the first respondent would prefer to engage a Consultant trained in Acute medicine only. But that reason is not consistent with another potential reason for termination discussed internally; that Shrewsbury and Telford had serious concerns regarding the claimant and would not book him, and that the same applied to this Trust.[32]Additionally, to form a conclusion on the reason why something occurred is to form a conclusion on the factors that were operating on a person’s mind that caused them to act as they did. An assertion of a non discriminatory reason for termination in an email is hardly conclusive of prospects. Fundamentally, what is set out in the documents might help the respondents prove their asserted reason for termination, but the documents cannot, for the reasons just set out, be said at this summary stage to conclusively disprove the claimant’s case.[33]It also requires to be remembered that at this stage the obligation is to take the claimant’s case at its reasonable highest. This means that particular care needs to be taken when assessing the respondent’s explanation for the treatment complained of. For a tribunal to accept the respondent’s explanation in order to strike out the claims would effectively be taking the respondent’s case at its highest rather than the claimant’s. That is not to say no account can be taken of the respondents explanation but care needs to be exercised when doing so.[34]The respondents argue that it was Ms Joshi who made the decision to terminate the claimant’s contract not Ms Pedley. It would certainly appear from the documents that Ms Joshi communicated the decision on termination to the claimant but evidence will be required to determine who actually made the decision. The claimant’s case is that the decision was in fact made by Ms Pedley. That, therefore, is another significant factual dispute between the parties that requires to be resolved on the evidence.[35]In that context it is significant that it seems likely that it will be found that Ms Joshi and Ms Pedley did, on occasion, liaise about the claimant. The email of 23 January 2023 is an example of this. It is also significant that it appears from the paperwork that Ms Pedley was actively involved in trying to prevent the Trust from taking the claimant on.[36]The respondents point to the age of the asserted protected disclosures/protected acts and the fact that they were made to a different employer and submits that for this reason alone it is very unlikely that a tribunal will conclude that these were the cause of the treatment complained about.[37]Ordinarily, that would be a powerful submission. But the link between the two employers is provided by the employment of Ms Pedley in first one Trust and then the other. Moreover it is very evident from the documents that historical matters concerning the claimant continued to play on Ms Pedley’s mind; For example there is her 24 January 2023 email; “As you know, as discussed with you some months ago, at my previous Shrewsbury and Telford we had serious concerns regarding this Locum and would not book him, the same applies to the trust so please do not try to book this non-compliant Locum with this trust again”.[38]Once all the evidence is considered, the respondent may well be able to prove that these concerns were entirely unrelated to protected disclosures/protected acts but the fact of the matter is that, from the face of the documents, concerns that Ms Pedley had about the claimant at Shrewsbury Trust clearly carried over into her employment with Walsall Trust.[39]The respondents also assert that it is evident from the documents that concerns about the claimant first arose because the claimant himself had said that he was not confident working in Acute medicine, page 315. But there is factual dispute in relation to that issue also. The claimant’s account of events on the day that he was present for work is different from that of the respondents. He states that there was initial discussion during which he expressed concerns about Acute medicine but that these were then resolved and it was made clear to the first respondent that he was able to work in Acute medicine. Accordingly, on the claimant’s case, this was later put forward by the first respondent as no more than an excuse to terminate his contract. Once again, this is a factual dispute that will need to be resolved in the evidence.[40]For these reasons I concluded it could not be said that these claims have no reasonable prospect of success.[41]As to whether it can be said the claims have little reasonable prospect of success, much of the reasoning already set out is equally applicable to this assessment of prospects too. There are however, three further points which I considered to be relevant to the issue of whether it could be said the claims have little reasonable prospect of success.[42]Firstly, if one takes the respondents explanation out of the account, the facts of this case are actually quite unusual. That is because it is very likely that the claimant will prove that he was blacklisted by Shrewsbury and Telford Trust. The blacklisting was implemented by late 2018, which was after a number of the asserted protected acts and after one of the protected disclosures. That much is evident from Ms Pedley’s email sent in December 2018, paragraph 13.3 above. The blacklisting was, moreover, maintained and adopted by the first respondent, several years later. Being blacklisted for an extended period of time is an unusual thing. It is conduct that requires an explanation, in my view.[43]Moreover, it is not disputed that, despite the first respondent’s apparent approach to requiring locums from approved suppliers only, the claimant was recruited by the first respondent but then had his contract terminated on the very first day he was engaged by them. Again, that is unusual. His contract was terminated before he had even had a chance to work. That, once again, is conduct that, in my view, requires an explanation.[44]Lastly, it would appear from the papers that, on occasion, the manner in which the claimant raised some of his concerns was quite difficult and antagonistic, particularly in relation to the asserted protected acts. Added to that there was a period of time when the asserted protected disclosures were frequent; five were raised in the period late March to May 2020 alone. These are all factors which might make the protected acts/protected disclosures take on some prominence in the mind of the claimant’s then employer, and Ms Pedley in particular.[45]In my view, therefore, the claimant may establish facts from which it could (not would) be concluded that the treatment complained of happened because of race/ the protected acts, and which would therefore require an explanation from the respondents. Likewise, for the same reasons, there are reasonable prospects that these facts will also satisfy the initial burden that rests on the claimant for the purposes of the whistleblowing detriment claim. The burden on the claimant is higher for the purposes of the 103A claim but I do not consider, based on the facts as they are asserted to be, that it can be said there is little reasonable prospect of the claimant establishing that the principal reason for his dismissal was the protected disclosures. Determination of this issue will require evidence to be heard and disputes of fact to be resolved.[46]Of course, this should not be taken as an indication that I consider the claimant has a good case; that is not the test I am applying. But at this stage the bar for the respondent is a high one and because of the unusual factual features of this case and the degree of factual dispute between the parties that bar has not been reached, in my view. Other matters[47]We reached an agreed position that the time point and the employment status issue should be held over to the full hearing (there was insufficient time to deal with them today in any event). It was further agreed that the disclosure issue would best be dealt with by making an order for third party disclosure from the agency, and this was duly done.