Mr B Hudson v Bradford Teaching Hospitals NHS Foundation Trust and Others: 1801456/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 1801456/2024, 1801457/2024, 1801459/2024, 1802410/2024
Between
Mr B HudsonClaimantBradford Teaching Hospitals NHS Foundation Trust and OthersRespondent
Before
Employment Judge JamesIn person for claimantMr C Breen (instructed by counsel) for respondentDate 12 March 2025
JUDGMENT
Following the hearing of submissions from the claimant and Mr Breen for the respondent, the decision of the tribunal is that: (1) All of the claims (which are claims of age discrimination and whistleblowing detriment/dismissal) are struck out and are dismissed because they have no reasonable prospect of success (Rule 38(1)(a) of The Employment Tribunal Procedure Rules 2024).
REASONS
[1]Today’s hearing was arranged to consider an application by the respondent to strike out the claimant’s claims because (1) they have no reasonable prospect of success; or (2), alternatively, because the claimant’s conduct of the proceedings has been unreasonable or vexatious.[2]At the hearing, representations were made by Mr Breen, and the claimant was then given the opportunity to respond. The Judge then adjourned to make his decision, which was given verbally at the hearing. A short judgment confirming the dismissal of the claims was sent out to the parties the same day. The claimant has since requested written reasons.
Background
[3]The claimant carried out work as a Porter for the respondent via an employment agency, Meridian Business Support, between 10 October 2020 and 8 December 2023. On the latter date, the first respondent told the agency that they no longer wanted the claimant to be sent to work at any of their sites. The claimant accepts that he was employed by the agency, not the first respondent. Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 2[4]The claimant subsequently submitted claims for unfair dismissal and age discrimination, in a claim form dated 22 January 2024. A second claim form was issued on 2 February 2024; a third on 22 February 2024; and the fourth on 4 March 2024. Each contained a similar narrative, amended only slightly.[5]A Preliminary Hearing took place on 18 June 2024 before Employment Judge Knowles. The claimant confirmed that the multiple claim forms were submitted by mistake; they were all making the same allegations.[6]The claimant accepted that he was not employed by the first respondent and the unfair dismissal claim was therefore dismissed. The claimant was ordered to provide further information.[7]In the orders sent out after that hearing, Employment
Judge Knowles noted, at paragraphs 9 to 12:
[9]In his first claim, the claimant has ticked boxes indicating that his claims were of unfair dismissal and age discrimination.[10]The claimant sets out in his claim form, and in an attachment, a list of matters that he is complaining about.[11]The details about the claims are provided in an unstructured narrative format.[12]There are no dates given in relation to any of the matters complained of and it is impossible to discern any sequence to what the claimant is complaining about. 8. Employment Judge Knowles also noted in relation to the protected disclosures: The claimant was unable to tell me when he made a protected disclosure, what type of breach it tended to show and what he had said at the time. 9. A second Preliminary Hearing took place in private on 22 October 2024, before Employment Judge Wade. Deposit orders were made, which were subsequently paid by the claimant. The final hearing was listed to take place between 25 and 28 March 2024. 10. Employment Judge Wade noted in the record of the second Preliminary Hearing: 24 - The fundamental allegation that he was “let go” by the hospital unfairly might be chronologically arguable as PID detriment because it is agreed the claimant complained to the respondent’s Freedom to Speak Up Guardian and management about a colleague allegedly bullying him before he was let go. It may be arguable that a complaint of bullying at work satisfies the definition of a protected disclosure and I proceed on that basis. There are still great difficulties with this complaint. 25. The claimant says the reason he was let go was “speaking his mind” or “having a go at management”. The respondent says the reason was three incidents of unacceptable behaviour from the claimant, the last of which was immediately before the decision on or around 24 November, the agency notifying the claimant in early December. 26. The claimant says he “cannot recall” or considers this patient related incident within the grounds of resistance a lie. If he cannot recall the incident, and the respondent’s witness gives a coherent account of it, the Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 3 respondent’s witness is likely to be believed, all the more so because of the way the claimant communicates when angry. The reason why is likely to be found to have nothing to do with the claimant’s reporting of colleagues bullying him, to management/FTSUG. 27. The other allegations have equal reason why/grounds of difficulty. 11. The respondent subsequently made an application on 4 December 2024 to strike out the claims under what are now rules 38(1)(a) and (b). Their application asserts: The Respondents’ position is that a key factor in the Claimant no longer being offered shifts is due to a patient related incident involving the Claimant on 23 November 2023. During this incident the Claimant refused to leave a treatment room that was being used as an informal porter break room, so that a patient who was having a psychotic incident could receive treatment, and was rude to staff. This was the third incident involving the Claimant showing inappropriate behaviour within the last 6 months and the decision was made by the first Respondent not to offer him any more shifts, which he was informed of on 6 December 2023. Paragraph 26 of the Case Management Orders dated 22 October 2024 states that this is a coherent account, and the Respondents’ witness is likely to be believed, all the more so because of the way the Claimant communicates when angry. The Order states that the reason for the Claimant not being offered further shifts is likely to be found to have nothing to do with the Claimant’s reporting of colleagues bullying him, to management or the Freedom to Speak Up Guardian. 12. In his first claim form, the claimant commented that he wanted the people involved to be ‘Hung drawn and quartered’.
Hearing:
[13]It is noted that in an email to Henrietta Donnelly of Hempsons, the respondent’s solicitors, on 4 December 2024 the claimant states: I am NOT having any of it........ I will be coming to see you in person on this and ............I WANT ANSWERS NOW!!!!!!!!!!! You have had 7 Months, yet still cannot make any Professional Judgment on my case. This WILL GO TO COURT................I will make sure that this happens. Very, very Angry Barry Hudson.[14]The claimant was asked to explain these types of comments by the Judge. The claimant responded that none of what happened is his fault; none of what had happened had arisen through any fault on his part. He told the Judge he just reacted ‘in the way that any person would do’.[15]The claimant was asked about a text to Craig Hughes that the claimant accepted he sent on 15 September 2024, in which he said that he would ‘kick Mr T Mohammed’s head in’. The claimant’s explanation was that ‘he was really angry’ and that Mr Mohammed could say anything he wanted but the claimant was not allowed to retaliate. On his case, he was ‘just being responsive’.[16]In the same text, the claimant told Mr Hughes to ‘Tell Abs he is Dead when I see him….’. When asked about this at today’s hearing, the claimant said that Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 4 this ‘was not of his doing’, it was not his fault. He said he was being punished for things out of his control, and that staff should have been more professional. He says he just went to work, and denied displaying a problematic attitude.[17]The claimant has made other similar comments. It is noted from the respondent solicitors letter of 4 December 2024 that the following is alleged, none of which the claimant denies:• The Respondent’s solicitor wrote to the Claimant on 25 June 2024 asking him to refrain contracting the first Respondent’s staff or the second and third Respondents, and highlighted that some of his comments were inappropriate and again requested that he use her as the primary contact for this matter. The email was disregarded by the Claimant and he continued to make contact with the first Respondent’s staff and the third Respondents.• On 1 July 2024 the Claimant called the third Respondent, and she did not answer. ….• On 27 September 2024 the Claimant came onto the Respondent’s property and visited the Human Resources department reception. While he sat in the reception the Claimant made rude comments about the Respondent to passersby. When he was asked about the purpose of his visit he said he wanted assistance with his claim but gave no specifics. He was of the opinion that the Trust must provide him with details for his claim despite being verbally told during the Preliminary hearing on 18 June 2024 that it was his responsibility to clearly set out his claim. This was repeated at paragraph 36 of the Case Management Orders dated 19 June 2024.• On 18 October 2024 the Claimant emailed … Karen Dawber a Chief Nurse with the first Respondent saying he would be naming names after the Preliminary hearing on 22 October 2024. The Claimant wrote “I will have Blood in a big way” and that Karen had “been warned”. The Claimant sent an email to the Freedom to Speak up Guardian Susan Franklin on the same day making similar threats to name names after the Preliminary Hearing.[18]These comments are a matter of record and save for the phone call which he denies making, the claimant accepts he made them. His defence is that, in his position, ‘what is he expected to say’?[19]As for the merits of the claim, the claimant was asked what the link to age is in relation to several allegations. For example, issue 1.6 in Employment Judge Ward’s order is an allegation that: In September 2023 Mr Summers asking him if he was wearing Safety Shoes (when other colleagues also wear trainers) - bullying because of being an agency worker;[20]It was pointed out to the claimant that to the extent this is bullying because of being an agency worker, that had nothing to do with his age. The claimant’s answer was that he applied for bank positions and should have been appointed. What he did was apply for a permanent role, it was out of his control. Nothing the claimant said in response suggests any possible link with his age in relation to this allegation.[21]Allegation 1.9 is as follows: Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 5 23 November 2023 – the respondent lying (in its grounds of resistance) about an incident where the claimant resisted use of a room for a patient/obstructive to a person’s mental health;[22]Employment Judge Wade noted in her reasons for the Deposit Order: The claimant says he “cannot recall” or considers this patient related incident within the grounds of resistance a lie. If he cannot recall the incident, and the respondent’s witness gives a coherent account of it, the respondent’s witness is likely to be believed, all the more so because of the way the claimant communicates when angry. The reason why is likely to be found to have nothing to do with the claimant’s reporting of colleagues bullying him, to management/FTSUG.[23]The claimant was asked at this hearing whether he still could not recall what was said. The claimant told the Judge he said something along the lines of ‘is any other place available’. He was trying to be helpful, he said, he was just asking a question, then he left; ‘nothing even happened’. He added that what he said was just on the cuff, he was not being aggressive, he was just asking a question. When asked why he did not tell Employment Judge Wade that was his recollection, he said it was because he was unsure how the response would be taken by Judge Wade. He can now see that was what he should have said but that is, he says, what happened.[24]The claimant was asked what the connection was between the allegations and his age. The claimant replied that, in relation to allegation 1.4 that Mr Summers docked 4 days pay after he ‘went and had a go at them’, that Mr Summers was getting at the claimant ‘for some reason’. What that reason might be, the claimant did not say.[25]Judge James asked the claimant a fourth time what this had to do with the claimant’s age at which point the claimant replied: ‘the other porters are youngish’. He then added however, that he was ‘seen as a trouble maker’.[26]Finally, the claimant was asked about the allegations at1.2.1 and1.2.2 which are that: 1.2.1 colleague Mr Mohammed saying that theatre staff had told him to tell the claimant he should change his trousers, to which the claimant replied “drop dead you are lying”; and 1.2.2. that on June 11 2023 Mr Mohammed saying he wanted a word about the claimant’s comments, and saying to him, “you will get it for sure” (which the claimant took to be a threat of physical violence from this colleague), and the claimant replying “if you wanna fight go ahead and do it”.[27]It was pointed out to the claimant that even on the way his case his put, there are clear admissions by him of inappropriate and unprofessional comments. The claimant said that if he was seen as a trouble maker they would go ahead and get rid of him.[28]Finally, in relation to allegation 1.10, which is that: Mr Summers/Ms Craggs instructing the agency the claimant was not to be deployed to its sites (not wanting him any more) because (on the claimant’s own case) he “had a go at management over them cutting [his] shifts. Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 6 whether the most likely explanation for the conduct that occurred was that the claimant was ‘having a go at management’? His response was that they lied about the shifts, it should not have happened at all. The claimant was angry when they stopped the shifts, he said. Again, the claimant’s answer did not engage with the question asked. Relevant law Strike out
Relevant law
[29]Rule 38(1) of the Employment Tribunal Rules of Procedure 2013 provides: (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious…[30]Before making a strike out order in any of these situations, the tribunal must give the party against whom it is proposed to make the order a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing (r.38(2)). An application by a party for such an order should be made in accordance with the provisions of r.31.[31]The striking-out process requires a two-stage test (see HM Prison Service v Dolby [2003] IRLR 694, EAT, at para 15; approved and applied in Hasan v Tesco Stores Ltd UKEAT/0098/16 (22 June 2016, unreported). The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid.[32]The principles applicable to strike out applications are set out in numerous authorities; see for example, Malik v Birmingham City Council, UKEAT/0027/19/BA, 21 May 2019, Choudhury P, paras 29-33; Cox v Adecco, UKEAT/Appeal No. UKEAT/0339/19/AT, 9 April 2021, at para 28.[33]The general principle is that a Tribunal will not strike out discrimination claims except in the most obvious and plain case (Anyanwu v South Bank Student Union [2001] 1 WLR 391). The same approach applies in whistleblowing cases: see Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, at para 29, in which the Court of Appeal held that the same or a similar approach should generally inform whistleblowing cases.[34]However, self-evidently (and as Anyanwu and Ezsias themselves make clear) such cases must exist. The respondent argues that this is such a case.[35]As Lord Hope set out in Anyanwu, at para 24: “The time and resources of the employment tribunals ought not to [be] taken up by having to hear evidence in cases that are bound to fail’.[36]See further for example, the Court of Appeal’s judgment in Ahir v British Airways plc [2017] EWCA Civ 1392 at para 16: Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 7 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 to liability being established, and also provided they are keenly aware of the danger of reaching such a 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”…[37]And, at para 24 of Ahir, per Underhill LJ: … where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so.[38]See also Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1, CA at para 77: … there is no absolute rule against striking out a claim where there are factual issues - see, eg Ahir v British Airways plc [2017] EWCA Civ 1392. Whether it is appropriate in a particular case involves a consideration of the nature of the issues and the facts that can realistically be disputed.[39]As put by HHJ Tayler in Cox v Adecco, at para 28(1) “No-one gains by truly hopeless cases being pursued to a hearing” (see also the authorities cited at Malik at paras 32-33 which make the same point).[40]Finally, Langstaff P in Chandhok v. Tirkey [2015] ICR 527, citing Anyanwu, stated at [20]: This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out—where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867 , para 56): “only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[41]In relation to strike out under rule 38(1)(b), Mr Breen acknowledged that whilst, on the respondent’s case, the conduct of the proceedings by the claimant as set out above was vexatious and unreasonable, it could not be said that there can no longer be a fair trial, for example because some witnesses were too frightened to attend the hearing. The Tribunal readily concludes, in the light of the claimants admitted conduct in relation to the proceedings above, that his behaviour has been vexatious and unreasonable. However, since as Mr Breen rightly acknowledged, an essential ingredient of an application for strike out Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 8 under this paragraph is missing, no further consideration needs to be given to striking out under this part of the rules. Rule 38(1)(a) – no reasonable prospect of success[42]There are two heads of claim before the Tribunal - age discrimination and whistleblowing detriment. They will be considered in turn. Age discrimination[43]As noted above, the claimant was asked several times to explain why he believed that the reason why the alleged treatment occurred. On the first three occasions, he made no mention of his age. Finally, in relation to one of the allegations, he told the Tribunal that the other porters are younger than he is. This is a case where at best, the claimant is simply asserting that because the other porters are younger, his age must be the reason for the treatment he alleges. He does not rely on any corroborative evidence. On the other hand, the respondent is putting forward a straightforward explanation for the treatment alleged, based on the claimant’s own admitted conduct as set out in the list of issues and which is further demonstrated by the claimant’s behaviour in these proceedings.[44]The Tribunal also notes the answers given to the Judge at this hearing. For example, when asked to explain his behaviour, he asserted that he was simply being ‘responsive”; ‘what else was he to do’? Further, the Tribunal notes the different explanation given at this hearing, compared to the hearing before Judge Wade, in relation to allegation 1.9. In these circumstances, taking the claimant’s case at its highest, and bearing in mind his conduct, the Tribunal concludes that the claimant has no reasonable prospects of succeeding in an argument that any of the alleged detrimental treatment was because of his age. There are no reasonable alternatives to strike out, deposit orders already having been made by Judge Wade, which the claimant exercised his right to pay. This is therefore one of those rare cases where strike out is indeed an appropriate option. The first respondent should not be put to the substantial cost of further defending these proceedings, when the allegations have no reasonable prospect of success. Whistle-blowing detriment[45]There are a number of similar insurmountable problems for the claimant in relation to the whistleblowing detriment claims. He may struggle to establish the public interest in the disclosure made and that he reasonably believed that the public interest was present when he made the disclosure. This is especially so, in light of his admitted conduct during his employment and in these proceedings. Were that the only issue, it would not be appropriate to strike out those claims. That is not however the only issue.[46]The alleged protected disclosure was made some 4 to 5 months before the agency was told by the respondent that they did not want him to work at their premises again. As mentioned, during the noted discussion at the preliminary hearing before EJ Wade, the claimant could not recall what he said during the altercation that occurred, prior to that decision being made. Then today he has told the tribunal that he said ‘something like, is any other place available’; he was trying to be helpful, he was just asking a question. He does not dispute what he is noted to have told Employment Judge Wade; instead, his Case Number: 1801456/2024, 1801457/2024, 1801459/2024 and 1802410/2024 9 explanation is that he wasn’t sure how the response would be taken when speaking with Judge Wade. That explanation is simply not credible.[47]Even if the claimant can establish that he made a protected disclosure, he needs to establish a link between that disclosure, and subsequent conduct. After all that has been set at both this hearing and the last hearing, the Tribunal concludes that it is far more likely that the Tribunal at the final hearing will conclude that it was the claimant’s own admitted conduct, and the lack of insight he has into the effect of his own behaviour on others (as demonstrated by his comments at this hearing), that was the reason for the treatment he alleges.[48]All of what is said above raises serious questions about the claimant’s credibility. His own unreasonable conduct is a matter of record in these proceedings. He does not dispute the matters set out in the list of issues regarding his own conduct. In such circumstances, it can safely be concluded that the claimant has no reasonable prospect of succeeding in relation to the whistle-blowing detriment claims either. Even when taken at their highest, when considered in the context of the claimant’s admitted behaviour/conduct, it can properly be concluded that his claims are truly hopeless and they should for that reason be struck out.
Conclusion
[49]For the reasons set out above, the age discrimination and whistleblowing detriment claims are struck out because they have no reasonable prospects of success.