Ms V Brown v Nevro Medical Ltd and Others: 1804268/2023 and 1804285/2023
EMPLOYMENT TRIBUNALS
Case No 1804268/2023, 1804285/2023
Between
Ms V BrownClaimantNevro Medical Ltd and OthersRespondent
Before
Employment Judge JamesMs S Aly (instructed by counsel) for claimantDate 16 December 2025
JUDGMENT
(1) The following allegations have no reasonable prospect of success and they are struck out allegations 5.1.3, 5.1.11, 5.43, 5.44, 5.45, 5.53, 36.1 in the Combined List of Issues.(2) The following allegations have little reasonable prospect of success and Deposit Orders are made in relation to them allegations 5.1.8, 5.1.9, 5.8, 5.9, 5.11, 5.21, 5.28, 5.29, 5.31, 5.33, 5.34, 5.48, 5.52, 5.55, 5.58, 5.59, 5.60 in the Combined List of Issues.(3) The amount of the Deposit Orders is £500 each.
REASONS
[1]The main issue which the tribunal had to determine at this hearing, was whether any of the allegations made by the claimant should be struck out under Rule 37 Employment Tribunal Rules of Procedure 2013; or alternatively, made subject to deposit orders, under Rule 39.
The hearing
[2]The hearing took place over one day. Submissions on the applications were made by all three representatives. Judgment was reserved.[3]There was an agreed preliminary hearing bundle of 660 pages; written submissions from the three representatives; a legislation and authorities bundle of 195 pages; a bundle of medical records of 681 pages; a timeline from the claimant; and an annotated analysis of the allegations made.[4]It was confirmed by the claimant at the outset of the hearing that some of the allegations set out in the List of issues were withdrawn. Using the same numbering as in that document, the withdrawn allegations are at those in paragraphs 5.3, 5.6, 5.15, 5.16, 5.26, 5.40 and 5.47; and the reasonable adjustment at 20.4. Those claims are dismissed on withdrawal. Sixty six allegations remain, many of them pursued under different legal heads. Relevant law Strike out
Relevant law
[5]Rule 37(1) of the Employment Tribunal Rules of Procedure 2013 provides: (1) An employment judge or tribunal has power, at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on any of the following five grounds: (a) that it is scandalous or vexatious or has no reasonable prospect of success (r37(1)(a));[6]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.37(2)). An application by a party for such an order should be made in accordance with the provisions of r.30.[7]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.[8]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.[9]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.[10]However, self-evidently (and as Anyanwu and Ezsias themselves make clear) such cases must exist. The respondents argue that this is such a case.[11]As Lord Hope set out in Anyanwu, at para 24: e employment tribunals ought not to [be] taken up by having to hear evidence[12]Ahir v British Airways plc [2017] EWCA Civ 1392 at paras 15-16: 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[13]And, at para 24 of Ahir, per Underhill LJ: -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.[14]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.[15]Finally, as put by HHJ Tayler in Cox v Adecco No-one gains by truly hopeless cases being pursued to a hearing cited at Malik at paras 32-33 which make the same point). Deposit Orders[16]Deposit Orders are covered by Rule 39, which provides: 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.[17]Rule 39(2) requires a Tribunal to make reasonable enquiries into the deciding the amount of the deposit.[18]In Jansen van Rensberg v Royal London Borough of Kingston-upon-Thames UKEAT/0096/07, a case determined under the previous Rules, the EAT (The Honourable Mr Justice Elias (as he then was) presiding), observed at paragraph 27: a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response. Definition of detriment and harassment[19]Direct discrimination is prohibited by section 13 EqA 2010. As for whether or then was, said that less favourable treatment arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). There is an objective standard as to whether or not an act or failure amounts to direct discrimination. As Lord Hope said in Shamoon, an unjustified sense of grievance is not sufficient to constitute a detriment.[20]Harassment is prohibited by section 26 EqA 2010. In Richmond Pharmacology v Dhaliwal [2009] ICR 724, the EAT confirmed that not every comment that mentions a protected characteristic is harassment contrary to s.26. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase.[21]The words of the Act are serious words These are an important check against preventing trivial acts causing minor upset from being caught up in the concept of harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the prescribed adverse environment created (Grant v Land Registry [2011] IRLR 748).[22]Whether or not there has been harassment includes a subjective and objective element. The tribunal must consider whether the putative victim perceives themselves to have suffered the adverse environment (subjective question); and if so, whether it was reasonable for the conduct to be regarded as having that effect (objective question). Causation[23]In respect of both direct discrimination and harassment, the protected characteristic of the Claimant must pre-exist and be the cause of the treatment complained of. At the liability stage, the Claimant must show that the treatment happened because of, or is related to, that protected characteristic; not that the treatment caused the protected characteristic.[24]In respect of direct discrimination, the Employment Tribunal will usually need Amnesty International v Ahmed [2009] IRLR 884). To determine this, the Claimant will need to prove some facts to link the treatment with the protected characteristic such that the burden of proof will shift to the Respondent to show the reason for the treatment (section 136 EqA 2010). The task on a Claimant requires facts and evidence, not just bare assertion.[25]A difference in treatment or status may indicate the possibility of discrimination but is not, without more, sufficient material from which a nce of probabilities the Respondent had committed an unlawful act of discrimination (Madarassy v Nomura International plc [2007] IRLR 246 at para 56).[26]In respect of harassment, the causative connection is broader, only requiring that the unwanted conduct However, a Claimant must still provide evidence that the conduct relates to the protected characteristic. Time limits[27]The relevant parts of section 123 EA 2010 provide: 120 may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. (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.[28]Therefore, where a claim is presented outside the primary limitation period, i.e. the relevant three months, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable.[29]In British Coal Corporation v Keeble 1997 IRLR 336 the EAT said that the discretion to extend time requires the tribunal to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to: the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.[30]It is for the claimant to satisfy the tribunal that it is just and equitable to extend the time limit and the tribunal has a wide discretion. There is no presumption that the Tribunal should exercise that discretion in favour of the claimant. The onus is on a claimant to show to the tribunal that hers is a case in which the time limit should, be disapplied (see Robertson v Bexley Community Centre [2003] IRLR 434, at para 25: It also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.[31]This case is often quoted by those arguing against time being extended. Noting that practice, HHJ Judge Tayler stated in Jones v Secretary of State for Health and Social Care [2023] EAT: The propositions of law for which Robertson is authority are that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere. The comments of Auld LJ relate to the employment law context in which time limits are relatively short and makes the uncontroversial point that time limits should be complied with. But that is in the context of the wide discretion permitting an extension of time on just and equitable grounds.[32]In Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2009] IRLR 327 Wall LJ stated: 24 Mr Rose placed much reliance on paragraph 25 of Auld LJ's This paragraph has, in turn, been latched onto by commentators as offering 'guidance' as to how the judgment under the "just and equitable" provisions of the Race Relations Act and DDA fall to be exercised. In my judgment, however, it is, in essence, an elegant repetition of well established principles relating to the exercise of a judicial discretion. What the case does, in my judgment, is to emphasise the wide discretion which the ET has see the dictum of Gibson LJ cited above and articulate the limited basis upon which the EAT and the court can interfere. [emphasis added by HHJ Tayler][33]Sedley LJ stated: 30. I agree with Mr Justice Underhill and Lord Justice Wall that the EJ's decision, while it could have been (and, had it been reserved, no doubt would have been) a great deal better expressed, was not vitiated by any error of law. 31 In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. [emphasis added by HHJ Tayler][34]Longmore LJ agreed, and added, pithily: I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still.[35]Without meaning any disrespect to Auld LJ, there might be much to be said for Employment Tribunals focusing rather less on the comments in Robertson that time limits in the Employment Tribunal are "exercised strictly" and an extension of time is the "exception rather than the rule"; and rather more on some of the other Court of Appeal authorities, such as the concise summary by Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19: 17 The board's other grounds of appeal all seek to challenge the decisions of the employment tribunal that it was just and equitable to extend the time for bringing(a) the claim based on a failure to make adjustments and(b) the claim alleging harassment by Ms Keighan. Before turning to those grounds, the following points may be noted about the power of a tribunal to allow proceedings to be brought within such period as it thinks just and equitable pursuant to section 123 of the Equality Act 2010. 18 First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act 2010 does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2009] 1 WLR 728, paras 30 32, 43, 48 and Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72, para 75. 19 That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). 32. The Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, 15 January 2021, suggests: The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and Conduct extending over a period 33. The leading case on whether an act of discrimination it to be treated as extending over a period is the decision of the Court of Appeal in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96. This makes it clear that the focus of inquiry must be not on whether there is something which can be characterised as a policy, rule, scheme, regime or practice, but rather on whether there was an ongoing situation or continuing state of affairs in which the group discriminated against (including the claimant) was treated less favourably. 34. As Mummery LJ stated in Arthur v London Eastern Railway Limited [2007] IRLR 58 at paragraph 36 in relation to the question of conduct extending over a period: It will in many cases be better to hear all the evidence and then decide the case in the round, including limitation questions, on the basis of all the evidence: see, for example, Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 (particularly at paragraphs 48 and 49) regarding the approach to multiple acts alleged to extend over a period. 35. The burden is on the claimant to prove, either by direct evidence or inference, that the alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period.[36]The question of conduct extending over a period can be considered, in certain circumstances, in relation to all of the allegations alleged under various heads of claim. In Robinson v Royal Surrey County Hospital NHS Foundation Trust & Others [2015] UKEAT/0311/14, the first ground of appeal was that the tribunal had erred by considering the cla discrimination separately, when determining whether or not there was a continuing act of disability discrimination. The claimant in Robinson argued on appeal that the tribunal should have looked at the different types of disability discrimination complained of - direct, failure to make reasonable adjustments and harassment - as a totality, when considering whether they were part of an ongoing situation or state of affairs. At paragraph 65, HHJ Eady KC stated (obiter): In reaching my decision on the second ground of appeal, I have proceeded on the assumption that the Claimant is correct on the first. Given my conclusion [on the second ground of appeal], there is no need for me to adjudicate on that first ground but, if I had to do so, I would have sympathy Ms Criddle is, of course, correct to say that complaints are made about acts of discrimination; that ETs must therefore determine those complaints by reference to the specific acts rather than some amorphous state of affairs. When considering whether a Claimant has made out a prima facie case that that of which she complains amounts to conduct extending over a period, however, I can allow that it might be appropriate to consider that conduct as comprised of acts that, taken individually, fall under different headings. Such an assessment will inevitably be fact- and case-specific, but if the Claimant was, for example, complaining that putting her on particular shifts was a continuing act of direct discrimination and then, as the other side of that particular coin, that failing to put her on different shifts was a failure to make reasonable adjustments, I cannot see why she would not be entitled to say that those matters should be considered together as constituting conduct extending over a period.[37]This passage was cited with approval by Ellenbogen J (again obiter) in E v X & others; L v X & others UKEAT/0079/20 & 0080/20 (see paragraph 50).[38]The tribunal can decide that some acts should be grouped into a continuing act, while others remain unconnected. (See Lyfar v Brighton and Susses University Hospitals Trust [2006] EWCA Civ 1548, in which the tribunal grouped the 17 alleged individual acts of discrimination into four continuing acts, only one of which was in time).[39]Where allegations are linked by a common personality they do not stand in isolation. In Veolia Environmental Services UK v Gumbs UKEAT/0487/12, two different allegations of discrimination, over an extended period, were linked by the employee's manager, a common personality, who had made adverse decisions against the employee on both occasions.[40]Each individual act alleged to form part of the continuing act must actually be discriminatory. If any of those alleged acts are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act (South Western Ambulance Service NHS Foundation Trust v King [2020] IRLR 168).[41]In Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40, HHJ Tayler held at 13: The respondent submitted that conduct extending over a period must as a matter of law all relate to the same protected characteristic. I am not persuaded by that argument. For example, if a person took against a woman because of her race and sex and demonstrated this by sometimes making comments that were sexist, sometimes racist and sometimes both racist and sexist; I can see nothing in the language of the relevant provisions that would prevent the entire course of the racist and sexist behaviour constituting conduct extending over a period. Similarly, I cannot see any reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination. It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there is no absolute bar that prevents there being conduct extending over a period in such circumstances.[42]In the event, HHJ Tayler did over-turn the act of age-related harassment could be linked to a successful claim for dismissal pursuant to Regulation 15, on the facts of the case, because: Those who decided to dismiss the claimant had nothing to do with the decision to tick the ill health retirement box in the medical referral. There was a substantial gap between these two events and they involved different types of prohibited conduct, two different protected characteristics and decisions by different people. While none of those factors precluded the possibility of there being conduct extending over a period, it would have been necessary for the Employment Tribunal to clearly identify what the continuing discriminatory conduct was. The Employment Tribunal did not identify anything that could establish a continuing discriminatory state of affairs.
Conclusions
[43]These conclusions are structured by setting out first, some general remarks by Ms Musgrave-Cohen. They then set out, in turn, each of the allegations/groups of allegations which it is said have no/little reasonable prospect of success; a brief summary of the parties submissions in relation to those allegations; and the decision in relation to those allegations. General submissions[44]First, Ms Musgrave-Cohen asked the tribunal to take into, in Cox, paragraphs 21 to 28. 28.1 in particular. I have considered those paragraphs.[45]Second, Ms Musgrave-Cohen submits that a detriment cannot be established by an unjustified sense of grievance. By the same token, when considering allegations of harassment, the tribunal should not encourage hypersensitivity towards unfortunate phrases. This involves an objective element. In relation to the harassment claims, the treatment alleged cannot amount to intimidating, hostile or degrading treatment. It is submitted that the claimant simply cannot demonstrate that. I confirm that I have taken note of these points in considering the specific allegations below.[46]Third, Ms Musgrave-Cohen submits that on 31 October 2022, the claimant d damaged her mental health, not that her mental health was the cause or reason for that conduct. Further, during the grievance process, the claimant did not allege that the treatment was because of her disability or sex.[47]In response to that, Ms Aly submits that the claimant became suicidal and has developed PTSD as a result of the conduct complained of; but she already had existing mental health conditions. Those have been exacerbated by the respondents conduct, to the point that she is not capable of working at all see pages 215, 217 and 219 for example. Further, it case that the discrimination occurred after she disclosed her mental health issues to the respondent.[48]Further, in the grievance, Ms Musgrave-Cohen submits that the claimant complained that everyone was being treated in the same way that she was. The complaint was about general bullying of the team by the second respondent. The claimant did not refer to discrimination/harassment because of a protected characteristic.[49]Ms Aly submits in reply that the DSAR shows that the respondents tried to cover up their actions. An email at 144 dated 19 October 2022 makes reference to a possible discrimination claim. An email dated 3 November 2022 at 313 refers to clearly envisaged a risk of such claims at that time.[50]In relation to this third point, the claimant can of course expect to be crossexamined about these matters at the final hearing. I do not consider however that the fact that the claimant did not in the grievance itself mention discrimination because of a protected characteristic, does not mean that it is possible to conclude, without more, that the claims have no, alternatively little reasonable prospect of success. Where appropriate however, this has been considered alongside other relevant factors in relation to the specific allegations. Those will now be considered. The specific allegations Allegations about the conduct of the Second Respondent on 22 July 2022 (allegations5.1.1 - 5.1.12 [115]) Allegation5.1.2 the Second Respondent told the Claimant that because[51]Ms Musgrave-Cohen argues that the transcript is different. It actually states: favour at the end of Q2 or month end on Q3? VB: I don't know, not necessarily, no.[52]Ms Aly submits in response that the original transcript included a reference to R2 having smirked when saying[53]Decision I conclude that it is appropriate to consider this allegation in the context of the evidence as a whole, at the final hearing. I do not consider that it can reasonably be concluded at this stage that the allegation has no, alternatively little reasonable prospect of success. Allegation 5.1.3 mental health problems and implied that she should hide it and pretend that she was ok and made it clear that her disability was not welcome at the Respondent firm.[54]The respondent says this is not what the transcript says: would consider a minor issue on my BDM is[55]Ms Aly submits that this needs to be considered in the context of the conversation as a whole.[56]Decision I conclude that it is appropriate to take this allegation as it is worded in the claim/issues. What it is alleged by the claimant was said, was not in fact said. In particular, the claimant was not asked to hide her mental health problems or pretend that she was okay, or told in terms that her disability was not welcome. Although the full transcript of the conversation has not been provided, relevant sections have been, and there is no suggestion by the claimant (as there is regarding 5.1.1 for example - see below) that the allegation has not been set out correctly as a result of a drafting error. In these circumstances, I conclude that this allegation has no reasonable prospect of success and should be struck out. Allegations in which the Claimant does not attempt to make any connection to her mental health Allegation 5.1.1 the Second Respondent told the Claimant to get Rob Allegation 5.1.4 the Second Respondent told the Claimant that she was employed to be Allegation 5.1.7 the Second Respondent referred to the Claimant as being perceived as operating from mediocrity, notwithstanding the fact that her previous performance review had been rated as near Outstanding [118].[57]On behalf of the respondents, it is submitted that the claimant did not raise these as allegations of disability discrimination at the time. They have no obvious connection to the claimant[58]Ms Aly submits that 5.1.1 has been incorrectly transposed into the list of issues. It should have read: Mr. Fear told the Claimant he was going to get Rob Wilding "drunk on tequila and find out exactly what he thinks about you .[59]Decision I conclude that it is appropriate to consider these allegations in the context of the evidence as a whole, at the final hearing. I do not consider that it can reasonably be concluded at this stage that the allegation has no, alternatively little, reasonable prospect of success. Allegations in which the Claimant does attempt to make a connection to her mental health Allegation 5.1.5 the Second Respondent referred to two colleagues as to her mental health challenges. [116] Allegation 5.1.6 the Second Respondent referred to the Claimant as a[60]Ms Musgrave-Cohen argues that whilst the language is crude, it does not the claimant describes. Ms Aly notes that R1 does not appear to be suggesting the transcript does not reflect what is alleged.[61]Decision I conclude that on the face of the words used, there is a potential It is therefore appropriate to consider these allegations in the context of the evidence as a whole, at the final hearing. I do not consider that it can reasonably be concluded at this stage that the allegation has no, alternatively little reasonable prospect of success. Innocuous comments that neither put the Claimant to detriment nor create the prohibited adverse environment Allegation 5.1.8 the Second Respondent stated that people who take a Allegation 5.1.9 the Second Respondent told the Claimant that this was a pressure environment [119].[62]It is argued on behalf of the respondents that these allegations are not obviously linked to disability. Further, that in relation to them, the claimant has no more than an unjustified sense of grievance. Ms Aly urges me to find that they need to be considered in the context of the evidence as a whole about this conversation and why R2 took the approach that he did.[63]Decision in relation to 5.1.8, I agree with the As for 5.1.9, all the second respondent was stating was that sales is a pressured environment. That seems to be to be simply stating the obvious. Indeed, the claimant replied: . I conclude that the claimant has little reasonable prospect of success in relation to these two specific allegations and make a deposit order in relation to them. Allegation 5.1.10 the Second Respondent stated that he was not [118].[64]It is argued for the respondents that the conduct of the whole team was under discussion, not just the claimant . Further, after the Sword of Damocles reference, the claimant replied: but I feel like I speak on behalf of everybody else because I know everybody else. [119][65]Ms Aly argues only territory that R2 did not visit and that he was not supportive of the claimant generally, these are questions of evidence. If the claimant can establish that, then why did he not visit her area and why was he not supportive?[66]Decision decline to strike out this allegation/make a deposit order. These allegations are better considered at the final hearing, after the tribunal has considered the whole of the evidence. Allegation 5.1.11 despite acknowledging that the Claimant had a lack of support, the Second Respondent offered the Claimant no support stating that if this was her best, then it was not good enough.[67]Ms Musgrave-Cohen argues that this is not an accurate reading of the Respondent saying: [115] The Second Respondent went on to say:[68]Ms Aly again urges the tribunal to look at the context; and that this allegation needs to be judged in the context of the evidence as a whole.[69]Decision I conclude that is appropriate to judge the strength of this allegation on the basis of the relevant extract from the transcript. Those extracts do not establish what the claimant alleges. I conclude that this allegation has no reasonable prospect of success and that it should be struck out. If I am wrong on that, I would have concluded that it had little reasonable prospects of success and that a Deposit Order should be made. Allegati tionship with Dr Lalkhen Allegation 5.5 On 1 August 2022, the Second Respondent set the Claimant a target of £300,000 in sales, increasing this [to] £334,000 on 3rd[70]The respondents argue that the transcript records the claimant as having said: . The Second Respondent replied: -[71]Ms Aly submits that this comment links in with the arguments that the claimant was being managed out of the business. Those questions need to be judged in the context of the evidence as a whole.[72]Decision if it were that was being alleged, I would make a deposit order. However, taking this allegation as a whole, I conclude that it is really about the amount of the target being increased. I conclude that the Tribunal at the final hearing will be in the best position to judge this allegation and decline to make either of the orders requested. Allegation 5.10 On 23 August 2022, the Second Respondent emailed the working with the Claimant [138][73]Ms Musgrave-Cohen argues that this does not amount to a detriment.[74]Decision I conclude that the context is important. Was R2 giving the right impression in this conversation, i.e. was he really helping the claimant at this point or had he decided to manage her out of the business? That context can only be properly judged at a final hearing and I decline to make the orders requested. Allegations arising from confidential discussions about the termination of the - 5.7, 5.12, 5.13, 5.17, 5.18 and 5.20 Allegation 5.7 On 10 August 2022, the Fourth Respondent emailed Ms. the Claimant was due to be terminated [129]. Allegation 5.12 On 25 September 2022, an internal email referenced the Claimant being put on a PIP, despite the Claimant hitting 99% of her targets. Allegation 5.13 On 29th September 2022 the Fourth Respondent emailed the Second Respondent asking for evidence to help the Respondent dismiss the Claimant from the business [141]. Allegation 5.17 On 19th October 2022 the Second Respondent and the Fourth Respondent exchanged emails in relation to terminating the Claimant and avoiding being liable for mental health discrimination [142- 152]. Allegation 5.18 On 20th October 2022 the Second Respondent emailed The Fourth Respondent putting forward the false statement that 50% of me -152]. Allegation 5.20 In October 2022, the Fourth Respondent sent an email to employment on November 1 2022.[75]Ms Musgrave-Cohen submits that there is no mention of the claimant mental health in these communications regarding termination of her employment. That however is hardly surprising, since there is mention of a possible discrimination claim in one of the emails dated 19 October 2022 [page 144]. 76. explain why it was thought there might be a discrimination claim at this stage.[77]Decision all of these allegations are linked to the plans to terminate the Whilst in the event, the dismissal plans were not followed through, these plans are potentially a key part of the factual matrix of the claim as a whole. Evidence needs to be heard to determine why these plans were put in place, who the real decision makers were and why the decisions were made. The evidential context is crucial and I therefore decline to make either of the orders requested. contacts Allegation 5.8 On 12th August 2022, the second Respondent told the Claimant to exclude Bret Claxton, a key member of the NHS service, from her own meeting.[78]The respondents submit that the transcript extract reads: 12 August 2022 3:15pm BF to VB conversations. Bring him to dinner but he is a bit player at BRI in my 3.15pm BF to VB 3.16pm VB to BF[79]It is submitted that there is simply no evidence that the Claimant felt this was to her disadvantage or detriment in her response, and as indicated by the fact that she did not raise it in her grievance. Viewed objectively, it was not to her detriment, nor harassment.[80]Ms Aly argues at paragraph 139 of the submissions in reply: The Second Respondent's sole aim at this time was to destroy the Claimant and her reputation, stop implanters engaging and this is wholly supported by his suggestions to engage in activities that would damage her relationships and negatively impact her performance to render her vulnerable to termination or redundancy and to mask discrimination.[81]Decision I conclude that it is a significant leap for Ms Aly to make this assertion , when there was evidence in a WhatsApp message that the claimant had been asked not to invite the individual in question because he was not a big hitter . I conclude that this allegation has little reasonable prospect of success and make a Deposit Order in relation to it. Allegation 5.14 On 12th October 2022 the Second Respondent deliberately excluded the Claimant from a meeting with Prof Boulton who[82]Ms Musgrave-Cohen argues that the Claimant asked: to meet demonstrates that she knew this was a management decision for the Second Respondent rather than her. She did not raise a complaint with the Second Respondent or push the issue. Ms Aly countered with a lot of evidential context.[83]Decision I prefer the submissions made on behalf of the claimant on this allegation, and conclude that the evidential context as a whole needs to be considered in order for this remark to be properly judged. Therefore rI decline to make the orders requested. Allegation 5.9 couple -137].[84]Ms Musgrave-Cohen submits that this was a genuine expression of surprise in a private email regarding the claimant, based on the fact that she had not hit target. The write was referring to the possibility of removing those who had not hit target from this list, later in the year, not the business.[85]The 19 August 2022 email reads: Thanks for sending XXX I double checked and all looks correct, apologies expect to see, but we can remove them towards end of year.[86]Ms Aly argues that context is important and this allegation is linked to the decision to dismiss the claimant.[87]Decision - nothing in this email suggests that it was only the claimant being targeted . I conclude that the claimant has little reasonable prospect of success in relation to this specific allegation and make a deposit order in relation to it. Innocuous events that cannot reasonably be considered to be to the Allegation 5.11 On 7 September 2022 the Second Respondent posted a him that she was on the verge of a nervous breakdown [140]. Allegation 5.19 The First and Second Respondents failed to register the guests. This was despite at least 15 communications exchanged prior to this date between the Claimant and First Respondent (through Carol Hospital and arranging travel.[88]Ms Musgrave- Grit message was sent to the whole of the team. As for 5.19, there was an innocent error made. Another of the , Claire Kelly, was invited; so there was no clear exclusion These allegations were not mentioned in the grievance.[89]Ms Aly suggests, in relation to the in a team meeting, there is a more sinister explanation to it, when seen in context. She submits in writing: It is averred that the context indicates that the Second Respondent unequivocally used this in an attempt to publicly humiliate and ostracise the Claimant for her mental health problems. I find that a bold assertion to make, on the basis of the words used.[90]Decision I am with the respondents in relation to allegation 5.11. Whilst I do not consider it possible to conclude that the allegation has no reasonable prospect of success, I conclude that it has little reasonable prospect of success and make a deposit order in relation to it.[91]As for allegation 5.19, I conclude that the context is important and in particular, that a decision had been made to terminate the claimant by this stage. The question arises as to whether the decision was linked to that. Although it is not mentioned in the grievance, I conclude it reasonable to give the benefit of the doubt to the claimant on this allegation and that it should go forward to eh final hearing and be judged on the basis of all of the evidence. Complaints concerning a telephone call with the Second Respondent on 27 October 2022 i.5.22.1 - if you've got a problem with Maria, go to HR,' Secondly - How dare you summon me?!?!?!?! I am your manager!!!!. Clai ii.5.22.2 uncontactable thereafter. The Claimant discovered through a DSAR that The Second Respondent had intended that this was to be a termination meeting, without the right for the Claimant to be accompanied at such a meeting or without any prior warning that this may be the case.[92]Mr Sellwood argues on behalf of R2 that there is a causation issue here. The comments may be unpleasant or might amount to bullying, but they were down to hurt pride, not the disability of the claimant.[93]Ms Aly referred me to contemporaneous WhatsApp messages with colleagues about what was said.[94]Decision in the context of the issues as a whole, I consider that this is an important issue, and do not consider it reasonable to conclude on the basis of what is before me at present that it has little reasonable prospect of success. I therefore decline to make a deposit order. Allegation 5.23 The First, Second and Fourth Respondents arranged a meeting with the Claimant in Leeds on 1 November to terminate her, whilst falsely presenting this as a Sales Meeting, which the Claimant ultimately did not attend.[95]Decision I conclude that this is inked to allegations 5.7, 5.12, 5.13 etc above and for the same reasons, do not conclude that it has little reasonable prospect of success. Allegation 5.21 On 26 October 2022, the Fourth Respondent failed to reply to the Claimant with regards to the Claimant requesting a meeting to raise a grievance.[96]Ms Musgrave-Cohen points out that on 26 October 2022, the claimant emailed the fourth respondent asking if they could speak for five minutes when R4 had an opportunity. She did not say she wanted to have a meeting to raise a grievance. The fourth respondent replied to say that she was available the next day at certain times. The claimant did not therefore request a grievance meeting and the fourth respondent did not fail to reply. No mention of a grievance was made in communications on Thursday and Friday of that week. On 31 October the claimant asked for a copy of the latest disciplinary and grievance documents.[97]Ms Aly submits that whilst there was a reply to the initial email, when the claimant tried to follow it up the complaint was ignored and so the allegation is not doomed to failure in that context. She submits that at first there was lip service, and then nothing.[98]Decision I note that the allegation is proceeded with as an allegation of direct discrimination because of disability, or harassment. I conclude that the claimant has little reasonable prospect of succeeding in those claims. This appears to me to be an issue of process, rather than a reasonably arguable claim of harassment/direct discrimination. I conclude that it has little reasonable prospect of success and make a Deposit order in relation to it. Allegation 5.28 On 2nd November 2022 the Third Respondent attempted -179]. Allegation 5.29 On 3 November 2022, the Fourth Respondent emailed the basis of performance, the risk for a claim against us has increased. She outlined the available options to the Respondent as being(1) terminating the Claimant whilst she was on sick leave,(2) terminating her upon return from sick leave or(3) investigating the grievance then terminating her. She also stated that both she and the Third Respondent had a preference to terminate the Claimant upon return from her sick leave, but prior to any investigation taking place [175-179]. Allegation 5.30 On 3 November 2022, Mr. Manley expressed concern about the stress that the Second Respondent was under due to the invest - 179]. Allegation 5.31 On 3 November 2022, the First Respondent, through -179]. Allegation 5.33 On 11 November 2022, the Fourth Respondent wrote further emails to her advisors to suggest that she would want to terminate the Claimant on the groundless performance aspects prior to investigating her grievance, whilst acknowledging that other team members had raised concerns about The S[99]The respondents submit that these emails may well form part of the narrative that the Claimant relies on, but she has no reasonable prospect of showing that the Respondent was wrong to take advice or rely on it or that it was to her detriment that her management discussed her situation. Most importantly, the Claimant has no reasonable prospect of persuading a Tribunal that these conversa disability or that they put her at a disadvantage or harassed her. It is presumed that she was not aware of them at the me.[100]On page 177 of the bundle is an email sent on 2 November 2022 which states: Just to note, legal did advise that we do not need to answer the grievance or hear it. She has sought professional medical help and she's on sick leave. She has stated she is incapacitated at this time (and at the time of writing the letter might I add). [Blank] has acknowledged her letter and we've reminded her that she can use the EAP. I have also reached out to her to offer my support and an ear should she wish to talk at all. I would not recommend interviewing the team right now. Based on our knowledge of prior accusations and the investigation Victoria herself was under, I can't help but feel this is one sided if we start interviewing team members. It will put them on edge and it points to a guilty party.[101]Ms Aly argues that there is clear evidence here that R3 tried to quash the investigation.[102]Decision in relation to allegation 5.30, in which the claimant is described as , I conclude that comment should be explained in due course at the final hearing, in order to be able to properly judge the reason for it being made.[103]As for the other allegations, whilst the matters referred to are likely to be relevant to the fact finding process, particularly in relation the proposed dismissal of the claimant, she has little reasonable profit of succeeding in the discrimination/harassment claims alleged in relation to them. There are numerous other allegations relating to the dismissal which are proceeding. Further, the email on page 177 does not, in my judgement, show an attempt to squash an investigation. Rather, it provides a rational explanation as to why it is not necessary or appropriate to deal with the claimant grievance at that particular time, and in particular, because she was on sick leave and R1 did not want to create an adverse situation due to any investigation. I conclude that allegations 5.28, 5.29, 5.31 and 5.33 have little reasonable prospect of success and make a deposit order in relation to them. Allegation 5.34 On or around 18 November 2022, the Fourth Respondent failed to interview the Claimant in relation to sex discrimination complaints raised by Ms. Hermes and Megan Wakelin[104]On behalf of the respondents, it is argued that complaint but that of a colleague. Further, the claimant was unwell at the time, which provides a perfectly reasonable explanation as to why the claimant was not approached then.[105]Ms Aly again relies on the email at page 177 which she submits shows that questions were being raised as to whether the claimant was really unwell.[106]Decision I reject the argument that the email quoted can reasonably be relied on to argue that the respondent was questioning whether the claimant was unwell. conclude that the claimant has little reasonable prospect of success in establishing either that this was a detriment, or in relation to the merits. A deposit order is made in respect of it. her employment Allegation 5.36 On 15 December 2022, the First and Third Respondent moved the Claimant away from her role within their headcount budget for 2023, despite her outstanding grievance [189]. Allegation 5.37 On 19 December 2022, the First Respondent actively removed the Claimant from an annual company wide meeting in Los Angeles scheduled for February 2023 [190]. Allegation 5.50 On 02 February 2023, the Claimant was removed from her terri Allegation 5.51 Claimant.[107]Ms Musgrave-Cohen argues that the claimant was on sick leave and there was no obligation on the respondent to inform the claimant who was covering her work in her absence. Indeed, that could have led to a discrimination claim or a grievance, for contacting her claimant during a period of sick leave.[108]Ms Aly argues that in December 2022, note was due to run out 9 January 2023 and there was no suggestion that she was not going to return then. Further, it is clear that the respondent was considering terminating s employment when she returned. Yet further, a colleague could have been granted access to her accounts, rather than them being formally transferred away from her.[109]Decision I am satisfied that these claims are is arguable, as well as being potentially an important part of the factual matrix and are properly to be decided on the basis of the evidence as a whole. I decline to make the orders requested. Allegation 5.38 In December 2022, the Second Respondent gave[110]Ms Musgrave-Cohen submits that the claimant has no reasonable prospect of success of showing that the reason was disability. Both her and Ms Hermes did not receive a Christmas gift.[111]Ms Aly submits that R2 argues that he did not send gifts to those who missed their targets, but he appears to have been sending to gifts to others, whether they hit target or not.[112]Decision given the potential uncertainty over the reason given by R2, which should be tested by evidence in due course, I decline to make an order in relation to this allegation. Allegation 5.41 exercise. She relies on Ms. Lee as her comparator alongside a hypothetical non-disabled comparator [199-201].[113]Ms Musgrave-Cohen submits that the claimant does not know if the scores she is comparing herself with are those of Ms Lee; further, she was not made redundant in any event.[114]Ms Aly submits that the scores are notably low, when compared with the previous performance. Further, if the claimant was being , which is unclear, and is the lowest performing member of the team, it is even more obvious. Even looking at the scores, it is possible to see that they have been deflated.[115]Decision in the submissions, I am content that this claim is arguable and should be decided by a full tribunal after consideration of the evidence as a whole. Allegation 5.43 The fourth Respondent failed to provide the Claimant with an anti-sexual harassment policy, as requested by the Claimant on 12th January 2023.[116]Ms Musgrave-Cohen accepts that the claimant was provided with a US policy, not the UK policy. But it is submitted that this was the only policy R1 had at the time, regarding the 30 or so UK-based employees. This does not appear to be disputed by the claimant.[117]Decision that there was not a UK anti-harassment policy may be of some relatively limited relevance to the case as a whole; but providing the claimant with a US policy if that was the only one available, was not because of disability. I conclude that this claim has no reasonable prospect of success, either as a discrimination/harassment claim or as a whistleblowing detriment claim, and it is struck out. Complaints relating to long term sickness absence health insurance Allegation 5.44 The First Respondent failed to provide the Claimant with a claim form for health insurance until 19 January 2023, the deadline having been 6 December 2022. Allegation 5.45 On 19 January 2023, the Claimant was only given 12 days notice by the First Respondent that her salary would be reduced, leaving her with inadequate time to implement health cover. Allegation 5.53 On 17 February 2023, Ms. Priem emailed the Claimant about the expiry of her sick pay, without acknowledging the First the Claimant.[118]Ms Musgrave-Cohen submits that it is not clear on what basis the claimant says there was a deadline of 6 December 2022. The respondent only became aware the claimant would be absent from work for 13 weeks on seeing the fit note of 3 January 2023. On 10 January 2023 the claimant was given details of the compan sickness insurance policy. On 19 January 2023 she was asked to complete paperwork for the group income protection scheme. Nothing in the covering email says her salary would be reduced.[119]Ms Aly submits that the date of 6 December came from a conversation with Canada life who said that documents should be sent eight weeks before the transition date from Nevro pay to 2 Canada Life settlement payments. The claimant understood that her salary would be reduced from the sickness policy itself she was not told her pay would be reduced in line with the strict wording of the policy.[120]I note that the 17 February 2023 email to the claimant from Ms Priem states: As of 28 February 2023, you will have received four months' discretionary full pay. Thereafter, if you remain signed off sick you might be eligible for income protection (and if your income protection application is successful, you will move to 75% basic pay under the income protection scheme, from the date your application is successful). Otherwise, from 28 February 2023 onwards you will move to statutory sick pay in line with our standard practice.[121]Decision - I am satisfied that these claims have no reasonable prospect of success and should be struck out. On the one hand, the claimant is arguing that the respondent should have been aware, because she had informed them that she was suicidal, that she would not be returning to work when her sick note expired at the beginning of January 2023; but on the other hand, is complaining about her removal from headcount for 2023, in December 2022. See 5.36. The claims appear to be contradictory. Further, it is difficult to see how the claimant can establish that these allegations are because of her disability, or related to disability. It does not appear to me to be in any way reasonable for the respondent to have submitted claims for income protection by 6 December 2022, when the claimant s first fit note did not expire until January 2023.[122]In addition, regarding 5.45, the claimant accepts that she was not told her sick pay was to be reduced in January; she just assumed that was the case due to the wording of the policy. She was not therefore given 12 days notice as claimed.[123]Finally, the email of 17 February 2023 simply informs the claimant what is likely to happen by the end of the month. Whilst it is accepted that would have been distressing for the claimant, given the potential reduction in income, I conclude that the claimant has no reasonable prospect of succeeding in showing that the allegations were because of or related to disability, or whistle-blowing, and they are struck out. Allegations Allegation 5.46 On 20 January, Hattie Priem gave an instruction to the s illness was work related [193]. Allegation 5.48 The Fourth Respondent submitted an occupational health form on 1st February 2023 in relation to the Claimant, despite being Allegation 5.49 The Four the reasons for her absence from work.[124]Ms Musgrave-Cohen submits that these claims arise from an unjustified sense of grievance and the claimant will not be able to establish that she suffered a detriment as a result. Further, it was up to the claimant, having seen the referral form, to discuss with the occupational health expert the potential link between her absence and the situation at work.[125]The claimant argues that the fourth respondent, who had been named on the whistleblowing complaint, should not have been allowed to complete the referral form. The involvement of the fourth respondent allowed her to protect the business in relation to potential personal injury and discrimination claims. The claimant did not see the referral form until long after the meeting had taken place. During the whistleblowing investigation, Ms Colletti told the checked i.e. the box stating that the absence was work-related.[126]Decision - in relation to 5.48, I conclude that whilst the fourth respondent can expect to be questioned at the final hearing as to why she thought it was appropriate to complete the form, given that she had been named in the whistleblowing report, I conclude that the claimant has little reasonable prospects of success in showing that this was because of, or related to disability/whistle-blowing. A deposit order is made in relation to that allegation.[127]In respect of allegations 5.46 and 54.9, I conclude that it should be for the tribunal at the final hearing to conclude why Ms Priem/R4 acted as they did, and I decline to make an order. Allegation 5.52 On 10 February 2023, the Claimant played voice action against the Second Respondent for 3 months. Allegation 5.55 On 01 April 2023 the Fourth Respondent was promoted from Senior Manager to Director despite the outstanding whistleblowing complaint against her. Allegation 5.58 The First Respondent failed to suspend the Second Respondent or the Third Respondent from their roles, stating that any Allegation 5.59 On 5 May 2023, the Third Respondent attempted to cover up the reasons that the Second Respondent was terminated. Allegation 5.60 From 5 May 2022 to date, the First Respondent have failed to take any or any adequate action against the Third and Fourth Respondents.[128]The respondent argues that the timescales were reasonable; and even on case, she was told the respondent would take any required action at the end of the process; and it is for the first respondent to decide how to manage its employees.[129]The claimant maintains that the actions proposed above would have been reasonable actions for the first respondent to take, in order to protect the first respondent.[130]Decision - these allegations appear to go to the question of remedy, rather than being allegations which it is appropriate to proceed with as allegations of discrimination, harassment, victimisation or whistle-blowing detriments. If the claimant succeeds in her claims, these matters may well be relevant to the injury to feelings award. I conclude however that as allegations of discrimination or whistle-blowing detriments etc, they have little reasonable prospects of success and a Deposit Order is made in relation to them. sickness absence Allegation 5.56 On 10 April 2023, the Second Respondent unilaterally deleted the Claimant from both team work WhatsApp groups. Allegation 5.57 On 11 April 2023, the Second Respondent and the she had been removed from the team WhatsApp groups. The Claimant never received a reply from either Respondent. Allegation 5.62 On 15 June 2023, the Claimant was locked out of her laptop and emails by the First Respondent without warning or explanation, despite remaining employed by the Respondent at this time. This has prevented the Claimant from being able to complete and submit her work expenses, and has also prevented the Claimant being able to call upon further evidence as required in response to the Respondents ET3.[131]Ms Musgrave-Cohen submits that this was all in accordance with policy. Further, the claimant was told in a phone call see page 211. And R2 said in an email there would be no problem restoring access once there was a plan in place.[132]Mr Sellwood submits that these are far removed from the other alleged acts of sex discrimination/harassment, and were plainly not a continuing course of conduct.[133]Ms Aly submits there was no written policy in place to say the claimant should be removed. The tribunal needs to hear evidence on this; counsel cannot simply assert this[134]Decision I conclude that the relevant tests are not met and that it is appropriate for these allegations to be considered by a full tribunal having heard all of the evidence, and decline to make the order as requested. Allegations of sex discrimination made against the Second Respondent at an event on 22 July 2022 Allegation 24.2.1 At an internal UK wide company event on 22nd July 2022 the Second Respondent made the following discriminatory remarks to the Claimant: The Second Respondent interrupted the Claimant aggressively and asked 'do you have childcare five da[135]Mr Sellwood asks how an 8 second extract in which R2 asks C if she has childcare 5 days a week, devoid of context, prove sex discrimination?[136]Ms Aly submits that it is clearly arguable that, on the basis of the actions of the second respondent towards the claimant, taken as a whole, and in the context of the allegation that the second respondent asked this question aggressively, this claim is clearly arguable.[137]Decision I conclude that this claim is arguable and needs to be considered in the context of the evidence as a whole. Allegation 24.2.2 At an internal UK wide company event on 22nd July 2022 the Second Respondent made the following discriminatory remarks to the Claimant: During a conversation about the Claimant still breastfeeding. her chest, screwed his face and stated 'who would want to suck on those tits!!' before tilting his head back laughing.[138]Ms Musgrave-Cohen argues that there is no transcript of this conversation and no witnesses. Mr Sellwood similarly says it appears to be strange that there is no transcript of this part of the conversation, when there is in relation to others. Further, the grievance of the claimant makes numerous significant and serious allegations against the second respondent but this allegation is not mentioned.[139]Ms Aly points out comments re breasts were made by R2, that she started to record the conversation. That is why the initial comment is not the subject of a recording.[140]Decision I conclude, in relation to this allegation, that it should be considered by a full tribunal, on the basis of the evidence as a whole. The fact that this was not mentioned in the grievance is likely to be a valid cross examination point, but does not mean this claim has no/little reasonable prospect of success. Allegation 24.2.3 at an internal UK wide company event on 22nd July 2022 the Second Respondent made the following discriminatory remarks to the claimant: During a conversation about the Claimant still breastfeeding, the Second Respondent referred to predominantly female nurs[141]The respondents submit that only one person is mentioned in the transcript, not many as the claimant now says.[142]The Judge noted a contemptible or particularly stupid person . It is not clear how that is linked the sex of the person or to the claimant. Ms Aly countered that most of the nurses and all clinical specialists are female at the first respondent. It is arguable from the context that R2 was about to make a generalised comment about all nurses and clinical specialists. There is a clear link to sex.[143]Decision allegation, I do not consider it reasonable to conclude that the allegation has little reasonable prospect of success and the application is refused. I deal with the question of time limits in relation to this and other allegations below. Victimisation claims[144]Ms Musgrave-Cohen makes the same submissions as above in relation to the claims of victimisation; as well as issue 36.2, which is a repeat of allegation 5.41.[145]Decision I conclude that the conclusions above are equally apposite when considering whether the reason for the treatment alleged was the protected acts relied on. Therefore the orders for strike out/deposit orders apply to the victimisation claims as well. Allegation 36.1 On 5th January 2023 the Fourth Respondent requested the salary balances the Claimant and Ms. Hermes to be paid in relation to their outstanding holiday pay, prior to any decisions on termination being made.[146]Ms Musgrave-Cohen submits that the claimant has no reasonable prospect of success of establishing a causative link between the protected acts and this detriment R4 was simply asking for information so the correct payments can be made.[147]Ms Aly submits that this shows the redundancy process was a sham as the decision has been made to terminate[148]Decision the relevant email is at pages 213 and 214. It simply asks for the outstanding leave/salary balances. I conclude that what the claimant is really complaining about here is the attempt to dismiss her. I do not consider that a separate detriment arises because of an email from the fourth respondent requesting the salary balances for the claimant and her colleague, prior to any decisions on termination being made, which the claimant did not even see at the time. This allegation is therefore struck out. That does not of course prevent the claimant from relying on this email as part of the relevant factual matrix, or making submissions on it in due course at the final hearing, as to how it should be interpreted. Protected disclosures/whistleblowing[149]In relation to PD1 at paragraph 40.1 of the list of issues, Ms MusgraveCohen argues that the claimant will not be able to establish a public interest in a sex discrimination complaint about her colleague Ms Hermes.[150]Decision - it is noted that this will be an argument raised by the respondent. I do not consider that the claimant has no or little reasonable prospect of success in establishing a public interest in that. It is appropriate to leave that issue to the final hearing.[151]The same arguments are raised in relation to issues 5.43 to 5.62 as above, that is that they have no, alternatively little, reasonable prospects of success, such claims also being relied on as whistle-blowing detriments,.[152]Decision for the sake of convenience, the question as to whether or not the whistleblowing detriment claims have no, alternatively little reasonable prospect of success, has been considered above, at the same time as consideration has been given to the applications in respect of the discrimination/victimisation complaints. The same reasoning applies and the same orders have been made. Time limits[153]Ms Musgrave-Cohen submits that the allegations of sex discrimination go back to 22 July 2022; then 18 November 2022; there are then five in December 2022, and four in January 2023. There are then no allegations from 12 January 2023 to when the Acas Early Conciliation process was started, on 5 June 2023.[154]Further, the claimant went through the grievance process without raising a complaint of sex discrimination. To the extent that the claimant seeks to link the complaints of sex discrimination with the complaints of disability discrimination, counsel questions whether such a link can be established.[155]As for the complaints of sexual harassment, they date back to 22 or 23 July 2022 and are out of time by over 8 months.[156]Reliance is also placed on any decision made on strike out/deposit orders. To the extent that any claims after 6 March 2023 have been struck out, all of the claims are potentially out of time. (In the event, I note that has not happened).[157]As for the reasonable adjustments claims, the claimant stopped working on 1 November 2022. No possible adjustments could have been made after that date. Mr Sellwood also supports that submission the reasonable adjustments claim is more than 5 months out of time. It is also submitted that R2 does not have a personal liability for any failure to make reasonable adjustments. [I am not sure that is correct however ss 109 and 110 Equality Act 2010 appear to make on such distinction].[158]In addition, Mr Sellwood submits that for the allegations dating back to 22 July 2022 against R2, the time limit for Acas Early Conciliation was 21 October 2022. It was not commenced until 7 July 2023, for R2 some eight and a half months late. The claimant submitted a lengthy written on 1 November 2022, including complaints against R2, but the claimant did not mention the matters she now raises nor made any complaint of sex discrimination. So the claimant cannot have been waiting for the outcome of that grievance. Further, the claimant submitted a whistle-blowing complaint in January 2023, which again did not mention the allegations of sex discrimination. Finally, R2 ceased working for R1 in June 2023 and so no longer has access to relevant emails and is prejudiced in that regard.[159]Ms Aly counters that the facts that the claimant was able to submit a grievance is not the same as being able to formulate a claim, with legal help.[160]Decision as the case law cited above demonstrates (especially Robinson and Worcestershire), it is open to the tribunal, when considering whether there is a continuing course of conduct for the purposes of proceedings under the Equality Act, to link allegations made in relation to different protected characteristics, or under different legal heads of claim. Further, the discretion of the Employment Tribunal is wide.[161]I remind myself that I am not being asked to decide the time points at this hearing. I am instead being asked to decide whether or not it is reasonable to reasonable to conclude that, in relation to the time points, the claimant has no, alternatively little reasonable prospect of success. In my judgment, given the wide discretion, I do not consider it reasonable to conclude that.[162]Having said that, I consider that the submissions made by Mr Sellwood have some force, and that the arguments in relation to R2 are potentially stronger. Even so, the arguments are not so strong that I am able to conclude that strike out or deposit orders are appropriate at this stage. Summary of strike out/Deposit Orders[163]I conclude that the following seven allegations have no reasonable prospect of success and that they should be struck out allegations 5.1.3, 5.1.11, 5.43, 5.44, 5.45, 5.53 and 36.1.[164]I conclude that the following seventeen allegations have little reasonable prospect of success and Deposit Orders are made in relation to them allegations 5.1.8, 5.1.9, 5.8, 5.9, 5.11, 5.21, 5.28, 5.29, 5.31, 5.33, 5.34, 5.48, 5.52, 5.55, 5.58, 5.59 and 5.60. Deposit Order amounts[165]Information has been provided by the claimant, in the form of a joint statement of means for her and her partner, and a bundle of documents. Representations have been made by both parties, and further information has been provided in relation to their jointly owned property investment business.[166]Were it necessary to do so, I would have requested further information in relation to some of the information regarding outgoings. However, I do not consider that necessary because I note that the reserves in the jointly owned business currently stand at £241,030. I conclude therefore that it is appropriate to make a deposit order of £500 in relation to each of the allegations in respect of which a deposit order has been made. In my judgement, that is at a level that the claimant is still able to afford. I have taken into account the total that would need to be paid, were the claimant to continue with all of those allegations. I have also taken into account that the the claimant goes on to the examination to those allegations at the final hearing. In that not only will deposits be forfeited, but the continued pursuance of those allegations will be automatically found to be unreasonable conduct of the proceedings.
Conclusions
[1]Allegation 2.4 in claim 2 alleges the following: On 5 January 2024 and 25 April 2024, the First Respondent failed to ask the Occupational Health Practitioner whether any reasonable adjustments could be made to assist the Claimant. This is said to be a further act of direct disability discrimination and/or victimisation.[2]In the Judgment dated 4 June 2025 I concluded, regarding this allegation: Claim 2, Allegation 2.4 104. This allegation relates to alleged detriments on 5 January and 25 April 2024. Arguably, there is conduct extending over a period in relation to those two 1 of 4 incidents. I do not therefore consider it appropriate to strike this claim out on time grounds. This hearing was not listed as such to deal with a strike out application on the merits. I do however have some concern about the merits, given that on page 668 in the January 2024 referral, occupational health were asked to advise whether there was anything the respondent could do to assist the claimant back to work. Amongst other things, it is difficult to see how the failure to tick the box about adjustments could amount to a detriment, when that question was specifically asked. It is also noted that in their reply (page 273), OH confirmed that they were unable to make any recommendations at that time since the claimant continued to remain unfit for work. In the April 2024 report, it was confirmed that the claimant would be ‘unfit for the foreseeable future’. In those circumstances, there were no adjustments that could have been made in order to facilitate the claimant’s return to work. Again, it is difficult to see how the claimant could establish a detriment in relation to the 25 April 2024 referral. In the light of these comments, it is open to the parties to make further representations.[3]Following the promulgation of that Judgment, the solicitors acting for the first, third, fourth and fifth respondent applied on 27 June 2025 for that allegation to be struck out. The parties respective arguments[4]The first point made by the respondents in their application is that the current referrals include the following passage, as standard: “Please note that all our clinical reports will include as standard, information about the employee’s current health status, their prognoses for any identified health condition, advice on functional ability and advice on any work restrictions or adaptations including whether these are likely to be short term or long term. If the employee is currently off work, we will also include a likely return to work date and if deemed necessary a specific rehabilitation or return to work plan with clear timeframes’. This is relied on in support of the argument that the claimant has no reasonable prospect of showing that she suffered a detriment as a result of a failure to tick specific boxes.[5]Second, the relevant box had not been ticked in previous OH referrals including those on 1 February and 4 August 2023, but the claimant had not raised a complaint about that. This is despite the claimant breaking two other allegations relating to the OH referral in February 2023. These are (5.46) that the first respondent instructed the fourth respondent to uncheck the first box on the claimant’s occupational health form on 20 January, which asked whether the claimant’s illness was work-related; and (5.49) the respondent failing to mention the claimant’s grievance on the occupational health referral form as forming part of the reasons for her absence from work.[6]Third, it is argued that no adjustments could be made on 5 January 2024 and/or 25 April 2024 as the claimant was not able to return to work. 2 of 4[7]Fourth, in the January 2024 referral, the box regarding adjustments to dates/hours of work was ticked and the first respondent made it clear that the referral was made to: Obtain a more up to date medical assessment and see whether there is anything the business could do to assist [the Claimant] in her return to work.[8]Fifth, in the April 2024 referral, the box regarding adjustments to days and hours of work was once again ticked. The OH clinical report responded to all questions whether ticked or not. The advice remained that the claimant was unfit for her substantive post for the foreseeable future. As such, no adjustments could be made in order to facilitate a return to work. Ticking the relevant box would not have changed these facts.[9]A response was provided by the claimant on 25 September 2024. An updated response was provided on 28 September, together with supporting documents. It was agreed on the claimant’s behalf that the application could be dealt with on the papers.[10]It is argued on behalf of the claimant that the failure to tick boxes raises a clear and continuing failure by the respondent to consider reasonable adjustments, contrary to the provisions of both the Equality Act and the first respondent’s own policy. It is argued that the respondent is attempting to muddy the waters, by conflating advice about ‘any work restrictions or adaptations’ with the duty to understand and make disability-related reasonable adjustments and adjustments to days or hours of work. It argued that the latter two are distinct from the former and from each other. There are thus three distinct questions for the employer to ask Occupational Health to consider.[11]As for the claimant not raising this, it is pointed out that on 7 December 2023, the claimant wrote to Sean Couzens, complaining about the failure to tick several boxes on the referral form. Mr Couzens replied: With regard to the purpose of the assessment, this is to better understand your current condition, prognosis and ability to work and to see what, if any, reasonable adjustments the company can make to help you return to work, and of course it is implicit that it is hoped that this will be a positive contributor to you getting better.[12]As for point 3, it is argued that there may be a duty to make reasonable adjustments, before a return to work. The claimant goes on to develop the argument that, for example, she requested that the respondent pay for her therapy sessions. It is noted that this request was specifically considered and was refused by the respondent[13]In response to point 4, it is again argued that the day/hours box is not the same as the disability related reasonable adjustments box.[14]Finally, in relation to point 5, it is argued that the respondents cannot credibly make that assertion and that by consistently failing to tick the reasonable adjustments question box, the relevant respondents ensured that the OH practitioner was not prompted to consider recommending any reasonable adjustments that could have supported the claimant, including with her recovery, prior to her returning to work. 3 of 4[15]The relevant law in relation to strike out and deposit orders has been set out in previous judgements. The same principles have been applied in this case.[16]The first issue to determine is whether the allegation has no reasonable prospects of success; alternatively little reasonable prospect of success.[17]In relation to the argument that the questions raised by the two boxes are distinct from the question of ‘work restrictions or adaptations’, I consider that whilst there is a potential distinction, it is minor; there is considerable overlap. Further, it is considered to be highly unlikely that an Occupational Health provider would not consider the question of reasonable adjustments, including adjustments to working patterns, whether or not that box was ticked. Further, if there was a realistic prospect of the claimant being able to return to work, for example, if her working pattern was changed or hours reduced, there was nothing to stop the claimant from suggesting that. It was simply not a feasible option a the time due to the claimant’s ill health.[18]The fact is remains, as the Occupational Health reports which followed those referrals confirmed, the claimant was not able to return to work. Indeed, the latter confirms that she was not be able to return to work in the foreseeable future.[19]I do accept the claimant’s argument that reasonable adjustments may include actions to facilitate a return to work and not just reasonable adjustments on return to work itself. However, the only adjustment suggested by the claimant is that the respondent pay for her therapy sessions; something which she asked for, which was specifically considered, and which was refused. The obvious claim for the claimant to make, if she considered that that had been a failure to make a reasonable adjustment, was a reasonable adjustment claim in respect of it. (For the avoidance of doubt, no criticism of the claimant is intended, by suggesting that). Therefore, even if the claimant could prove that Occupational Health had not considered reasonable adjustments, because of a failure to tick the relevant boxes, I conclude that she has no reasonable prospect of showing that she suffered a detriment, in respect of any failure by Occupational Health to recommend that her therapy sessions be paid for. This is because, independently of any such recommendation, that adjustment was considered and refused.[20]Having concluded that the allegation has no reasonable prospects of success, I must consider whether it is appropriate to strike out the allegation, or whether some less draconian step is appropriate, such as a Deposit Order, or Unless Order. The latter is not relevant in relation to this allegation. As for a Deposit Order instead, I do not consider that would be a reasonable alternative. The claimant already has dozens of allegations before the Employment Tribunal, so it makes very little overall difference, if this allegation is struck out. Further, allowing it to proceed risks conflating questions of process relating to a request for reasonable adjustments, with the substantive question as to whether there has been a failure to make any specific adjustments.[21]For these reasons, I concluded that allegation 2.4 in claim 2 should be struck out as both an allegation of direct discrimination, and victimisation.