Ms B Agbobu v Imperial College Healthcare NHS Trust and Reed Specialist Recruitment Ltd: 2203805/2022 and 2204032/2023
EMPLOYMENT TRIBUNALS
Case No 2203805/2022, 2204032/2023
Between
Ms B AgbobuClaimantImperial College Healthcare NHS Trust and Reed Specialist Recruitment LtdRespondent
Before
Employment Judge E BurnsIn person for claimantDate 13 July 2023
JUDGMENT
(1) The following claims that were contained in her original claim form are dismissed upon withdrawal by the Claimant: (a) any claims that she was discriminated against because of her religious beliefs; (b) any claims relating to requests for flexible or part time working; (c) any claims of harassment pursuant to section 26 of the Equality Act 2010; and (d) any claims of victimisation pursuant to section 26 of the Equality Act(2) The following claims are struck out on the grounds they have no reasonable prospect of success: (a) The Claimant’s claim against R2 relating to her pay compared to that of her colleagues which she is pursuing as a direct race discrimination claim. This claim is not struck out against R1; and (b) The Claimant’s claim of unauthorised deductions of wages pursuant to section 13 of the Employment Rights Act 1996 against R1 and R2. Case Number: 2203805/2022 JUDGMENT AT A PUBLIC PRELIMINARY HEARING The judgment of the Tribunal is that:[1]The Tribunal does not reconsider nor set aside the Legal Officer’s judgment dismissing the Claimant’s first claim, number 2203805/2022, on withdrawal;[2]The Tribunal does not have jurisdiction to hear the Claimant’s second claim, number 2204032/2023, because it is barred by cause of action and/ or issue estoppel;[3]Alternatively, applying the rule in Henderson v Henderson, the Claimant should, in her first claim 2203805/2022, have raised all the complaints in relation to acts done during her engagement from between 26 January 2022 and 13 May 2022. Doing so in the second claim, number 2204032/2023, constitutes an abuse of process;[4]In any event, her complaints the second claim, number 2204032/2023 were presented out of time. Time is not extended for them. The Tribunal has no jurisdiction to consider them. 1 ph outcome jment and case mngmnt 1.5.14 version[5]The Claimant’s second claim, number 2204032/2023, is struck out.
REASONS
[1]This Public Preliminary Hearing was listed to consider: 1.1. Whether to strike out the Claimant’s second claim (2204032/2023) as res judicata, under the rule in Henderson v Henderson, or as an abuse of process or otherwise); 1.2. Whether Claim 2 is out of time; 1.3. Whether the judgment dismissing the Claimant’s first claim (2203805/2022) on withdrawal should be reconsidered. 1.4. Whether the Claimant has withdrawn Claim 2 unequivocally. 1.5. Whether the Claimant should be permitted to amend Claim 2:[2]I said that I would decide issues 1.1 – 1.3 first. If the second claim was struck out, issues 1.4 and 1.5 would not arise.[3]There was a bundle of documents and a supplementary Bundle from the Claimant. Page references in these reasons are to pages in those Bundles as appropriate. I read the judgment, deposit order and reasons of EJ Burns in claim 1 regarding strike out and deposit order. I read the Claimant’s application to amend claim 2, at p1 of her supplementary bundle.[4]The Claimant and Respondents all relied on skeleton arguments and all parties made oral submissions. Background First Claim
Background
[5]On 8 June 2022 the Claimant presented a first claim to the London Central ET against both the Respondents, case number (“the first claim”), relating to a period of engagement by the First Respondent as a PPE and Hand Hygiene Helper between 26 January 2022 and 13 May 2022.[6]On 19 November 2022 the Claimant made an amendment application which was 109 pages long. In it, she complained about the termination of her position under the heading “Discrimination and whistleblowing”, p153-4; she complained of being moved hospital and not being given assistance by another team member, p58; she complained of being ridiculed for being on band 3, p66 para 48; she referred to an email to her about feedback needing to be given in a gentle and collaborative manner, p108 – 109; she referred to her request to take a study day at p120 para 111; she complained about her shifts being removed from a rota at p 105, para 90; she said that allegations had been made against her by a number of individuals including that she was aggressive, p157. 2 ph outcome jment and case mngmnt 1.5.14 version[7]At a hearing on 2 -3 March 2023 EJ Burns identified that the Claimant was pursuing complaints of direct race discrimination and protected disclosure detriment in her claim and amendment application.[8]EJ Burns identified the allegations in the race discrimination complaint as follows: 8.1. The Claimant being paid less than other members of her team, despite them all having the same job title, job description and doing the same job; 8.2. The Claimant being treated less favourably than her colleagues because of her race in relation to the level of support she was given: “The specifics of this are that she was required to undertake visits, including to hospitals where she had not previously been place, on her own from her second day of her induction onwards. In contrast her colleagues were able to undertake visits in pairs”; 8.3. Being frequently allocated more onerous duties than her colleagues; 8.4. Being treated passively aggressively when she sought time off for a dentist appointment because of her race; 8.5. Being moved to Charing Cross Hospital to get the Claimant to do Ms Fiz Borg’s work; 8.6. The Claimant’s assignment being terminated.[9]EJ Burns identified the allegations of detriment in the protected disclosure complaint as follows: 9.1. Her line manager Ms Fiz Borg, failed to support her as follows: 9.1.1. When the claimant was trying to arrange a call or meeting with Ms Toko Kadhani, the Lead Nurse for IP & C at Hammersmith Hospital, to discuss various issues that had arisen and wanted her line manager to be involved, her line manager deliberately avoided being available; 9.1.2. Her future bookings on the rota were temporarily removed; 9.1.3. in an email dated 18 March 2022 from her to the Claimant, Ms Fiz Borg was critical of the way the Claimant was delivering feedback; 9.1.4. on 18 March 2022 Ms Fiz Borg announced at the team meeting that she would be doing joint visits with the Claimant the following week; 9.1.5. Ms Fiz Borg’s conduct towards the Claimant after the team meeting on 18 March 2022 had ended. 3 ph outcome jment and case mngmnt 1.5.14 version 9.2. The Claimant being moved to Charing Cross Hospital to get the Claimant to do Ms Fiz Borg’s work; 9.3. The Claimant being stopped from undertaking visits on the Neonatal, Endoscopy and XRay wards; 9.4. The Claimant’s assignment being terminated.[10]At that hearing, the Claimant also sought to pursue a complaint of unlawful deductions from wages in relation to 3 days’ pay from 16 – 18 May 2022.[11]The Claimant confirmed that she was not pursuing other complaints. EJ Burns said that she would issue a strike out judgment in relation to those potential complaints in the first claim form.[12]By an oral judgment given on 3 March 2023, EJ Burns struck out the following claims contained in her first claim form upon withdrawal by the Claimant: 12.1. any claims that she was discriminated against because of her religious beliefs; 12.2. any claims relating to requests for flexible or part time working; 12.3. any claims of harassment pursuant to section 26 of the Equality Act 2010; and 12.4. any claims of victimisation pursuant to section 26 of the Equality Act 2010[13]By an oral judgment made on 3 March 2023 EJ Burns struck out the following claims on the grounds they had no reasonable prospect of success: 13.1. The Claimant’s claim against R2 relating to her pay compared to that of her colleagues which she is pursuing as a direct race discrimination claim. That claim was not struck out against R1; and 13.2. The Claimant’s claim of unauthorised deductions of wages pursuant to section 13 of the Employment Rights Act 1996 against R1 and R2.[14]These judgments were later promulgated on 8 March 2023.[15]EJ Burns also made a deposit order in an oral decision on 3 March 2023 in relation to all the Claimants race discrimination complaints. In her reasons (later sent out in writing) she said, at paragraphs 96 and 97, “96. In relation to the race allegations, I decided not to strike them out because each allegation involved factual disputes. 97.I decided to order deposits for each of them, however, because I considered was unlikely that the Claimant would establish that the reason for her treatment was her race. …”.[16]In her reasons, EJ Burns said, “The Claimant continued to want to pursue two claims against R2, however, as she felt R2 employees may have been involved in what she said happened to her.” (See paragraph 10 of her written reasons). 4 ph outcome jment and case mngmnt 1.5.14 version[17]As EJ Burns then struck out 2 claims against the Second Respondent, I decided that EJ Burns had struck out all claims against the Second Respondent which the Claimant pursued in the first claim.[18]On the evening of 3 March 2023, the Claimant withdrew her claims against both Respondents, p.186. She said, “Dear Judge, I am withdrawing all claims against both the respondents. I confirm both respondents are copied into this email. “[19]On 8 March 2023 a Legal Officer at the Tribunal issued a judgment dismissing the claims upon withdrawal by the Claimant.[20]On 21 March 2023 the Claimant applied for reconsideration under reg.10A Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 of the legal officer’s decision. She said, “I would like to exercise my rights under regulation 10A(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, with regards to the attached judgement. I have recently sent on my complaints (internally) to the respondents and in the unfortunate event we are unable to find a resolution, it may impact Rule 52 (b) Employment Tribunal Rules 2013. Additionally, I wasn't aware of rule 52 (a) Employment Tribunal Rules 2013 when making the application to withdrawal.”[21]The Claimant did not apply to reconsider EJ Burns’ judgment. Second Claim[22]By a second claim form, presented on 27 March 2023, the Claimant brought complaints of race discrimination, victimisation, protected disclosure detriment and unlawful deductions from wages.[23]I decided that her allegations in that claim were set out in the attachment to that claim, under the heading “Complaints” in paragraphs 10 – 14. While a history of documents followed these allegations, I decided that the documents listed were background, or supporting evidence, and did not themselves constitute allegations. This was apparent from the fact that many recorded exchanges regarding administrative matters like arranging a start date, or meetings, or rotas and many documents came from the Claimant herself.[24]Her complaints in paragraphs 10 - 14 all arose during her engagement by the First Respondent, between 26 January 2022 and 13 May 2022, as a PPE and Hand Hygiene Helper.[25]Her allegations of race discrimination were as follows: “i. Ms Patricia Bourke Deputy Manager of the Covid Testing team and PPE/HHTeam, did not want to give me the same pay as other members of my team … ii. Ms. Fiz Borg and Ms. Bourke took the false accusations of staff members within the trust, who were not black, and later terminated my position as a PPE HH Helper. Although my complaints … were verified … , were dismissed. 5 ph outcome jment and case mngmnt 1.5.14 version iii. I was not given the same support as Ms. Sabrino and Ms Barry when visiting new hospitals. Ms, Sabrino and Ms. Barry were both accompanied on each occasion when visiting new hospitals as I am black, I was not given the same privileges. iv. I was deemed as the stereotypical angry black women, solely because I am black …”.[26]She alleged the following whistleblowing detriments: ”i. Ms Fiz Borg makes derogatory remarks about insinuating my demeaner on visits are not gentle manner, remaining collaborative and supportive. ii. New procedures were put in place by Ms. Fiz Borg, when I requested time off for dentist appointments via WhatsApp iii. I asked for time off for a study day and I was made to do more work during the week. Something that has never been required before. iv. Ms Malyar, Ms Fiz Borg and Ms Bourke removing my upcoming shifts”[27]The Claimant brought a claim for unlawful deductions from wages, saying that she had not been paid after 12 May 2022, despite being told she would be paid until 18 May 2022.[28]Her victimisation complaint was, “On the 16/02/2022 I made a complaint to Ms Fiz Borg stating that Ms Matterson had ridiculed me for earning more money than me, even though we are doing the same job. Ms Fiz Borg and Ms Bourke feared I may do a protected act by disclosing the discrimination. Therefore, subjected me to do more work, by replacing Ms Matterson heavy duties with my fewer heavy duties.”[29]On 9 June 2023 the Claimant withdrew the second claim against the Second Respondent, p346. She said, “I would like to withdraw my claims against Reed Specialist Recruitment, the second respondent in this case (R2), as I don't believe the court has any jurisdiction to hear this case.”[30]EJ Stout wrote to the parties on 26 June 2023 saying that she would treat this withdrawal as an equivocal withdrawal. The Claimant’s Position[31]The Claimant told me that, in relation to the first claim, that she withdrew the victimisation claim when she did not understand the law regarding victimisation.[32]She said she had new evidence in relation to the claims she had withdrawn. She said that not all her claims had been particularized by EJ Burns. She said she had new evidence regarding the unlawful deductions from wages claim.[33]The Claimant also told me that she was not aware of the law regarding withdrawing one claim to bring another. She said that the reason she wanted to bring a new claim was to save with costs and to comply with the overriding objective by bringing the claims into one instead of having two different claims.[34]She said she had not been able to plead her first claim adequately because she had only received some disclosure 2 days before the hearing in front of EJ Burns. 6 ph outcome jment and case mngmnt 1.5.14 version[35]The Claimant produced new evidence by way of a job description. She produced a Temporary staffing policy received pursuant to a Freedom of Information Request sent on 8 June 2023 and received on 5 July 2023. The Claimant said he had asked the First Respondent for it on 14 June 2023 – supplementary bundle p94 – 100. She said that she had obtained all of the First Respondent’s policies through a Freedom of Information Request and by looking on its website after the March 2023 Open Preliminary Hearing.[36]The Claimant said she had received an investigation outcome on 26 May 2023, following her complaint on 12 May 2022.[37]She had received an incident report, setting out complaints against her, on 28 February 2023. She said that she had not had the detail of the complaints listed in it against her, much before the hearing before EJ Burns on 2- 3 March 2023, so she could not include them in her first claim.[38]The Claimant also said that she had new evidence regarding her claim for notice pay dated 12 May 2022. In the deposit order EJ Burns had said that the Claimant being told something different verbally would not lead to a change of contract. The Claimant told me that, although she already had relevant emails before EJ Burns’ decision, she only realized their significance after the hearing before EJ Burns.[39]She said that she was not aware of the law in relation to the Second Respondent’s potential liability until she received the letter from Employment Judge Stout on 26 June 2023. She relied on the letter of EJ Stout which said, “… liability under the Equality Act 2010 does not depend on who is her employer. Contract workers are also covered (s 41), as are employment service-providers (s 55). In the circumstances, and given the confusion in relation to the 2022 case as well, for the time being and based on the materials before me, I treat that purported withdrawal as equivocal.”[40]The Claimant acknowledged that all the complaints in paragraphs 10 -14 of the attachment to her second claim had been raised in her first claim. Law Withdrawal and Reconsideration
Law
[41]By Rule 70 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal has the power to reconsider a judgment where it considers it is necessary in the interests of justice to do so.[42]Rules 51 & 52 Employment Tribunals Regulations 2013 provide: “Rule 51 End of claim ‘Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.’ . 7 ph outcome jment and case mngmnt 1.5.14 version Rule 52 Dismissal following withdrawal ‘Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice’.[43]The distinction between withdrawal and dismissal, in rr 51–52, relates to the doctrine of cause of action estoppel. This doctrine applies to a judgment dismissing proceedings on withdrawal, so that the judgment can operate as a bar to any future proceedings being brought in respect of the same subject-matter (Barber v Staffordshire County Council [1996] 2 All ER, CA; Lennon v Birmingham City Council [2001] EWCA Civ 435, [2001] IRLR 826; Kirklees Metropolitan Borough Council v Farrell [2000] ICR 1335, EAT. An attempt to issue another claim arising out of the same subject matter is then liable to be struck out as an abuse of process: see Mills v London Borough of Brent UKEAT/0545/11 (12 February 2013, unreported).[44]In Segor v Goodrich Actuation Systems Ltd UKEAT/0145/11 (10 February 2012, unreported), at para 11, Langstaff J said, 'As a matter of principle we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous'.[45]In Campbell v OCS Group UKEAT/0188/16 (11 April 2017, unreported), Simler J upheld a tribunal's decision to dismiss a claim following withdrawal by the claimant, a litigant in person, on the grounds that the withdrawal was clear, unequivocal and unambiguous, and there was nothing in the circumstances to suggest that the decision to withdraw was ill-considered or irrational, or that either of the exceptions in r 52(a) or (b) might apply. Simler J said that, if there was material available to suggest that the claimant intended to resurrect the claim in fresh proceedings, or that the withdrawal was ill-considered or irrational, or there were grounds for believing that it may not be in the interests of justice to dismiss the claim, then this would afford a proper basis for enquiries to be made before dismissing the claim. Law - Res judicata; Henderson v Henderson[46]In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] 4 All ER 715, the Supreme Court summarised the law relating to res judicata at paragraphs [17]-[19].[47]At [17] Lord Sumption, giving the judgment of the Court, said, “Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. … The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is ‘cause of action estoppel’. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily 8 ph outcome jment and case mngmnt 1.5.14 version described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336, [1928] All ER Rep 120. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. ……. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion binding on the parties: and is Duchess of Kingston’s Case (1776) 20 St Tr 355, [1775–1802] All ER Rep 623. ‘Issue estoppel’ was the expression devised to describe this principle by Higgins J in Hoystead v Taxation Comr (1921) 29 CLR 537 at 561 and adopted by Diplock LJ in Thoday v Thoday [1964] 1 All ER 341 at 352, [1964] P 181 at 197–198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 at 115, [1843–60] All ER Rep 378 at 381–382, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”[48]At paragraph [18], Lord Sumption said, of the Henderson v Henderson principle, “…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”[49]However, it is not the case that, just because a Claimant could have brought claims forward in an earlier claim, the rule in Henderson v Henderson automatically applies to prevent the Claimant from bringing forward these claims later.[50]In Johnson v Gore Wood & Co. [2002] 2 AC 1 (HL) (quoted in Virgin Atlantic v Zodiac at paragraph 24 page 731 e-f) Lord Bingham set out the approach which should be taken” “It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not … 9 ph outcome jment and case mngmnt 1.5.14 version While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.” Decision: Issue Estoppel – Breach of Contract Claim No Reconsideration of First Claim[51]I did not reconsider the legal officer’s judgment dismissing the first claim.[52]I decided that the legal officer’s judgment dismissing the first claim was properly made on the grounds that the withdrawal was clear, unequivocal and unambiguous, and there was nothing in the circumstances to suggest that the decision to withdraw was ill-considered or irrational, or that either of the exceptions in r 52(a) or (b) might apply. The Claimant stated, without reservation “I am withdrawing all claims against both the respondents. I confirm both respondents are copied into this email.”[53]At the time the legal officer made the judgment, there was no material available to suggest that the claimant intended to resurrect the claim in fresh proceedings, or that the withdrawal was ill-considered or irrational, or there were grounds for believing that it may not be in the interests of justice to dismiss the claim.[54]There was no basis for making further enquiries before dismissing the claim.[55]The original judgment was therefore properly made.[56]I did not consider that it was necessary in the interests of justice to reconsider that judgment.[57]The Claimant told me that she had obtained fresh evidence, but I concluded that the absence of that evidence had not prevented her from bringing all her claims in the first claim. For example, the Claimant told me that she had only received an incident report, setting out complaints against her, on 28 February 2023, so that she was unable to include those details in her first claim. However, in her amendment application in the first claim, she had said that allegations had been made against her by a number of individuals including that she was aggressive, p157. She therefore had included this detail in her first claim.[58]The Claimant presented her second claim before she received the investigation outcome in May 2023, so receipt of the investigation outcome cannot have been a reason for presenting the second claim.[59]In any event, in reality, the new evidence, at most, might have improved the claimant’s prospects of success in the first claim. It did not have an effect on her ability to bring a claim at all.[60]Much of that evidence could also have been obtained by the Claimant earlier, had she made a Freedom of Information request earlier. It was not in the interests of 10 ph outcome jment and case mngmnt 1.5.14 version justice to reconsider the judgment because the Claimant had failed to obtain evidence promptly, or because she later took a different view of the merits of her claim, having obtained further evidence.[61]The Claimant told me that she had withdrawn her first claim so that there would not be 2 sets of proceedings if she issued a second claim and that she had not known that the law would prevent her from doing this.[62]However, I considered that the second claim was simply a repleaded version of the first, made after a 2 day Open Preliminary Hearing in which a number of her claims had been struck out and all her race discrimination claims had been made subject to a deposit order. I address the repetition of the first claim in the second claim further below, in my findings on cause of action and issue estoppel.[63]I did not accept that the Claimant had wanted to avoid a multiplicity of proceedings when she withdrew her first claim and later presented her second claim. I considered that the Claimant had presented, in her second claim, what she considered to be a better version of the first claim, having gone through a preliminary hearing which had struck out some of her first claim and required her to pay a deposit as a condition of continuing to advance much of the rest of it.[64]It was not in the interests to justice to set aside the strike out judgment in order for her to have a second attempt at bringing those complaints. That would subvert EJ Burns’ judgments and orders and would duplicate proceedings to the detriment of the Respondents. Second Claim - Cause of Action or Issue Estoppel[65]All claims against the Second Respondent had already been struck out by EJ Burns in her 3 March 2023 oral judgment. The Claimant has not applied to set that judgment aside.[66]The Claimant acknowledged that all her complaints in paragraphs 11 – 14 of the attachment to her second claim had been raised in her first claim.[67]I considered that she had indeed raised all of the complaints, or issues, in her second claim in her first claim. I address each below:[68]Race discrimination allegations in the second claim:[69]“i. Ms Patricia Bourke Deputy Manager of the Covid Testing team and PPE/HHTeam, did not want to give me the same pay as other members of my team …” EJ Burns identified the following race discrimination issue in the first claim: The Claimant being paid less than other members of her team, despite them all having the same job title, job description and doing the same job 70. ii. Ms. Fiz Borg and Ms. Bourke took the false accusations of staff members within the trust, who were not black, and later terminated my position as a PPE HH Helper. Although my complaints … were verified … , were dismissed. 11 ph outcome jment and case mngmnt 1.5.14 version The Claimant said, in her amendment application in the first claim, that allegations had been made against her by a number of individuals including that she was aggressive, p157 71. iii. I was not given the same support as Ms. Sabrino and Ms Barry when visiting new hospitals. Ms, Sabrino and Ms. Barry were both accompanied on each occasion when visiting new hospitals as I am black, I was not given the same privileges.[72]EJ Burns identified that one of the Claimant’s complaints was being treated less favourably than her colleagues because of her race in relation to the level of support she was given: “The specifics of this are that she was required to undertake visits, including to hospitals where she had not previously been place, on her own from her second day of her induction onwards. In contrast her colleagues were able to undertake visits in pairs”; 73. iv. I was deemed as the stereotypical angry black women, solely because I am black …”. The Claimant said, in her amendment application in the first claim, that allegations had been made against her by a number of individuals including that she was aggressive, p157[74]Whistleblowing detriments alleged in the second claim:75. ”i. Ms Fiz Borg makes derogatory remarks about insinuating my demeaner on visits are not gentle manner, remaining collaborative and supportive. One of the whistleblowing detriments in the first claim was : in an email dated 18 March 2022 from her to the Claimant, Ms Fiz Borg was critical of the way the Claimant was delivering feedback;76. ii. New procedures were put in place by Ms. Fiz Borg, when I requested time off for dentist appointments via WhatsApp One of the allegations in the first claim was being treated passively aggressively when she sought time off for a dentist appointment because of her race;77. iii. I asked for time off for a study day and I was made to do more work during the week. Something that has never been required before. In the Claimant’s amendment application in the first claim, she referred to her request to take a study day at p120 para 111; She also alleged, in her race discrimination complaints in the first claim, that she was frequently given more onerous tasks than her colleagues.78. iv. Ms Malyar, Ms Fiz Borg and Ms Bourke removing my upcoming shifts” One of the whistleblowing detriments in the first claim was that the Claimant’s future bookings on the rota were temporarily removed; 12 ph outcome jment and case mngmnt 1.5.14 version[79]The Claimant’s claim for unlawful deductions from wages in the second claim related to a failure to pay her until 18 May 2022. This was the same complaint which had been struck out by EJ Burns in the first claim.[80]Regarding the victimisation complaint in the second claim, any victimisation complaint in the first claim had been struck out by EJ Burns. In the first claim, the Claimant had complained of being ridiculed for being on band 3 in her first claim amendment application, p66 para 48 and she complained that she was given more onerous tasks than others in her first claim.[81]Applying the law to the facts of these claims, I considered that many, if not all, of the causes of action in the second claim are the same causes of action in the first claim. The allegations in in the second claim, were either the same as the allegations in the first claim, or were aspects of the first claim. The facts of the first claim are also the same as the facts on which the Claimant now relies in the second claim. The factual issues are common to both claims.[82]I decided that the dismissal judgments in the first claim therefore gave rise to cause of action estoppel, or issue estoppel, in relation to the Claimant’s second claim.[83]EJ Burns dismissed some complaints in the first claim as having no reasonable prospects of success. All other complaints, made on the facts set out in the first claim, were dismissed on withdrawal, either by EJ Burns, or by the legal officer.[84]Those judgments are binding on the parties and the claims and issues cannot be relitigated in new proceedings. The second claim is therefore struck out. Decision – Henderson v Henderson[85]I considered that, at the time the Claimant submitted her first claim, she knew of the facts which gave rise to the claims in the second claim.[86]The Claimant gave only one example of a matter of which she had not previously been aware: the complaints by colleagues that she was aggressive. However, on the contrary, I decided she had been aware of these complaints because she included them in her first claim amendment application.[87]She did not tell me that she only became aware of other matters later.[88]I decided that she must have known about the facts set out in the second claim when they occurred. She could have brought all these claims in the first proceedings. If there are any matters in the second claim which were not raised in the first claim, the Claimant failed to bring them earlier, despite having been able to.[89]Applying the “broad, merits-based” judgment required in Johnson v Gore Wood & Co. [2002] 2 AC 1 , I considered that the Claimant had had ample opportunity, in her first claim, to bring her complaints. She made a very extensive amendment application in the first claim. If she failed to bring any allegation in relation to her 13 ph outcome jment and case mngmnt 1.5.14 version engagement between 26 January 2022 and 13 May 2022, or to pursue them, there was no good reason, now, for allowing her to advance those claims. I considered that it would be an abuse of the Tribunal process for the Claimant to attempt to litigate those claims when she could easily have done so in the first proceedings. In any event, they were now being pursued long after the 3 month limitation period. It would be unjust to the Respondents to require them to meet a case which the Claimant had failed to advance at an earlier stage, despite knowing the facts which gave rise to them. Claims out of Time[90]In any event, all the complaints in the second claim were brought very much out of time. The Claimant’s engagement ended on 13 May 2022. She did not bring the claims until March 2023, at least 10 months later. That was well outside the 3 month time limit for bringing claims.[91]It was clearly reasonably practicable for the Claimant to have brought the claims earlier – she knew the facts of the claims and she knew of her right to bring claims. She brought other timeous claims to the Tribunal in the first claim.[92]It was not just and equitable to extend time for the discrimination complaints. The Claimant had not suggested any reason why time should be extended.