Ms E Mensah v The Royal College of Ophthalmologists: 2219115/2024

EMPLOYMENT TRIBUNALS

Case No 2219115/2024

Between

Ms Evelyn MensahClaimant

The Royal College of OphthalmologistsRespondent

Before

Employment Judge Gidney

Richard O’Dair (instructed by Counsel) for respondent

Date 1 April 2025

REASONS

[1]The parties attended Tribunal on 15th November 2024 pursuant to a Notice of Hearing issued by Employment Judge Randall to determine whether the Claimant was an employee, as defined by both the Employment Rights Act and the Equality Act. The parties attended with a hearing bundle consisting of 180 pages, 5 witness statements, applications, submissions and legal authorities. I concluded that 1 day was insufficient time for that hearing to be completed so I relisted a Preliminary Hearing in person, reserved to me, listed for 2 days on 13th & 14th February 2025.

[2]The Claimant relies on her status as an employee of the Respondent in order to confer the statutory jurisdiction to determine her unfair dismissal and automatic unfair dismissal claims (s98 and s103A Employment Rights Act) and her claims under the Equality Act (s39 Equality Act). The Claimant did not assert that she qualified as: 2 of 202.1 a contract worker (ie employed and supplied by another person in furtherance of a contract in which the Principal is a party, within the meaning of s41 Equality Act);

2.2 a personal office holder (ie appointed to discharge a function personally under the direction of another for remuneration, within the meaning of s49 Equality Act);

2.3 a public office holder (an office or post appointment to which is made by a member of the Executive, within the meaning of s50 Equality Act); or,

2.4 any other ‘gateway’ provision within sections 39 to 59 Equality Act.

[3]The hearing on 13th February 2024 was delayed until 12.50pm over confusion between the Tribunal and the Claimant as to whether the hearing was to be conducted in person or by Cloud Video Platform (CVP). The hearing had been listed in person in the Notice of Hearing, but the Tribunal had sent out a CVP link. The Claimant attended day 1 by CVP and day 2 in person.

The Issues

[4]The issues to be determined are:4.1 Was the Claimant an employee of the Respondent within the meaning of s230 Employment Rights Act 1996;

4.2 Was the Claimant an employee of the Respondent within the meaning of s83 Equality Act 2010;

4.3 Whether the Claimant can amend her Particulars of Claim by adding a protected act, namely a speech delivered by her to the Annual Congress of the Royal College of Ophthalmologists on 22nd May 2023, pursuant to s27(2)(d) Equality Act 2010 (making an allegation that a person has contravened the Equality Act); 3 of 20

4.4 Whether the Claimant can amend her Particulars of Claim by adding a Public Interest Disclosure, namely a speech delivered by her to the Annual Congress of the Royal College of Ophthalmologists on 22nd May 2023, pursuant to s43B(1)(b) Employment Rights Act 1996 (failure to comply with a legal obligation);

4.5 Whether the Claimant can amend her Particulars of Claim by adding a claim of automatic unfair dismissal for making a public interest disclosure, pursuant to s103A Employment Rights Act 1996.

4.6 Whether the Claimant can amend her Particulars of Claim by adding a new allegation of unwanted conduct related to race (harassment) and unfavourable treatment because of race (direct discrimination) namely the barring of the Claimant from the Respondent’s Annual Congress of the Royal College of Ophthalmologists in May 2024.

4.7 Any application made by the Respondent for a Deposit Order, providing the application is received by the Claimant by 29th November 2024.

4.8 Case Management of the Final Hearing.

[5]Issues [4.5] and [4.6] above would depend on the outcome on issues [4.1] and [4.2] above and would only need to be determined if the Claimant established the appropriate employment status. This is because:5.1 the proposed amendment at Issue [4.5] (adding a claim of automatic unfair dismissal) requires the individual to be an employee;

5.2 the proposed amendments at Issue [4.6] (adding claims of harassment and direct discrimination) both require employee status or working under a contract personally to do work (s83 EqA).

[6]Without that, those claims would have no reasonable prospect of success and as such an amendment to include them would not be appropriate or in accordance with the overriding objective. 4 of 20

[7]Issue [4.4] (public interest disclosure) can have two principal components, however only one is before this Tribunal. The Claimant claims that her dismissal was automatically unfair for making a PID. For this claim the Claimant must be an employee (s103A ERA). The Claimant has not presented a PID Detriment claim pursuant to s47B ERA. The legal authorities of Gilham v Ministry of Justice v Protect

[2019] UKSC 44

and Clyde & Co LLP v Bates van Winkelhof

[2014] UKSC 32

both establish that workers do qualify for the protection offered by a PID Detriment claim pursuant to s47B ERA. No such PID Detriment claim is before me.

The Evidence

[8]The Tribunal was provided with the following documentary evidence:8.1 Agreed trial bundle (181 pages);

8.2 Email from Ali Rivett to the Claimant dated 26th February 2024 (1 page added at 182);

8.3 Email from Ali Rivett to the Claimant dated 19th January 2024 (1 page added at 183);

8.4 Minutes of meeting into complaints attended by the Claimant on 13th March 2024 (3 pages added at 184 to 186);

8.5 Respondent’s Lead for EDI (Equity, Diversity & Inclusion) Application Pack (4 pages, attached to Mr Rivett’s witness statement);

8.6 Person Specification EDI Lead (2 pages, attached to Mr Rivett’s witness statement);

8.7 EDI Committee Terms of Reference (4 pages, attached to Mr Rivett’s witness statement);

8.8 Claimant’s Declaration of Interest Form dated 7th April 2023 (6 pages, attached to Mr Rivett’s witness statement);

8.9 A supplementary bundle (100 pages);

8.10 Claimant’s complaint against Ali Rivett dated 18th December 2023 (2 pages, added at SB101-102); 5 of 20

8.11 Claimant’s application form for EDI Lead dated 13th April 2023 (12 pages, added at SB102-114);

8.12 Email chain between the Claimant and Octavia Kaita dated 13th February 2023 relating to her contract of employment (5 pages, added at SB115- 119);

8.13 Email chain starting with an email from David Verity dated 13th October 2023 (not added to the bundle);

8.14 Photograph of a book entitled ‘Jews don’t count’ and envelope addressed to the Claimant dated 25th February 2023 (not added to the bundle).

[9]The Tribunal was provided with witness statements from individuals who did attend Tribunal and who gave their evidence under oath:9.1 The Claimant’s witness statement (for the Claimant, 5 pages);

9.2 Mrs Melaine Hingorani’s witness statement (for the Claimant, 2 pages);

9.3 Naomi Bennett’s witness statement (for the Claimant, 3 pages);

9.4 Ben Burton’s witness statement (for the Respondent, 2 pages);

9.5 Ali Rivett’s witness statement (for the Respondent, 5 pages).

[10]The Tribunal was provided with the following written submissions:10.1 Skeleton argument by a lay representative (for the Claimant);

10.2 Skeleton argument for hearing on 15th November 2024 (for the Respondent);

10.3 Original bundle of legal authorities (89 pages);

10.4 Claimant’s skeleton argument for 13th February 2025;

10.5 Respondent’s updated skeleton argument for 13th February 2025;

10.6 Claimant’s rebuttal skeleton argument for 13th February 2025;

10.7 Updated bundle of legal authorities (445 pages). 6 of 20 Disclosure Application and matters arising in the hearing.

[11]This matter was listed as a preliminary hearing to determine the Claimant’s status. It was not the final hearing. The List of Issues set out the principal matters to be determined, namely whether the Claimant was an employee or worker as defined by the appropriate provisions in either the Employment Rights Act or the Equality Act.

[12]The issues relating to the fairness of the Claimant’s treatment by the Respondent, and / or whether such treatment was discriminatory or acts or retaliation were issues for the final hearing.

[13]Prior to the start of the hearing the Respondent had requested that the Claimant provide the Respondent with a copy of the Claimant’s contract of employment with the London North West University Healthcare NHS Trust (LNWH). The Claimant failed to do. At the end of the morning session (prior to lunch on day 1, 13th February) the Tribunal ordered the Claimant to provide a copy of her LNWH contract of employment. At the start of day 2, 14th February, the Claimant’s representative informed the Tribunal that the Claimant had not been able to obtain a copy of her contract of employment, disclosing an email exchange from Octavia Katis of the LNWH to that effect. The LNWH contract was never provided. The Claimant did accept however that she was employed by the LNWH in the role of Consultant Eye Surgeon.

[14]On the morning of day 2, 14th February, the Claimant’s representative sought to introduce new documentation by way of late disclosure, as follows:14.1 The first was an email from LNWH relating to attempts made overnight to forward the Claimant’s contract of employment. No objection was taken to adding this document by the Respondent;

14.2 The second was the Claimant’s application for the Respondent’s EDI role, containing a release commitment from the Chief Medical Officer of the Claimant’s employer, the LNWH, confirming that the LNWH would allow the Claimant sufficient time to carry out her EDI duties if she were 7 of 20 appointed to that role. No objection was taken to adding this document by the Respondent, indeed it was welcomed;

14.3 The third document was a photograph of

(i) a book by the author David Baddiel entitled ‘Jews Don’t Count’ and, next to it

(ii) an envelope addressed to the Claimant, bearing the date 25th May 2023. The Respondent objected to the late disclosure of that photograph.

14.4 The fourth document was an email exchange from October 2013 between various senior members of the Respondent discussing whether to allow the Respondent to post of an emergency Gaza ophthalmic appeal. The Respondent objected to the late disclosure of that email chain.

[15]I gave a short oral judgment on the application for late disclosure, as follows:15.1 The correspondence relating to the Claimant’s attempt to obtain a copy of her contract of employment from her employer, LNWH, was not opposed by the Respondent. I considered a contract of employment with LNWH to be a relevant to the issue of whether the Claimant was employed by the Royal College of Ophthalmologists, and I allowed the email chain evidencing the Claimant’s (albeit very late) attempts to disclosure the contract into evidence;

15.2 The Claimant’s EDI application to the Royal College containing a signed declaration from her employer’s Chief Medical Officer to allow her sufficient time to carry out her EDI duties, if she were appointed, was not opposed by the Respondent. I considered it to be a plainly relevant document and I allowed it to be admitted in evidence.

15.3 The photo of the book and the envelope was said to establish that the book had been posted to the Claimant. The Claimant wished to adduce the photograph to establish that there was inadequate protection offered to her in her EDI role. The Respondent opposed the late production of this photograph on the grounds that it did not go to the question of the Claimant’s employment status with the respondent. I agreed with that submission and refused the Claimant’s late application to allow it into evidence. 8 of 20

15.4 The late production of the Respondent’s email exchange in October 2023 following the inquiry by David Verity, regarding the posting of an emergency Garza appeal on the Respondent’s website, was opposed by the Respondent. The Claimant sought to rely on the exchange to show the different approach to the question of Gaza that was being shown to her than that was being shown to Mr Verity. In other words, this document was relevant to the fairness of the Claimant’s treatment. The Respondent opposed its production on the grounds that the Tribunal was only concerned with establishing the Claimant’s status at this hearing, not the fairness of her treatment. I considered that the document may well be relevant if the case went to a final hearing but it had no relevance for the hearing before me. For those reasons are refused to allow that email exchange into evidence.

[16]The Claimant was very ably represented by Neomi Bennet, BEM, RGN, who also gave evidence on the Claimant’s behalf. I was tasked with determining the Claimant’s status. Ms Bennet’s cross examination of the Respondent’s witnesses was largely concerned with the fairness of the Respondent’s treatment of the Claimant. I did inform Ms Bennet during the course of day 2, that, in light of the list of issues, I would be better assisted by questions that went to the Claimant’s employment status rather than the fairness of Claimant’s treatment. Ms Bennet resisted this suggestion. There was some discussion over the extent to which questions going to the fairness of the Claimant’s treatment would assist the Tribunal determining the question of employment status.

Findings of Fact

[17]I have not recited every fact in this case or sought to resolve every dispute between the parties. I have limited my analysis to the facts that were relevant to the issues that I was tasked to resolve. I made the following findings of fact on the basis of the material before me, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. I resolved such conflicts of evidence as arose on the balance of probabilities, 9 of 20 taking into account my assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts.

[18]The Claimant is a Consultant Ophthalmologist. In January 2011 she commenced employment with the London North West University Healthcare NHS Trust (LNWH). The Claimant has not produced a copy of her contract of employment with the LNWH, despite being asked to do so. However, she accepted in Tribunal that at all material times she was and remains their employee. She is the Clinical Lead for Ophthalmology at LNWH based at the Central Middlesex Hospital. The Claimant is the Co-Lead for the London North West Ophthalmology Clinical Reference Group.

[19]On 7th April 2023 the Respondent produced a job description and person specification for its Equity Diversity and Inclusion (EDI) roll. Under ‘time commitment’ section, the application pack stated, ‘estimated 5-6 days per year for meetings plus additional time for email correspondence and developing documents … amounting to about 1 hour per week’.

[20]On 13th April 2023 the Claimant applied for the position of EDI Lead at the Royal Collage of Ophthalmologists, the Respondent. The Claimant has recently completed training to be the LNWH’s Workforce Race Equality Expert (‘WRES’). The EDI role with the Respondent was a voluntary unpaid role. In order to be able to apply for it, applicants needed to obtain authorisation from their employers that they would be released from their roles for sufficient time to carry out the duties of the EDI roll. The Claimant’s application to the Respondent contained the following statement from Jon Baker, who was her employer’s Chief Medical Officer. It said: ‘[I] confirm that the Trust would support the Applicant in the role of EDI Lead (Trainee) at the Royal College of Ophthalmologists and will allow sufficient time to carry out these duties.’

[21]The Claimant secured the EDI roll with the Respondent and commenced it on 16th May 2023. She worked with the Respondent’s Council, its President, CEO and Honorary Secretary on EDI matters. In her statement the Claimant said: 10 of 20 ‘I was subject to organisational policies and expected to deliver specific outcomes reflecting the mutual obligations characteristic of an employment relationship … It is evident that the college treats EDI positions with formalities and expectations similar to those of employed staff. This supports my assertion that in my role as EDI chair I was not merely that of a volunteer but carried the responsibilities and obligations of an employee. … based on the nature of my duties, the level of control and supervision by the college, mutual obligations and my integration into the organisation, I assert that I was an employee under the relevant legislation’.

[22]Mrs Hingorani gave evidence for the Claimant. She had been employed by the Moorfields Eye Hospital in the role of Consultant Ophthalmologist before her retirement on 18th October 2023. Like the Claimant she had an unpaid volunteer role as the Respondent’s Honorary Secretary. She held the role between 2019 and 2023. Of the Claimant’s role as EDI Lead she said: ‘Although the roll was unpaid and didn't come with a formal contract, it did have a formal job description and the expectations were substantial. … Despite the lack of formal employment terms she was entrusted with duties that were critical to the college and was appointed to join the leadership team of clinicians and staff in taking a key strategic aim forward’.

[23]Ms Bennet gave evidence that she attended a meeting between the Respondent and the Claimant on 13th March 2024 at which the complaints that had been made against the Claimant were discussed.

[24]Ben Burton gave evidence on behalf of the Respondent. He said that whilst the Respondent does have salaried employees on contracts of employment, a large part of the Respondent’s work was carried out by unpaid volunteer senior doctors. The role of EDI Lead was one such roll. Such volunteers remain employed by their NHS Trust and are typically allowed up to 5 days of professional leave to support the Respondent without a deduction in their pay. He confirmed [BB5] that such volunteers receive no salary from the college, no pension, sign no contract, have no legal obligation to fulfil their role or give notice if they resign, or inform the college if they are sick. 11 of 20

[25]Ali Rivett also gave evidence on behalf of the Respondent. He confirmed that the Respondent employs 39 staff but is supported by several hundred volunteers across its committee structures. He contrasted the terms upon which the Respondent engaged its senior doctors that volunteer their time, with their 39 employees. The Respondent offers its employees 25 days annual leave, 12% employer pension contributions, study and season ticket loans and a health cash plan. No similar arrangements exist for the volunteer senior doctors, whose contractual benefits are all derived from their NHS Trust employers. Mr Rivett confirmed [AR15] that the Respondents employees are recognised on a monthly basis with salary and pension contributions paid via payroll alongside tax and National Insurance to HMRC. Employees receive a P60 notification and would receive a P45 in the event that their employment came to an end. The College volunteers receive none of those benefits or notifications as no salaries are paid to them.

[26]The Respondent does not give its volunteer doctors email addresses. During the time that they give to the Respondent they continue to use the email addresses provided by their NHS Trust employers. During the Claimant’s time as the Respondent’s EDI Lead, her LNWH email signature was as follows: Evelyn Mensah, MD, FRCOphth, FGCS, Consultant Eye Surgeon Clinical Lead for Ophthalmology LNWH NHS Trust Co-Lead for NWL Ophthalmology CRG WRES Expert LNWH NHS Trust EDI Chair for the Royal College of Ophthalmologists London North West University Healthcare NHS Trust

[27]On 21st February 2024 the Claimant secured £4,475.00 funding from Roche for the Respondent to hold an EDI symposium [150]. On 22nd May 2023 the Claimant delivered a speech to the Annual Congress of the Royal College of Ophthalmologists [103]. During that speech the Claimant observed that fewer Black and Asian candidates passed the Speciality Exams than White candidates [106] and that systemic racism in the NHS [109]. The Claimant relies on these comments as qualifying protected disclosures and as protected acts. 12 of 20

[28]On 17th November 2023 Mr Rivett contacted the Claimant to say that the College had received complaints in relation to the Claimant’s social media posts on the middle east crisis [SB20] including a complaint received on 14th November 2023 [SB47] that the Claimant’s tweets could be considered antisemitic. Mr Ali’s email contained links to anti-Semitic posts said to have been reposted by the Claimant (denied by her). Examples of the posts were included in my papers, however, it is not necessary to repeat them here. On 4th December 2023 Mr Ali received a complaint from a Jewish Ophthalmologist [SB25] which said, ‘As EDI Lead I would expect her [the Claimant] to be able to represent all minorities and to publicly call out discrimination against any of them rather than just certain kinds of discrimination’.

[29]On 18th December 2023 the Claimant submitted a race complaint against the Respondent’s Chief Executive (Mr Ali) and President [184].

[30]Mr Ali emailed the Claimant on 19th January 2024 [183] and invited her to a meeting to discuss:30.1 Whether promoting demonstrations and/or one side [of the Gaza conflict] is compatible with the Claimant’s role as the Respondent’s EDI Lead;

30.2 Whether some of the Claimant’s social media posts may be interpreted as being anti-Semitic;

30.3 The potential risk to both yourself and the College as a whole.

[31]The Claimant did not engage with Mr Ali in arranging or attending a meeting. On 16th February she notified ACAS of a dispute with the Respondent. On 26th February 2024 the Claimant received a letter from Mr Ali informing her that the Respondent did not believe it was possible for the Claimant to remain in post as its EDI Lead. The letter said [182]: ‘I am writing to let you know the outcome of the complaints which have been raised by members of RCOphth [the Respondent] in relation to your social media activity in relation to the conflict in the middle east. Following an investigation based on the information available to us and informed by legal advice, the conclusion we have reached is to uphold 13 of 20 these complaints. As a result we do not believe it is possible for you to remain in post as EDI Lead.’

[32]The letter made no reference to employment, or dismissal, or notice.

[33]On 13th March 2024 the Claimant attended an investigation hearing into complaints that she had raised against the Respondent’s CEO and President [179] regarding her removal from the EDI Lead role. She is no longer the Respondent’s EDI Lead. She remains employed by the LNWH, as before.

[34]On 29th March 2024 the Claimant received her ACAS Early Conciliation certificate. On 26th April 2024 the Claimant filed her Claim Form against the Respondent, presenting claims of unfair dismissal and race discrimination, harassment related to race, victimisation and breach of contract only. On 12th June 2024 the Respondent filed its ET3 Response Form and Grounds of Resistance. In asserted that the Claimant’s engagement as EDI Lead was a voluntary, unpaid position and did not give rise to a contract of any kind between the Claimant and the Respondent.

[35]The matter was case managed by Employment Judge Randall on 20th August 2024. She prepared a List of Issues (at paragraph 33 of her Order) containing the following claims (noting that some would require an amendment application to proceed):35.1 Automatic unfair dismissal for making a protected disclosure;

35.2 Direct race discrimination;

35.3 Harassment related to race;

35.4 Victimisation following an allegation of race discrimination;

35.5 Breach of Contract.

[36]The Judge granted some additional time for the Claimant to submit an application to amend her Claim Form, ordering her to set out the amendment sought and the grounds for so doing. She listed an Public Preliminary Hearing to determine employment status, pursuant to s230 ERA and s83 EqA. 14 of 20

[37]The Claimant submitted an undated amendment application [SB13]1 to include claims of constructive dismissal, indirect race discrimination and automatic unfair dismissal for making a public interest disclosure. It is of note that the Claimant’s application to add a Public Interest Disclosure claim is limited to that of automatic unfair dismissal (s103A ERA) and does not include a claim for Public Interest Disclosure Detriment (s47B ERA). This is important because a claim under s103A ERA (automatic unfair dismissal) requires the Claimant be an employee, whereas a claim of PID Detriment is open to both employees and workers (s47B ERA). As such, the only PID claim before the Tribunal requires employee status to proceed. On 28th November 2024 the Respondent submitted an application for a deposit order in respect of the Claimant’s Claims.

The Relevant Law

[38]The first step in this process is to identify what employment status the Claimant needs for her various claims, as follows: Claim Status Statute Unfair Dismissal Employee s98(4) ERA Constructive Dismissal Employee s95(1) ERA Automatic Unfair Dismissal (PID) Employee s103A ERA Direct Race Discrimination Employee / Contract s39 EqA Indirect Race Discrimination Employee / Contract s39 EqA Harassment Employee / Contract s39 EqA Victimisation Employee / Contract s39 EqA Breach of Contract Contract s203 ERA

[39]As can be seen from the above, the Claimant has not presented a claim that can proceed by establishing worker status alone. 1 Supplementary Bundle 15 of 20

[40]I have been tasked to determine the Claimant’s status whilst engaged with the Respondent in the role of EDI Lead. The Claimant asserts she was an employee of the Respondent and/or engaged on a contract personally to do work for the Respondent. The Respondent asserts that she was a volunteer, whilst employed by someone else. The starting point is s230 ERA, which states: ‘(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

[41]Also relevant is s83 Equality Act 2010. It states:(1) This section applies for the purposes of this Part.

(2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; …

[42]Section 39 Equality Act 2010 states: 39 Employees and applicants(1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.

(2) An employer (A) must not discriminate against an employee of A's … (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.

(3) An employer (A) must not victimise a person (B)— 16 of 20 (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.

(4) An employer (A) must not victimise an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.

[43]In all cases a contract is required. To be an employee an individual must have entered into or work under a contract of employment, which is defined as a ‘contract of service’. Ready Mixed Concrete v Minister of Pensions

[1968] 2 QB 197

established that such a contract exists if three conditions are fulfilled. Firstly, in consideration of remuneration he will provide his own work and skill in performing some service for the employer. Secondly he agrees to be subject to the employer’s control in a degree to make the employer the master. Thirdly, the other provisions of the contract must be consistent with a contract of service.

[44]In X v Mid Sussex Citizens Advice Bureau & Another

[2012] UKSC 59

the Supreme Court dismissed a claim of disability discrimination that had been presented against the Citizens Advice Bureau on the grounds that the Claimant had been a volunteer and not working under a contract.

[45]The Employment Appeal Tribunal decision in Fire Brigades Union v Embery

[2023] EAT 51

involved a firefighter employed by the London Fire Brigade who was released from his day to day firefighting duties in order to undertake duties for the Union. After speaking at a pro-Brexit rally the Union banned him from holding office for two years. He presented a claim against the Union and the issue arose as to whether he was their employee or employed under a contract. He had remained the London Fire Brigade’s employee throughout. The EAT held that a firefighter on full time release to the union had not been employed by the union. The decision of Patel v Specsavers Optical Group Ltd [2019] UKEAT/02086/18 identified a broad principle that one employee cannot 17 of 20 simultaneously have to employers. In Embery the member was held to be voluntarily undertaking the duties of office. There was no commitment to any particular amount of work and no rights conferred to renumeration.

Conclusions

[46]I now turn to my conclusions on the matters before me.

[47]Was the Claimant an employee of the Respondent within the meaning of s230 Employment Rights Act 1996 and/or was the Claimant an employee of the Respondent within the meaning of s83 Equality Act 2010?

[48]In considering these questions I have made the following findings of fact:48.1 The Claimant commenced employment with the London North West University Healthcare NHS Trust (LNWH). At all material times she was, is and remains, LNWH’s employee;

48.2 On 7th April 2023 the Respondent’s advert for its EDI role stated ‘estimated 5-6 days per year for meetings plus additional time for email correspondence and developing documents … amounting to about 1 hour per week’;

48.3 The EDI role with the Respondent was a voluntary unpaid role;

48.4 In order to be able to apply for it, applicants needed to obtain authorisation from their employers that they would be released from their roles for sufficient time to carry out the duties of the EDI roll;

48.5 The Claimant’s application to the Respondent contained the following statement from Jon Baker, who was her employer’s Chief Medical Officer. It said: ‘[I] confirm that the Trust would support the Applicant in the role of EDI Lead (Trainee) at the Royal College of Ophthalmologists and will allow sufficient time to carry out these duties.’

48.6 Mrs Hingorani had been employed by the Moorfields Eye Hospital in the role of Consultant Ophthalmologist before her retirement on 18th October 18 of 20 2023. Like the Claimant she had an unpaid volunteer role as the Respondent’s Honorary Secretary;

48.7 Mrs Hingorani accepted that the Claimant’s EDI duties did not come with a formal contract;

48.8 The Respondent does have salaried employees on contracts of employment, however a large part of the its work (including the EDI roll) is carried out by unpaid volunteer senior doctors;

48.9 Such volunteers receive no salary from the college, no pension, sign no contract, have no legal obligation to fulfil their role or give notice if they resign, or inform the college if they are sick;

48.10 All volunteer senior doctors’ contractual benefits are all derived from their respective NHS Trust employers;

48.11 On 26th February 2024 the Claimant received a letter from Mr Ali informing her that the Respondent did not believe it was possible for the Claimant to remain in post as its EDI Lead. The letter made no reference to employment, or dismissal, or notice.

[49]Following the guidance provided by X v Mid Sussex Citizens Advice Bureau & Another, Fire Brigades Union v Embery and Patel v Specsavers Optical Group Ltd it is my judgment that at all material times the Claimant was undertook her engagement as the Respondent’s EDI as an unpaid volunteer, remaining, at all times an employee of the LNWH, who had given the Claimant permission to undertake that voluntary work. She never resigned from her employment with the LNWH and continued to be paid by the Trust throughout. She could not be dismissed from the Respondent (automatically or otherwise) as she was never their employee. She had no contract with the Respondent capable of falling within the extended definition of s83 EqA.

[50]In the circumstances all of the Claimant’s existing claims are dismissed and her application to amend her Claims is refused. 19 of 20 RECONSIDERATION JUDGMENT The Respondent’s application dated 23rd April 2025 for reconsideration of the Liability Judgment sent to the parties on 11th April 2025 is refused.

Conclusions

[1]By the Tribunal’s Reserved Judgment sent to the parties on 11th April 2025 (‘the Judgment’) the Tribunal determined: 1.1. The Claimant was not an employee of the Respondent within the meaning of s230 Employment Rights Act 1996. 1.2. The Claimant was not an employee of the Respondent within the meaning of s83 Equality Act 2010. 1 of 5 1.3. Accordingly: 1.3.1. The Claimant’s claim for unfair dismissal is dismissed. 1.3.2. The Claimant’s claim for direct race discrimination is dismissed. 1.3.3. The Claimant application to amend her Claim Form to include a claim of automatic unfair dismissal for making a public interest disclosure within the meaning of s103A Employment Rights Act 1996 is dismissed. 1.3.4. The Claimant’s application to amend her Claim Form to include additional allegations of harassment related to race and direct race discrimination is dismissed. 1.3.5. The Respondent’s application for a deposit order is dismissed.

[2]By an application dated 23rd April 2025 the Respondent applied, in time, for a reconsideration of the Judgment on the grounds that the Tribunal did not address the Respondent’s arguments that: 2.1. Even if the extended definition of worker applied the Claimant could not have been a worker because she was employed by London Northwest University Hospital, relying on United Taxis Ltd v Comolly; 2.2. Whilst the concept of worker could be expanded by reference to Gilham, that case was inapplicable on its facts; 2.3. Even if the Claimant had the required status, permission to amend to include a public interest disclosure claim should be refused because the case was weak; and, 2.4. The Claimant’s public interest disclosure claim has little reasonable prospect of success.

[3]The Tribunal has power to reconsider any judgement where it is necessary and in the interests of justice to do so. Rule 72 of the Employment Tribunals Rules of Procedure sets out the process for reconsideration requests. It states: 2 of 5 72 Process.(1) An Employment Judge shall consider any application made under Rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including unless there are special reasons, where substantially the same application has already been made and refused) the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional view on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1) that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing, the party should be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be made by the Employment Judge who made the original decision. Or, as the case may be, chaired the full Tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or was the case may be, the full Tribunal which made the original decision. Where that is not practicable the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full Tribunal, shall either direct the reconsideration be by such members of the original Tribunal as remain available to reconstitute the Tribunal in whole or in part.

[4]In Trimble v Supertravel Ltd

[1982] IRLR 451

the Employment Appeal Tribunal stated, ‘If the matter has been ventilated and properly argued at the original hearing, then errors of law of that kind fall to be corrected by this Appeal Tribunal’. The EAT emphasised that the reconsideration procedure is there so that where there has been an oversight or some procedural occurrence, such that a party cannot be said to have had a fair opportunity to present their arguments on a point of substance, they can bring the matter back to the Tribunal for adjudication. An application for reconsideration under Rule 70 must include a weighing of the injustice to the Applicant if the reconsideration is refused, and the injustice to the Respondent, if it is granted. 3 of 5

[5]It is also necessary to give weight to the public interest in the finality of litigation: Phipps v Primary Education Services Limited

[2023] EWCA Civ 652

. It is valuable to draw attention to the importance of the finality of litigation and the view that it would be unjust to give the losing party a second bite of the cherry: Newcastle Upon Tyne City Council v Marsden

[2010] ICR 743

[6]The factors to be considered in determining whether it is in the interests of justice to reconsider a decision can still include the specific grounds identified in the 2004 Rules of Procedure, namely(i) whether decision was wrongly made as a result of an administrative error;

(ii) where a party did not receive notice of the proceedings leading to the decision,

(iii) where the decision was made in the absence of a party; and

(iv) when evidence had become available since the conclusion of the hearing which could not have been reasonably known or foreseen at the time.

[7]The Respondent’s reconsideration application appears to proceed on the basis that there was a Public Interest Disclosure detriment claim, for which worker status would have sufficed. No such claim was before the Tribunal. No detriment claim was presented in the Claim Form (in either box8.1 or

8.2 ) and none referred to in the Particulars of Claim.

[8]The Claimant did apply to add a public interest disclosure claim, relying on an alleged disclosure made at the Royal College of Ophthalmologists Congress in May 2023. However, the amendment application sought to introduce an automatic unfair dismissal claim only (for which the Claimant had to be an employee) and not a detriment claim (for which worker status would have sufficed). The relevant part of the amendment application stated: ‘The Claimant seeks to amend her claim to include the May 2023 protected disclosure made at the Royal College of Pathologists Congress in which she openly discussed systematic racism that she believed. Responsible for the under representation of Black doctors in both training and consultant roles. This disclosure, made publicly in front of approximately 300 people, forms part of the claimant’s whistle blowing activities and should be considered as a protected act for the purposes of her claims of victimisation and automatic unfair dismissal.’ 4 of 5

[9]As no claim that had been presented by the Claimant (either in the original Claim Form or the amendment application) that could proceed if worker status had been established, it was not necessary to consider it. The ‘employee’ definition in s230 ERA and the extended ‘employee’ definition in s83 EqA were considered.

[10]It is clear that none of the 2024 specific factors apply or are relied on in this case. In considering the interests of justice generally the Claimant was well represented by Neomi Bennet who had the opportunity to cross examine the Respondent’s witnesses and make final submissions on the Claimant’s behalf.

[11]It is not proportionate or consistent with the overriding objective to consider every ‘if I was wrong about that’ type scenario, particularly when no such claim that required worker status was before the Tribunal. In all of the circumstances it is my judgment that there is no reasonable prospect of the original decision being varied or revoked, because, for the reasons stated above, it would not be in the interests of justice to do so.