Miss P M Namusisi v Chelsea and Westminster Hospital NHS Foundation Trust and Others: 2227184/2024
EMPLOYMENT TRIBUNALS
Case No 2227184/2024
Between
Miss P M NamusisiClaimantChelsea and Westminster Hospital NHS Foundation Trust and OthersRespondent
Before
Tribunal Judge Jack, acting as an Employment JudgeMr G Mukanga (instructed by lay representative) for claimantMr D Patel (instructed by counsel) for respondentDate 8 June 2025
JUDGMENT
[1]The claim is struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.
REASONS
[1]The claimant’s claim was presented on 5 December 2024, and brings complaints regarding events which occurred in 2019. The claim form frankly acknowledges that the claim is out of time, and asks the Tribunal to consider it because of fresh evidence only discovered on 23 September 2024.[2]The respondent applied on 5 February 2025 for strike out of all of the claimant’s complaints. That application stated that strike out was sought on the basis that the claimant was never an employee of the first respondent, and that all of the complaints were presented outside of the relevant statutory time limit.[3]The Notice of Hearing for this preliminary hearing in public stated that an Employment Judge would consider the respondents’ application for strike out.[4]On 22 May 2025 the respondents wrote to say a further argument that they wished to rely on as part of their application for strike out was the claimant’s lack of two years continuous service. The Law Strike Out
The Law
[5]A Tribunal may strike out all or part of a claim on the grounds that it has no reasonable prospect of success: rule 38(1)(a).[6]If a tribunal considers that a complaint has no reasonable prospect of success, it must them decide whether to exercise its discretion to order strike-out: Hasan v Tesco Stores Ltd EAT 0098/16.[7]The Court of Appeal in Mechkarov v Citibank N.A [2016] ICR 1121 set out the approach to be taken in a strike out application in a discrimination case at paragraph 14: “(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[8]The House of Lords has emphasised that “Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”: Anyanwu v South Bank Students Union [2001] 1 W.L.R. 638, Lord Steyn, paragraph 14. That is not to say that strike out is never appropriate: “… I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail”: Anyanwu, Lord Hope, paragraph 39. Deposit Orders[9]Where a Tribunal considers that any specific allegation or argument in a claim has little reasonable prospect of success, it may make an order requiring a party to pay a deposit of no more than £1,000 as a condition of continuing to advance that allegation or argument: rule 40(1).[10]If the question of whether a claim has reasonable grounds of success turns on factual issues that are disputed, it is highly unlikely that a deposit order will be appropriate, just as it is highly unlikely that strike out will be appropriate: Amber v West Yorkshire Fire and Rescue Service, [2024] EAT 146, paragraph 26. Analysis and Conclusions[11]The claimant was a nurse and worked a shift on 8 June 2019. The respondents say that following an investigation, allegations concerning her actions on 8 June 2019 were upheld, and it was concluded that her actions had put a patient at risk and did not provide an adequate level of care. One of the witnesses to those events was Mr O’Hara Green. The investigation report is in the bundle at p. 208 and following.
The Complaints
[12]I spent a substantial amount of time in the hearing clarifying the claimant’s complaints. In clarifying the complaints I relied on the claim form itself, the response to the Grounds of Resistance sent on 6 March 2025 (bundle, p. 67) and the Claimant’s application to amend dated on 3 April 2025 (bundle, p. 150). I clarified the complaints with Mr Mukanga and the claimant herself.[13]The claimant complains of direct race discrimination. She describes herself as “African black British”. She worked her shift on 8 June 2019 with a colleague who was of Nigerian heritage. There was a female health care assistant of Somalian heritage who covered their only 10 minute comfort break. The claimant says that the first respondent’s investigation team did not contact her to get her version of events, despite the claimant and her colleague having said that she had covered their comfort break. This, she says, was less favourable treatment because of her race. She relies on a hypothetical comparator.[14]The claimant complains of direct age discrimination. The claimant and her colleague were both 50 plus. They were the only two people who did not have adequate rest breaks and they were the oldest people on the shift. The other people on the shift did have breaks. The claimant says that she and her colleague did not have breaks because of their age.[15]The claimant complains of unfair dismissal. She says that she was dismissed as result of a lack of fair process, including a failure to properly investigate Mr O’Hara Green’s evidence.[16]The claimant complains of unfair treatment after whistleblowing. The claimant says that she made three disclosures.(1) She told the investigating team in an interview and in her written statement that Mr O’Hara Green had said that he would make sure that she and her colleague lost their registration with the Nursing and Midwifery Council.(2) The claimant told the investigation team in an interview and in a written statement that it had not been correctly recorded in the patient’s medical records that the patient was of amber status. (A patient with amber status is towards the end of their life and family members can come to visit out of ordinary visiting hours.)(3) The claimant told the investigation team in interview that there had been an absence of supervision by the nurse in charge on that particular shift. All of these disclosures were made in June or July 2019. The detriments relied on were that the respondent did not investigate these claims, the claimant was suspended, and the first respondent then stopped using the services of the claimant.[17]The claimant complains of breach of contract, alleging a failure to provide adequate breaks, a failure to conduct and adequate investigation, and a failure to provide a fair appeal process.[18]The claimant complains of wrongful dismissal, on the basis that there was a failure to give notice of the termination of the claimant’s employment. Submissions[19]Mr Patel had provided a skeleton argument and made detailed oral submissions. He argued that the claim should be struck out as having no reasonable prospect of success. The claimant had no reasonable prospect of success establishing that:a. she was an employee of the first respondent;b. she had the two years of continuous service necessary for claiming unfair dismissal;c. her complaints of unfair dismissal, whistleblowing, breach of contract/wrongful dismissal were presented in time, or that it was not reasonably practicable to present them in time, or that they were made in such further period as the tribunal considers reasonable;d. her complaints of discrimination were presented in time or that it was just and equitable for time to be extended.[20]Mr Mukanga also provided written submissions and also made detailed oral submissions. He said that he was seeking an extension of time, particularly on the basis of new evidence that was not previously known. New Evidence[21]One witness to the events relevant to the allegation that her actions on 8 June 2019 had put a patient at risk and did not provide an adequate level of care was called O’Hara Green. His name is clear from the witness statements he gave in proceedings brought before the Nursing and Midwifery Council in relation to the claimant: bundle, p. 104. He told the first respondent that he was a paramedic.[22]The claimant relies on new evidence which she says was only discovered on 23 September 2024. This is an email from the Health and Care Professions Council dated 23 September 2024 which states that, having conducted a search of the HCPC Register, they could not find the name O’Hara Green as a current or former registered paramedic: bundle, p. 19.[23]There is a further email in the bundle from the Health and Care Professions Council dated 1 April 2025 (p. 155). This was in response to the claimant raising concerns about Mr O’Hara Green giving evidence in court and at a Fitness to Practice Tribunal that he was a registered paramedic. The Health and Care Professions Council had completed an investigation, given Mr O’Hara Green information about the titles that the Counsil protects and advice to take steps to prevent further concerns being raised about him.[24]Taken together these documents support the claimant’s view that Mr O’Hara Green’s evidence to the first respondent during the investigation was not truthful in respect of his being a paramedic. Employee status[25]Mr Patel argued that the claimant had no reasonable prospect of success in establishing that she was an employee of the first respondent for the purposes of the complaint of unfair dismissal. He relied on the Staffbank Agreement for Temporary Workers with the claimant which she signed on 18 March 2013 (bundle, p. 168). This states that “There is no obligation on the Staffbank to offer you work once you have registered and you have the right to refuse any work offered to you”. Mr Patel argued that since there was no mutuality of obligation, there was no contract of employment.[26]The difficulty I have with this argument is that the reality of a working relationship does not always correspond to contractual documentation. The Staffbank agreement is clearly important evidence and it may well accurately record the reality of the situation. However the document does not show that the claimant has no, or indeed little, reasonable prospect of success in establishing that she was an employee. Two years’ service[27]Mr Patel argued that even if the claimant was an employee, she had no reasonable prospect of success establishing that she had the two years continuous employment prior to her last shift on 8 June 2019. He relied on the spreadsheet of the claimant’s shifts worked from December 2016 (bundle, page 195) which appears to show a 15 day break in July 2017.[28]One difficulty that I have with this submission is that even if it is assumed that the spreadsheet is an accurate record, a gap of 15 days in shifts worked is not necessarily a period not governed by a contract of employment. Mr Mukanga told me that the claimant’s case is that she had paid annual leave within the period covered by the spreadsheet . Another difficulty is that the qualifying period of employment for the purposes of unfair dismissal ends with the effective date of termination (s. 108 Employment Rights Act 1996 (ERA)), not the last day actually worked.[29]This spreadsheet does not show that the claimant has no, or indeed little, reasonable prospect of success in establishing that she had the two years continuous employment necessary for her complaint of unfair dismissal. Time limits: unfair dismissal, whistleblowing, breach of contract/wrongful dismissal[30]The time limit for each of these claims is within three months (from the effective date of termination, detriment complained of, effective date of the termination of the contract/the last day of work), unless the Tribunal is satisfied that it was not reasonably practicable for the claim to have been brought within that time limit and the claim was brought within such further period as the tribunal considers reasonable: s. 111(2) ERA, s. 48(3) ERA, art. 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[31]The claimant’s last shift was on 8 June 2019. The respondents say that she was sent an outcome letter on 16 August 2019 which stated that her name had been removed from the first respondent’s bank register.[32]Early conciliation took place from 25 November 2024 to 26 November 2024, long after the primary time limit had expired, so that does not ‘stop the clock’.[33]The claim was presented on 5 December 2024. These complaints are plainly out of time, by more than five years.[34]Ignorance of a crucial fact may render it not reasonably practicable to present a claim of unfair dismissal in time. The EAT summarised the relevant principles in Cambridge and Peterborough NHS Foundation Trust v Crouchman [2009] ICR 1306, at [11]. These include the following:a. Ignorance of a fact which is “crucial” or “fundamental” to a claim will in principle be a circumstance rendering it impracticable for a claimant to present that claim;b. A fact will be “crucial” or “fundamental” in the relevant sense if it is such that, when the claimant learns of it, their state of mind genuinely and reasonably changes from one where they do not believe that they have grounds for the claim to one where they believe that they do have grounds;c. Ignorance of the fact in question will not render it “not reasonably practicable” to present the claim unless(a) the ignorance is reasonable and(b) the change of belief in the light of the new knowledge is also reasonable;d. Whether the belatedly-learnt crucial fact is true is not as such relevant: what matters is whether the late-acquired information about it has genuinely and reasonably produced the change of belief.[35]As a result of the new evidence the claimant genuinely and reasonably believes that the part of Mr O’Hara Green’s testimony relating to his being a paramedic was not truthful. But that is very far from showing that it would as a result be reasonable for the claimant to move from a state of mind where she does not believe that she has grounds for the claim to one where she believes that she does have grounds. Firstly, that Mr O’Hara Green’s testimony relating to his being a paramedic was untruthful does not show that all of his testimony was untruthful. Secondly, he was not the only witness to the incident: the other eye-witness witness was Fatima Totanes (respondent 5) who gave a detailed statement about various matters, including the condition in which she found the patient: bundle, p. 228. In my judgment, the claimant has no reasonable prospect of success in establishing that it is reasonable for her to come to believe that she has a viable claim for unfair dismissal on the basis of the information she received on 23 September 2024.[36]The information relating to Mr O’Hara Green is not relevant to her complaints of breach of contract and wrongful dismissal and so could not assist her in successfully establishing that it was not reasonably practicable for her to bring these complaints within the primary three month time limit.[37]In conclusion, the claimant has no reasonable prospect of showing that her complaints of unfair dismissal, whistleblowing, and breach of contract/wrongful dismissal were presented in time, or that the new evidence shows that it was not reasonably practicable to present them in time. Time limits: direct race and age discrimination[38]The time limit for each of these claims is three months starting with the date of the act complained of, or such other period as the tribunal thinks just and equitable: Equality Act 2010, s. 123(1).[39]The tribunal has a wide discretion under s. 123(1). The onus is however on the claimant to establish that it is just and equitable to extend time: Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434. The reason why the claim was late is just one factor. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, at [25].[40]One relevant factor is the very significant delay, of over 5 years. I accept Mr Patel’s submission that that will inevitably prejudice the respondents forensically, as memories will have faded e.g. in respect of breaks on a particular shift in 2019.[41]The reason for the delay is relevant. The stated reason for the delay – that it was only on 23 September 2024 that the claimant became aware that one of the witnesses to the incident on 8 June 2019 was not a paramedic – cannot explain the delay in bringing the discrimination complaints. The discrimination complaints relate to the failure to ask a female health care assistant of Somalian heritage for her version of events, and the failure to provide adequate rest breaks. Neither relate to whether or not Mr O’Hara Green was a paramedic. The claimant has suffered with severe depression and anxiety, for which she received treatment between June 2024 and August 2024. However that could only explain some of the five year delay, not all of it.[42]Mr Mukanga argued that time should be extended as it is in the public interest that investigators do a better job. He said that exceptional circumstances, newly uncovered evidence, and procedural flaws in the original disciplinary process warrant reconsideration. What the claimant seeks is in reality a reconsideration of her actions on 8 June 2019. Her race discrimination complaint alleges racial bias in the investigation. Her age discrimination complaint centres on the exculpatory claim that she and her colleague did not have adequate breaks, due to age discrimination. It is relevant that the claimant has already been independently investigated by the Nursing and Midwifery Council in relation to the same incident, and has been struck off following litigation in the High Court: Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor (Primrose Matovu Namusisi) [2023] EWHC 1230 (Admin).[43]Taking account of the relevant factors, I consider that the claimant has no reasonable prospect of success in showing that it is just and equitable for time to be extended for over five years. Discretion[44]Having concluded that the claim has no reasonable prospect of success, strike out is discretionary rather than automatic. However in the light of my reasoning above, that the claimant has no reasonable prospect of establishing that time should be extended so that these complaints are in time, I see no reason not to strike out the claim. The resources of the tribunal should not be taken up hearing a case that is bound to fail.