G Thambirajah v Chelsea and Westminster Hospital NHS Foundation Trust: 2302579/2024

EMPLOYMENT TRIBUNALS

Case No 2302579/2024

Between

Gabrielle ThambirajahClaimant

Chelsea and Westminster Hospital NHS Foundation TrustRespondent

Before

Judge M Aspinall

Date 3 August 2025

JUDGMENT

[1]The claims of sexual harassment contrary to section 26(2) of the Equality Act 2010, whistleblowing detriment contrary to section 47B of the Employment Rights Act 1996, and victimisation contrary to section 27 of the Equality Act 2010 are struck out pursuant to Rules 38(1)(b), (c), (d) and (e) of the Employment Tribunal Procedure Rules 2024.

[2]The primary ground for strike out is the claimant's egregious and vexatious conduct throughout the proceedings, which has rendered a fair trial impossible.

[3]The claimant has persistently failed to comply with tribunal orders, provided false information to the Tribunal, and failed to provide any evidence to support her serious allegations.

[4]The struck-out claims include both those detriments that were prima facie out of time and the limited number of detriments that the respondent accepted were within the applicable time limits.

[5]The majority of claims were substantially out of time with no application or grounds for extension of time, but this was secondary to the procedural misconduct.

[6]It is not in the interests of justice to allow these proceedings to continue when the claimant's conduct has made fair determination of the serious allegations impossible. APPROVED Judge M Aspinall (sitting as an EMPLOYMENT TRIBUNALS London South Employment Tribunal Claimant: Gabrielle Thambirajah Respondent: Chelsea and Westminster Hospital NHS Foundation Trust Before: Judge M Aspinall (sitting as an Employment Judge) Mr S Townsend Ms A Williams Appearances: The Claimant did not appear and was not represented Ms R Snocken, Counsel for Respondent Judgment The claims of sexual harassment contrary to section 26(2) of the Equality Act 2010, whistleblowing detriment contrary to section 47B of the Employment Rights Act 1996, and victimisation contrary to section 27 of the Equality Act 2010 are struck out pursuant to Rules 38(1)(b), (c), (d) and (e) of the Employment Tribunal Procedure Rules 2024.

REASONS

[1]The Claimant, Ms Gabrielle Thambirajah, was employed by the Respondent, Chelsea and Westminster Hospital NHS Foundation Trust, as a Foundation 2 Doctor on a fixed-term contract from 3 August 2022 until 1 August 2023. Following the expiry of her fixed-term contract, the Claimant commenced a new role as a Junior Clinical Fellow at Chelsea and Westminster Hospital on 26 September 2023.

[2]The employment relationship between the Claimant and Respondent deteriorated following an alleged incident on 1 July 2023, when the Claimant alleges that AB, a registrar, touched her bottom without her consent. This incident is disputed by the Respondent, who denies that any inappropriate touching occurred.

[3]On 27 July 2023, the Claimant informed Ms Lorraine Herbert, a Service Manager employed by the Respondent, about the alleged incident. Following this disclosure, a series of events occurred which form the basis of the Claimant's complaints of whistleblowing detriment and victimisation.

[4]The Claimant submitted her claim to the Employment Tribunal on 28 February 2024, following ACAS Early Conciliation between 20 December 2023 and 31 January 2024. She was initially represented by JMW Solicitors who ceased acting on 13 January 2025, after which she became a litigant in person. COMPLAINTS MADE IN THE CLAIM

[5]The Claimant initially brought her claim against the Chelsea and Westminster Hospital NHS Foundation Trust as the first respondent, and four individual respondents: Lorraine Herbert, AB, Soheil Torabi and Anna Letchworth. However, at a preliminary hearing on 8 May 2025, Employment Judge Rahman ordered that the four individual respondents be removed from the proceedings. The Trust has accepted vicarious liability for the actions of its employees.

[6]The Claimant's ET1 claim form set out three principal complaints. First, the Claimant brought a complaint of sexual harassment under section 26(2) of the Equality Act 2010, alleging that on 1 July 2023, AB touched her bottom without her consent, which she contends was unwanted conduct of a sexual nature that violated her dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her.

[7]Second, the Claimant brought a complaint of whistleblowing detriment under section 47B of the Employment Rights Act 1996, alleging that she made a protected disclosure when she informed Ms Herbert on 27 July 2023 that she had been subjected to sexual assault by AB. The Claimant contends that, as a result of making this disclosure, she was subjected to multiple detriments, including being forced to take compassionate leave, having an occupational health referral made without her consent, being prevented from working bank shifts, receiving a negative reference, and having delayed commencement of her new role.

[8]Third, the Claimant brought a claim of victimisation under section 27 of the Equality Act 2010, alleging that she was subjected to detriments because she had done a protected act, namely informing Ms Herbert about the alleged sexual assault. The alleged detriments for this claim mirror those relied upon for the whistleblowing claim.

[9]At the preliminary hearing on 18 February 2025, the Claimant indicated she wished to add further complaints including wrongful dismissal, ongoing whistleblowing detriment, ongoing victimisation and bullying, sex discrimination, disability discrimination, and unlawful deductions. She also sought to add eight additional respondents. However, at the subsequent preliminary hearing on 8 May 2025, Employment Judge Rahman dismissed the Claimant's application to amend in its entirety. ISSUES FOR DETERMINATION

[10]The issues to be determined by the Tribunal were clarified and agreed at preliminary hearings on 18 February 2025 and 8 May 2025, as follows:

[11]Jurisdiction - Time Limits: Whether any of the complaints are out of time. In respect of her claims, the Claimant contacted ACAS on 20 December 2023 and was issued with an ACAS Early Conciliation certificate on 31 January 2024. An ET1 was submitted to the Tribunal on 28 February 2024. Any allegations or claims relating to matters which occurred before 21 September 2023 are prima facie out of time.

[12]For the claims under the Equality Act 2010: To the extent that any of the complaints are out of time, do they amount to conduct extending over a period which was continuing as at 21 September 2023 under section 123(3)(a) of the Equality Act 2010? If not, would it be just and equitable for the Tribunal to extend time?

[13]For the claims under the Employment Rights Act 1996: To the extent that any of the complaints are out of time, do they form part of a series of similar acts or failures, with the last act or failure being in time under section 48(3)(a) of the Employment Rights Act 1996? If not, was it reasonably practicable for the Claimant to present her claim before 21 September 2023 and, if not, did she present it within such a further period after 21 September 2023 as the Tribunal considers reasonable?

[14]Sexual Harassment: Did AB subject the Claimant to unwanted conduct on 1 July 2023, by touching her bottom without her consent? Was this conduct of a sexual nature? If so, did this conduct have the purpose or effect of violating the Claimant's dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? If so, having regard to the Claimant's perception and the other circumstances of the case, was it reasonable for the conduct to have that effect?

[15]Whistleblowing Detriment: Did the Claimant make a protected disclosure in accordance with section 43B of the Employment Rights Act 1996 when she informed Ms Herbert on 27 July 2023 that she had been subjected to sexual assault by AB? Was this a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996? Did the Claimant have a reasonable belief that the disclosure tended to show a criminal offence and/or that the health or safety of employees and patients was endangered? Did the Claimant reasonably believe the disclosure was in the public interest? Was the disclosure made in accordance with section 43C of the Employment Rights Act 1996?

[16]If so, was the Claimant subjected to detriments on the grounds of having made a protected disclosure? The alleged detriments included: being threatened with suspension and forced to take compassionate leave; being removed from the Respondent's premises; being forced to cancel shifts and prevented from booking additional shifts; having an occupational health referral made without her consent; being prevented from returning to work; being denied a further assessment of her fitness to work; experiencing a delay in starting her new role; receiving a negative reference; being removed from the Respondent's list of doctors; being provided with a report shortly before a meeting and denied the opportunity to respond; and being prevented from booking or working bank shifts.

[17]Victimisation: Did the Claimant do a protected act, or did the Respondent believe that the Claimant had done or might do a protected act, when she informed Ms Herbert about the alleged sexual assault? Did the Claimant suffer the alleged detriments set out above? If so, did the Respondent subject the Claimant to these detriments because she had done a protected act?

[18]Remedy: If any of the Claimant's complaints are upheld, what compensation is appropriate?

THE HEARING

[19]The hearing was listed for four days, from 14 to 17 July 2025, to determine the substantive issues in this case. This was to be the final trial where all issues would be determined on their merits based on the evidence presented by both parties. The case should have been trialready, with all evidence disclosed and witness statements exchanged.

[20]On 11 July 2025 at 14:51, Regional Employment Judge Khalil notified the parties that due to lack of judicial resources, the hearing would proceed via CVP (remote video) rather than in person. This notification was sent to both parties, providing clear instructions not to attend the Tribunal in person, along with the necessary login details and CVP guidance for the remote hearing.

[21]On the morning of the hearing, at 09:57, just three minutes before the scheduled start time of 10:00, the Claimant sent an email to the Tribunal stating that she had only received "three working hours' notice" of the change to a CVP hearing. This claim was demonstrably false - the notification had been sent on 11 July 2025 at 14:51, meaning the Claimant had received approximately 67 hours' notice, not three hours. She claimed this was insufficient time to arrange for her Independent Sexual Violence Advisor to attend remotely, raised concerns about anonymity, and suggested that the format change denied her access to justice. The Claimant requested a postponement.

[22]The Tribunal clerk attempted to contact the Claimant repeatedly by email and telephone but received no response. We commenced the hearing with the Respondent present and represented by counsel, Ms Rosalie Snocken. The Claimant did not attend.

[23]The Respondent indicated that the Claimant had persistently failed to comply with case management orders, making it impossible to proceed with the substantive trial. The Claimant had failed to provide a schedule of loss, disclosure of documents, or a witness statement despite multiple extensions and reminders. Without these fundamental elements, no fair trial of the substantive issues could take place.

[24]We noted that on 10 July 2025, the Respondent had made an application for an unless order requiring the Claimant to provide her witness statement by 4:00pm that day, failing which the claim would be struck out. The Respondent had also made an application to strike out the claim under Rule 38(1) of the Employment Tribunal Procedure Rules 2024 on the grounds of noncompliance with case management orders, failure to actively pursue the claim, unreasonable conduct, and that a fair hearing was no longer possible. THE LAW Rule 38 Strike Out Powers

[25]Rule 38 of the Employment Tribunal Procedure Rules 2024 provides: "38(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds--(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)." Proceedings in Absence

[26]Rule 47 of the Employment Tribunal Procedure Rules 2024 states: "If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence." Legal Principles on Non-Attendance

[27]In Teinaz v London Borough of Wandsworth

[2002] EWCA Civ 1040

, the Court of Appeal established important principles regarding proceedings in absence. The Court held that tribunals should exercise caution before proceeding in the absence of a party, particularly where there are allegations of ill health. However, the Court distinguished between cases where a party is genuinely unable to attend due to medical advice and cases where a party deliberately chooses not to attend. As Peter Gibson LJ stated at paragraph 25: "if a doctor has advised his patient not to attend the hearing and the patient obeys that advice, it is unfair to describe the patient as choosing not to attend... But... if a party chooses deliberately not to attend, then that is clearly most material to the exercise of discretion."

[28]The Court emphasised that tribunals must balance the interests of justice, including ensuring that cases are heard within a reasonable time, and that where consequences of refusal of an adjournment are severe (dismissal of proceedings), tribunals must be particularly careful not to cause injustice. However, tribunals are entitled to be satisfied that inability to attend is genuine, with the onus on the applicant to prove the need for adjournment. The Four-Stage Test for Strike Out under Rule 38

[29]In Bolch v Chipman

[2004] IRLR 140

, the EAT established a four-stage test that must be applied when considering strike out for unreasonable conduct of proceedings:

[30]Stage 1: There must be a conclusion that proceedings have been conducted scandalously, unreasonably or vexatiously. The test is not simply whether a party has behaved unreasonably, but whether the proceedings themselves have been conducted in an objectionable manner.

[31]Stage 2: Assuming such a finding is made, the tribunal must consider whether a fair trial is still possible. This is the critical question save in exceptional cases involving "wilful, deliberate or contumelious disobedience" of court orders.

[32]Stage 3: The tribunal must consider what remedy is appropriate and proportionate to its conclusions.

[33]Stage 4: The tribunal must consider the consequences of any order made.

[34]The EAT emphasised that strike out should not be used simply as punishment, but only where necessary to ensure fair proceedings. As stated at paragraph 21: "It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory." Office Equipment Systems and Procedural Requirements

[35]Office Equipment Systems Ltd v Hughes

[2018] EWCA Civ 1842

confirmed that tribunals are entitled to take into account a party's conduct, including failure to comply with procedural requirements, when exercising case management powers. The Court of Appeal emphasised that procedural requirements exist to ensure fair proceedings for all parties and that systematic non-compliance undermines the legal system. MATERIAL BEFORE US

[36]The material before us consisted of the Tribunal's own digital case file, which contained the ET1 claim form, ET3 response, case management orders, correspondence between the parties, and the Claimant's email of 14 July 2025.

[37]The case file contained case management orders made by Employment Judge Cawthray on 18 February 2025 and Employment Judge Rahman on 8 May 2025. The orders set out clear directions for the preparation of the case for trial, including deadlines for the exchange of documents and witness statements. These case management orders were conspicuously clear and direct in their requirements.

[38]Crucially, the case file revealed a complete absence of evidence from the Claimant. Aside from the bare assertions of alleged acts in her ET1 claim form, the Claimant made no efforts to provide any actual evidence whatsoever. She appears to have simply disregarded entirely her obligation to comply with disclosure. She then made no attempt to provide her witness statement - which would constitute her evidence in chief before the Tribunal - either on time or at all. Consequently, the Tribunal had no evidence before it from the Claimant to substantiate any of her serious allegations made in her pleadings.

[39]The Respondent, by contrast, had properly prepared for trial. They had provided disclosure on 6 June 2025 and 24 June 2025 and had sent password-protected witness statements to the Claimant on 9 July 2025, with the password to be provided upon receipt of the Claimant's witness statement - which never materialised.

[40]The case file included email correspondence showing that the Respondent had repeatedly reminded the Claimant of her obligations to comply with the case management orders and had offered extensions. The Claimant had made minimal response to these communications, making no meaningful attempt to prepare for trial. FINDINGS OF FACT AND APPLICATION OF

THE LAW

[41]Having considered the material available to us from the Tribunal's digital case file, we make the following findings of fact on the balance of probabilities. Complete Failure to Prepare for Trial

[42]This hearing was listed as the final trial of the Claimant's claims. All case preparation should have been completed long before the hearing date. The case management orders were clear and provided ample time for compliance. The Claimant, as a qualified medical doctor, cannot claim lack of understanding of procedural requirements.

[43]Despite this, the Claimant provided no schedule of loss by the deadline of 5 June 2025. She disclosed no documents by the extended deadline of 25 June 2025. Most fundamentally, she provided no witness statement by the deadline of 3 July 2025. Without her witness statement, the Tribunal had no evidence from the Claimant setting out her case or supporting her serious allegations of sexual harassment and subsequent detriment as alleged in her pleadings.

[44]This complete failure to prepare for trial renders it impossible to conduct a fair hearing of the substantive issues. The Respondent cannot properly defend allegations that are not properly particularised and certainly not evidenced. The Tribunal cannot fairly assess the credibility of allegations without a witness statement given under a statement of truth and the opportunity to hear from the person making them under oath or affirmation subject to cross-examination. Deliberate Strategic Non-Attendance

[45]We considered carefully the principles from Teinaz v London Borough of Wandsworth. This case is distinguishable from Teinaz because there was no medical evidence advising the Claimant not to attend. Instead, having failed to secure a postponement from Regional Employment Judge Khalil, we find on the balance of probabilities that the Claimant decided not to attend the hearing with the presumption that she would, via that expedient, achieve the same objective - a postponement. All her behaviours and her last-minute email led us to that conclusion. Her deliberate misleading of the Tribunal about the notice given, her spurious lastminute concerns, and her failure to respond to attempts at contact all support this finding. The Claimant's expectation that non-attendance would secure the postponement she had been unable to obtain through proper channels has proven to be misplaced. Deliberate Misleading of the Tribunal

[46]The Claimant was notified on 11 July 2025 at 14:51 that the hearing would be conducted via CVP rather than in person. In her email of 14 July 2025, she claimed she had only received "three working hours' notice" of this change. This was demonstrably false - she had received three days' notice, representing a vast and egregious misstatement of the actual timeline.

[47]In her postponement application dated 1 July 2025, the Claimant stated that both parties had disagreed with the July hearing dates. This directly contradicted the case management orders of 8 May 2025 which recorded that "the parties agreed it was manageable." These false statements appear designed to mislead the Tribunal about the procedural history and create artificial grounds for postponement. Contradictory and Spurious Objections

[48]The Claimant's email of 14 July 2025 expressed concerns about safety, wellbeing, and lack of anonymity, whilst simultaneously objecting to the video format. This is contradictory - a video hearing would have provided greater physical separation and privacy protection than the originally planned in-person hearing at Croydon. Her objections make no logical sense and appear to be pretextual.

[49]The sudden emergence of concerns about an Independent Sexual Violence Advisor, never previously mentioned in any correspondence or at preliminary hearings, further suggests these were not genuine concerns but attempts to create grounds for postponement. Systematic Disregard of Case Management

[50]The Claimant has systematically disregarded her obligations under the case management orders. Despite being granted extensions and offered support by the Respondent, she made no meaningful attempt to comply with any material direction. This pattern of non-compliance has persisted despite warnings, including Regional Employment Judge Khalil's express warning on 10 July 2025 that failure to comply with orders could lead to strike out. APPLICATION OF THE FOUR-STAGE TEST FROM BOLCH V CHIPMAN

[51]We now apply the four-stage test established in Bolch v Chipman to determine whether strike out is appropriate: Stage 1: Have the proceedings been conducted unreasonably?

[52]We find that the proceedings have been conducted unreasonably by the Claimant within the meaning of Rule 38(1)(b). The evidence demonstrates: a) Systematic disregard of case management orders over many months b) Complete failure to provide any evidence to support serious allegations made in pleadings c) Deliberate provision of false information to the Tribunal about procedural timelines d) Spurious objections designed to frustrate proceedings rather than address genuine concerns e) Strategic non-attendance after failing to secure postponement through proper channels

[53]This goes far beyond mere non-compliance. The pattern of conduct demonstrates a deliberate strategy to frustrate proceedings while making serious allegations that remain entirely unsubstantiated by evidence. Stage 2: Is a fair trial still possible?

[54]This is the critical question. We find that a fair trial is no longer possible for the following reasons: a) Complete absence of evidence: The Claimant has provided no witness statement, no disclosure, and no schedule of loss. The Tribunal has no evidence whatsoever to determine the credibility of serious allegations of sexual harassment and institutional cover-up made in the pleadings. b) Inability to test the case: The Respondent has no properly particularised case in evidence to meet and no opportunity to cross-examine the Claimant on her allegations. The fundamental requirements of a fair trial are entirely absent. c) Systematic misconduct: The Claimant's conduct in deliberately misleading the Tribunal and pursuing spurious applications demonstrates that she cannot be relied upon to engage with proceedings in good faith. Her conduct has been calculated to frustrate rather than advance proceedings. d) No meaningful engagement: Despite multiple opportunities and extensions, the Claimant has demonstrated that she has no intention of pursuing her claims properly or reasonably. Her conduct pattern shows abandonment of her case in all but name.

[55]Unlike in Bolch v Chipman, where the respondent was present and able to participate despite concerns about his conduct, here the Claimant has rendered participation impossible through her own deliberate choices. Stage 3: What remedy is appropriate and proportionate?

[56]Strike out under multiple grounds of Rule 38(1) is the only appropriate remedy. Lesser remedies would be inadequate because: a) The Claimant has already been given multiple extensions and warnings b) Her conduct demonstrates fundamental unwillingness to engage with proceedings c) The serious nature of unsubstantiated allegations made in pleadings requires either proper pursuit with evidence or dismissal d) Continued indulgence would waste further public resources and cause ongoing distress to those accused without evidence Stage 4: What are the consequences of strike out?

[57]We have considered that strike out will end the Claimant's claims without determination on the merits. However: a) The Claimant has been given every opportunity to pursue her claims properly with evidence b) Her conduct has rendered fair determination impossible c) Those accused are also entitled to resolution rather than potentially indefinite limbo d) Public resources must be allocated fairly to cases where parties engage properly APPLICATION OF RULE 38(1) GROUNDS Rule 38(1)(b) - Unreasonable conduct of proceedings

[58]As established through the analysis above, the proceedings have been conducted unreasonably, and a fair trial is no longer possible. Rule 38(1)(c) - Non-compliance with orders

[59]The Claimant has demonstrably failed to comply with fundamental case management orders regarding disclosure, witness statements, and schedule of loss. These are not minor technical breaches but wholesale disregard of all requirements for trial preparation. Rule 38(1)(d) - Failure to actively pursue

[60]The Claimant's complete failure to provide any evidence to support her serious allegations made in pleadings demonstrates abandonment of her claims. As confirmed in Office Equipment Systems Ltd v Hughes, systematic failure to comply with procedural requirements evidences failure to actively pursue proceedings. Rule 38(1)(e) - Fair hearing no longer possible

[61]For the reasons detailed in our analysis, we find that the Claimant's conduct has rendered a fair hearing impossible. The complete absence of evidence, systematic misconduct, and strategic non-attendance mean that the fundamental requirements of fair proceedings cannot be met. CONSIDERATION OF TIME LIMITS

[62]Even if procedural misconduct alone did not justify strike out, the claims face insuperable time limit difficulties. The sexual harassment allegedly occurred on 1 July 2023, and most alleged detriments occurred in July and August 2023. With an ET1 presented on 28 February 2024, most claims are substantially out of time.

[63]The Claimant has made no application for extension of time and provided no explanation for the delay that would justify such an extension under either the reasonably practicable test or the just and equitable test. Her conduct in these proceedings would weigh heavily against any exercise of discretion to extend time.

CONCLUSION

[64]This case represents a paradigm example of proceedings that must be struck out to preserve the integrity of the judicial system. The Claimant has made serious allegations of sexual harassment and institutional cover-up in her pleadings while refusing to provide any evidence to support those allegations despite multiple opportunities and extensions.

[65]Her conduct has been calculated to frustrate proceedings rather than pursue claims. She has deliberately misled the Tribunal, raised spurious objections, and strategically absented herself when proper applications failed. This conduct is not merely non-compliant but represents a fundamental abuse of process.

[66]The principles established in authorities require us to consider whether a fair trial remains possible. It does not. The complete absence of evidence, combined with systematic misconduct, means that neither the Tribunal can fairly determine the issues, nor can the Respondent properly defend serious allegations.

[67]We emphasise that this decision does not reflect on the underlying merits of any allegations made in the pleadings. Strike out is necessary because the Claimant's conduct has rendered fair determination impossible. Those who make serious allegations must support them with evidence and engage with proceedings in good faith.

[68]The interests of justice require that tribunal resources be allocated to cases where parties engage properly with the process. To allow these proceedings to continue would reward misconduct, waste public resources, and cause continued distress to those accused while providing no prospect of fair resolution.

[69]For all these reasons, applying established legal principles, we conclude that the claims must be struck out under Rules 38(1)(b), (c), (d) and (e) of the Employment Tribunal Procedure Rules 2024. APPROVED Judge M Aspinall (sitting as an