Mr E Kuteh v South London and Maudsley NHS Foundation Trust and Others: 2305901/2023

EMPLOYMENT TRIBUNALS

Case No 2305901/2023

Between

Mr E KutehClaimant

South London and Maudsley NHS Foundation Trust and OthersRespondent

Before

Employment Judge Leith

In person for claimant

Mr Jones (instructed by Counsel) for respondent

Date 9 June 2025

JUDGMENT

[1]The complaint of Breach of Contract is struck out.

[2]Allegations 14(f)(i) and (ii) and 21(c)(i) and (ii) on the list of issues are dismissed upon withdrawal.

[3]The remaining parts of the Respondent’s strike out application are dismissed.

REASONS

[1]This hearing was listed by Employment Judge Macey to determine:a. Any amendment application from the Claimant;

b. Whether the Tribunal had jurisdiction to consider the complaint of Breach of Contract; and

c. Whether any part of the claim should be struck out on the basis that it had no reasonable prospect of success, or made subject to a deposit order on the basis that it had little reasonable prospect of success.

[2]The Respondent had subsequently made a formal application for:a. The breach of contract complaint to be struck out, on the basis that the Tribunal had no jurisdiction to consider it;

b. Paragraphs 14(e), 14(f)(i) and (ii), 21(c)(i) and (ii), and 21(b) of the list of issues appended to EJ Macey’s CMO be struck out on the basis that they had no reasonable prospect of success;

c. The complaint of victimisation be struck out on the basis that there was no reasonable prospect of the Claimant showing that it was brought in time; and

d. In the alternative, that those parts of the claim be subject to deposit orders on the basis that they had little reasonable prospect of succeeding.

[3]The hearing took place on a hybrid basis; the Claimant attended from the Tribunal in Croydon, and the Employment Judge and Counsel for the Respondent attended remotely via CVP.

[4]I had before me a bundle of 260 pages and a supplementary bundle of 292 pages. The Claimant additionally attended the Tribunal with a paper bundle of documents. Those could not be accessed by either the Respondent or the Tribunal, as the Claimant only had a paper copy. In the event, after discussion it transpired that both the supplementary bundle and the Claimant’s bundle consisted of evidence, which was not relevant to the exercise I had to perform in considering the strike out application.

[5]I heard submissions from the Claimant and from Mr Jones on behalf of the Respondent on both the amendment application and the question of strike out/deposit order. I also heard evidence from the Claimant regarding his financial means. I reserved my decision.

[6]On 19 May 2025, the Claimant sent two emails to the Tribunal marked for my attention. On 27 May 2025, he sent a further email to the Tribunal marked for my attention. All three were copied to the Respondents’ solicitor. Having read, I did not consider that I needed to ask the Respondents to comment upon them.

[7]My separate Case Management Order deals with the amendment application. This judgment deals with the question of strike out and deposit order only. Law

[8]Rule 38 of the Employment Tribunal Rules of Procedure 2013 deals with application to strike out. It provides, insofar as relevant, as follows: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply 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). (2) A claim, response or reply may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[9]Strike out is a draconian step that should be taken only in exceptional cases.

[10]In considering whether a claim has no reasonable prospect of success, the Tribunal must consider whether there is a “more than fanciful” prospect of the claim succeeding (A v B and another [2011] ICR D9).

[11]The Claimant’s case must be taken at its highest. The tribunal must be particularly careful not simply to ask a litigant in person to explain their case while under the stresses of a hearing, but must take reasonable care to read the pleadings and any other key documents (Cox v Adecco and ors

[2021] ICR 1307

[12]The EAT held, in HM Prison Service v. Dolby

[2003] IRLR 694

EAT, at para 15, that the striking out process requires a two-stage test. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. Dolby was decided under a previous version of the Employment Tribunal Rules, but the important part of the wording of the relevant rule was the same, in that it provided that the Tribunal may strike the claim out.

[13]Applications for a deposit order are governed by Rule 40 Employment Tribunal Rules of Procedure 2013, the relevant part of which provides as follows: 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”) (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the depositor must be notified about the potential consequences of the order.”

[14]The purpose of a deposit order is to weed out claims which are unlikely to succeed but do not meet the strike out criteria, and to give a clear warning that costs may be payable if a claim succeeds (Hemdan v Ishmail and anor

2017 ICR 486

). The Tribunal retains a discretion even where the test in rule 39 is met.

[15]In considering whether to strike out or make order a deposit, the Tribunal must bear in mind the overriding objective, in rule 2 of the ET Rules: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.” Breach of contract

[16]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provides that Employment Tribunals have jurisdiction to consider certain complaints of breach of contract. The Tribunal only has jurisdiction where the claim is brought by an employee, and where the claim arises or is outstanding on the termination of the employee’s employment.

[17]Paragraph 7 of the 1994 Order says this: “Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution)Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b).

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”

[18]A Tribunal does not have jurisdiction to consider a complaint of breach of contract which is issued before employment was terminated, even if employment has subsequently terminated – Capek v Lincolnshire CC

[2000] ICR 878

Time limits – Equality Act 2010

[19]The time limit for bringing claims under the Equality Act 2010 is set out in section 123 of the Act: “(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[20]When considering whether there was “conduct extending over a period”, the Tribunal must look at the substance of the complaints in question (Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

). There is no requirement that the conduct must all relate to the same protected characteristic, or be the same type of prohibited conduct (Worcestershire Health and Care NHS Trust v Allen

[2024] EAT 40

[21]When considering the question of whether there was conduct extending over a period at a preliminary hearing, the test to be applied is whether the claimant has a “reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs” (Lyfar). What is required is, in short, a prima facie case.

[22]In deciding whether it is just and equitable to extend time, the Tribunal may have regard by analogy to the factors set out in s.33(3) of the Limitation Act 1980, as set out in British Coal Corporation v Keeble and ors

[1997] IRLR 336

, EAT, although the factors are not to be treated as a checklist. Those factors are:a. the length of, and reasons for, the delay;

b. the extent to which the cogency of the evidence is likely to be affected by the delay;

c. the extent to which the party sued has cooperated with any requests for information;

d. the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and

e. the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.

[23]While the reason for the delay is a potentially relevant factor in deciding whether to extend time, there is no requirement for the Tribunal to be satisfied that there is a good reason for the delay. As the Court of Appeal said in Abertawe Bro Morgannwg ULHB v Morgan

[2018] EWCA Civ 640

: “There is no justification for reading into s.123 a requirement that the tribunal had to be satisfied that there was a good reason for the delay, let alone that time could not be extended absent an explanation from the employee. Any such reason was a relevant matter to which the tribunal could have regard.” Harassment

[24]Harassment is defined in section 26 of the Equality Act 2010 as follows: Harassment (1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[25]The test for whether the treatment had the proscribed effect has both a subjective and an objective element. That is, the Tribunal must consider the subject effect the conduct had on the Claimant, and must also consider whether it was objectively reasonable for the conduct to have had that effect.

[26]When considering whether treatment had the proscribed effect, Tribunals must look at the effect of the incidents in the round. Tribunals must not “cheapen the significance” of the meaning of the words used in the statute (Grant v Land Registry

[2011] ICR 1390

[27]In considering whether conduct is “related to” the relevant protected characteristic, a finding about the motivation of the putative harasser is not the necessary or only possible route to the conclusion that the conduct related to the characteristic in question. However, there must be some feature or features of the factual matrix which leads the Tribunal to the conclusion that the conduct in question is related to the particular characteristic in question (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam & Heads (

UKEAT/0039/19

). Victimisation

[28]Section 27 of the Equality Act 2010 provides as follows: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

[29]The claimant must have done a protected act (or the employer must believe that the claimant has done, or may do, a protected act).

[30]A detriment means being put under a disadvantage. In order to be subjected to a detriment, an employee must reasonably understand that they have been disadvantaged. An unjustified sense of grievance will not constitute a detriment (Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

). It is not, however, necessary to establish any physical or economic consequence (Warburton v Chief Constable of Northamptonshire Police

[2022] ICR 925

[31]The test in terms of causation is “reason why”, rather than “but for”. That requires the Tribunal to consider the alleged victimiser’s reasons (whether conscious or subconscious) for acting as he or she did.

[32]It is not necessary for the protected act to the main motivation for the detriment, as long as it was a significant factor (Pathan v South London Islamic Centre [2014] 5 WLUK 441).

[33]Self-evidently, the reason for the conduct must be that the claimant had made a complaint which was a protected act for the purposes of section 27 of the 2010 Act; not merely that a complaint had been made in general terms. Discussion and conclusion

[34]I deal with the three points in order: Breach of Contract

[35]The claim was presented on 18 October 2023. In section 5.1 of the ET1, in response to the question “Is your employment continuing?”, the Claimant ticked “Yes”.

[36]It is common ground that the Claimant’s employment subsequently terminated in December 2023.

[37]A preliminary hearing took place before EJ Macey on 13 November 2023 [127]. At that preliminary hearing a list of issues was discussed but not finalised. A further preliminary hearing took place on 4 February 2025, also before EJ Macey [159]. At that hearing there was a further discussions regarding the list of issues. EJ Macey appended the list of issues to her Case Management Orders.

[38]The list of issues set out complaints of breach of contract, harassment related to race, harassment related to disability, and victimisation. The complaint of breach of contract consisted of six factual allegations. The claimant had previously applied to amend his claim to add a complaint of constructive unfair dismissal. That application was dismissed by EJ Macey.

[39]EJ Macey signposted the Claimant towards sources of free legal advice. Her CMO said this, regarding the status of the list of issues: “10. The claims and issues as discussed at this preliminary hearing, are listed in the Case Summary below. If you think that the list is incomplete or wrong, you must write to the other side by 18 February 2025. This list may be subject to further amendment if the claimant’s applications to amend are granted in the next hearing.”

[40]The Claimant did not contact the Tribunal to suggest that his claims had been inaccurately captured in the list of issues.

[41]In his submissions regarding the question of strike out, the Claimant referred to “section 127”, which he said was authority for the proposition that the Tribunal had jurisdiction because he had been given notice of dismissal. If that was intended to be a reference to Paragraph 7 of the 1994 Order, then I consider that is not right. Paragraph 7 is entirely clear; a Tribunal only has jurisdiction where the claim is presented within the period of three months beginning with the effective date of termination. That was confirmed by the Employment Appeal Tribunal in the case of Capek.

[42]Section 111(3) of the Employment Rights Act 1996 provides that the Tribunal has jurisdiction in respect of a complaint of unfair dismissal brought after notice of dismissal has been given but before employment has terminated. But this is not a complaint of unfair dismissal, and there is no similar saving provision in the 1994 Order.

[43]The Claimant also referred to various sections of the Equality Act 2010, and to case law regarding the application of the 2010 Act. Those cannot assist him with the complaint of breach of contract. The Tribunal is a creature of statue. It only has jurisdiction where Parliament has given it that jurisdiction. In respect of a complaint of breach of contract, that is limited to the circumstances set out in the 1994 Order.

[44]It follows then that, as the claim was presented before the Claimant’s employment had terminated, the Tribunal has no jurisdiction to consider the complaint of breach of contract. It cannot succeed.

[45]I consider that it is appropriate that I therefore exercise my discretion to strike it out. It would fly in the face of the overriding objective to put the parties to the time and expense of preparing for a final hearing on a complaint which cannot succeed because the Tribunal simply does not have the jurisdiction to consider it.

[46]The complaint of breach of contract is therefore struck out. Second part

[47]When discussing the issues for this hearing at the start of the hearing, the Claimant explained that paragraphs 14(f)(i) and (ii), 21(c)(i) and (ii), were not part of his claim, and he was not pursuing them. I therefore dismiss them upon their withdrawal.

[48]That leaves two allegations within the Respondent’s strike out application – paragraphs 14(e) and 25(b) 14(e) By email on 4 September 2022, the Second Respondent described his allegations against the Claimant as being “individually innocuous”

[49]This is a complaint of harassment related to race. The context of the allegation is that the Second Respondent was the Claimant’s line manager. He had put a various allegations to the Claimant, and had recommended that the Claimant not be allocated student nurses or discharge patients without being supervised. The Claimant’s case is that the issues the Second Respondent took with the Claimant were not well founded. The email of 4 September 2022 came, on the Claimant’s case, after his practice had been restricted by the Second Respondent.

[50]The Respondents’ position is that describing the allegations as “individually innocuous” is not capable, objectively speaking, of having the prescribed effect. When the remark is taken entirely out of context, I can certainly see the force in that. But I consider that the context here is crucial. Taking the Claimant’s case at its highest, as I am required to do, and bearing in mind the context, I do not think it can be said that there is no reasonable prospect of the allegation succeeding. Nor do I consider that it can be properly said that here is little reasonable prospect of it succeeding. In my judgment, this aspect of the case is too nuanced and too context-specific for me to be satisfied that the tests for either strike out or a deposit order are met.

[51]So I will neither strike out nor make a deposit order in respect of this allegation. 21(b) On 21 September 2022 the Third Respondent changed the time for the meeting for that day from 3:00pm to 10:00am.

[52]This is a complaint of victimisation. The Respondent’s position was that the allegation was not capable of constituting a detriment. I am not persuaded that is right. It is, in my judgment, a fact-sensitive allegation. I see no general reason why changing the time of a meeting at short notice should be incapable of constituting a detriment; particularly where it is being moved considerably earlier within the day, as was the case here. Without having heard evidence about the surrounding factual nexus, I cannot say that there is no reasonable prospect of the Tribunal concluding that this constituted a detriment. Nor, for the same reason, am I persuaded that there is little reasonable prospect of the Tribunal reaching that conclusion.

[53]So I will neither strike out nor make a deposit order in respect of this allegation. Third part

[54]In order to deal with the third part of the Respondent’s strike-out application, it is necessary to consider the procedural background.

[55]EJ Macey conducted a preliminary hearing on 13 November 2024. At that hearing she discussed the issues with the parties. At that point, the Claimant’s claim as it was understood to be was all brought outside the primary time limit. EJ Macey then listed further a preliminary hearing in public to take place on 5 March 2025. That preliminary hearing was listed to consider, among other things, whether it would be just and equitable to extend the time limit for presenting the complaints of race-related harassment, disability-related harassment and victimisation. EJ Macey went on to say this within her Case Management Orders: “The Judge will assume at the preliminary hearing that there was conduct over a period ending with the last alleged act of discrimination.”

[56]Following that preliminary hearing, it came to light that the Claimant had submitted a document with his ET1 entitled “Claimant’s Particulars of Claim”, but that that document had not been sent to the Respondent and was not on the Tribunal’s file. Consequently, neither the Respondent nor EJ Macey had been aware of it during the 13 November 2024 preliminary hearing. The Particulars of Claim made it clear that there was an allegation of discrimination which fell within the primary time limit.

[57]EJ Macey conducted a further preliminary hearing on 4 February 2025. At that hearing, the list of issues was largely clarified, subject to an outstanding point regarding amendment. It was at that hearing that EJ Macey listed this hearing. This hearing was not explicitly listed to deal with jurisdiction (save in respect of any points in for which permission to amend was granted).

[58]The Respondent was not asking the Tribunal to determine whether it had jurisdiction. Rather, as part of the strike out application, the Respondent’s position was that the Claimant had no reasonable prospect of showing that his complaint of victimisation was in time. The Respondent’s position was that, in order consider striking out the claim (or alternatively making a deposit order on that basis), I would have to depart from EJ Macey’s Case Management Order of 13 November 2024. The Respondent’s position was that I should do so, as there had been a material change in circumstances.

[59]I am not convinced that I do need to depart from the Case Management Order of 13 November 2024. The relevant part of EJ Macey’s Order related to a different preliminary hearing, listed to consider an entirely different point – namely, the question of whether time ought to be extended (given that the entirety of the discrimination claims appeared at that point to have been brought outside the relevant time limit).

[60]Significantly, that part of the Case Management Order of 13 November 2024 was not repeated in the Case Management Order of 4 February 2025. I conclude that what was said in the Case Management Order of 13 November 2024 does not apply to this hearing, or fetter my discretion in terms of considering whether the complaint of victimisation has no (or little) reasonable prospect of success based on it having been brought outside the relevant time limit.

[61]If I am wrong about that, I would nonetheless have concluded that it was appropriate for me to depart from that part of the Case Management Order of 13 November 2024. There has clearly been a material change in circumstances. The Tribunal and the Respondent were not aware of the contents of the Particulars of Claim at the hearing on 13 November 2024; the Particulars of Claim have now been taken into account. So the circumstances pertaining to the question of jurisdiction are materially different to how they appeared as at 13 November 2024.

[62]The hearing before me was listed to consider whether to strike out the claim or make a deposit order. The Respondent clarified, in its letter of 13 March 2025, the bases on which it sought a strike out or deposit order. That application needs to be heard. I have heard argument on it, in the context of a hearing explicitly listed to consider strike out. It would be wholly artificial (and entirely disproportionate) to put off consideration of that part of the Respondent’s application to another occasion. It is therefore in the interests of justice that I consider that part of the Respondent’s application.

[63]Turning then to the substance of the point, the list of issues captures four allegations of victimisation detriment (one of which had four sub-allegations, although two of them have now been withdrawn). Three of the detriments are said to have occurred on 21 September 2022, the fourth on 28 September 2022. The first three allegations are said to be against the Third and Fourth Respondents.

[64]In respect of the First Respondent, conciliation commenced on 11 August 2023 and concluded on 27 September 2023. In respect of the Second, Third and Fourth Respondents, conciliation commenced on 27 September 2023 and concluded on 29 September 2023. The claim was issued on 13 October 2023.

[65]In respect of all of the allegations of victimisation, early conciliation was not initiated within three months less a day of the alleged detriment. So the Claimant does not benefit from any early conciliation extension. The primary time limit in respect of even the most recent allegation therefore expired on 27 December 2022. The claims are therefore well out of time.

[66]There is one allegation of discrimination on the list of issues which is (arguably) within the primary time limit. That relates to an alleged delay on the part of the First Respondent in responding to the Claimant’s grievance (which was lodged in 22 September 2022, but in respect of which the Claimant did not receive an outcome until 26 September 2023). It is pleaded as an allegation of harassment related to race and disability.

[67]The first point I must consider is whether there is no reasonable prospect of the Claimant showing that the complaint of victimisation is part of a course of conduct extending over a period ending in time – that is, whether it is part of the same course of conduct as the delay in responding to his grievance.

[68]The Claimant’s grievance is one of the protected acts he relies upon for his complaint of victimisation. His complaint of victimisation is therefore, in part, that he was subjected to detrimental treatment because he had raised the grievance. The in-time allegation of harassment is that the resolution of his grievance was delayed. If he is right about both of those things, I consider that it is at least arguable that they formed part of the same course of conduct. On the Claimant’s pleaded case, it seems to me that there is a strong factual connection; both the victimisation complaint and in the in-time allegation of harassment relate to the consequences of his having raised a grievance. And of course, I must take the Claimant’s case at its highest.

[69]It was not suggested to me that I ought to consider striking out the last act of alleged harassment.

[70]I am therefore not satisfied that there is either no, or little, reasonable prospect of the Claimant establishing that the victimisation complaint was in time. So I will neither strike it out nor make a deposit order in respect of it.