Dr M Anatolyeva v St Helens and Knowsley Teaching Hospitals NHS Trust and NHS England: 2401163/2023 and 2403404/2023

EMPLOYMENT TRIBUNALS

Case No 2401163/2023, 2403404/2023

Between

Dr Maryna AnatolyevaClaimant

(1) St Helens and Knowsley Teaching Hospitals NHS Trust (2) NHS EnglandRespondent

Before

Employment Judge Holmes

In person for claimant

Ms L Gould (instructed by Counsel) for respondent

Date 25 September 2025

JUDGMENT

[1]The claimant’s application for permission to adduce further evidence, and for a postponement to obtain and serve further medical evidence is refused.

[2]The claimant was not at the material times a person with a disability. NOTICE OF HEARING

[3]There will be a further public preliminary hearing on 17 May 2024 , at 10.00 a.m. listed for one day, at Manchester Employment Tribunal , Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA in person , to determine :

[1]Whether any or all of the claimant’s claims should be struck out and/or the claimant should be ordered to pay a deposit as a condition of continuing with any of the claims; and

[2]To give further case management directions and identify the issues to be determined; and

[3]Whether the final hearing should be postponed. 1 of 16

REASONS

[1]The Tribunal convened to hear a number of preliminary issues, and applications, the first of which was whether the claimant was at the material time a person with a disability.

[2]The Tribunal heard evidence from the claimant , and was hearing her closing submissions, when she indicated that she may wish to adduce further medical evidence in the form of an autism assessment (which she has not yet had) and , possibly, a further witness statement from herself.

[3]To the extent that this was an application to postpone the hearing , and adduce further, as yet unavailable, evidence , Ms Gould for the respondents objected to it, given that it was a very late application, and the claimant had previously been advised at a previous preliminary hearing of what evidence she needed to adduce, and this very issue had been discussed.

[4]The claimant , however, considered that she had been misled by a statement in the medical report that she had relied upon to the effect that her condition was “covered by the Equality Act 2010”, a statement that the Employment Judge considered was ambiguous and potentially went too far, as the determination of whether a condition which is not a prescribed disability such as cancer or HIV, amounts to a disability is a matter for the Tribunal.

[5]As the hearing was drawing to a close and could not be concluded, the Employment Judge reserved judgment. He did so until 7 November 2023, during which period if the claimant wished to obtain and adduce further medical evidence, and possibly seek to make and admit a further witness statement , she could do so. The respondents would be entitled to make objections, and the Employment Judge would then consider whether to admit the new evidence, and make any consequential orders necessary. Further developments after the postponement.

[6]Following the hearing the claimant wrote to the Tribunal, duly copying the respondent as required. There appear to be two occasions upon which she did so. The first was on 16 October 2023, when she sent an email to which was attached a further statement, dated 13 October 2023 from the claimant herself. There then was a further email of 20 October 2023, to which the claimant attached more evidence , in the form a screen shot from a mobile phone, and other documents.

[7]By email of 23 October 2023 the respondent responded to the claimant’s recent communications , objecting to the admission of any new evidence, and inviting the Tribunal to determine the issue of disability upon the evidence that it already has. Discussion and ruling upon the claimant’s applications.

[8]By her email to the Tribunal of 16 October 2023 the claimant simply attached her further statement, for the attention of the Employment Judge. 2 of 16

[9]In this statement the claimant says that she has have familiarised herself with a Diagnostic and Statistical Manual, fifth edition (DSM-5) , we she says is the most common test for ASD assessment. The DSM-5 now includes a condition called 'social communication disorder', separate to 'autism spectrum disorder'. This diagnosis would be given where someone exhibits social interaction and social communication difficulties but does not show restricted, repetitive patterns of behaviour, interests or activities.

[10]The respondent makes the valid point that the claimant now seeks to introduce a new condition, which she relies upon as her disability.

[11]The claimant goes on to inform the Tribunal that ASD assessments take 8+ weeks to get a report, and the results may be inconclusive. She asked the Tribunal to let her know if it would be helpful for her case to go ahead with this assessment. It is not for the Tribunal to take decisions for parties. The Tribunal has no better idea of whether such a report would “help her case” than the claimant does. The claimant was given the opportunity, at the 11th hour of the hearing, to seek a further report, she has apparently not done so, notwithstanding that she could probably have one by now if she had actioned this quickly. If she has not taken that opportunity, she must accept the consequences.

[12]In terms of the further witness statement, the Employment Judge agrees that this does indeed seek to introduce a new condition as the relevant disability. In terms of the other matters set out in the statement, the claimant has not explained why these matters were not in her previous statement. The case management orders made by EJ Howard on 10 July 2023 were very clear, and specified precisely what needed to be in the claimant’s witness statement for disability. She has not explained why these further matters were not.

[13]A further consideration is that , if this further statement is to be admitted, the claimant will have to be re-called to be cross – examined upon it, in a further, oral, hearing. The final hearing listed for 5 days commencing on 3 June 2024. If a further hearing on disability is required, given that further case management is required, particularly the List of Issues being outstanding, there is a risk that this date will be jeopardised. Re-listing a five day hearing is likely to take it well into 2025, if not beyond it.

[14]It is appreciated that to deny the claimant’s applications may weaken her case on disability. That is unfortunate, but must be set in context. The claimant brings claims other than disability discrimination claims, so failure on the issue of disability would not mean that she cannot proceed with her claims. She has claims of unfair dismissal, and age and race discrimination, all of which are proceeding. This is highly relevant to the proportionality of whether to grant the claimant’s applications. 15.The Employment Judge , for all these reasons, accordingly refuses the claimant permission to adduce further witness evidence on the issue of disability, and her application for a further postponement to adduce any further medical evidence. The Tribunal will determine this issue on the material before the Tribunal in the hearing. The Employment Judge apologises for the delay in the promulgation of this reserved judgment, occasioned initially by the non – referral to him of the claimant’s further 3 of 16 materials, and the respondent’s response thereto, and then subsequently by pressure of judicial business. The disability issue: the evidence before the Tribunal:

[16]Turning to the issue of disability then, the Tribunal had before it a bundle, containing 726 pages . The claimant gave evidence. She confirmed her witness statement dated 12 August 2023, and was cross – examined upon it by Ms Gould. The Tribunal finds the following facts relevant to the issue of disability:16.1 The claimant is a consultant anaesthetist . She lived in Belarus for 27 years before moving to the UK.

16.2 She was having difficulties when she started working in NHS in 2009, as sometimes she did not , as she puts it, meet multiple expectations. In 2012 she started Core Anaesthetic training. After that her College Tutor at that time said to her that he thought she had a communication problem. She sought medical help in ED on weekend, she spoke to a psychiatric nurse and she gave her SSRI to cope with stress (due to what she considered backstabbing at work). She was on these tablets for about 8 months. She did not , however, have depression, it was a response to what she described as covert mistreatments at work.

16.3 The claimant commenced her ST3 training in London in February 2017. In August 2018, she relocated to train in the North West. On 1 October 2018 her employment transferred to the respondent.

16.4 Between August 2018 and February 2019, the claimant undertook a placement at Salford Royal Hospital, part of the Northern Care Alliance NHS Foundation Trust. Between February 2019 and August 2019, she then undertook a placement Wythenshawe Hospital, part of Manchester University NHS Foundation Trust.

16.5 Between August 2019 and October 2020, the claimant undertook a placement at Royal Bolton Hospital, part of Bolton NHS Foundation Trust. 16.5 Between November 2020 and February 2021, the claimant returned to Wythenshawe Hospital. Between February 2021 and May 2021, the Claimant was placed at Salford Royal Hospital, part of the Northern Care Alliance NHS Foundation Trust.

16.6 Between May 2021 and August 2021, the claimant undertook a placement at Royal Preston Hospital, part of Lancashire Teaching Hospitals NHS Foundation Trust. The Claimant remained at Royal Preston Hospital until February 2022.

16.7 In early 2022, a further Outcome 3 was awarded, with six months of additional training time. The claimant undertook this additional training time between February 2022 and November 2022, at Royal Blackburn Hospital, part of East Lancashire Hospitals NHS Trust.

16.8 During her time in North West she found it harder to cope in tertiary ICU environment, as she found that this environment does depersonalise even 4 of 16 experienced doctors. She had particular issues at handover time. She felt like her every word was being scrutinised and then criticised.

16.9 In April 2021 , the former Head of School, said to her that someone had called her “Autistic”. It was the first time in her life that she was actually described in this way.

16.10 She considered that her personality was being criticised and not accepted, and that , in order to make a case for her dismissal viable, her anonymous assessors in ELHT/Salford criticised her for every minor single trivial thing , unfairly, which would have gone unnoticed in other, “normal”, trainee doctors.

16.11 The claimant also said “The rest is already known to the ET”. It is unclear what she means by that , but in terms of what her medical condition is, and whether it amounts to a disability, what is known to the Tribunal is solely that which is in her impact statement, her oral evidence to the Tribunal, and the documentary evidence before the Tribunal.

16.12 In addition to her impact statement the claimant sent an email to the Tribunal and the respondent on 11 September 2023 (page 378 of the bundle) in which she says this: “This is how it affects me, I am being religiously criticised and my career is being jeopardised, I am having unfair treatment at work for being different and having different thoughts processes and perceptions. That does not mean that I cannot hoover or cook or drive, etc. There are invisible disabilities and I am qualifying for Access to Work help, they already replied and offered help, as soon I am employed again (I am not wanted as employee). constant criticism and stalking at work did not help my wellbeing and mental health, especially in anonymous feedbacks (excessive and numerous), and reports behind my back to college tutors, on their requests(the reasons were ridiculous and minor). The allegations were unfair, with distortion and twisting of facts. My sleep was suffering badly for one year (time in Salford and Preston), after I made an appeal to O3, in January-22, my sleep had become marginally better. I submitted earlier the witness statement from family friend, how badly the situation at work affected me in my free time. My child also suffered from my stress. That means, mobbing out of employment for about 2 years did give me a lot of mental strain, I was angry and upset. This is how my day to day life was affected.”

16.13 In terms of medical evidence, this has not been collated well in the bundle. Taking the medical evidence chronologically, the first is a letter, produced , it is assumed by the claimant , from Dr. Virginia Paul – Ebhohimhem dated 20 May 2014 (page 142 of the bundle), which refers to the claimant reporting a few months of a stress related disorder in May 2014. Whilst work related stressors were identified, there were also non – work related ones. The resolution of the former , however, was 5 of 16 stated to hopefully lead to an improvement in her condition. It was recorded that she had no past history of psychological disorder.

16.14 The next medical evidence in time is an Occupational Health report, from the time when the claimant was working in Inverness, from Dr Katherine Targett, dated 29 May 2015 (pages 271 to 272 of the bundle). That records the claimant as having confidence issues, following an unsuccessful application for a training course. It says very little about her condition, its prognosis or its effects upon her ability to carry out day to day activities.

16.15 In June 2021 the claimant was referred to Health Work and Wellbeing, for a telephone consultation following a referral from management. The report is at pages 143 to 145 of the bundle. The claimant at that time was reporting that she did not have problems at work, and had moved to a new host on 16 May 2021. The possibility of a neurodiversity assessment was discussed, the claimant seemingly wanting to prove to her employer that she did not have autism, or any other learning disorder or disability. In general, this assessment found no features in the claimant’s presentation which suggested she had any form of condition which required management.

16.16 In anonymised feedback from colleagues (pages 147 to 151 of the bundle) there are references to the claimant’s communication skills, and this is discussed. Reference is made to her communication being poor, but there is also discussion as to whether this may because of her nationality, in terms of her accent, or her “thinking in Russian”.

16.17 The Training Assessment dated 25 July 2021 (pages 152 to 154 of the bundle) resulted in the claimant getting an outcome at level 3 : “Inadequate progress by the trainee – additional training time required.” In the detailed reasons section (page 153 of the bundle) it was noted that the claimant needed to develop “leadership, teamwork and communication skills” in the next 6 months. In the Explanatory notes (page 154 of the bundle) this is recorded: “Trainee struggles with non technical skills e.g. Communication and Leadership for level of training. Time can now be spent on working on improving these skills to enable progression.” 16.16 The claimant was next assessed by Health, Work and Wellbeing on 16 September 2022, in a telephone consultation. The ensuing report is at pages 727 to 729 of the bundle. In it the unidentified assessor reports that the claimant was stating that she was managing at work, and could work nights , if not scrutinised. He opined that there was no underlying medical condition affecting the claimant’s work. She was awaiting an assessment for neurodiversity. 16.17 The claimant duly underwent that assessment, and has produced a Confidential Diagnostic and Cognitive Assessment Report from Carly Butler, a psychologist, dated 18 December 2022. It is in two parts. The first, some 8 pages is at pages 176 to 183 of the bundle, and the second, a full account of the various tests carried out for the Report s at pages 283 to 322 of the bundle. This is a very comprehensive document. Its conclusions (page 285 of the bundle) are : “The assessment concluded that Maryna has a neurodivergent cognitive profile. Furthermore, based on Maryna’s self-report and personal history, there is evidence of 6 of 16 underlying autistic characteristics which warrant further formal assessment, should Maryna consent to this. Without adequate aware or adjustments, Maryna’s neurodivergence is likely to have a substantial, long-term impact on her performance in the workplace.”

16.18 More specifically (at page 287 of the bundle) : “Maryna’s profile can lead to some tasks being more difficult for her than they would be for someone who is not neurodivergent. The following are examples. Finding change more stressful than her peers – Maryna may require additional time and support to adjust to new environments, people and ‘rules’. Verbal communication with colleagues – particularly with people she is less familiar with; Working at speed with visually complex information – Maryna demonstrates a preference for working methodically and accurately, which is advantageous given her clinical role. Completing reading tasks in English at speed; this is understandable given that English is not Maryna’s first language.”

16.19 Later in the report (page 289 of the bundle) Ms Butler says this, under the heading “Access to Work”: “Neurodivergent conditions are covered under the Equality Act of 2010. Maryna would therefore likely be entitled to support under the government's Access to Work programme. Access to Work is a scheme that helps people with a range of disabilities/difficulties in the workplace. It can provide funding or part funding towards adjustments, including physical equipment and coaching……”

16.20 Later in the Report, this appears (page 290 of the bundle), under the heading “Disclaimer”: “Please note that the above recommendations and suggested strategies are examples of good practice and cannot be construed as reasonable adjustments if they are not part of a workplace needs assessment. Involvement with a professional body/consultant cannot automatically be construed as ‘reasonable adjustment’ and does not constitute legal advice about any duty to make reasonable adjustment within the meaning of the Equality Act 2010. This report is not intended for use in legal proceedings. If any of these recommendations are unclear, or if you want to discuss this further, please do not hesitate to contact me directly.”

16.21 In the ensuing details of the assessment, the following is recorded (pages 293 to 294 of the bundle): 7 of 16 “Maryna stated that her current areas of difficulty are: Social communication Dealing with change: Maryna thought that she found the process of rotating and adjusting to a new environment, new people, and new rules more stressful than her peers. Eye contact: Maryna reported that her colleagues have commented on how Maryna does not maintain eye contact during conversation. Maryna told me that when she consciously tries to maintain eye contact, she feels like she is “staring”. Maryna added that she thought that maintaining eye contact during conversation was a British social norm. Growing up with her family in Belarus, this was not something she was taught was important. Understanding ‘British social norms’ and adjusting communication style: Maryna explained that she has found it challenging to adjust her communication style to ‘fit in’ with the expectations of the British culture. This can include being overtly “friendly” and “making small talk”. When Maryna communicates in this way, she feels as though it is “an act” and it takes a lot of energy from her. As this way of communicating is effortful for Maryna, she finds it difficult to sustain this communication style, particularly when she is already stressed or under pressure. Sensitivity to criticism and others’ tone: Maryna acknowledged that she can often perceives (sic) others as aggressive and overly critical, particularly when she does not know the person well. Managing emotions: Maryna can feel overwhelmed when she feels criticised by others, and can find it hard to manage her emotions within this context. Planning and organisation Multitasking; Maryna reported that she has had some anonymous feedback from her colleagues that multitasking is a relative area of need. Maryna, however, holds a different view and reported that she is able to manage the various demands of her work, training and raising her daughter as a single parent. Leaving tasks until the last minute; for tasks which are not important or of interest to Maryna, she reported a tendency to leave these until the last moment. Memory and attention Maryna reported difficulty remembering appointments (due to the volume of these) for herself and her daughter. Maryna will write appointments down in a diary/calendar to support her memory with this.”

16.22 In terms of autism, the Report concluded that it was not possible to provide a definitive view on whether the claimant’s condition was one of autism, and further tests were advised if this was to be explored. 8 of 16

16.23 There followed , dated 27 September 2022, a Multiple Trainers’ Report (“MTR”) which is at pages 155 to 166 of the bundle. This was completed by 12 participants, who are not identified. They were evenly split as to whether the claimant was making satisfactory progress for her stage of training. Amongst the comments made were: The claimant could be a bit abrupt or rude in her communication , which could be interpreted as being rude; Communication with colleagues had not developed much and she needed to be clearer when communicating with Consultants, although there was no concern over her communication with patients, whilst another participant did note that patients did not always understand what she was saying, compounded if she was wearing a mask; The claimant did not handover and communicate succinctly; The claimant found the subtilties of non – verbal communication frustrating; No problems with communication skills in theatre were encountered; The claimant at times appeared to lack confidence; The claimant was improving her communication skills , but there remained issues when working with the wider team; The claimant could appear slow to react to changing scenarios, and was less confident in emergency situations;

16.24 The claimant herself accepted that she found certain social interactions difficult. In particular she did not find it easy to engage in “smalltalk”, and could not understand the British fascination with the weather. She believes this may be cultural, as when she was growing up in Belarus people did not chat about such a topic.

[17]Those, then , are the relevant facts as found by the Tribunal. The Employment Judge would remark that parts of the bundle were not very clear, and were not , in fact referred to. Pages 168 to 175 , for instance, are redacted and undated comments about the claimant from colleagues. They appear to relate to her time at Salford, where she was taken off night shifts. There is not much that turns upon them, save to note again the theme of difficulties with communications, and speculation as to whether this may be cultural and/or because of the claimant’s accent. The Submissions.

[18]For the respondent , Ms Gould submitted that the claimant had not satisfied the test under s.6 of the Equality Act 2010. The claimant has the burden of proving that she has a disability, and the Tribunal had in the previous preliminary hearing told the claimant what she needed to do to prepare her case on disability.

[19]The claimant had, and this was not to be critical of her, conflated the effects of the respondent’s alleged treatment of her with the impact of her impairment. There was a lack of clarity too as to the extent to which certain aspects of her symptoms 9 of 16 were due to any mental impairment or were because of her race, her social upbringing, and/or her strong accent.

[20]There are different types of neurodiversity, one could not just attach that label here, caution was necessary. The instances that the claimant had referred to of being criticised were not necessarily accepted by her as being the result of her neurodiversity. She had differences of opinion, and difficult interactions with colleagues at work. Such matters might be day to day activities, but these are very high ranking colleagues in a particular medical environment. The claimant has not identified any other day to day activities which are affected by her condition. Her witness statement was largely a rehearsal of events that had occurred, and was not what had been directed by the previous Employment Judge.

[21]The claimant has given no evidence herself of how her communication is affected by her disability. Her condition is on a scale, which can vary from there being no disability within the meaning of the Act to there being a very obvious one. Ms Gould questioned whether the claimant would even have pursued this type of claim had it not been for the reference in the Report to the Equality Act 2010. That may have led the claimant to believe that she has such a disability now, but did she at the time to which the claims relate?

[22]The claimant in her statement (page 378 of the bundle) had made reference to Access to Work. She has not produced any evidence of any assessment by that organisation.

[23]Whilst the claimant had disclosed the letter at page 142 of the bundle, that was in 2014, and relates to a stress related disorder, which is nit the condition that she is relying upon in these proceedings.

[24]The documents at pages 147 to 151 of the bundle were anonymised feedback from colleagues. The claimant disagreed with some of this feedback, where it is negative. This evidence, she submitted, did not help the claimant establish her disability.

[25]The Training Assessment at pages 152 to 154 did not establish any link between her communication skills and her condition. Further, the entry on page 154 refers to the claimant improving these skills, which is not the same thing as saying that she lacked them.

[26]Ms Gould addressed the Report that the claimant relies upon. She urged great caution in the Tribunal’s approach to it. On page 180 of the bundle the Report refers to the claimant finding change more difficult, but there is no linkage to the reasons for this being linked to the condition. The third “arrow” point – working at speed - is unclear and reveals only a preference, not a problem. Reading at speed, the fourth point is explained by the claimant having English as her second language, and is not linked to her condition.

[27]In terms of social interaction, smalltalk and talking about the weather, she submitted that the Report did not revel very much, and these matters were as likely to be cultural as the symptoms of the condition. In fact, the claimant disagrees with some of the conclusions, for example that she had planning or organisational issues. Many 10 of 16 of the scores that the claimant achieved do not assist her – those for cognitive abilities, page 287 of the bundle, for example. The graph summarising cognitive ability on page 303 is not helpful, it is unclear what it means. The other entries in the Report at pages 306 and 307 do not assist the claimant , and other difficulties encountered have a cultural or language – related factor.

[28]The report of Health Work and Wellbeing of September 2022 suggested there were no medical issues.

[29]In short, the claimant has failed to discharge the burden of proving that her condition amounts to a disability. The claimant’s submissions.

[30]The claimant , not being a lawyer, and being unrepresented, did not make structured submissions. In essence, she relied upon the her impact statement, the documents in the bundle and the Report of Ms. Butler. The latter was, understandably, a major part of her case. She contended that her neurodiversity did satisfy the definition of disability under the Equality Act 2010. It affected her communications, her response to rapid changes and interaction with her colleagues.

[31]The claimant’s submissions, however, were overtaken by her application, referred to above, for permission to adduce further medical evidence, discussed above.

[32]The claimant, however, had, the Employment Judge considered, said what she wanted to say in support of her case on disability. To the extent that she may not have done so, however, the Employment Judge has considered any other points that she could have made when determining the issue of disability. Discussion and findings.

[33]The starting point, of course, is the definition of disability in s.6 of the Equality Act 2010, which is in these terms: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[34]In addition, the Tribunal has considered the Guidance on Matters to be taken into account in determining questions relating to the definition of disability (2011), issued by the Secretary of State.

[35]In particular, the following provisions apply to the definition of impairment: Meaning of 'impairment' A3. 11 of 16 The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person's ability to carry out normal day-to-day activities. An exception to this is a person with severe disfigurement (see paragraph B24). It is not possible to provide an exhaustive list of conditions that qualify as impairments for the purposes of the Act. Any attempt to do so would inevitably become out of date as medical knowledge advanced. A5. A disability can arise from a wide range of impairments which can be:• sensory impairments, such as those affecting sight or hearing;

• impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;

• progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia;

• auto-immune conditions such as systemic lupus erythematosis (SLE);

• organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease;

• developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia;

• learning disabilities;

• mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post traumatic stress disorder, and some self-harming behaviour;

• mental illnesses, such as depression and schizophrenia;

• produced by injury to the body, including to the brain. A6. 12 of 16 It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.

[36]Section D relates to normal day – to – day activities. Sections D2 to D6 are of particular relevance: Meaning of 'normal day-to-day activities' D2. The Act does not define what is to be regarded as a 'normal day-to-day activity'. It is not possible to provide an exhaustive list of day-to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, D4. The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning.

[37]The Employment Judge has considered carefully the extent to which the claimant has demonstrated that her condition (and for these purposes he does not consider that it matters greatly what precise diagnosis is ascribed to it) has had the requisite effect upon her ability to carry out normal day to day activities. His conclusion is that she has not satisfied the burden of proving that the condition does have (or did have) this effect.

[38]A major problem for the claimant’s case on disability is the evidence she relies upon. Her own impact statement is vague and unclear, she fails to link her condition to any effects upon her day to day activities. 13 of 16

[39]The Report from Ms Butler did initially seem to offer the prospect of the claimant being able to satisfy the tests for disability. That was mostly so in the activity of communication and interaction with the claimant’s colleagues at work. As the Guidance states: Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews But it continues : The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning.

[40]All the evidence (and that includes historical evidence of the claimant’s interactions with colleagues before she was placed with the respondents) suggests that the claimant’s difficulties in communication are not general, and communication with patients , and in theatre settings , has been satisfactory. Where problems are noted is in communication with senior colleagues, often in stressful situations, in the course of medical procedures. These are not, the Tribunal considers, normal day to day activities. They are so for a small group of people, and that group is of highly specialised medical professionals.

[41]Thus if the claimant’s condition can only be shown to have this effect upon those activities, the Tribunal would not regard them as normal day to day activities.

[42]There is, however, a further issue for the claimant’s case on disability. She relies heavily upon the report of Ms Butler, but this expert has expressly issued a disclaimer that her report is not to be relied upon in legal proceedings. The claimant has, nonetheless, relied upon it. Quite why Ms Butler has issued this disclaimer is unclear, but it does lead the Tribunal to question the extent to which it can or should rely upon her conclusions, in the light of this express reservation.

[43]That she has erroneously stated (page 289 of the bundle) that neurodivergent conditions are covered by the Equality Act 2010, when they clearly are not, further undermines the Tribunal’s confidence in the extent to which it can rely upon Ms Butler’s expertise.

[44]There is, however, a further aspect of Ms Butler’s Report which the Tribunal considers is unsatisfactory, and upon which , had she been called to give oral evidence , further questions would have arisen. The claimant comes from Belarus, and mention has been made of her accent, and , to some extent, of her social upbringing, which has resulted in her experiencing different cultural norms. She vividly illustrated this by her evidence of her view of the British obsession with the weather, which she 14 of 16 does not share, and which she indicated she considered was a very British trait. She similarly finds “smalltalk” difficult, but this too may be a cultural, rather than a medical, issue.

[45]In her report, when considering , for instance, the claimant’s abilities in terms of completing reading tasks in English at speed, Ms Butler qualifies her findings by reference to the claimant not having English as her first language, finding that the claimant’s scores in that regard were acceptable , given that limitation. By contrast, however, when considering the claimant’s oral communications Ms Butler seems to make no such allowances.

[46]It is clear from all the evidence, that many of those who have experienced communication difficulties with the claimant have queried whether these have their origins in her nationality, or her cultural background, and/or her accent.

[47]Ms Butler, however, has ascribed these difficulties to the claimant’s condition, and not any other factors. Why she has taken one view on the claimant’s abilities in reading and writing, but another in connection with her personal interactions, and oral communication, is unclear.

[48]There are other aspects of the claimant’s activities upon which Ms Butler does comment , and suggests that her condition has impacted upon them. These are : Finding change more stressful than her peers – Maryna may require additional time and support to adjust to new environments, people and ‘rules’. Verbal communication with colleagues – particularly with people she is less familiar with; Working at speed with visually complex information – Maryna demonstrates a preference for working methodically and accurately, which is advantageous given her clinical role.

[49]The Tribunal does not consider these activities amount to normal day to day activities. The ability to adapt to change is not one of the activities of which examples are provided in the Guidance (although the examples are not exhaustive) , people respond to change in a variety of ways, and many people find it stressful. The reference to “peers” suggests that this is in the context too of the claimant’s working environment, which is a very specialised one. The second issue, verbal communication with colleagues is the same point as discussed above. The third, working with speed with visually complex information is not a normal day to day activity, though it is doubtless an aspect of the claimant’s working environment. As it is, all Ms Butler says is that the claimant “demonstrates a preference” for working in a particular way, which is not the same thing as the claimant being unable to carry out that activity, or only being able to do so with difficulty.

[50]The upshot of this is that Tribunal does not draw from Ms Butler’s Report the conclusion that the claimant’s condition meets the definition in s.6 of the 2010 Act . It might do, but the claimant has to satisfy the Tribunal on a balance of probabilities that it actually does so. 15 of 16

[51]The Tribunal notes that the claimant has the benefit of assistance through the Access to Work scheme, but the Tribunal has been provided with no evidence as to how the claimant applied for, or qualified for , this scheme. Qualification for the Access to Work scheme may involve the claimant establishing a disability , but it is not an automatic pre – requisite of the scheme that the applicant has a condition which satisfies the test in s.6 of the Act.

[52]In the final analysis, the Tribunal does not consider that the precise diagnosis of the claimant’s condition, and whether it does or does not meet the criteria for autism, actually matters. Whatever the condition, it is its effects that have to be considered. The claimant has, on the evidence, failed to establish that she has a disability within the meaning of the Equality Act 2010.

[53]There remain other applications which require determination, and a further preliminary hearing is required. As the Employment Judge has only determined the disability issue, he sees no reason why the next hearing need be before him, although it equally well can be.

[54]It is appreciated that the final hearing looms, and regretted that the next preliminary hearing cannot be held any sooner. Clearly, that may have consequences for the final hearing.

Relevant Law

[55]She noted that the first claim form presented on 10 January 2023 included complaints of unfair dismissal and breaches of Equality Act 2010 relating to age, race, sex and disability. However, Ms Gould observed that while referring to her protected characteristics of race, age and sex, no specific details of discrimination were provided.

[56]Ms Gould then moved onto second claim form and acknowledged that while the same boxes in section 8.1 were ticked as were identified in the first claim, the details focused upon unfair dismissal, ‘…anonymous negative feedback’ and their use in the decision to dismiss. While allegations of victimisation were made, Judge Howard had previously clarified with the claimant that the term was ‘…used in the colloquial, rather than legal sense.’

[57]Ms Gould then moved onto the chronology of the proceedings and explained that following Judge Leach combining the two claims, the claimant provided further details of her claim dated 3 April 2023 (p102-111) and a chronology dated 25 June 2023, (p112-3). Reference was made to the claimant criticising ‘…a very large number of individuals, across a number of different hospitals, some of whom are named, but some are not.’

[58]Ms Gould explained that the application for strike out and/or deposit orders in relation to the following surviving complaints: 1. Indirect sex discrimination. 2. Direct sex discrimination. 3. Harassment sex and race. 4. Age discrimination. 5. Direct race discrimination. 6. Unfair dismissal.

[59]In summary, it was noted that the claim forms plainly focused upon complaints of unfair dismissal and disability discrimination. However, she also remarked that ‘[t]he many different allegations made by the Claimant against many different individuals undermines the strength of all her claims. It demonstrates the accuracy of the Respondent’s feedback that the Claimant had no insight, as she clearly cannot accept any criticism of her work whatsoever.’

[60]Ms Gould argued that the first time that the claimant provided particulars of discrimination relating to age, sex and race was in the document which accompanied her second claim form and that the later list of issues frames the allegations differently.

[61]In relation to indirect sex discrimination, it was noted that no PCP has yet been identified by the claimant, but that even if a properly pleaded complaint under section 19 could be identified, the respondent would succeed with a legitimate aim that changing shifts during the Covid pandemic was a proportionate means of achieving a legitimate aim. In any event, a change of shift would subject the claimant to greater scrutiny. The complaint appears to make allegations dating as far back as 2020, despite her pleadings refer to issues starting in February 2021. These allegations are argued to be stand alone complaints which are well out of time and where it is not just and equitable to extend time,

[62]In relation to direct sex discrimination, Ms Gould argued that the allegations raised by the claimant were ‘extreme/fanciful’. Moreover, it was submitted that the allegations identified the relevant discrimination being indirect rather than direct. Reference to women/people having smaller hands was explained by the claimant and no comparator was identified. The real issue it is submitted, arises from the claimant’s unwillingness to accept any criticism of her performance and that the allegations will be out of time.

[63]In relation to harassment connected with sex and race, Ms Gould argued that there was an inconsistency between what the claimant identified at case management and the later further details of claim. Moreover, it is noted that the claimant does not provide a link between the alleged comments and the decision to terminate her employment. It is disputed that the allegations are in time, are separate allegations and that it is not just and equitable to extend time.

[64]In relation to age discrimination, Ms Gould begins by arguing the complaint is not properly set out within the claims that she has brought, although it was noted that the box relating to age discrimination was not ticked ins section 8.1 of the claimant’s claim form. The allegations are described as being ‘incredibly wide’ and applying to many circumstances which suggests a lack of insight and a disproportionate scope of the claim. Reference is said to be made to ‘tropes regarding older workers which are frequently fought against by claimants bringing age discrimination complaints’. No comparator is said to be identified and Ms Gould believes that an arguable case has not been identified.

[65]Moving onto the direct race discrimination complaint there is a reference to a lack of details and focuses upon feedback which is submitted as being fairly raised and necessary given that it relates to patient safety. Reference is made to the claimant referring to taking lessons to soften her accent and within her second claim grounds of complaint, which suggested that she agreed it was a problem and then complained that raising her accent was an allegation of discrimination. Ultimately, the argument is that the claimant accepted feedback and then later decided to convert it to a complaint of discrimination and that the allegations do not amount to unfavourable treatment. It is also argued that no comparator is identified and that the complaints are historic and well out of time.

[66]Finally, Ms Gould considered the complaint of unfair dismissal and argues that it cannot succeed because the dismissal was not caused by the decision of a third party imposing its will on the first respondent employer but because ‘…the claimant no longer satisfied the criteria upon which her employment…was predicated.’ This was because she was dismissed following her unsuccessful appeal regarding her no longer being on an approved postgraduate training programme supported by the second respondent. The second respondent did not employ the claimant and could not be a respondent to an unfair dismissal complaint. Claimant’s reply

[67]The claimant is a litigant in person and I was conscious that she have an opportunity to provide a reply which insofar as she was able to, gave relevant replies to the submissions made by Ms Gould.

[68]She provided a document at the beginning of the hearing entitled ‘Claims explained – brief summary and itemisation’ and which identified the complaints and page references in the bundle in the left hand column and in the second column additional explanatory information is provided.

[69]The claimant was allowed to provide lengthy reply to Ms Gould’s submissions of almost an hour in length.

[70]Her opening argument was that time limits in relation to complaints should not be an issue because they all formed part a series of continuing acts. She argued that there was an arguable unfair dismissal complaint as alternative employment could have been investigated by the first respondent and they failed to do so.

[71]She argued that the indirect sex discrimination complaint involved an allegation that her employer in moving her shifts failed to take account of her status as a parent.

[72]She disputed that she did not have insight of the background to her complaints and that her direct discrimination complaints were clearly argued.

[73]She did acknowledge however, that the allegations of age discrimination were ‘not a primary factor.’ However, she argued that nonetheless, there was evidence that she was treated differently to younger colleagues. Discussion Initial comments

Discussion

[74]As I have already mentioned above, in considering these applications, I have taken into account the claimant’s unrepresented status, that she has a disability and also that she speaks English as a second language. This is in accordance with the relevant chapters of the Equal Treatment Bench Book.

[75]Indeed, in paragraph [24] of Taylor HHJ’s decision in Cox v Adecco (above), he reminds Judges of the following: “Guidance for considering claims brought by litigants given in the Equal Treatment Bench Book (“the ETBB”). In the introduction to chapter 1 it is noted, in a very well-known passage: “Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party. “The outcome of the case may have a profound effect and long-term consequences upon their life. They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation. “Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal. “All too often, litigants in person are regarded as the problem. On the contrary, they are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants.””

[76]However, I have paid close attention to the provisions of the overriding objective under Rule 2 and the need to deal with this case fairly and justly taking into account (amongst other things), ensuring the parties are on an equal footing, dealing with the case proportionality in relation to its complexity and importance of the issues, avoiding delay while being able to properly consider the issues and saving expense. This is a case which in its current form covers a lengthy period of time and refers to allegations across a number of work placements and with a number of different people. Overall, there is a lack of precision and in its current form a lengthy hearing could result with some complaints remaining difficult to understand and where their prospects of success are uncertain and indeed, doubtful.

[77]While this might be the case, I have reminded myself of the strict test applied by Rule 37 and Rule 39 when deciding whether to strike out or make a deposit order. These are not decisions to be taken lightly and they should only be made when: a) efforts have been made to identify the issues, b) the claimant has had time beyond the stress of a single hearing to articulate her case, c) reasonable care has been taken to consider the claimant’s pleadings and core documents, d) the case should be taken at its highest.

[78]Nonetheless, they are tools which are properly available to Tribunals and in the right circumstances, they should be imposed so that the overriding objective is properly respected and a claimant is not left with an unwieldly claim which prejudices the respondent in terms of its understanding of what is being advanced and the levels of work and expense required to respond to it.

[79]It should also be remembered that nobody benefits by truly hopeless cases being pursued to hearing and this is especially the case for the claimant, who may easily find themselves overwhelmed and focusing on issues which will not or are unlikely to yield ‘winning points’ (my emphasis). To this extent, by dealing with questions of strike out and deposit orders, a claimant may actually benefit from relinquishing those complaints which would otherwise serve as an unnecessary distraction.

[80]I have however, reminded myself of the trap which Judges can fall into in these situations and identified by Tayler HHJ at paragraphs [29] to [30] and strike out not being treated by the Tribunal as ‘…a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues; doing so is a prerequisite of considering whether a claim has reasonable prospects of success.’

[81]This potential scenario is not the case in these proceedings and the claimant has been given ample opportunity to identify and explain her claim and appropriate allowances have been made to take into account the additional challenges she faces by her particular circumstances. The application and the issues as they currently stand

[82]Dealing with each of the elements of the claimant’s claim as described by Ms Gould in the respondents’ application, I will deal with each in the order that they were identified in the Note of Preliminary Hearing dated July 2023 produced by Judge Howard.

[83]This was the first opportunity where the claimant as an unrepresented person, could be interrogated about her complaints by a Judge and where the basis of her complaints could be identified, even if additional time was required to finalise the list of issues, (pp127-136). By this stage, the claimant had provided considerable information about her claim and although there are problems with her general failure to identify or link allegations of discrimination to events which she was unhappy with, Judge Howard was able to broadly identify the complaints and allegations being brought.

[84]In particular, Judge Howard in paragraph (12) of her Note recorded the following: ‘We discussed each type of claim in turn. I [Judge Howard] explained to the claimant that pursuing claims of discrimination in the alternative (e.g. the decision to release her was discriminatory because of disability or race or sex or age) can be contradictory. Whilst the claimant understood the point being made she was adamant that she wished to proceed with all elements of all her claims.’ In referring to the complaints under consideration, Judge Howard referred to the 2 claim forms and further documents, ‘unfair dismissal claim, statement March 23’ and ‘chronology-ET’.

[85]It should be noted that it was not possible for Judge Howard to finalise a list of issues and she did not believe it proportionate to make any further case management orders including disclosure until the issues had been clarified in relation to disability and the respondents’ strike out/deposit complaints.

[86]In terms of the status of the second respondent, Judge Howard identified in paragraph (16), that they could be a respondent to the complaints of discrimination as a either an Employment Services Provider (section 53 Equality Act 2010) or a Qualification Body (section 55). This status was not the subject of challenge within the respondents’ applications, other than that the second respondent could not be a respondent to the unfair dismissal complaint as they were never an employer of the claimant, (p129).

[87]Ultimately, I agree with the respondent’s submission in their application that the claims were sufficiently identified by Judge Howard in her Note and at this point it was decided that no further particularisation was required until these applications and the question of disability were resolved. Section 15 discrimination arising from disability

[88]Given the decision by Judge Holmes dated 14 March 2024 that the claimant was not at the material times a disabled person within the meaning of section 6 Equality Act 2010, the Tribunal no longer has jurisdiction to hear this complaint and this complaint must be struck out under Rule 37. Sections 20 & 21 Failure to make reasonable adjustments

[89]Given the decision by Judge Holmes dated 14 March 2024 that the claimant was not at the material times a disabled person within the meaning of section 6 Equality Act 2010, the Tribunal no longer has jurisdiction to hear this complaint and this complaint must be struck out under Rule 37. Sex discrimination: Indirect (section 19)

[90]The basis of this complaint is that the claimant is a single parent and that as women are more likely to be in this situation, PCPs being operated by an employer can potentially cause women particular difficulties.

[91]As Judge Howard explained in paragraph 14.1.16, the claimant was not able to identify a PCP and it was speculated that there could possibly be a ‘practice’ that trainees were expected to have no limitations placed upon them through childcare arrangements.

[92]The claimant’s allegations are that: 1. Dr Lee Freddy raised concerns in December 2020 to the claimant’s college tutor at Wythenshawe about her ability to manage her childcare arrangements and impact upon her and patients. 2. Dr David Cegielsie raised similar concerns in February 2021. 3. In November 2020 she had to self isolate because her child had been exposed to Covid. She explained that (a) and (b) were contributory factors which led to her being taken off night shifts and (c) caused resentment on the part of Dr Freddy

[93]This is a problematic complaint for several reasons in that while the claimant has identified how being a single parent could relate to her sex, she has, (despite having had ample opportunity), failed to identify a PCP which could apply across the hospitals where she worked. Indeed, as Ms Gould observed, the claimant even noted that circumstances could differ in each location, such as Preston, (p55).

[94]Furthermore, time limits are clearly an issue and as these appear to involve incidents ending by February 2021, it is unlikely to result in the claimant being able to persuade a Tribunal that it would be just and equitable to extend time in accordance with section 123 Equality Act 2010. Although this in itself would persuade me to impose strike out or require a deposit order as there remains the possibility that an application to extend time could succeed.

[95]Additionally, the complaint is simply not constructed and explained by the claimant in a way which can be readily inserted into the structure of a section 19 complaint. It appears to relate to allegations of bias against the claimant as a parent with childcare responsibilities and does not involve the identification of ways of working which place the claimant as a disadvantage.

[96]The respondent may also be able to argue that there is a legitimate aim, but before this is even considered, this complaint appears to have been added by the claimant at the point she could see she might be dismissed when Option 4 was decided by the respondents. This suggests a situation which is often encountered in claims where a dismissal or other detriment takes place and a claimant considers the entirety of their possible protected characteristics when trying to understand why the detriment has taken place. There has to be something more which could suggest that the protected characteristic played a role in the decision.

[97]In this case, the claimant has identified a range of protected characteristics and while they may well be correct, they simply act as the gateway through which specific acts of discrimination can be identified under the Equality Act 2010. Further consideration needs to given as to the construction explained in the relevant sections of the Act, (in this case section 19) and an evaluation undertaken as to whether a logical complaint can be raised in relation to the protected characteristic under consideration, (in this case sex). Unfortunately, despite much opportunity, the provision of lengthy documents and encouragement by Judge Howard, the claimant has simply been unable to explain a workable complaint which could have any prospect of succeeding at a final hearing.

[98]Judge Howard quite rightly cautioned the claimant about relying upon alternative protected characteristics and while it is understandable that the claimant may be reluctant to surrender and withdraw this complaint, I cannot see how there is an arguable case which can proceed to be determined at a final hearing.

[99]Consequently, the complaint of indirect sex discrimination must be struck out in accordance with Rule 37(1)(a). Direct sex discrimination (section 13)

[100]A single incident was identified in relation to this particular form of discrimination and as described by Judge Howard in paragraph 14.1.7 of her Note, it dated from March 2021 when a consultant Mustafa Tarek raised concerns about the claimant’s ‘airway skills’ and that he could complete a procedure with one hand. The reason behind the allegation of detrimental treatment on grounds of the claimant’s sex, is that she believes the criticism was unfair and that as a man, the Mr Tarek had larger hands than she had.

[101]While there is some suggestion that this might be raised as an indirect sex discrimination complaint, it was not raised at the preliminary hearing before Judge Howard according to her Note. Moreover, the claimant has simply described a form of treatment which is not supported by a description of the words used and appears to rely upon a line of speculation which concludes that what was said was direct discrimination on grounds of sex.

[102]This is a complaint which is raised considerably out of time and does not appear to form part of a series of continuing acts. It does not amount to a core argument of the claim and as described in Cox v Adecco above, amounts to the claimant attempting to litigate ‘…every conceivable point’ [32]. This is not in the interests of justice, is nor proportionate and actually serves to prejudice the claimant by distracting her from focusing upon her better and arguable allegations in this claim.

[103]In any event, I have to agree with Ms Gould that this is a complaint which is extreme and fanciful and as a consequence falls within Rule 37(1)(a) as having no prospects of success. The complaint of direct sex discrimination is therefore struck out. Harassment on grounds of sex and/or race (section 26)

[104]Judge Howard discussed this complaint in paragraph 14.1.8 and records that the incident arose in July 2022 when Dr Karen Butler suggested that as a single mother, she could not see the claimant as a consultant and this was also because of her different cultural background, (p131).

[105]The source of this allegation is a document which was entitled ‘Unfair Dismissal’ and which appears to be based upon the claimant’s document of a same name which accompanied the second claim form, (pp53- 9). However, the second document has been revised and included the comments allegedly made by Dr Bailey as described by Judge Howard, (p105).

[106]Although this allegation was not expressly set out within the claim forms or the grounds of complaint, it is an allegation which was clearly set out before Judge Howard and which relates to two of the protected characteristics identified. There is an issue relating to the question of time limits, but on balance it is sufficiently particularised to identify an arguable complaint and the application for strike out and/or deposit order is unsuccessful.

[107]This is of course the limit of the alleged harassment under consideration and the claimant must now focus upon preparing for a future final hearing based upon this allegation of harassment and not seek to add further complaints under section 26 and relating to these protected characteristics. Age discrimination (section 13 or 19)

[108]In paragraph 14.1.9, Judge Howard recorded that at the time of preliminary hearing, the claimant was 45 years old and compared herself with younger medical trainees who were in the age bracket of 27 to 34 years, (p131).

[109]The claimant was not recorded as identifying whether this complaint involved direct and/or indirect discrimination. The claimant has been given ample opportunity as submitted by Ms Gould to set out this complaint although it does refer to the respondents being unhappy with her inability to accept criticism and to lack insight, which the claimant believes is attributable to her being older than typical medical trainees. As discussed at the preliminary hearing before Judge Howard, there was a concern that her supervisors were closer to the claimant in age and they were threatened by her speaking up, raising concerns and generally being challenging.

[110]The claimant was recorded by Judge Howard as confirming that this particular complaint ‘…is a contributory factor, not the primary reason, for the decision to release and dismiss her.’

[111]Based upon all the circumstances, the available documents and the submissions that I heard from both parties in relation to this complaint, the complaint of age discrimination is additional to the other forms of discrimination/protected characteristics alleged and arises from the claimant’s deliberations as to why her employment was terminated.

[112]The particulars are limited and while on balance, I do not find that there is a viable complaint of indirect age discrimination which has reasonable prospects of success, I was persuaded that the question of direct age discrimination required further consideration.

[113]The only clear arguable allegation relates to the question of whether the claimant was subjected to less favourable treatment by reason of her age, when compared with younger medical trainees when she was dismissed, (with whom if possible named comparators should be identified who were placed with the first respondent and who were training at around the same time as the claimant).

[114]The basis of this single complaint of direct discrimination under section 13 Equality Act 2010, is that the claimant is over 40 years old at the material time and that she compares herself with medical trainees undergoing the same type of training as her, aged in the 27 to 34 years age bracket as discussed in paragraph 14.1.9 of Judge Howards Note.

[115]On balance, despite the claimant downplaying the relevance of this complaint, I concluded that there is a single allegation of direct age discrimination which remains arguable and should not be subject to strike out and/or a deposit order.

[116]The claimant must therefore note that while her complaint of age discrimination is not being struck out and nor is it subject to a deposit order, the complaint involves a narrow matter and is restricted to the decision to terminate her employment. Moreover, the respondent is permitted to rely upon the ‘defence’ of a proportionate means of achieving a legitimate aim under section 13(2). This can be considered at the next preliminary hearing case management. Direct race discrimination (section 13)

[117]The claimant explained to Judge Howard that as a Belorussian, her accent has placed her under scrutiny and criticism from those working with her and she believes that this has been identified as a communication difficulty. Two incidents were identified which the claimant believes amounted to unfavourable treatment connected with her race: a) Dr Simon Tomlinson during February 2021 raising a concern with Dr Rachel Hopper who was her tutor when placed at Southport. This involved concern about being able to understand the claimant and how this might affect communication in an emergency scenario. b) Dr Sarah Thornton was also described by the claimant as telling her she was difficult to understand when wearing a face mask.

[118]There are no doubt circumstances where the claimant may have found that her nationality, not speaking English as a first language and having a Belorussian accent may have resulted in her being treated differently, even allowing for incredibly diverse composition of doctors, nurses and other staff across the NHS.

[119]These two complaints, however, are in one case alleged to have happened almost a year before the first claim was presented and the second claim has not been particularised with a date. However, as Ms Gould explained, both incidents are historic taking place with doctors at the Royal Salford hospital and on this basis, not only are they likely to be out of time, but also involve confusing particulars.

[120]Ms Gould referred to the claimant initially agreeing that her accent could be an issue in the context of communicating with medical colleagues while wearing masks and where she decides to take lessons to soften her accent. While she later becomes unhappy with these issues, she did not seek to raise Tribunal proceedings involving these matters until much later and I cannot see how they can be anything other than out of time under section 123 Equality Act 2010. She has not provided any convincing explanation why an application for time to be extended in relation to these allegations would succeed.

[121]Consequently, these allegations must be struck out under Rule 37 and cannot be allowed to proceed. I cannot see how they have any reasonable prospects of success.

[122]Once again, I am compelled to reflect upon the way in which the claimant has pursued her case and, in an attempt, to avoid missing out any possible complaint, she has not focused upon the core arguments in her claim.

[123]These allegations relate to historic matters which were not sufficiently material at the time to persuade the claimant to begin a claim and they have been added to the considerable number of allegations which have provoked these proceedings and do not form part of the cored of her claim. Indeed, by striking out these complaints, the claimant may well be assisted in that she can focus upon her stronger and more arguable complaints and avoid being overwhelmed by peripheral and weaker arguments.

[124]When discussing this matter with Judge Howard, the claimant believes she was targeted for dismissal by the first respondent because she was outspoken and this worsened when she raised complaints. Although the term victimisation was used, she explained to Judge Howard that this was not a stand alone complaint under the Equality Act 2010, but a perception of why she believed her dismissal did not rely upon a potentially fair reason under the Employment Rights Act 1996.

[125]It is noted that in what was a sizeable preliminary hearing bundle, there was a letter (p326), sent by HEE to the first respondent and dated 23 February 2023. It confirmed that the appeal panel had upheld the decision to release the claimant from training. However, it did say what while the claimant, ‘…is no longer included on the training programme…you may wish to consider her continued employment.’

[126]This did mean that while the first respondent may have had a reason for terminating the claimant’s employment, they were not required to do so and this suggested to me that there was an arguable claim relating to the complaint of unfair dismissal and the process which took place.

[127]Accordingly, I do not accept that this complaint brought against the first respondent should be struck out under Rule 37 or that a deposit order under Rule 39 should be made. This complaint should proceed to a final hearing so that it can be determined based upon the evidence of the dismissing manager and other relevant witnesses.

Conclusion

[128]This has been a difficult exercise and one which has hopefully served to provide clarity for the parties in understanding the arguable complaints which have reasonable prospects of success. Although this of course remains subject to the parties providing evidence in support of their arguments and that this evidence is sufficiently strong to persuade a Tribunal as to their merit.

[129]In reality, this is a claim which has been prompted by decisions made about the claimant’s performance and which ultimately has led to her dismissal. This may well simply involve the jurisdiction of unfair dismissal and this is a complaint which should be allowed to proceed.

[130]However, discrimination may have played a part in relation to the claimant’s dismissal and those which have be properly described and explained have been allowed to proceed. Some however, simply have no prospects of success either in relation to their substance or indeed their age and the question of time limits.

[131]My decision is therefore as follows: Disability discrimination 1. Following the decision of Judge Holmes dated 14 March 2024 that the claimant was not at the material times a person with a disability in accordance with section 6 Equality Act 2010, it is necessary to strike out those complaints of discrimination which involve the protected characteristic of disability. 2. The complaints of discrimination arising from a disability contrary to section 15 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success. 3. The complaint of a failure by the respondents to comply with their duty to make reasonable adjustments contrary to sections 20 & 21 Equality Act 2010 is struck out in accordance with Rule 37(1)(a) of the Tribunals Rules of Procedure because the Tribunal no longer has jurisdiction to hear this complaint and it has no prospects of success.

[132]Which leaves the following decisions to be made in relation to the respondents’ application for strike out and/or deposit order: Sex discrimination(a) The complaint of indirect sex discrimination contrary to section 19 Equality Act

(b) The complaint of direct sex discrimination contrary to section 13 Equality Act Harassment by reason of sex and/or race

(c) The complaint of harassment contrary to section 26 Equality Act 2010 by reason of the claimant’s sex and or race does have a reasonable prospect of

(d) This complaint will be restricted to the allegation that on a date in July 2022, Dr Karen Butler made reference to the claimant being a single Mum and stated that she did not see the claimant as a consultant due to that and her different cultural background. Age discrimination

(e) The claimant is advancing a complaint of direct age discrimination contrary to section 13 Equality Act 2010 which does have a reasonable prospect of

(f) The complaint involves the sole allegation that the claimant was subjected to less favourable treatment when the respondents decided to dismiss her and as a medical trainee over 40 years of age, she compares herself with younger medical trainees in the 27 to 34 year old age bracket.

(g) For the avoidance of doubt the claimant has failed to assert that she has been subjected to indirect age discrimination contrary to section 19 Equality Act 2010 and any such complaint is struck out under Rule 37 having not been particularised and therefore having no reasonable prospects of success. Direct race discrimination

(h) The complaint of direct race discrimination contrary to section 13 Equality Act

(i) The complaint of unfair dismissal brought against the first respondent does have reasonable prospects of success and shall not be struck out under Rule 37 or subject to a deposit order under Rule 39.

[133]The surviving complaints of harassment by reason of sex and/or race, direct age discrimination and unfair dismissal will remain in these proceedings. The identification of the final list of issues, the listing of the case for a final hearing and the consideration of case management orders will take place at a preliminary hearing case management on a date to be confirmed.

Introduction

[1]Doctors hoping to progress to consultant grade in the NHS undergo a training programme over several years during which they are known as Specialty Trainees. The training programme has different stages known as “ST1” etc. Progression from one stage to the next is determined by an Annual Review of Competence Progression (“ARCP”) meeting, which is arranged and managed by NHS England, the second respondent. However, the Specialty Trainees are employed by a specific NHS trust as the lead employer for all such trainees in the region. In this case the employer was the first respondent. The Speciality Trainees undergo training by a series of placements in other trusts known as the host organisations.

[2]The claimant specialised in anaesthetics and participated in that programme over several years, progressing to stage ST4 in August 2019. That stage is the second of two intermediate years of training, and once completed is followed by three years of higher and advanced training at levels ST5-ST7.

[3]In October 2022 the claimant received a negative outcome from her ARCP which, if upheld, would mean that she was excluded from the training programme and her employment with the first respondent would therefore end. She lodged her first Employment Tribunal complaint in January 2023. At that time her appeal against the outcome was pending, but the appeal was unsuccessful and her employment and participation in the specialty training programme ended in February 2023. She presented her second claim form in March 2023.

[4]Between them the two claim forms raised a number of different complaints. There was a complaint of unfair dismissal, and complaints of discrimination arising out of the protected characteristics of age, disability and race. The race element reflected the fact that the claimant is from Belarus and English is her second language.

[5]Following a preliminary hearing on 10 October 2023 Employment Judge Holmes determined that the claimant had not been a disabled person at the material time. Her disability discrimination complaints were subsequently struck out by Employment Judge Johnson following a hearing on 17 May 2024. In addition Employment Judge Johnson struck out some of the sex and age discrimination complaints, meaning those that survived were restricted to harassment related to sex and/or race, direct age discrimination and unfair dismissal.

[6]Those matters came before Employment Judge Rhodes for case management on 15 January 2025, and have been listed for a final hearing between 10 and 13 February 2026.

[7]In the meantime the claimant appealed against the decision of Employment Judge Johnson. Only one aspect of her appeal was allowed to proceed at the sift stage by Judge Susan Walker KC in the Employment Appeal Tribunal (“EAT”). Judge Johnson had decided that the claimant had no reasonable prospect of success in showing that her allegation about feedback provided by Dr Tomlinson about her in early 2021 had been brought within time. Judge Walker KC allowed the appeal to progress to a final hearing to determine whether Judge Johnson had erred in law by failing to take into account the possibility of a just and equitable extension of time.

[8]Subsequently the parties reached agreement that there should be an order from the EAT remitting that matter to the Employment Tribunal to consider further whether it should be struck out. The order from the EAT to that effect was sealed on 21 May 2025. Subsequently the respondent confirmed in correspondence that it still intended to pursue its application to strike out this allegation as having no reasonable prospect of success.

[9]I pause here to observe that the claimant asserted in an e-mail of 4 June 2025 that the agreement had been that the allegation in question would go to a final hearing, but that is not consistent with the signed consent order or the terms of the order actually made by the EAT. It must have been a misunderstanding by the claimant of what had been agreed. I was satisfied that the application could still be pursued by the respondent. This Hearing

[10]Once it became clear that the respondent was still pursuing the application which had been remitted by the EAT, I sought to arrange an early public preliminary hearing given that the final hearing is due to take place in February 2026. By e-mail of 5 August 2025 the parties were notified that the hearing would be listed for a full day and would start at 10:00 am on Tuesday 23 September 2025.

[11]There ensued a series of e-mails in which the claimant pointed out that she was now working in Dubai, had clinical responsibilities and was unable to take annual leave because she was still in her probationary period, and therefore could not attend the hearing until 2:00 pm and would have to leave it by 3:00 pm because of childcare obligations. The respondent opposed any suggestion that the hearing should be reduced in length because of the issues to be considered. The matter was considered by Employment Judge Ross who noted that the claimant was not making any application to postpone the hearing.

[12]Subsequently the claimant said she would be able to attend the hearing by video if it was listed on a Friday. I offered three Friday dates in September and October when the hearing could be held and said that I would consider moving it if both sides agreed. The respondent said that none of those dates were convenient for its representative, and that in any event it strongly opposed delaying the final hearing any further. The grounds for opposing further delay were well-founded and I confirmed the hearing would proceed at 10am on Tuesday 23 September 2025.

[13]It had been made clear prior to the hearing that it was open to the claimant to rely on any written submissions if she was unable to attend the start of the hearing. The claimant had responded by an e-mail of 10 September saying that everything was written in the bundle and she did not need to bring any new evidence. It was clear to me prior to the hearing from reading the series of e-mails between June and September 2025 put forward grounds on which she resisted this application. In particular she raised two points about vicarious liability which I put to Ms Gould in the course of her oral submissions, and which I took into account in making my decision.

[14]Overall I was satisfied that the claimant had had a reasonable opportunity to make representations, either in writing or by attending this hearing, and therefore that it was fair to proceed.

[15]I should add that as this was an application to strike out part of the claim I assumed that the facts were as the claimant asserted them to be. The facts set out below are taken from her own documents or from contemporaneous documents. There is one matter which was unclear which I have assumed in her favour in paragraph 31 below.

[16]Ms Gould confirmed at the start of the hearing that the application was being pursued on three bases. The first was that there was no reasonable prospect of success in showing that the e-mail in question amounted to direct race discrimination. The second was that there was no reasonable prospect of establishing that the respondents were vicariously liable even if there had been direct race discrimination by Dr Tomlinson. The third was that the claimant had no reasonable prospect of persuading the Tribunal to extend time to enable the allegation to be considered.

[17]The information available to me at this hearing consisted of the Tribunal’s file of documents, which included all the e-mails to which I have referred above, and a bundle of documents which ran to 632 pages which had been prepared by the respondent. That included almost all the documents to which I had to refer during the hearing and any references to page numbers in these reasons is a reference to that bundle of documents. Summary of the Facts

[18]My decision in this case has been based on the following facts which are either a matter of record, drawn from the claimant’s account, or (in one respect) assumed to be in her favour.

[19]References to the claimant’s communication skills, related to her accent, had arisen earlier in her training. Her CV (page 612) recorded that in April 2017 the claimant undertook an accent reduction course for non-native speakers run by Health Education England.

[20]An assessment form (page 338) from July 2018 completed at Aberdeen Royal Infirmary recorded a suggestion by a colleague that her English-speaking skills and consequently her ability to communicate clearly and accurately were often difficult and inadequate. The same form made reference to her accent and monotonicity making it a challenge when she was trying to say different things.

[21]In November 2018 a form recording consultant feedback (page 340) recorded that “language barrier significantly affects practice” and that she needed to work on communication skills.

[22]The ST training programme took the claimant to a number of placements in the North West and between February and May 2021 she was placed at Salford Royal hospital. That was part of the Northern Care Alliance NHS Foundation Trust (“the NCA”). The College Tutor for anaesthesia was Dr Rachel Hopper. The role is also called Educational Supervisor. The College Tutor is responsible for the overall supervision and management of the educational progress of the trainee during the placement at the host trust. Dr Hopper was employed by the NCA, not by either of the respondents in this case.

[23]Dr Tomlinson was also employed by the NCA. His contract of employment with a predecessor trust appeared at page 327. He was not employed by either of the respondents in this case.

[24]On 22 February 2021 (page 358) Dr Hopper e-mailed a number of consultants in the department, including Dr Tomlinson, saying that the claimant had ongoing issues relating to communication, teamwork and leadership, and that the group of consultants she would be working with had been narrowed down to the recipients of the email. She said that the recipients should “feel free to e-mail … with any additional feedback”.

[25]Dr Tomlinson e-mailed Dr Hopper on 2 March 2021 (page 359). His e-mail set out some positive feedback about the claimant. It then had a list of points which were “not so positive”. They included being late to start her list of patients, causing unnecessary distress to patients on two occasions, and a need to improve prioritisation. It also included this paragraph: “She is incredibly difficult to understand. A mix of a very strong Belorussian accent and English as a second language. I do wonder whether she would make herself understood easily in an emergency situation.” The e-mail was not sent to the claimant.

[27]Other consultants provided feedback in a series of e-mails which appeared (in anonymised form) at pages 577-582. They combined positive with negative feedback. A number of them mentioned issues with communication.

[28]On 21 April 2021 the consultant Dr Kate Bailey, another College Tutor, e-mailed the consultants saying that the claimant was moving on to Preston and thanking them for their individual feedback. She asked the consultants to complete a feedback form to enable the information to be summarised. Dr Tomlinson responded about an hour later (page 569) attaching the form which appeared at pages 570-571. For each of the three component parts of communication and teamwork he ticked the box indicating that it required improvement, and in the section with text expressing his overall opinion he said: “Her number one issue is that her communication skills are dire (especially when stressed). They are lacking in clarity, prioritisation and sometimes can be expressed in what can appear to be a confrontational stance.”

[29]The feedback forms were compiled into a summary form which appeared at pages 572-575. It was signed by the consultant Dr Sebastian. It was dated 4 May 2021. It included a copy of some of the text comments received on the individual feedback forms, and a number of those entries referred to communication skills. None of the comments reproduced made express reference to her nationality.

[30]On 3 April 2021 (page 584-585) the claimant e-mailed Dr Hopper and others to say that she had found a specialist in phonetics to give her lessons. Her CV confirmed that she had a total of 23 lessons between May and December 2021.

[31]On 6 May 2021 Dr Sebastian sent the claimant the summary of her feedback from Salford Royal for her portfolio. I have assumed in the claimant’s favour that she did not see the individual feedback form completed by Dr Tomlinson, but only the summary which had been completed by Dr Sebastian, so she did not see in 2021 any reference to her nationality. The claimant responded the same day saying that there were some issues to discuss, asking for more details about concerns about communication, and pointing out that her course was “accent softening” rather than “elocution”.

[32]It is clear, therefore, that the claimant was aware that there were concerns held by other consultants about her communication skills and that she was making efforts to remedy these by taking lessons during the remainder of 2021. She did not pursue any grievance or Employment Tribunal complaint or make any recorded allegation that this amounted to any form of discrimination because of race.

[33]Following the outcome of the ARCP panel in late 2022, the claimant presented her first claim form in January 2023. Amongst the boxes she ticked was that for race discrimination, and she said there had been “multifactorial discrimination” on grounds including the fact that she was a “foreign female”. The narrative referred to “multiple anonymous feedback assessments”. She referred to her trainers having marked her negatively on teamwork, leadership and communication. Her narrative ended by saying that discrimination on race was evident.

[34]In February 2023 the claimant received the result of a Subject Access Request in which she saw for the first time the anonymised version of the e-mails which appeared at pages 576 to 582. They included the anonymised e-mail from Dr Tomlinson (page 576) which was the only one that mentioned her nationality.

[35]The second claim form was presented on 12 March 2023. It was primarily triggered by the rejection of her appeal against the ARCP assessment, and the consequent termination of her training and employment on 24 February 2023. She made reference in box 8.2 to a period at Salford from February 2021 and included this in her grounds of complaint: “It came to light that college tutors were specifically collecting negative feedback about me, did not share with me and submitted to the Deanery. I got the letters via SAR in February 2023. They contained notes of DISCRIMINATORY character, about my accent, communication, childcare, gender. …”

[36]The claimant provided a seven-page document summarising why she said her dismissal was unfair, which included details of her discrimination allegations (pages 68-75). On the fifth page she made specific reference to the e-mail from Dr Tomlinson, quoting the phrase about her Belarussian accent. She said that message amounted to race discrimination. At a case management hearing before Employment Judge Howard on 10 July 2023 the allegation was identified and recorded as one of direct race discrimination in relation to the e-mail sent by Dr Tomlinson.

[37]As I indicated above, that allegation was struck out by Employment Judge Johnson, but following the decision of the EAT the question of whether it should be struck out or proceed to a final hearing was remitted to be determined at this hearing. Relevant Legal Principles

[38]I will summarise the law only briefly here because it was set out at some length in the reserved judgment and reasons of Employment Judge Johnson issued following the hearing on 17 May 2024. Rule 37 of the 2013 Rules of Procedure, which applied at that time has now been replaced in identical terms by Rule 38 of the Employment Tribunal Procedure Rules 2024.

[39]Rule 3 of the 2024 Rules sets out the overriding objective of dealing with cases fairly and justly.

[40]Rule 38 provides, so far as is relevant:(1) At any stage of the proceedings…. on the application of a party, a Tribunal may strike out all or part of a claim … on any of the following grounds- (a) that it … has no reasonable prospect of success; …

(2) A claim … 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.

[41]Discrimination complaints are highly fact-sensitive. There is a strong public interest in such claims proceeding to a final hearing so that the evidence can be properly examined. Striking out such a claim on the ground that it has no reasonable prospect of success is reserved for the clearest of cases. The alleged facts must be taken at their highest unless there is some particularly compelling reason for thinking that the tribunal will reject them. Where there is a central core of disputed fact, it is highly unlikely that should strike it out. See Eszias v. North Glamorgan NHS Trust

[2007] EWCA Civ 330

as authority for these propositions.

[42]As a result it will only be in a plain and obvious case that it is appropriate to strike out a complaint of discrimination at a preliminary hearing on the ground of its prospects of success: Anyanwu v. South Bank Student Union

[2001] UKHL 14

[43]In Ahir v. British Airways

[2017] EWCA Civ 1392

, Underhill LJ stated at paragraph 16: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary for liability being established, and also provided they are keenly aware of the danger of reaching such conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities.”

[44]To put it another way, “the need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit”: Kaul v. Ministry of Justice & others

[2023] EAT 41

[45]I applied that legal framework to each of the three strands of this application, being(a) the merits,

(b) vicarious liability and

(c) time limits. I will address each strand in a separate section, referring as appropriate to provisions in the Equality Act 2010. Merits

[46]Ms Gould argued that the allegation that the e-mail from Dr Tomlinson of 2 March 2021 amounted to direct race discrimination had no reasonable prospect of success.

[47]Section 13 prohibits direct discrimination which arises where, because of a protected characteristic, the person treats the person less favourably than that person treated or would have treated others.

[48]Section 9 defines “race” as including colour, nationality and ethnic or national origins.

[49]The concept of less favourable treatment involves a comparison, and under Section 23 there must be no material difference between the circumstances relating to each case.

[50]The claimant did not identify an actual comparator and therefore her case relies on a hypothetical comparator. Because there must be no material difference in the circumstances of that person, the comparator must be a person at the same stage in their training perceived by Dr Tomlinson to have the same communication issues but who is of a different nationality, such as British. Approaching the question in this way allows the Tribunal to focus on the real issue in this part of the case: did the fact the claimant is from Belarus have any material influence, consciously or subconsciously, on the decision of Dr Tomlinson to provide his negative feedback about her communication skills.

[51]The claimant has never identified anything else said or done by Dr Tomlinson that she relies on to support an inference that her nationality or race was a factor in his decision to send this e-mail. Her case is based solely on the fact that in his email he referred to her being from Belarus.

[52]I was satisfied that from the text of the email alone the fact that the claimant is from Belarus appears to have had no material influence on his decision to provide feedback expressing his concerns about her communication skills and other matters. The references to her being from Belarus, and English not being her first language, are part of the background. Some of the negative feedback is not related to nationality. Some of the feedback is positive.

[53]Further, even if the claimant could identify something which shifted the burden to the respondent to show an entirely non-discriminatory reason for sending the email, it is plainly a response to a request for feedback made by Dr Hopper about a trainee with whom issues about communication had been identified.

[54]Overall I was satisfied that there was no reasonable prospect of the Tribunal concluding that sending the e-mail amounted to a contravention of Section 13 by Dr Tomlinson. The only realistic conclusion is that he would have sent the same email for a British trainee with equivalent communication issues for a different reason. I therefore struck out this allegation because it had no reasonable prospect of success. Vicarious Liability

[55]Ms Gould also submitted that there was no reasonable prospect of the claimant establishing that the second respondent could be liable even if there had been direct race discrimination by Dr Tomlinson.

[56]She took me to the documents to which I have referred above which show that Dr Tomlinson was an employee of NCA at the relevant time, not an employee of the second respondent. Nor did he hold the role of College Tutor. He was simply a consultant with whom the claimant worked during this part of her training.

[57]On that basis I concluded that there was no reasonable prospect of the claimant showing that he was an employee of NHS England under Section 109(1) Equality Act 2010.

[58]There were, however, two arguments for the claimant which I raised with Ms Gould. Both had been raised by the claimant in her e-mails between June and September 2025, albeit not in legal language.

[59]The first was the suggestion that the Tribunal at the final hearing might find that Dr Tomlinson acted as the agent of the second respondent in being part of the process by which information about the claimant’s performance was gathered and evaluated. I took account of the case law on when an agency relationship under section 109(2) of the Equality Act 2010 could be established. That case law included the decisions of the Court of Appeal in Kemeh v Ministry of Defence

[2014] ICR 625

, and UNITE the Union v Nailard

[2018] IRLR 730

. These cases confirm that the reference to “agency” in the Equality Act is a reference to the ordinary common law principle. The common law definition refers in general to the situation where the agent may directly affect the legal relationships of the principal in relation to other people by acts which the agent is said to have the principal’s authority to perform. The power of the agent arises from a manifestation by the principal of willingness to have their legal position changed by the actions of an agent.

[60]I concluded that the claimant had no reasonable prospect of establishing at the final hearing that Dr Tomlinson acted as the agent of the second respondent in that sense simply by sending feedback to the College Tutor. The e-mail in question was a voluntary response, albeit in reply to an invitation to provide feedback. There was no sense in which Dr Tomlinson could affect the legal relationship between the second respondent and the claimant, since all he was doing was providing information which would be fed into their ARCP process. It was the decision of the ARCP which would affect the legal relationship and he was not party to that decision. I therefore rejected the contention that there was any basis for relying on agency under Section 109(2) Equality Act 2010.

[61]The second point for the claimant was that to reach a conclusion in those terms would undermine the purpose of the Equality Act and leave her with no effective remedy. The claimant expressed in e-mails her concern that there must be some way in which those in the position of Dr Tomlinson could be liable if they acted in a discriminatory way in providing feedback about a trainee doctor.

[62]I was satisfied, however, that ultimately my conclusion on the agency issue did not undermine the purpose of the Equality Act. The claimant would have three other ways of establishing liability should a discriminatory e-mail of this kind be sent in this situation.

[63]The first would be to take issue with the ARCP decision based on that (and other) feedback. That is a claim which the claimant has pursued and which will be heard on its merits at the final hearing.

[64]The second would be to pursue proceedings against the host trust (the NCA) on the basis that the claimant had been a contract worker and the NCA was a “principal” within Section 41 Equality Act 2010. That is not a claim which has been pursued and it would now be pointless for the claimant to try and raise it: it is too late to add NCA as a respondent and the email was not discriminatory anyway.

[65]The third would be to have brought proceedings against the author of the e-mail individually, arguing that there had been a contravention of either Section 111 Equality Act 2010, arguing that the author induced a subsequent contravention of Section 13 by the second respondent, or Section 112, arguing that the author knowingly helped the second respondent to contravene the Equality Act. These are also claims which have not been pursued and it would again be pointless for the claimant to try and raise them: it is too late and the email was not discriminatory anyway.

[66]Accordingly I concluded that there was no reasonable prospect of the claimant establishing that the second respondent could be liable even if Dr Tomlinson had committed direct race discrimination in sending the e-mail in question. The complaint also had no reasonable prospect of success for that reason. Time Limits

[67]As I had already decided that the complaint should be struck out it was not necessary for me to consider time limits in detail.

[68]Broadly, however, I was satisfied that although the claimant knew of concerns about communication skills for some time, and was well aware of the gist of the concern in May 2021, resulting in her taking 23 lessons during the remainder of the year, it was not until she saw the redacted copy of the e-mail from Dr Tomlinson in February 2023 that the overt and express mention of her nationality became apparent to her. That gives her an argument for extending time, though equally it is arguable the link to nationality was implicit in 2021.

[69]Had it been a live issue therefore, I would not have struck out this complaint on time limits alone but would have required the claimant to pay a deposit on the basis she would have little reasonable prospect of success in persuading the Tribunal at the final hearing to extend time on the basis it was just and equitable to do so. But that is academic as this complaint has been struck out. Case Management

[70]Having given oral judgment as above, I queried the position in relation to case management. It appears that all is on track and the parties are due to exchange witness statements on 31 October 2025 prior to the final hearing between 10 and 13 February 2026.

[71]The claimant has said that she is going to travel back to the UK for that final hearing and therefore there should be no issues about giving evidence by video from overseas, which creates a diplomatic issue. Approved by