Ms L Barrett v East Lancashire Hospitals NHS Trust: 2401576/2024
EMPLOYMENT TRIBUNALS
Case No 2401576/2024
Between
Ms L BarrettClaimantEast Lancashire Hospitals NHS TrustRespondent
Before
Employment Judge LloydIn person for claimantRobert Allen (instructed by Counsel) for respondentDate 10 June 2025
JUDGMENT
[1]The complaint of unfair dismissal is dismissed for want of jurisdiction. Any complaint for unlawful discrimination on grounds of religion or belief is unaffected by this judgment.[2]Part of the claimant’s claim of direct religious discrimination is struck out as set out in this judgement below as it has no reasonable prospect of success.
REASONS
[1]The claimant complains of unfair dismissal.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The claimant and respondent agree that employment began on 20 March 2023 and was terminated on 24 March 2024. The claimant’s employment lasted for less than two years.[4]The claimant accepts that she does not have two years’ continuous service required to bring a claim of ‘ordinary’ unfair dismissal pursuant to section 108 of the Employment Rights Act 1996 (ERA). The claimant’s claim under section 108 is dismissed for want of jurisdiction.[5]The claimant submitted that this is a claim of automatic unfair dismissal pursuant to section 104 ERA. Section 104 provides: – “(1) An employee who was dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or(b) alleged that the employer had infringed a right of his which is a relevant statutory right.[6]Section 104(4) defines the relevant statutory rights. I am satisfied that this is a definitive or exhaustive list. The statutory rights that are defined serve to provide a limitation on the relevant statutory rights. A number of rights have been added over the years when further statutes have been enacted.[7]The claimant said that her statutory right was her philosophical belief not to be vaccinated as the vaccines may have been tested on animals and she is a vegan.[8]The right to a philosophical belief is not included within the definition of relevant statutory rights. It cannot be right that is relied upon in order to claim automatic unfair dismissal. The claimant would have to bring a claim for ordinary unfair dismissal and she does not have the requisite continuity of service. The claimant’s right to a philosophical belief will be considered under her discrimination claim and not under any head of unfair dismissal.[9]Pursuant to Sections 104 and 108(1) of the Employment Rights Act 1996, the claimant’s claim for unfair dismissal is dismissed for want of jurisdiction. Respondent’s application to strike out
The Issues
[10]The issues I had to determine for the strike out application were as follows: a) Whether to strike out all or parts of the claims because they have no reasonable prospect of success.
The relevant law
[11]The Tribunal’s power to make a strike out order are set out in rule 38 of the ET Rules as follows: “38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).”[12]In relation to strike out applications, guidance been given by the House of Lords in the case of case of Anyanwu v South Bank Students’ Union [2001] ICR 391, and the Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, and by Lady Smith in the Employment Appeal Tribunal in Balls v Downham Market High School and College [2011] IRLR 217. The former two cases made the point, that in cases of discrimination and whistleblowing respectively, that a strike out on the basis of no reasonable prospect of success should only arise in an exceptional case when central facts are not in dispute. It is not a question of assessing whether a claim was likely to fail or whether its failure was a possibility but that the claim had no reasonable prospect of success and that the tribunal should assess this from a careful consideration of all the available material.[13]A strike out application succeeds where it is found that, even if all the facts were as pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways [2017] EWCA Civ 1392 that “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 to liability being established, and also provided they are keenly aware of the danger of reaching such a 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… Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”[14]There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.[15]Where a litigant in person is involved, the tribunal should not simply ask the question orally to be taken to the relevant material in support of the claim but should also carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; Cox v Adecco Group UK [2021] 1CR 1307.[16]The EAT, in the case of Mechkarov v Citibank NA [2016] ICR 1121, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[17]In Malik v Birmingham City Council and anor EAT 0027/19 the obligation to take the claimant’s case at its highest for the purposes of a strike-out application was emphasised, particularly where a litigant in person is involved. Conclusion on application to strike out[18]I bore mind that a tribunal must first consider whether any of the grounds set out in rule 38(1) have been established; and then, if any ground is established, exercise discretion as to whether or not to order strike-out. The requirement for a two-stage approach was confirmed in Hasan v Tesco Stores Ltd EAT 0098/16. I am also assisted by the cases set out above and in particular the following case of: Mechkarov v Citibank NA [2016] ICR 1121 as this is a discrimination claim.[19]I had regard to overriding objective of dealing with cases ‘fairly and justly’, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay.[20]I considered the complaints of direct and indirect religious belief discrimination and religious belief related harassment as those stand after the claimant’s application to amend was decided. Those complaints are as set out in the draft list of issues at page 112 of the bundle at paragraph 6. We talked through those issues today. The claimant confirmed that in relation to the complaints at paragraphs 6c, 6d, 6e, 6f , the comparator was a white colleague. She considered she had been treated differently than white colleagues in the workplace. As such, these complaints are of race discrimination rather than due to religion/belief. The claimant’s case does not include a complaint of race discrimination as this was withdrawn by the complaint as confirmed in a judgement of the tribunal dated 23 April 2025 (page 94) of the bundle. The complaints in paragraphs 6c, 6d, 6e and 6f of the draft list of issues make no link to the claimant’s religious beliefs when discussed at the hearing today.[21]I therefore find that the issues identified in paragraphs 6c, 6d, 6e and 6f of the draft list of issues have no prospects of success due to the fact that they are in fact claims of unlawful race discrimination rather than claims relating to religious belief. I find that in the interests of justice and in order to give effect to the overriding objective, this part of the claim should be struck out in relation to religious belief discrimination.[22]In relation to the remaining claims, I do not find that they have no reasonable prospects of success and that they are matters that require an explanation and the facts that need to be determined before a decision can be reached by way of witness evidence. The Respondents application for strike out on the remaining claims therefore fails. In relation to the direct discrimination claims under paragraph 6a, 6b, 6h, 6i, 6j, 6k of the draft list of issues, and the claims of indirect religion or belief discrimination, I do not find that they have no reasonable prospects of success and that they are matters that require an explanation and the facts that need to be determined before a decision can be reached by way of witness evidence. The Respondents application for strike out on the remaining claims therefore fails. Approved by: