Miss M Aldcroft v Wirral University Teaching Hospital NHS Foundation Trust: 2403577/2024

EMPLOYMENT TRIBUNALS

Case No 2403577/2024

Between

Miss M AldcroftClaimant

Wirral University Teaching Hospital NHS Foundation TrustRespondent

Before

Employment Judge Buzzard

In person for claimant

Ms R Senior (instructed by Counsel) for respondent

Date 31 July 2025

JUDGMENT

[1]The claimant’s claims that she was subjected to detriments because she had made one or more public interest disclosures are all struck out. The claims were presented outside the time limit for the presentation of such claims and the claimant has no reasonable prospects of establishing that she could not reasonably practicably have presented the claims in time.

[2]The following claims under the Equality Act 2010 presented by the claimant are struck out: 2.1. All claims of harassment; 2.2. The claimant’s sole claim of direct disability discrimination; and 2.3. The claimant’s two claims of discrimination by failure to make reasonable adjustments numbered7.2.1 and

7.2.2 in the list of issues prepared by the parties for this hearing, which relate to events in November 2021 and October 2022. The claims based on these allegations were not presented in time. The claimant has no reasonable prospect of establishing that these allegations formed part of a continuing act that included the only two remaining claims of disability Case Number: 2403577/24 discrimination (which relate to events from October 2023 to April 2024 and are numbered

7.2.3 and

7.2.4 on the parties list of issues produced for this hearing). The claimant further has no reasonable prospect of securing the significant required extension of time, on the just and equitable basis, to permit her claims under Equality Act 2010 to fall within the jurisdiction of the Employment Tribunal to consider. Approved by: JUDGMENT having been sent to the parties following the hearing on 31 July 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

[1]The relevant background 1.1. The claimant presented her claims to the Employment Tribunal on 20 June 2024. 1.2. The claimant has produced a document titled “List of Claims”. This was produced in compliance with an order made by Employment Judge Holmes at a case management hearing on 5 December 2024. Judge Holmes ordered the respondent to set out, in response to the claimant’s List of Claims document the extent to which it contended the claimant needed to amend her claim to pursue the matters she identified. 1.3. The respondent contends that the claimant has not merely provided further particulars of the allegations in her claim form, but has provided particulars of multiple allegations that she had not, at any prior point, raised as claimss. As such, the respondent contends that the claimant requires permission to amend her claim to include such allegations in her claim. 1.4. The respondent has produced a tabulated list of the allegations which it is contended that the claimant needs permission to amend her claim to include. For ease in these reasons such allegations are referred to as the ‘New Allegations’. This is on the basis that it was determined they were new additional allegations, and should not be read as suggesting that the hearing was approached on the basis that they were new allegations. 1.5. The claimant does not accept that permission to amend is needed. 1.6. Regardless, claimant intimated at the preliminary hearing on 1 May 2025 that, to the extent it was needed, such an application would be made. The claimant made her application to amend in writing on 4 July 2025. For the purposes of this hearing that application is treated as having been made when first intimated, i.e. on 1 May 2025. 1.7. The claimant attended this hearing to seek such amendments as may be needed. 1.8. The respondent seeks a strike out of a significant part of the claims pursued by the claimant (with or without the New Allegations). This is primarily on the basis that the claimant has no reasonable prospect of being able to establish that the claims were presented in time, and if they were not, then being granted the required extensions of time for the claims to fall within the jurisdiction of the Employment Tribunal. 1.9. For ease of reference the numbering of allegations in these reasons follows the numbering used by the parties in the list of issues prepared in advance of the hearing.

[2]The issues at this hearing 2.1. At this hearing a number of disputes between the parties were considered and determined follows: Issue 1: To what extent does the claimant need an amendment of her claim to pursue the New Allegations? Issue 2: Following on from the above question, to what extent is the claimant granted permission to amend her claim to add the New Allegations? Issue 3: After the determination of the above the extent of the claim could be properly understood. At that point, the respondent’s application to strike out parts of the claim could be determined. 2.2. Given that the hearing proceeded to consider these three issues in turn, these reasons deal with them in the same way.

[3]ISSUE 1: To what extent does the claimant need to amend her claim? 3.1. It is not controversial that if an allegation is not included in a claimant’s claim, it will not be part of the claim unless an application to amend the claim is made and granted. That is not to say that full particulars of each allegation must be present, but there must be some particulars of the allegation included, such that further particulars could then be provided if needed. If there are no particulars of an allegation in the claim form, then unless an amendment is allowed that allegation is not part of the claim presented. 3.2. The scope of the claims that the claimant now seeks to pursue was discussed in the fist part of this hearing. That discussion focussed on the New Allegations. 3.3. In advance of the hearing the Tribunal had read the particulars of claim and the List of Claims produced by the claimant. In this reading the Tribunal had not identified any of the New Allegations as being clearly present in the claim form or its attachment. It is noted that a significant number of the New Allegations related to events that occurred (or came to the claimant’s attention) after the claimant presented her claim form. By definition, such allegations cannot have been part of the claim presented. 3.4. Each New Allegation was individually discussed with the claimant. In respect of each one of the New Allegations the claimant was asked to guide the Employment Tribunal by indicating where in her lengthy particulars of claim she contends the allegation can be found. 3.5. With one small exception, the claimant was not able to identify any specific reference to any of the New Allegations in her claim form or its attachments. The only exception was in relation to part of the alleged detriment numbered 5.1.11 in the parties list of issues. As is recorded below, the claimant later in the hearing withdrew her claims based on this detriment from her claim. 3.6. Accordingly, because the New Allegations could not be identified as having been part of the claim presented, the claimant was found to need permission to amend her claim to pursue any of the New Allegations.

[4]ISSUE 2: To what extent is the claimant granted an amendment to pursue the New Allegations? 4.1. What is the relevant law to be applied to amendment applications? 4.1.1. Rule 30 of the Employment Tribunal Rules of Procedure 2024 gives the tribunal wide case management powers. These include the power to allow a party to amend their claim, although that power is not expressly included. 4.1.2. When deciding whether or not to exercise its powers under rule 30, a tribunal must seek to achieve the overriding objective of dealing with cases fairly and justly (see rule 3). Dealing with cases fairly and justly includes, where practicable, putting the parties on an equal footing, saving expense, avoiding delay, and dealing with cases in ways which are proportionate to the importance of the issues. 4.1.3. Guidance as to whether or not to allow applications to amend is given in the case of Selkent Bus Company v. Moore

[1996] IRLR 661

as follows: 4.1.3.1. a careful balancing exercise is required; and 4.1.3.2. the paramount consideration is that of comparative disadvantage. A tribunal must balance the disadvantage to the claimant caused by refusing the amendment against the disadvantage to the respondent caused by allowing it. 4.1.4. The following factors were identified in Selkent as ones that can help a tribunal to conduct that balancing exercise: 4.1.4.1. A tribunal should consider whether the amendment is merely a relabelling of facts already relied on in the claim form or whether it seeks to introduce a wholly new claim. The discussion undertaken in the determination of issue 1 above established that the amendments in question here are all based on new facts. 4.1.4.2. Where an amendment raises substantial additional factual enquiry, the tribunal should give greater prominence to the issue of time limits. 4.1.4.3. A tribunal should have regard to the manner and timing of the amendment application. 4.1.4.4. The factors identified in Selkent should not be used as a checklist. What is required in every case is an analysis of comparative disadvantage. 4.1.5. Granting an application to amend does not automatically determine the question of whether or not any allegation added was presented within the statutory time limit. The tribunal may grant an amendment and leave the time limit issue to be decided at a later stage. Nevertheless, there will be cases where it is important to take into account time limits at the amendment stage. 4.1.6. When deciding whether or not to grant permission to amend, a tribunal can take into account the merits of the proposed complaint. It is no disadvantage to a claimant to be deprived of the opportunity to bring a case that has little or no prospects of success.

[5]Jurisdictional Time Limits 5.1. In this hearing the discussion about amendment, and subsequently strike out, was in significant part referenced to time limit issues the claimant will encounter in pursuing her claims. 5.2. There are two different sets of rules about time limits applicable to the claims the claimant is pursuing. These are split into those that apply to claims of detriment for making public interest disclosures, and those that apply to claims under the Equality Act 2010. 5.3. For ease, the law relating to these time limits and the extent of the Employment Tribunal’s power and discretion to extend the two types of time limit are set out below.

[6]The law regarding time limits for claims of detriment for making protected disclosures 6.1. A claim of detriment for making a public interest disclosure is subject to the time limits set out in s48(3) of the Employment Rights Act 1996 (“ERA”). This states: “48 Complaints to employment tribunals An employment tribunal shall not consider a complaint under this section unless it is presented— a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.” 6.2. These provisions mean that if it was reasonably practicable to present this type of claim in time, the Employment Tribunal has no jurisdiction to allow an extension of time. There is no discretion. 6.3. If it was not reasonably practicable to present this type of claim in time, an extension of time can be granted by the Tribunal. The extension that can be granted is limited to an extension by “such further period as the tribunal considers reasonable”. 6.4. It is important to note that this is not a wide discretion to allow an extension of time on the basis that it would be in the interests of justice to do so. It is a power to allow an extension to the extent that is considered reasonable.

[7]The law regarding time limits for discrimination claims 7.1. Under the Equality Act 2010 (“EqA") time limits are set out in s123, which sets the limitation period as being: “(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.” 7.2. Accordingly, the normal time limit for the claimant’s claims under the Equality Act is, as for the other type of claims, three months from the end of the discrimination complained of. If that period is not complied with, an extension of time can be granted when it is just and equitable to do so. 7.3. Guidance has been provided by the higher courts regarding the exercise of this discretion to extend time. In Roberston v Bexley Community Centre (trading as Leisure Link) CA 11 March 2003 the Court of Appeal stated: “It is of also importance to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule.” 7.4. The guidance of the EAT in British Coal v Keeble

[1997] IRLR 336

is also of relevance to the exercise of this discretion. This guidance suggests that the following factors, as relevant to this case, to be considered when considering extending time should include: 7.4.1. The length of, and the reasons for, the claimant’s delay. 7.4.2. The extent to which the cogency of the evidence is likely to have been affected by the delay. 7.4.3. The extent to which the respondent had co-operated with any requests for information. 7.4.4. The promptness with which the Claimant acted once she knew of the facts giving rise to the cause of action. 7.4.5. The steps taken by the Claimant to obtain appropriate professional advice once she knew of the possibility of taking legal action.

[8]Applications to amend 8.1. The claimant initially pursued applications to amend to allow her to pursue all of the New Allegations. 8.2. During the hearing, the claimant’s position changed and she withdrew her application to amend her claim to include some of the New Allegations. Following the numbering of the parties list of issues. The claimant withdrew her application to amend her claim to add the following New Allegations: 8.2.1. Detriment 5.1.10; 8.2.2. Detriment 5.1.11; 8.2.3. Detriment 5.1.13; and 8.2.4. Detriment 5.1.15. 8.3. The parts of the list of issues where an application to amend was needed to pursue the New Allegations, and such an application was pursued were: 8.3.1. Protected disclosure 4.1.1.2; 8.3.2. Detriment 5.1.1; 8.3.3. Detriment 5.1.3; 8.3.4. Detriment 5.1.12; 8.3.5. Detriment 5.1.14; 8.3.6. Less Favourable Treatment 6.2.2; and 8.3.7. Less Favourable Treatment 6.2.3. 8.4. At an earlier hearing the claimant had been ordered to set out the grounds of her applications to amend in writing. The Tribunal read what the claimant set out in those grounds. The Tribunal also heard submissions from the claimant and respondent in relation to each application. It is not proportionate to set out a summary of all the submissions made in these reasons. Where references are made to potential prejudice to either party, that is reflective of the submissions made at, or in advance of, the hearing. 8.5. The reasons for the decisions made in relation to each of the applications to add one of the New Allegations are set out in turn below. After each relevant heading, the amendment sought is set out as summarised by the parties. 8.6. A recurring consideration in these amendment applications is time limits. 8.7. The granting of an amendment application does automatically determine that any added claim was presented in time. If it is not in time, and an extension of time is not allowed, the claim will not be within the jurisdiction of the Employment Tribunal and must fail. 8.8. It is not in the interests of justice to allow an amendment to a claim where it appears there is little or no reasonable prospect of the claim being in time or being granted an extension of time. 8.9. Application to amend to include protected disclosure 4.1.1.2 “From May 2017, the Claimant told Nicola Cundle-Carr (Head of Business Improvement) and subsequently generated data weekly that was reviewed by Hayley Kendall (Chief Operating Officer) that the clinicians and operational managers were not managing their Follow Up (FU) waiting lists or reviewing overdue patients (section 43B (1)(d) ERA).” 8.9.1. This is one of eight alleged protected disclosure’s that the claimant relies on. It relates to ‘Follow Up’ waiting lists, as does at least one much later alleged protected disclosure that was part of the pleaded claim (alleged early 2023 disclosure 4.1.1.5). 8.9.2. There is no time limit in employment law regarding when a protected disclosure is made. Time limits are only applicable to detriments (including dismissal) because a protected disclosure was made. 8.9.3. This new disclosure is described as having been ongoing since May 2017, nearly a decade ago. The claimant at this hearing stated that it was in fact more recent, but was not specific. It is described as having been based on weekly generated data, which means the disclosure(s) cannot realistically have continued beyond termination of the claimant’s employment on 1 October 2023. 8.9.4. The respondent’s representative confirmed to the Employment Tribunal that the individual to whom this new disclosure is now alleged to have been made to is no longer employed by the respondent trust. Whilst not determinative, the additional difficulty in securing the cooperation of someone who is no longer with the respondent to defending this allegation represents a prejudice to the respondent. 8.9.5. The claimant submitted that the reason this alleged disclosure was not in her claim form was because she had not understood it should be included. This is despite the other alleged protected disclosures she relies on being set out in her claim form. 8.9.6. This new alleged disclosure remains insufficiently detailed. The date of the disclosure is not specific and the exact nature of what was alleged to be disclosed is unclear. It is not generally appropriate to allow an amendment to add a claim where further particulars of that added claim will then be needed before it can be sensibly defended. 8.9.7. The prejudice to the claimant of restricting her to the seven other protected disclosures that she did describe and set out in her claim form is limited. The prejudice to the respondent of adding a historic disclosure of unspecific (and potentially historic) date and of unspecific content that is alleged to have been made to a person who has since left the respondent is significant. There will be further cost in seeking necessary details of this new alleged disclosure, then in seeking to locate a former employee to discuss the allegation and prepare a defence accordingly. This is in addition to the general prejudice of the impact that the delay in raising this matter will have on the quality of relevant witnesses’ recollections of events. 8.9.8. On balance, the prejudice to the respondent was determined to outweigh new alleged disclosure was refused. 8.10. Application to amend to include detriment 5.1.1 “On 22 February 2022, Hayley Kendall refused to allow the Claimant to undertake development opportunities, namely a deputy divisional director role within budget suggested by Nicola Cundle- Carr via email on 17 February 2022.” 8.10.1. This alleged additional detriment is stated to have occurred in February 2022. 8.10.2. The claimant states that she was not aware that this detriment had occurred until 26 July 2024, which is after her claim was presented. This would be a basis to conclude that it would not have been reasonably practicable to include this allegation in her claim form. 8.10.3. That being noted, an extension of time is limited to ‘such further period as the tribunal considers reasonable’. Here that would require it to be found that a further period in excess of the normal time limit of three months would be reasonable. 8.10.4. On balance, there appears to be very little, if any, reasonable prospect of the claimant being able to meet this requirement. Requiring the respondent to prepare to defend a claim that appears to have no prospect of being in time is a significant prejudice. 8.10.5. There is further prejudice to the respondent in requiring them to defend an allegation that relates to something that is alleged to have occurred years before it was raised in these proceedings. The delay will have likely significantly impacted the quality of witness recollection and evidence about such events. 8.10.6. The prejudice to the claimant is limited by the scope of the remaining claims she is pursuing. Not permitting the claimant to add this particular claim would be of limited prejudice. 8.10.7. On balance, the prejudice to the respondent of preparing to defend a significantly historic claim that appears certain to be dismissed on time limit jurisdictional grounds was found to outweigh any prejudice to the claimant of not allowing her to further expand an already extensive claim with an allegation that has no reasonable prospects of succeeding for jurisdictional time limit reasons. Permission to amend the claim to add this new alleged detriment for making a protected disclosure was refused. 8.11. Application to amend to add detriment 5.1.3 “Refer the Claimant to Mersey Internal Audit (i.e. Counter Fraud) in April 2023.” 8.11.1. The claimant states that she only found out about this alleged detriment recently. The documents show she was aware of this at the latest by 5 January 2025. It is not clear when, in advance of that date, the claimant says she became aware of this alleged detriment. The claimant does not appear to have made an application to amend her claim until 1 May 2025. It is unclear when before 5 January 2025 the claimant will say she became aware of this alleged referral. Documents prepared by the claimant suggest she became aware of this when emails were disclosed to her. This strongly implies the claimant became aware of this on receipt of copy emails. The claimant was provided with documents as part of a subject access request response on 26 July 2024. 8.11.2. In seeking to establish that it was both not reasonably practicable to present the claim in time, and that the further time taken to present the claim was reasonable, the burden of proof lies on the claimant. That the claimant cannot identify when she became aware of the alleged detriment will make it very difficult to discharge that burden. 8.11.3. This alleged detriment appears to be an extension of detriment 5.1.4. Detriment 5.1.4 was the alleged commissioning of a investigation into the claimant’s overtime payments. The referral to Mersey Internal Audit related to the same matter. Accordingly, the prejudice to the claimant of not allowing this additional issue is limited, and the prejudice to the respondent of allowing it is also limited. 8.11.4. If the claimant is unable to establish that the commissioning of an investigation into her overtime payments was an unlawful detriment, it is difficult to see how a step in that overall process could be found to be an unlawful detriment. If the claimant can establish that the commissioning of such an investigation was an unlawful detriment, it is unclear what is added by identifying one step in that overall process as a separate detriment. 8.11.5. The prejudice to the claimant of not permitting this claim to be added is limited by the scope of the other claims, including the existing claim about the wider investigation of her expenses. There is prejudice to the respondent of having to defend a claim which appears prima facie to be significantly out of time, even if that is itself not a substantial prejudice. 8.11.6. On balance, the prejudice to the respondent is found to be greater than the prejudice to the claimant, given that the claim appears to be out of time and there appears to be little reasonable prospect of the claimant being able to establish facts that could allow time to be sufficiently extended. Permission to amend the claim to add this new alleged detriment for making a protected disclosure was refused. 8.12. Application to amend to add detriment 5.1.12 “On 5 March 2024, Hayley Kendall delayed the Claimant’s banding review hearing and knowingly added inaccurate statements to the job description.” 8.12.1. The claimant stated at this hearing that there would be no prejudice to her if this amendment was not permitted. 8.12.2. The claimant does not suggest that she was not aware of this alleged detriment, or that she could not have raised it earlier. The claimant was clear at this hearing that it was not included because she had thought she could add this allegation to her claim later. Given this it is difficult to see how it could be argued that it was not reasonably practicable to present the claim in time. 8.12.3. There is clearly prejudice to the respondent if this allegation is added given it appears to have no reasonable prospect of being found to be within the jurisdiction of the Employment Tribunal to consider for time limitation reasons. 8.12.4. On balance, the prejudice to the respondent was determined to outweigh new alleged detriment was refused. 8.13. Application to amend to add detriment 5.1.14 “In April 2024, Janelle Holmes (Chief Executive Officer) wrote to the Claimant accusing her of sending trust documents from a staff member’s email address to her personal address constituting a significant breach of information Governance Protocols and threatened further action by the Trust if this happened again. The information that the CEO was given had not been corroborated and was not correct” 8.13.1. There is no suggestion that the claimant was not aware of this alleged detriment from the date it occurred, i.e. before she presented her claim. 8.13.2. The claimant gave no indication to this hearing of why this allegation was not included in her initial claim. 8.13.3. Noting that the claimant has the burden of proof for time limit issues, the lack of any reason why this allegation was not included in the claim form strongly suggests that the claimant would have no reasonable prospects of establishing that the claim was within the jurisdiction of the Employment Tribunal to consider. 8.13.4. The claimant, when asked, was unable to identify any specific prejudice to her of not allowing her to add this allegation to her claim. 8.13.5. The respondent identified that the amendment would require them to prepare a defence that would involve new and different lines of inquiry into events in 2024. Noting that the claim is likely to be time barred, this is a material prejudice to the respondent. 8.13.6. On balance, the prejudice to the respondent was determined to outweigh new alleged detriment was refused. 8.14. Application to amend to add less favourable treatment 6.2. “In May 2024, during a job matching panel, the Claimant was asked the question described at paragraph 5.1.15 in relation to the need for prolonged concentration which was not related to the assessment criteria” 8.14.1. The claimant withdrew her application to add this allegation separately as a detriment for making a protected disclosure. 8.14.2. At this hearing the parties submissions were that the job matching panel had actually been in April 2024. For the purposes of this decision, the date provided by the claimant of May 2024 was relied on, although in practice it made no material difference to this decision. 8.14.3. The claimant was present when this question was asked. There is no suggestion therefore that she was not aware of this alleged less favourable treatment from the date it occurred. 8.14.4. The claimant did not raise this as even potentially an issue until January 2025. This is over 8 months after the question. It is also around six months after she presented her claim, and well over a year after her employment ended. 8.14.5. The amendment application seeks to add this as an act of less favourable treatment, as part of a claim of direct disability discrimination. The claimant agreed at this hearing that the suggested amendment does not appear to meet the legal test for direct discrimination. 8.14.6. The essential elements required for this to be any other form of discrimination have not been set out. In a discussion at this hearing the claimant was not able to suggest the basis upon which this could be relabelled as a claim of discrimination by failure to make reasonable adjustments or of discrimination arising from disability. It is noted that this claim has been through two prior case management hearings, and after the first of those hearings the note prepared by Employment Judge Holmes included as an annex an extensive explanation of the various types of disability discrimination made unlawful by the EqA. 8.14.7. On this basis, there is no reasonable prospect that a claim of direct disability discrimination based on this allegation could succeed. 8.14.8. Requiring the respondent to prepare a defence to a claim that the claimant herself accepts cannot succeed as set out would be a significant prejudice to the respondent. 8.14.9. The respondent identified that the panel involved in the alleged less favourable treatment consisted of three persons. Noting that the claimant has not identified which panel member is alleged to have asked the relevant question, adding this allegation would require the respondent to locate and make inquiries with all three panel members and potentially call them as witnesses. 8.14.10. Whilst this allegation has again been raised significantly outside the normal time limits, it is noted that the Employment Tribunal has discretion to extend time for a claim of discrimination where it is just and equitable to do so. The respondent submitted that the extension that would be required for this allegations is, however, significant. The respondent also submitted that the claimant had access to trade union advice (albeit the claimant said that was not from her official trade union representative but a friend who was a trade union representative) and that the claimant was fully aware of what questions she was asked by the panel from the date they were asked. 8.14.11. Whilst there is some discretion regarding time limits in discrimination claims, given the significant delay for this allegation there remains significant doubt that the claimant would be granted the required extension of time. 8.14.12. The claimant stated at this hearing that she did not believe that refusal of this amendment application would cause her any specific prejudice. 8.14.13. On balance, the prejudice to the respondent was determined to outweigh the prejudice to the claimant. Permission to amend the claim to add this new alleged act of less favourable treatment was refused. 8.15. Application to amend to add less favourable treatment 6.2.3 “In January 2025, the Claimant was not invited to the appeal panel and her evidence described at paragraph 5.1.15 (to evidence the need for prolonged concentration) was dismissed.” 8.15.1. The application to amend the claim to add this new alleged act of less favourable treatment has the same difficulty as that above. The claimant accepts that this allegation does not meet the definition of direct disability discrimination. On that basis, there is no reasonable prospect that a claim of direct disability discrimination based on this allegation could succeed. 8.15.2. The claimant was again unable to provide detail or an explanation that provided any clarity as to how this would be argued to be a different form of discrimination. 8.15.3. There is significant prejudice to the respondent in requiring them to present a defence to a claim of direct disability discrimination that the claimant agrees does not meet the definition of direct discrimination. There is little in any prejudice to the claimant of not allowing her to amend her claim to include such an allegation. 8.15.4. On balance, the prejudice to the respondent was determined to outweigh new alleged act of less favourable treatment was refused.

[9]ISSUE 3: The respondent’s strike out applications 9.1. These applications were considered in two categories. 9.2. The first category was the claimant’s claims that she was subjected to detriments for making public interest disclosures. The respondent sought the strike out of all claims the claimant has presented that relate to alleged public interest disclosures. 9.3. The second category was those parts of the claimant’s discrimination claims that arise from events that occurred in or before 2022.

[10]The law regarding strike out applications 10.1. The power to strike out all or part of a claim is contained in Rule 38 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2024. The relevant parts of rule 38 (as applicable to the issues at this hearing) state: 38. Striking out (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 … has no reasonable prospect of success; 10.2. Reading this rule it can be seen that the power to strike out is discretionary and is to be applied in a two stage process. 10.2.1. Stage one: Stage one requires a tribunal to find that one of the specified grounds for striking out has been established. In this hearing the specified ground was that the claims had no reasonable prospect of success, primarily for jurisdictional time limit reasons. 10.2.2. Stage two: The second stage requires a tribunal to decide, as a matter of discretion, whether or not to strike out the claim or response. Failure to exercise the discretion at the second stage may lead to the strike out decision being overturned. This second stage is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit'. 10.3. E v X, L and Z

UKEAT/0079/20

(10 December 2020, unreported) the EAT considered the striking out of a claim in the context of an argument that the conduct complained of constituted 'conduct extending over a period'. The judgment of Ellenbogen J gave detailed guidance to be applied when considering a strike out application where some of the matters complained of may be out of time. If a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out. However, caution should be exercised having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case.

[11]Category one: Claims that the claimant was subjected to detriments for making protected disclosures: 11.1. The last detriment claim that forms part of the claimant’s claim relates to an alleged detriment that occurred in October 2023. 11.2. At this hearing the claimant stated that she approached ACAS to commence early conciliation on 4 December 2023, with that conciliation ending on 13 December 2023. When submitting her claim the claimant provided an ACAS early conciliation certificate that indicated that she commenced early conciliation on 14 May 2024, and that conciliation concluded on 10 June 2024. The claimant confirmed that the certificate she provided when presenting her claim arose from the second round of early conciliation. 11.3. On the basis of what the claimant stated at this hearing, she completed early conciliation after the last detriment that forms part of her claim. As such, it appears that the first ACAS conciliation (from 4-13 December 2023) was the valid conciliation for the claimant’s claims based on alleged protected disclosure detriments. 11.4. The claimant did not present her claim until 20 June 2024. That is more than 6 months after the end of ACAS conciliation, and more than 8 months after the last alleged detriment. 11.5. The claimant stated that she did not present the claims in time, or earlier, because ACAS had told her to pursue them as an internal complaint first. 11.6. The parties were agreed that the claimant presented a formal complaint directly to the respondent on 29 February 2024. The claimant was informed by the respondent on 2 April 2024 that she would not be provided with an outcome to the complaint. There is dispute about whether she was told the complaint would not be investigated, or she was told that as a former employee confidentiality rules would prevent her being given the outcome. That difference is not material to the time limit issue, the material point is that by 2 April 2024 the claimant knew that she was not going to get what she hoped for from her complaint. 11.7. Following this the claimant did not take any action for around 6 weeks, when she then repeated ACAS conciliation. The claimant then presented her claim some further 5 weeks later on 20 June 2024. 11.8. The claimant appears to have little or no reasonable prospect of establishing that she could not have presented her claims in time. If she was advised to pursue an internal complaint first, it is unclear why she waited over two months to do that. 11.9. Waiting for the outcome of an internal complaint is generally not something that makes it not reasonably practicable to present a claim in time. Even if there were exceptional circumstances in this case that could meet this requirement, there appear to be no reasonable prospects of the claimant establishing that it was reasonable to wait a nearly three further months after the conclusion of that complaint to present her claim. 11.10. Accordingly, it is concluded that the claimant has no reasonable prospect of showing that any part of her claims arising from alleged detriments made in response to protected disclosure are within the jurisdiction of the Employment Tribunal to consider for jurisdictional time limit reasons. This means it is concluded that the claimant’s claims that she was subjected to detriments for making protected disclosures have no reasonable prospect of success. 11.11. These claims were listed for an extended hearing in September 2026. It is in the interests of justice to strike out claims that have no prospects of success and avoid the parties incurring time and expense in preparing for and attending a lengthy hearing of such claims. 11.12. Accordingly, exercising the discretion at stage two of the process to be considered by a Tribunal before striking out claims, all such claims are accordingly struck out.

[12]Category two: Equality Act claims arising from events which occurred in and before 2022. 12.1. The claimant’s claim includes 3 allegations of disability discrimination that relate to events up to late 2022 as follows: 12.1.1. In November 2021 Matthew Swanborough (Chief Strategy Officer) and Hayley Kendall refused to shortlist the claimant for a promotion to Divisional Director for Medicine. This is pursued as a claim of discrimination by failure to make reasonable adjustments only. 12.1.2. During a meeting in October 2022, Robbie Chapman and Chris Mason (Chief Information Officer) dismissed the claimant’s contributions. This is claimed as direct discrimination, harassment and discrimination by failure to make reasonable adjustments. 12.1.3. At a follow up meeting in November/December 2022 Chris Mason said “I thought you weren’t talking to me” which made light of the impact of his and Robbie Chapmans’s behaviour in October 2022. This is pursued as disability related harassment only. 12.2. The claimant’s claim includes two further allegations of discrimination by failure to make reasonable adjustments that relate to events from 12 October 2023 to April 2024, and arise from the alleged actions of Hayley Kendall and Janelle Holmes (Chief Executive Officer). 12.3. There is no suggestion that the claimant was not fully aware of the events up to the end of 2022 that her claims rely on. 12.4. The claimant did not commence ACAS conciliation in relation to any of these allegations until December 2023. The claimant did not present a claim about these events until June 2024.. 12.5. It is noted that the claimant has made two later claims of discrimination by failure to make reasonable adjustments. These occurred after a significant period when no alleged discrimination occurred. The only person involved in these later events, Hayley Kendall, is only otherwise referenced in relation to the 2021 allegation. This means there was a gap of almost two years when no allegation about the actions of Hayley Kendall has been made. 12.6. The two post 2022 allegations of discrimination by failure to make reasonable adjustments do not appear to be in any way related to the earlier allegations of discrimination. They are completely different in subject and nature, and mostly relate to the actions of different persons. There was also a significant gap where no alleged discrimination occurred. On this basis the claimant does not appear to have any reasonable prospect of showing that these later allegations were in any way a continuation of earlier acts of discrimination. 12.7. The delay in the claimant bringing her claims relating to the earlier (2022 and prior) allegations is around 18 months. That is a very significant delay. The claimant will need a significant extension of time for these allegations to fall within the jurisdiction of the Employment Tribunal to consider. 12.8. At this hearing the claimant stated that her trade union representative did not assist her, but a friend who was a trade union representative for a different area did assist her. The clamant had contacted ACAS around six months before she presented her claim. All the discrimination claims forming part of the claim relate to matters the claimant was fully aware of at all relevant times. 12.9. Further, when asked at this hearing the claimant stated that she did not act earlier because she had decided not to pursue Employment Tribunal claims. 12.10. Based on the above information, it is concluded that the claimant has no reasonable prospect of showing that any part of her discrimination claims arising from events that occurred up to the end of 2022 are within the jurisdiction of the Employment Tribunal to consider for jurisdictional time limit reasons. This means it is concluded that the claimant’s discrimination claims from this period have no reasonable prospect of success. 12.11. It is in the interests of justice to strike out claims that have no prospects of success and avoid the parties incurring time and expense in preparing for and attending a lengthy hearing of such claims. 12.12. The prejudice to the respondent in having to defend historic allegations of this nature is material. In addition to the time and expense referred to above, the majority of these allegations relate to comments alleged to have been made, meaning witness evidence would be key to their determination. The significant delay in pursing the allegations will inevitably have an impact on the quality of that evidence. 12.13. Accordingly, exercising the discretion at stage two of the process to be considered by a Tribunal before striking out claims, all such claims are accordingly struck out. Approved by: