Mr N P Kumar v University Hospitals of Morecambe Bay NHS Foundation Trust: 2411176/2021
EMPLOYMENT TRIBUNALS
Case No 2411176/2021
Between
Mr N P KumarClaimantUniversity Hospitals of Morecambe Bay NHS Foundation TrustRespondent
Before
Employment Judge Phil AllenIn person for claimantMs L Gould (instructed by counsel) for respondentDate 6 November 2024
JUDGMENT
The application to strike out the claim because it is said it is no longer possible to have a fair hearing under rule 37(1)(e) of the Employment Tribunal Rules of Procedure is not successful and does not succeed.
REASONS
Introduction
[1]This was the decision reached in the respondent’s application to strike out parts of the claim made under rule 37(1)(e) of the Employment Tribunal rules of procedure (only). The decision in the deposit application is recorded in a separate deposit order. The Judgment in the respondent’s application that the claim be struck out under rule 37(1)(a) has been recorded in a separate Judgment.
Issues
[2]The respondent made an application that the claim should be stuck out under rule 37(1)(e) because it was no longer possible to have a fair hearing.
Procedure
[3]The claimant represented himself at the hearing. Ms Gould, counsel, represented the respondent.[4]The hearing was conducted by CVP remote video technology.[5]An agreed bundle of documents was prepared in advance of the hearing. Each of the parties made oral submissions.[7]After an adjournment, I informed the parties of my decision and the reasons for it. Written reasons were requested by the respondent and so this document has been provided. Facts
The Law
[8]The key facts as they related to the strike out application are recorded in the decision below. The matters relied upon in the claim date back to 2017. Some of the evidence in the case relates to the period of the Covid pandemic and the operation of an NHS Trust during that period. The claim was entered in September 2021. The respondent’s decision maker in the dismissal has, sadly, deceased. She died in March 2023. For the final hearing, the respondent has called the HR person who provided support to the decision-maker but highlighted the difficulties in them being able to do so and in recalling those matters. The case was listed for a final hearing in June 2024, but that hearing was postponed due to an application by the claimant accompanied by medical evidence. The final hearing has been relisted for February 2026. The claimant’s position at the preliminary hearing was (in summary) that he hoped he would be fit enough to attend the final hearing. He had tried to obtain legal representation, but he had not been able to do so. The Law[9]I have the power to strike out a claim under rule 37(1)(e) if I consider that it is no longer possible to have a fair hearing.[10]The respondent’s counsel referred me to the relevant chapter of the IDS handbook, which I read. She also referred to two authorities: Leeks v University College London Hospitals NHS Foundation Trust [2024] EAT 134 and Mukoro v Independent Workers’ Union of Great Britain UKEAT/1028/19 and I considered what was said in those Judgments. In the latter, the Employment Appeal Tribunal said: “we consider that it was an error of law for the Employment Tribunal to take into account an irrelevant factor, namely its view of what was in the Claimant’s best interests” The conclusions – applying the law to the facts[11]I focussed in particular on exactly what was said in the Rule at 37(1)(e) of the Employment Tribunal Rules of Procedure. That says that I may strike out the claim on the grounds that I consider that it is no longer possible to have a fair hearing in respect of the claim.[12]I considered the relevant part of the IDS Handbook to which I was referred by the respondent’s counsel and I also looked at the cases of Leeks and Mukoro to which I have already referred.[13]I particularly noted what was said in the Mukoro decision. I was very concerned by the claimant's statement in his submissions at the hearing that he might consider suicide and die before the final hearing, albeit I understood that the claimant made that statement really to illustrate a point rather than as a genuine statement of his mindset at the hearing. Nonetheless, I noted that what I was told in Mukoro was that I must not decide whether it is in the claimant's best interests to strike out his claims, so I have not taken that into account.[14]I am very concerned about whether the claimant will be fit and able to conduct the final hearing, which is now listed in February 2026. Unfortunately, based upon what the claimant said at the hearing, it appears unlikely that he will be able to obtain representation for that hearing. As a result, he will need to represent himself in a hearing conducted over ten days. It is entirely possible that the adverse health reaction which occurred in May 2024 will be repeated in February 2026.[15]As the respondent’s representative highlighted, that could mean that the respondent and its witnesses will need to re-prepare for, and set aside time from NHS duties for, another hearing which may not go ahead, and there will be significant costs incurred. However, based upon the limited medical evidence that was provided and primarily based upon what the claimant said at the hearing, I did not reach the decision that it was no longer possible to have a fair hearing. It may be that ultimately it transpires that it will not be, but in fairness (applying the overriding objective and dealing with the case fairly and justly) I decided it was not the right decision for me to strike out the case under rule 37(1)(e).[16]I would add that, should it in fact not be possible to conduct the final hearing on the dates listed in February 2026, the arguments for the respondent on this point may then be very strong.[17]I considered all the matters that the respondent’s representative raised at the hearing. I have not addressed them all point by point. I did take into account the respondent’s position and the impact that having this claim hanging over the respondent’s witnesses will have, when it will hang over them far longer than it should. I did note that a key witness is very sadly deceased and, whilst she would not have been available to have given evidence even had the case gone ahead in June of this year, I understood that others giving evidence about her decision was made even more difficult by the further delay.[18]The historic nature of many of the facts and some of the disclosures was also troubling. Recalling decisions made in the height of Covid will be even more difficult in 2026, than it would have been in June this year.[19]The evidence from May was that the claimant's condition worsened prior to the previous hearing. That was noteworthy. However, nonetheless, the claimant said at the preliminary hearing that he wanted his case to be heard, there must clearly be some genuine prospect that it will be possible for it to be heard in February 2026, and on that basis I decided not to strike out the claim under rule 37(1)(e).[1]This was the decision reached in the respondent’s application to strike out parts of the claim made under rule 37(1)(a) of the Employment Tribunal rules of procedure (only). The decision in the deposit application is recorded in a separate deposit order. The Judgment in the respondent’s application that the claim be struck out under rule 37(1)(e) has been recorded in a separate Judgment.
Issues
[2]The respondent made an application that parts of the claim should be stuck out under rule 37(1)(a) because they were contended to have no reasonable prospects of success, relying primarily upon the time/jurisdiction issues which applied to those parts of the claim.
Procedure
[3]The claimant represented himself at the hearing. Ms Gould, counsel, represented the respondent.[4]The hearing was conducted by CVP remote video technology.[5]An agreed bundle of documents was prepared in advance of the hearing.[6]Each of the parties made oral submissions. I heard the oral submissions on this strike out application and the deposit application together. This Judgment and reasons addresses only the strike out application. As written reasons had already been requested for the earlier strike out application, I confirmed that written reasons would also be provided for this strike out application.
Facts
[7]The key facts as they related to the strike out application are recorded in the decision below. The Law[8]I have the power to strike out all or part of the claim under rule 37(1)(a) if it has no reasonable prospect of success.
The Law
[9]In her submissions, the respondent’s counsel referred to the relevant part of the IDS handbook. I took into account what was said in the leading authority of Cox v Adecco UKEAT/0339/19 in which the Employment Appeal Tribunal identified the following propositions: “ “(1) No-one gains by truly hopeless cases being pursued to a hearing; (2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate; (3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate; (4) The Claimant’s case must ordinarily be taken at its highest”[10]The relevant test for when a complaint must be entered at the Tribunal for detriment claims is set out in section 48(3) of the Employment Rights Act 1996. The claim must be presented 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. Where there is a series of similar acts or failures, the three months runs from the last of them. The period is extended by early conciliation. Where that primary time limit is not adhered to, section 48(3)(b) provides for an extension where the claim was entered: “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 entered before the end of that period of three months” Conclusion – applying the Law to the
Facts
[11]Both parties agreed that for the list of detriments for the claim for detriments arising from a protected disclosure under sections 47B and 48 of the Employment Rights Act 1996 listed in the list of issues as issues 16 (a) to (l), the last date upon which a detriment was alleged to have occurred or where there had been a failure to act, was 6 October 2020.[12]The same applied to the complaint for health and safety detriment under sections 44 and 48 of the Employment Rights Act 1996.[13]The Employment Tribunal claim had been entered at the Tribunal on 21 September 2021 following ACAS Early Conciliation from 14 June to 26 July 2021.[14]For those complaints, the claim had been entered outside the time required, unless the time was extended. As I have identified, the test for time to be extended was whether it was reasonably practicable for the claimant to have entered his complaint within the time required.[15]The claimant relied upon two things: ill health; and waiting for matters to conclude. He told me that he wrote to the respondent’s Chief Executive in March 2021, which showed that it was feasible for him to have entered his claim at that time had he chosen to do so.[16]The test for an extension of time is a relatively strict one. I must take the claimant’s case at its highest.[18]I came very close to deciding that the argument that it had not been reasonably practicable to have entered his claim (for the detriments relied upon) in time had no reasonable prospect of success. However, when considering that I must decide that it has no reasonable prospect at all, I decided that I could not say that it had no reasonable prospect at all.[19]For the claimant’s other complaints, I could not say that they had little or no reasonable prospect of success. The test for jurisdiction in discrimination claims, where not brought within the primary time limit, is whether it is just and equitable to extend time and that would need to be decided at the final hearing once all the evidence has been heard, and for the discrimination, harassment and victimisation claims there is an argument that matters alleged were a continuing series of events with the allegations which were entered within the primary time limit. I decided that I did consider that those arguments had reasonable prospect of success and I would not strike out those complaints.[20]Following the respondent’s submissions, I also considered whether the more historic detriments should be treated differently to the later ones. The 2017 alleged detriments are particularly old. However, as there may be an argument that there may be a series of similar events with the later alleged detriments, I decided that they should not be treated differently.[21]I therefore refused the application and decided that the detriment complaints should not be struck out. Employment Judge Phil Allen 6 November 2024