Dr A Kashem v Tameside and Glossop Integrated Care NHS Foundation Trust: 2411554/2023 Dr A Kashem v Tameside and Glossop Integrated Care NHS Foundation Trust: 2411554/2023
EMPLOYMENT TRIBUNALS
Case No 2411554/2023
Between
Dr A KashemClaimantTameside and Glossop Integrated Care NHS Foundation TrustRespondent
Before
Employment Judge AinscoughIn person for claimantMr Lawrence - Counsel for respondentDate 17 July 2025
JUDGMENT
[1]The claimant was not an employee within the meaning of section 230 of the Employment Rights Act 1996.[2]The claim for unfair dismissal in accordance with section 98 of the Employment Rights Act 1996 is unsuccessful and is dismissed.[3]The claim for automatic unfair dismissal in accordance with section 101A of the Employment Rights Act 1996 is unsuccessful and is dismissed.[4]The claim for automatic unfair dismissal in accordance with section 103A of the Employment Rights Act 1996 is unsuccessful and is dismissed.[5]The claim for automatic unfair dismissal in accordance with section 104 of the Employment Rights Act 1996 is unsuccessful and is dismissed.[6]The claim for wrongful dismissal is unsuccessful and is dismissed.[7]The remaining claims will continue. Case No: 2411554/2023 Approved by
REASONS
[1]The claimant made complaints of unfair dismissal, automatic unfair dismissal, wrongful dismissal, detriment because of a protected disclosure, failure to pay holiday pay and unlawful deduction from wages.[2]On 15 September 2023 the claimant began ACAS Early Conciliation. On 5 October 2023 the claimant received the Early Conciliation Certificate. On the 2 November 2023 the claimant submitted the ET1 form.[3]On 11 December 2023 the respondent submitted a response.[4]On 4 November 2024 the claimant made an application to amend the claim to include: Case No. 2411554/2023 2• Application to add a new allegation of detrimental treatment arising in November 2021 (paragraph 21 amended particulars of claim);• Application to plead, in the alternative, that the purported dismissal letter amounted to detrimental treatment, in the event that the Claimant is found to be a worker, not an employee (paragraph 28 amended particulars of claim);• Application to add paternity pay as a statutory right under the Claimant’s claim under section 104 ERA 1996; and• Application to add PIDs 1-7 and 9 as alleged PIDs in the Claimant’s claim under section 47B and section 103A ERA 1996.[5]On 25 May 2025 the claimant made a further application to amend the claim to include details of further protected disclosures (PID 11-16) as follows:• 27.10.21 at 12.48pm to Robert Chappell. Disclosing patient safety concerns from understaffing.• 10.11.21 at 11.30am to Andrei Mihailescu. Collective email disclosing unsafe staffing levels.• 3.12.21 at 15.34pm to Robert Chappell. Warning Respondent that dismissal may be unlawful if found to be an employee.• 30.12.21 at 11.08am to Marta Wisniewska. Challenging legality of Respondent's use of rolled up holiday pay.• 5.9.22 at 12.02pm to Jenny Wilkinson. Disclosing concerns re holiday pay transparency.• 29.03.23 at 16.09pm to Olivia Cavanagh. Disclosing concerns with respect to working status and holiday pay concerns.[6]On 16 July 2025 the Tribunal determined that the claimant was a worker but not an employee. As a result, the complaints of unfair dismissal, automatic unfair dismissal and wrongful dismissal were dismissed.[7]On 1 August 2025 the respondent submitted an amended response.[8]On 28 August 2025 the respondent made an application to strike out the complaints of detriment because of a protected disclosure and a failure to pay paternity leave payments or for a deposit order.[9]Prior to determining the respondent’s applications, the Tribunal determined the claimant’s application to amend as follows – as set out in the Record of Preliminary Hearing: “20. The claim is amended to include paragraph 21 of the amended particulars of claim. This paragraph does not introduce a new detriment on which the claimant relies, but rather is an additional fact that the claimant Case No. 2411554/2023 3 began corresponding with the A&E department on 22 November 2021 before he the alleged detriment of prevention of the claimant working in A&E.21. This additional fact is part of the factual matrix of the pleaded detriment and the claimant will face greater hardship if he cannot rely on this fact in support of his claim than the respondent will face by asking existing witnesses about this correspondence.22. The claim is also amended to include paragraph 28 of the amended particulars of claim. At the previous preliminary hearing this Tribunal determined that the claimant was a worker and not an employee. As a result, the complaints of unfair dismissal were dismissed. If the amendment were not allowed the claimant will not be able to complain about the termination of his relationship with the respondent.23. The findings of fact made at the last preliminary hearing were about whether the claimant was an employee, not the cause of the termination of the relationship.24. The claimant will face a greater hardship if he were not able to pursue this complaint than the respondent will by asking those witnesses who were to give evidence about the unfair dismissal complaints to give evidence about the cause of the termination of the relationship.25. The claimant’s application to rely on section 45A of the Employment Rights Act 1996 in the alternative to section 47B is refused. The claimant made this application in submissions at this hearing and had not particularised this complaint.26. The respondent will face greater hardship responding to a complaint that is between 2-4 years out of time, about which it does not understand the particulars, than the claimant will face in not pursuing this complaint in the alternative. The claimant can pursue his detriment complaint in accordance with section 47B of the Employment Rights Act 1996.27. The claim is amended to include the alleged protected disclosures set out in the claimant’s email of 12 February 2024, referred to as PID 1-7 and 9. Whilst they are entirely new factual allegations, the claimant did not have access to his email account with the respondent when submitting his claim. Within 3 months of submitting his claim, the claimant provided details of these alleged protected disclosures. The respondent has been on notice since February 2024 and should have collated evidence at the earliest opportunity.28. The claimant will face greater hardship if he is not able to rely on this amendment because he would not be able to pursue the first detriment complaint as PID 8 and PID 10 post date the first detriment.29. The claimant’s application to rely on PID 11-16 is refused. The claimant provided details of these new factual allegations more than 12 months after the submission of the ET1. These alleged protected disclosures cover the same time period and topics as PID 1-10 on which the claimant can rely to pursue his claim. Case No. 2411554/2023 430. The respondent will face greater hardship collating evidence about alleged protected disclosures this far into proceedings.31. The claimant’s application to amend his claim to include a complaint of failure to grant paternity leave is refused because the claimant was not an employee and did not have the right to such leave during his relationship with the respondent.”[10]In fact, paragraph 31 of the record of the preliminary hearing should read: 31. The claimant’s application to amend his claim to include a complaint of failure to grant paternity leave pay is refused because the claimant was not an employee and did not have the right to such leave pay during his relationship with the respondent.” Respondent’s applications[11]The basis of the applications was in accordance with rule 38 and rule 40 of the Employment Tribunal Procedure Rules 2024.[12]The ground on which the respondent applied for a strike out was that the majority of the detriment because of a protected disclosure allegations (including those contained within the amendment applications) and the complaint for failure to grant paternity leave had no reasonable prospects of success.[13]In the alternative, the respondent sought a deposit order on the basis the allegations (including those contained within the amendment applications) had little reasonable prospect of success. Relevant legal principles[14]Rule 38(1)-(2) of the Employment Tribunal Rules of Procedure 2024 states that: “(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). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.” Case No. 2411554/2023 5[15]In the case of Anyanwu v South Bank Student Union (2001) ICR 391 the House of Lords determined that discrimination claims should only be struck out in the most obvious of cases because they are fact sensitive and require a full examination of the facts before a determination can be reached[16]Rule 40 (1)-(4) states that: “(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.” Discussion and Conclusions Prospects of success
Discussion and Conclusions
[17]The respondent contended that the allegations had no reasonable prospect of success. The Tribunal must take the claimant’s pleaded facts at their highest when considering this application.[18]The Tribunal is also conscious that the claimant is a litigant in person. The Tribunal has considered the case of Cox v Adecco and others UKEAT/0339/19/AT(V) as to how to approach pleadings drafted by litigants in person. If facts are disputed, a strike out of the claim is an unlikely outcome. (a) Detriment because of a protected disclosure[19]This type of complaint is, like discrimination complaints, fact sensitive. The facts of any such complaint should be fully examined unless it is obvious that the claim has no reasonable prospect of success. Quite often there needs to be an examination of the facts to establish the cause of the detrimental treatment.[20]The respondent’s application set out the respondent’s evidential position that requires the Tribunal to consider the document and witness evidence before there can be a determination of the complaint..[21]The findings made by this Tribunal at the earlier preliminary hearing were about whether the claimant was an employee or a worker. This Tribunal has not made findings of fact about the cause of the termination of the relationship but rather noted that, in determining that the claimant was a worker, the respondent chose not to offer the claimant any more shifts. The claimant Case No. 2411554/2023 6 disputes the reason given for that decision which can only be resolved through an analysis of documentary and witness evidence.[22]Similarly, the respondent’s contention that the claimant did not have a reasonable belief in any of the alleged protected disclosures can only be determined once the Tribunal has considered the documentary and witness evidence.[23]The claimant’s complaint is arguable and has more than little reasonable prospect of success. The respondent’s application for strike out or a deposit order is refused. (b) failure to grant paternity leave[24]The complaint of failure to grant paternity leave has no reasonable prospect of success because the claimant was not an employee and is therefore struck out. Approved by: Employment Judge Ainscough 30 January 2026