Mrs E F Baduka v Cumbria Northumberland Tyne and Wear NHS Foundation Trust: 2502206/2023

EMPLOYMENT TRIBUNALS

Case No 2502206/2023

Between

Mrs E F BadukaClaimant

Cumbria Northumberland Tyne and Wear NHSRespondent

Before

Employment Judge Loy

Mr D Bayne (instructed by counsel) for respondent

Date 4 December 2024

JUDGMENT

[1]The claimant’s claims of direct race discrimination are dismissed upon withdrawal.

[2]The claimant’s claims of harassment related to race are dismissed on withdrawal.

[3]The claimant’s claims of harassment related to religion or belief was not presented within the time limit required under section 123 Equality Act 2010 (as extended by any period of early conciliation).

[4]The Tribunal therefore has no jurisdiction to consider the claimant’s claims for harassment related to religion or belief.

[5]The claimant has no other claims.

[6]All of the claimant’s claims are therefore dismissed. Case Number: 2502206/2023 2 of 11 Written Reasons having been requested pursuant to Rule 63(2) of The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 the following reasons are provided

REASONS

[1]At a public preliminary hearing on 6 November 2024, the Tribunal considered the respondent’s application for the determination as a preliminary issue under Rule 53(b) as to whether or not the claimant’s claim was presented within the time limits required under section 123 Equality Act 2010 (as extended by any period of early conciliation). Withdrawn allegations

[2]The claimant withdrew the following claims:2.1 All of the claims of direct race discrimination;

2.2 All of the claims of harassment related to race. Withdrawn amendment application

[3]The claimant’s application to amend the claim to introduce claims of automatic unfair dismissal and for breach of contract were both withdrawn. Harassment related to religion or belief

[4]The complaint of harassment related to religion or belief is pursued. That is the sole remaining complaint. The factual allegations of harassment related to religion or belief

[5]The claimant agreed that the factual allegations relied upon and which she says amount to harassment related to religion or belief are that:5.1 Between 14 January 2023 and 28 January 2023, the claimant was instructed on a number of separate occasions by Grace Amadi to wear trousers. The alleged instructions were given in the accommodation provided by the respondent which was shared by the claimant, Grace Amadi and others Case Number: 2502206/2023 3 of 11 Grace Amadi and the claimant were both recruited by the respondent’s international recruitment team. They are both qualified nurses in Nigeria who were recruited by the respondent with a view to becoming qualified nurses in the UK.

5.2 Ms Monica Dsouza, a Clinical Nurse Educator employed by the respondent, whose responsibilities included assisting with the onboarding of the claimant, failed to deal with the an undated verbal complaint made by the claimant to her about the alleged instructions at 5.1 above;

5.3 Between 14 January 2023 and 28 January 2023, on a number of unspecified occasions and by person(s) the claimant has not identified, the ‘F word’ was used in the claimant’s presence in her shared accommodation; and

5.4 On 26 January 2023, Mr Jonathan Anane, a qualified nurse from Ghana and peer of the claimant, said that the claimant:5.4.1 did not like to have sexual conversations;

5.4.2 appeared to be religious.

[6]Over and above the allegations at 5.1 to 5.4 above, none of the additional allegations in the claimant’s document dated 5 November 2024 entitled ‘Further and Better Particulars Following Instructions Received By Advocate on 3 November 2024 Document’ were pursued.

[7]The allegations at 5.1 to 5.4 are therefore the definitive list of allegations of harassment related to religion or belief.

The hearing

[8]There was a preliminary hearing convening today’s public preliminary hearing on 8 July 2024 before EJ Martin.

[9]The Tribunal was provided with a bundle of documents of 277 pages.

[10]The claimant failed to serve a witness statement as ordered by EJ Martin at the preliminary hearing on 8 July 2024. That statement was intended to set out the claimant’s position on the issue of time limitation generally, including on the issue of the Tribunal’s discretion to extend time under section 123 Equality Act on a just and equitable basis.

[11]Nevertheless, the Tribunal allowed the claimant to give oral evidence at today’s hearing. The claimant was cross-examined by Mr Bayne.

[12]Both parties made oral submissions.

The issues

[13]One of the issues to be determined at today’s hearing was whether claim form 2502206/2023 was presented within the time limit set out in section 123 Equality Act 2010.

[14]That issue fell to be determined as a preliminary issue under Rule 53(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Case Number: 2502206/2023 4 of 11

[15]In light of my conclusions on that issue, it has not been necessary for me to consider any other issues. Process and evidence

[16]The claimant gave evidence on affirmation.

[17]I allowed her to do so despite the fact that she had wholly failed to comply with the Tribunal order that she prepare and serve a witness statement in support of her position that her claim was either in time or that the Tribunal should exercise its discretion to extend time to accept jurisdiction.

[18]No explanation was given to explain why the claimant did not comply with that direction. EJ Martin’s order for a witness statement was not only a necessary step in preparation for this hearing, but also an order for the provision of evidence that that was necessary for the claimant to provide in support of her own case. It was not suggested that the claimant or her professional advisers were unaware of the order.

[19]I asked on several occasions to be directed to the document that was or contained this witness statement. Mr Lennard, entirely properly, accepted that the claimant had not provided any written evidence in compliance with EJ Martin’s order. It was clear to me that the claimant had received EJ Martin’s orders because the Tribunal had in front of it a number of lengthy documents which could only have been generated in response to EJ Martins case management orders and case summary.

[20]I considered carefully whether or not to allow the claimant to give extempore evidence in chief despite her non-compliance. That non-compliance was all the more remarkable given that the claimant has been professionally advised throughout by three firms of solicitors and today by a (very recently instructed) professional advocate. The claimant’s default may have been lost on her, but it was no lost on Mr Lennard who clearly understood its significance and did his very best to assist the claimant avoid the implications of that default.

[21]Ultimately, I decided to allow live evidence in chief confined to the issue of time limitation in accordance with the scope of the Tribunal’s order. The alternative was to proceed on the basis of no evidence on this preliminary issue. In other words, the Tribunal decided to take took the least worst option available to it. Findings of fact The facts not in dispute

Findings of fact

[22]Before setting out the findings of fact on disputed matters, the Tribunal sets out the agreed facts in chronological order.

[23]The respondent is a mental health services NHS Foundation Trust.

[24]On 14 January 2023, the claimant arrived in the UK.

[25]The claimant is a qualified nurse in Nigeria. Case Number: 2502206/2023 5 of 11

[26]The respondent, as part of its international recruitment, recruited the claimant with a view to her becoming a qualified nurse within the UK.

[27]Between 14 January 2023 and 28 January 2023, the claimant lived in shared accommodation provided by the respondent.

[28]Grace Amadi and Jonathan Anane also shared that accommodation.

[29]On 18 January 2023, the claimant started employment with the respondent.

[30]On 29 January 2023, the claimant presented a grievance to Ann Lamb, one of the respondent’s managers.

[31]27 April 2023 is the date 3 months less a day from the last alleged acts of harassment related to religion or belief at paragraph 5 above.

[32]On 13 May 2023, the claimant failed her probationary period review.

[33]On 5/6 June 2023, the claimant’s employment terminated.

[34]On 7 July 2023, Acas was notified of a dispute within the jurisdiction of the Employment Tribunal.

[35]On 10 July 2023, Acas issued an Early Conciliation Certificate.

[36]On 22 July 2023, Acas was again notified of a dispute within the jurisdiction of the Employment Tribunal.

[37]On 26 July 2023, the first claim against the respondent was presented (case number 2501798/2023). The claimant’s representatives on the first claim are identified on the claim form as SAP Legal Services.

[38]On 24 August 2023, Acas issued a second Early Conciliation Certificate.

[39]On 19 September 2023, a second claim against the respondent was presented (case number 2502206/2023). The claimant’s representative on the second claim form was a different firm of solicitors: Crown and Law Solicitors

[40]On 10 October 2023, the solicitors acting for the claimant in the first claim came off record.

[41]Both the first and second claims were listed for a public preliminary hearing to take place on 30 January 2024.

[42]On 20 November 2023, the respondent applied to strike out the second claim as an abuse of process.

[43]On 5 December 2023, Crown and Law solicitors, informed the Tribunal that the first claim was presented to the Tribunal without the claimant’s consent and not on the claimant’s instruction.

[44]On 13 December 2023, SAP Legal Services informed the Tribunal that the claimant had instructed the firm to present the first claim.

[45]On 17 January 2023, SAP Legal Services again informed the Tribunal that they were acting on the claimant’s instructions when presenting the first claim on her behalf.

[46]On 30 January 2024, the claimant failed to attend or be represented at the public preliminary hearing. EJ Arullendran made an unless order in default of which the first claim would be struck out on the basis that it was not actively being pursued. Case Number: 2502206/2023 6 of 11

[47]On 12 June 2024, EJ Aspden stuck out the first claim pursuant to the unless order.

[48]On 5 July 2024, the respondent applied to strike out the second claim on the basis that it was presented out of time.

[49]On 8 July 2024, at the second preliminary hearing EJ Martin listed today’s public preliminary hearing to consider, among other things, time limitation in respect of the second claim.

[50]At that hearing, EJ Martin ordered, among other things, that by 30 September 2024, the claimant must send to the respondent a witness statement in support of her position on the issue of time limitation and in respect of her means.

[51]Mr Lennard (who had only been very recently instructed before today’s hearing) accepted today that the claimant had not complied with that order, either by 30 September 2024 or at all. Mr Lennard can bear no responsibility at all for that failure. The findings on the disputed facts

[52]Turning to the findings of fact on disputed matters.

[53]The last alleged act of harassment related to religion or belief occurred at the latest on 28 January 2023. The primary time limit within which to present a complaint to the Tribunal therefore expired on 27 April 2023.

[54]The first Acas period of early conciliation started on 7 July 2023. The second period started on 24 August 2023. Both of those dates postdate the expiry of the primary time limit. The issue of time limitation therefore falls to be determined on the basis of the Tribunal’s discretion to extend time on a just and equitable basis until the date of the presentation of the second claim form on 19 September 2023. On other words, consideration of extending the primary time limit to include a period of early conciliation do not arise.

[55]The claimant gave evidence under affirmation at today’s hearing. She said that she had not consented to or instructed SAS Legal Services to:55.1 notify Acas; or

55.2 present a claim form on her behalf to the Tribunal.

[56]The claimant says that she was unaware of either the first notification to Acas or the presentation of her first claim form.

[57]The Tribunal had written evidence from SAS Legal Services to the opposite effect. Mr Lennard did not object to the introduction into evidence of either of the two emails from SAS Legal Services of 13 December 2023 and 17 January 2024. Indeed, the claimant’s position today was to rely positively on the matters at paragraph 55 in support pf her application for the Tribunal to accept jurisdiction.

[58]On 13 December 2023, Ms Sharon Pankowski, a paralegal at SAS Legal Services, said as follows in an email to the respondent’s solicitors: “I received direct instructions from Mrs Baduka to proceed to the Employment Tribunal and assist with her claim. … Case Number: 2502206/2023 7 of 11 To my great surprise, I was cc’ed into an email from Mrs Baduka, in which she wrote to the Employment Tribunal stating that she did not instruct us. This is a big surprise considering that her Particulars of Claim are very detailed and that information could only have come from Mrs Bduka (sic). …

[59]To my surprise, Mrs Bduka (sic) deleted WhatsApp messages communicating between us about her employment tribunal matter.’

[60]In an email of 11 January 2024 from the claimant to SAS Legal Services, the claimant said: “Given the above short time period of my contact with you, we did not engage at all, even to discuss deep and further file a claim to the court, meaning ACAS process with certificate and all paper works with which you instituted the “strange claim 1 with outlined 65 listed items with the court in my name were your independent inventions in exclusion of my knowledge. Awareness, preview consent and authorization as adult with full mental capacity.”

[61]On 17 January 2024, Ms Pankowski said the following in a further email sent to the Tribunal, the claimant’s second set of solicitors and the respondent’s solicitors: “…what you have written [in your email of 11 January 2024] is not truthful… … We then spent considerable time together with you and resources setting put your particulars of claim, which you dictated and verified to be truthful before sending them to the Employment Tribunal. … You did not inform us that you instructed another firm of solicitors to issue the same claims to the Employment Tribunal without informing us of your position. You did this while you already had an existing claim at the Tribunal”

[62]The particulars of claim in the first claim is an extensive document running to some 65 paragraphs. It is very detailed and plainly the information contained in it could only have come from the claimant.

[63]The Tribunal rejected the evidence of the claimant when she said she did not instruct SAP Legal Services to notify Acas or to present a claim on her behalf. The Tribunal finds that she did instruct SAS Legal Services to present a claim for discrimination to the Employment Tribunal on her behalf. Notifying Acas was a necessary step in that process.

[64]The Tribunal did not find it credible that solicitors to whom the claimant had plainly spoken in detail about her claim were not also instructed to present a claim to the Tribunal. The extent of the information provided by the claimant to SAS Legal Services clearly demonstrates that there was significant contact between the claimant and SAS and it also clearly demonstrates that the purpose of the claimant providing that extensive information to SAP Legal Services was to enable her to pursue a claim for breach of the Equality Act 2010.

[65]Indeed, all of the 65 paragraphs in the first claim contain information and pleadings directly setting out the factual and legal basis for such a claim. Those paragraphs Case Number: 2502206/2023 8 of 11 are entirely inconsistent with any other explanation than that the facts and information upon which the pleaded case is based came from the claimant after, as SAS say, a considerable time had been spent between the firm and their client.

[66]The Tribunal also noted that the claimant took no steps to make enquiries to SAS about the status of her case nor any steps to terminate her retainer with them before instructing her second set of solicitors to present her second claim. As of 6 November 2024, a third set of solicitors represented the claimant who, by the time this oral judgment was given on 22 November 2024 had themselves had their retainer terminated.

[67]The Tribunal finds that the claimant was at all material times well aware that the first claim had been presented to the Tribunal on her behalf.

[68]In its email to the Respondent’s solicitors of 13 December 2023, SAP Legal Services also say as follows: “Mrs Baduka was very well informed and aware of her claim being made to the Employment Tribunal as per her instructions; she was very knowledgeable about the Employment Tribunal; hence, the particulars of claim were set out in great detail.”

[69]The Tribunal accepts that written evidence and finds that:69.1 the claimant instructed SAS Legal Services to draft and present what became the first claim on her behalf;

69.2 the claimant was knowledgeable about the existence of employment rights and the Employment Tribunal as the forum in which to present any complaints from; at the latest, mid July 2023.

[70]The Tribunal again did not find it credible that the claimant would instruct solicitors and brief them very thoroughly in a way plainly designed to present a claim to the Employment Tribunal for breach of her rights under the Equality Act if it was not also her intention to make such a claim and for her solicitors to do so on her behalf. After all, the claimant went on to do precisely that when presenting her second claim to the Tribunal through her second set of solicitors on essentially the same factual basis as the first claim.

[71]The Tribunal also rejected the claimant’s evidence that she was not aware of the existence of the respondent’s response form in the second claim. The Tribunal’s file records that the response form was sent to the claimant’s second set of solicitors in a timely manner. The Tribunal is entitled to and does that as the response form being sent to the claimant.

[72]The Tribunal has also, reluctantly but necessarily, come to the conclusion that the claimant gave evidence under affirmation in relation to her awareness of the first claim that was knowingly misleading. That is a point that the Tribunal is entitled to take into account when addressing the issue of whether it is just and equitable to extend time.

[73]Indeed, the claimant’s account of events surrounding the presentation of her claim as a whole was deeply unsatisfactory. The Tribunal was given pages and pages of documentation containing information that the claimant wanted it to take into account and which expanded her claim while failing to comply with simple orders Case Number: 2502206/2023 9 of 11 which were designed to help her persuade the Tribunal to accept jurisdiction in the first place.

[74]The Tribunal has also come to the conclusion that the claimant, who is now on her third firm of solicitors at the early stage of presenting a claim to the Tribunal, prefers to blame her own advisers rather than to take personal responsibility for her own affairs.

[75]The claimant accepted in cross examination that she was by July 2024 that;75.1 she had had a face to face meeting with Crown and Law solicitors; and

75.2 she had spoken to ACAS and been made aware of time limits.

[76]It was the claimant’s own evidence in chief that she was made aware by ACAS that the time limits to bring a claim under the Equality Act 2010 was 3 months less a day from the last act of alleged discrimination.

The Law

[77]Section 123 Equality Act 2010 provides in so far as relevant to the claimant’s claims that: Time limits (1) Subject to 140B, proceedings on a complaint within section 120 may not be brought after the end of— (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.

Conclusion

[78]Taking the claimant’s case at its reasonable factual highest, she;78.1 was aware at the latest from 7 July 2023 of everything she needed to know about presenting a claim and presenting it promptly;

78.2 had contacted ACAS through her solicitors and directly; and

78.3 had access to professional legal advice.

[79]The first claim was struck out because of non-compliance with an unless order.

[80]The second claim was presented on 19 September 2024 nearly 5 months after the expiry of the primary time limit on 27 April 2024 and over 2 months after ACAS was notified.

[81]The Tribunal accepts that the claimant:81.1 was new to the UK; and Case Number: 2502206/2023 10 of 11

81.2 complained promptly to her employer about her perceived treatment.

[82]That has to be balanced against the Tribunal’s factual findings:82.1 that at the very latest those impediments had been overcome by 7 July 2023;

82.2 that the claimant was seeking to mislead the Tribunal about both the instructions she had given to SAS Legal Services and her awareness of the first claim.

[83]Mr Lennard made a great deal of the higher authorities which opine on the dangers of striking out a discrimination claim on its merits. There are two problems with that submission:83.1 This hearing is to determine the issue of time limitation not an assessment of the merits per se. In other words, the Tribunal is determining whether the merits can be considered at all as a matter of jurisdiction; and

83.2 The merits can be considered when deciding the jurisdiction issue and none of the authorities cited by Mr Lennard apply in this context.

[84]The Tribunal has come to the conclusion that it would not be just or equitable to extend time for the following reasons:84.1 The claimant was attempting to mislead the Tribunal about the circumstances in which the first claim was presented to the Tribunal;

84.2 The claimant on her own evidence was aware of her rights and time limits from 7 July 2023;

84.3 The delay in presenting the second claim form falls to be attributed to the claimant not to her advisers;

84.4 It has taken over a year and 3 hearings to get to the point of determining jurisdiction;

84.5 Despite the Tribunal’s many attempts to get the claimant to join the dots between the alleged unwanted conduct at paragraph 5 above and her religion or belief, she provided no prima facie explanation upon which causation might even begin to be established.

[85]The judgment of the Tribunal is that it has no jurisdiction to consider this complaint and it is therefore dismissed.