Mrs C J Chukwu v Northern Lincolnshire and Goole NHS Foundation Trust and Nursing and Midwifery Council: 2601565/2024

EMPLOYMENT TRIBUNALS

Case No 2601565/2024

Between

MRS C J CHUKWUClaimant

R1 - NORTHERN LINCOLNSHIRE AND GOOLE NHS FOUNDATION TRUST R2 - NURSING AND MIDWIFERY COUNCIL Heard: By CvPRespondent

Before

Employment Judge McTigue sitting alone

Ms N Bennett (instructed by Lay Representative) for claimant

Date 3 July 2026

JUDGMENT

[1]The claim against the second Respondent is struck out as it has no reasonable prospect of success.

[2]The complaint of harassment related to race against the first Respondent is struck out at it has no reasonable prospect of success. That relates to the claimant’s allegation that in 2023 a senior staff member in A&E called Zoe said to the claimant, “You’ve got body odour. You smell nasty” and demanded that the claimant change into new clothes. (originally from Para 4 of Claimant’s Further and Better Particulars of 2 June 2025). DEPOSIT ORDER

[3]The Employment Judge considers that the Claimant’s allegations against the first Respondent listed below at paragraphs 4.1 to 4.4 have little reasonable prospect of success. The Claimant is ORDERED to pay a deposit of £30 in respect of each allegation not later than 28 days from the date this Order is sent, as a condition of being permitted to continue to advance those allegations or arguments. The Judge has had regard to any information available as to the Claimant’s ability to comply with the order in determining the amount of the deposit.

[4]The allegations which have little reasonable prospect of success are as follows: 4.1. The allegation of direct race discrimination that “On 23 April 2024 - while limited to two patients under an action plan Laura Brett assigned the Claimant five unstable patients in Zone C without Health Care Assistant support, and her supervising nurse (Coletta) was removed. The Claimant relies on Laura Bret as her comparator and also a hypothetical comparator. (originally from Para 2.4 of Claimant’s Further and Better Particulars of 2 June 2025).” 4.2. The allegation of direct race discrimination that “On 25 April 2024 Michelle Hailey, Jo Foster and Laura Young suspended the Claimant. The Claimant relies on a hypothetical comparator. (originally from Para 2.6 of Claimant’s Further and Better Particulars of 2 June 2025).” 4.3. The allegation of direct race discrimination that “Jo Foster and Debbie Bray undertook a flawed investigation into the allegations against the Claimant. The Claimant relies on Laura Brett, Marie Gaughan, Emma Horsely and Laura Young as her comparators. (originally from Para 2.6 of Claimant’s Further and Better Particulars of 2 June 2025).” 4.4. The allegation of direct race discrimination that “Michelle Hailey referred the Claimant to the Nursing and Midwifery Council. The Claimant relies on Laura Brett, Marie Gaughan, Emma Horsely and Laura Young as her comparators. (from Para 2.6 of Claimant’s Further and Better Particulars of 2 June 2025).”

REASONS

[1]The Claimant has been employed by the first Respondent as a Nurse since 15 May 2023. Her employment is continuing. On 1 May 2024, the first Respondent made a referral to the second Respondent highlighting alleged concerns with the Claimant’s performance. The second Respondent is the regulator for nursing and midwifery professions in the UK.

[2]The claim is about race discrimination and specifically(a) the treatment the Claimant was allegedly subject to whilst she was on shift on 23 April 2024 and

(b) following on from that, the first Respondent’s suspension and investigation of the Claimant together with the subsequent referral to the second Respondent. The Claimant alleges that the treatment she was subjected to amounted to direct race discrimination.

[3]This is a matter which has already been the subject of three preliminary hearings. They took place before: 3.1. Employment Judge (“EJ”) M Butler on 20 December 2024. 3.2. Regional EJ Clark on 6 March 2025. 3.3. EJ M Butler on 5 August 2025.

[4]In addition, the Claimant had provided further and better particulars of her claim on: 4.1. 2 June 2025. 4.2. 20 August 2025.

[5]She also sought to clarify her claim by responding to a letter from Capsticks, the first Respondent’s solicitors, on 17 September 2025. Her correspondence of 17 September 2025 was also framed as an application to amend. It did not however clearly specify what her claim as currently pleaded was or indeed what amendments she was now seeking to make.

[6]Despite all the above actions and the provision of additional information from the Claimant, the claim remained poorly particularised. Indeed, the first Respondent had applied for a strike or deposit order on 16 July 2025 on the basis that the claims lacked particularisation and had no reasonable prospects of success. In addition, the second Respondent had made an application for a strike or deposit order on 29 July 2025 on the ground that the claim against it had no reasonable prospect of success.

The Hearing

[7]The purpose of today’s hearing was: 7.1. To consider the Claimant’s application to amend her claim (if such application was made). 7.2. To determine the Respondents’ applications for strike out and deposit order.

[8]I had before me: 8.1. A bundle prepared by the first Respondent which ran to approximately 201 pages. 8.2. A skeleton argument prepared by the first Respondent. 8.3. A bundle prepared by the second Respondent which ran to approximately 150 pages. 8.4. A skeleton argument prepared by the second Respondent. 8.5. A skeleton argument prepared by the Claimant.

[9]The Claimant did not attend on the first day of the hearing. She was at work. Instead, she was represented by her representative, Ms Bennett. I was conscious of paragraph 3 of EJ M Butler’s case management summary of 5 August 2025. That stated: “I was not able to clarify the issues of fact and law at this hearing. Even if I had endeavoured to do this, it would have been thwarted by the fact that the Claimant did not attend the hearing. Consequently, if Ms Bennett had needed to take instructions from the Claimant she could not have done so. I refer in particular to the well-reasoned letter from Capsticks dated 16 July 2025 which sets out what must be accepted as failings in the further and better particulars from the Claimant.”

[10]I noted that the Claimant had now replied to that letter from Capsticks. In addition, I asked Ms Bennett if she was in receipt of full instructions from the Claimant so that we could proceed today. I explained to Ms Bennett that my intention was to clarify the Claimant’s claim and then proceed to deal with her amendment application on the first day of this hearing. Ms Bennett confirmed she did have full instructions from the Claimant and that she and the Claimant were happy to proceed.

[11]I was informed by the first Respondent’s representative that the Claimant had allegedly informed Joanne Foster, a Nursing Director at her place of work that she was not aware of today’s hearing. The first Respondent also offered the Claimant the opportunity to join today’s hearing from a room at her place of work. We had a break so that Ms Bennett could speak to the Claimant. Following the break, Ms Bennett assured me that the Claimant was aware of this hearing. The Claimant however declined to join remotely on day one. When I asked Ms Bennett for an explanation for the Claimant’s non-attendance, despite the Respondent’s offer, she informed me that as a result of the discrimination experienced, the Claimant was anxious and suffering from racial trauma. I was happy to proceed without the Claimant in attendance on day one as she had given full instructions to Ms Bennett, however I explained to Ms Bennett that I would need the Claimant to attend on day two.

[12]I then proceeded to clarify the Claimant’s claim with Ms Bennett. This took almost the entirety of the first day. I adopted this approach as it was still unclear what the Claimant’s claim was despite the provision of additional information. Consequently, unless and until I was able to accurately understand the Claimant’s currently pleaded claim, I would not be able to fairly deal with any amendment application. In addition, and in bearing in mind Cox v Adecco & Others

UKEAT/0339/19/AT

, there must be a reasonable attempt at identifying the claims and the issues before considering applications for strike out or deposit orders.

[13]Ms Bennett and I extensively discussed the Claimant’s further and better particulars of claim of 2 June 2025. That appeared at pages 78 to 82 of the first Respondent’s bundle. We went through that document slowly and methodically. In respect of that document, Ms Bennett informed me that the Claimant was now not pursuing allegations 2.1, 2.2, 2.3 and 2.5 as allegations of direct race discrimination. It was said that the information contained in those allegations was background only rather than specific allegations of less favourable treatment.

[14]In addition, Ms Bennett informed me that the Claimant was now not pursuing the second sentence of allegation 2.4 as an allegation of direct discrimination. I note that no particulars relating to that second sentence had been included in the Claimant’s original pleadings.

[15]Through the course of the day, Ms Bennett also provided me with better particulars of the allegations being pursued as direct race discrimination against the first Respondent.

[16]The claim against the second Respondent was also clarified. Ms Bennett confirmed that only a claim of indirect race discrimination was being pursed against the second Respondent and that no amendment application was pursued in relation to the claim against the second Respondent. She also confirmed that the particulars relating to that claim appeared in section 3 of the Claimant’s further and better particulars of claim of 2 June 2025.

[17]After the Claimant’s claim had been clarified, I confirmed the specific allegations by reading them to Ms Bennett so that she could assess whether she wished to make an amendment application in respect of the claim against the first Respondent. However, Ms Bennett confirmed that I had recorded all aspects of the claim against the first Respondent and so she did not wish to make an amendment application. For the benefit of the reader, the claims and issues have been recorded in the record of a preliminary hearing in respect of this hearing which has been sent under separate cover to the parties.

[18]On the second day of the hearing, the Claimant attended. Conscious of the fact that Ms Bennett was a lay representative and that the Claimant had not been in attendance on day one, I started the day by reading out and confirming the Claimant’s claims and issues to Ms Bennett. Ms Bennett again signified her accord with how I had recorded the issues.

[19]As we were now at the stage where all parties clearly understood the claims and issues, I proceeded to hear the Respondents’ application for strike out and deposit orders. The Law Strike out

The Law

[20]Rule 38(1) of the Employment Tribunal Procedure Rules 2024 states: ‘At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response 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,

(d) that it has not been actively pursued…’

[21]It is helpful to consider the EAT guidance set down in Cox v Adecco & Others

UKEAT/0339/19/AT

. In particular:a. Paragraph 21: per Malik v Birmingham City Council, it is well-established that striking out a claim of discrimination is a draconian step which is only to be taken in the clearest of cases;

b. Paragraph 21: per Malik there is nevertheless no absolute bar to striking out discrimination claims, and the Tribunal’s time and resources should not be spent hearing evidence on cases that are bound to fail;

c. Paragraph 26: when considering claims by litigants in person, the Tribunal must do more than simply ask the Claimant to take the Tribunal to relevant material. The Tribunal must carefully consider the pleadings and relevant material;

d. Paragraph 27: the fact that a claim as pleaded has no reasonable prospect of success gives an employment judge discretion as to whether to strike it out;

e. Paragraph 28: the Claimant’s case must be taken at its highest;

f. Paragraph 28: in claims by litigants in person, the claim should not be ascertained only be requiring the Claimant to explain it whilst under the stresses of a hearing;

g. Paragraph 30: there must be a reasonable attempt at identifying the claims and the issues before considering striking out or making deposit orders;

h. Paragraph 32: even litigants in person are not absolved of responsibility. The Tribunal can only be expected to take reasonable steps to identify the claims and issues. Requests for additional information should be as limited and clearly focussed as possible.

[22]Further, as per Malik v Birmingham City Council

UKEAT/0027/19/BA

, it is well established that striking out a claim of discrimination is a draconian step which is only to be taken in the clearest of case, there is nevertheless no absolute bar to striking out discrimination claims, and the Tribunal’s time and resources should not be spent hearing evidence on cases that are bound to fail.

[23]The threshold for striking out for having no reasonable prospects of success is high as it is a draconian power. However, the need for caution should not deter tribunals from striking out if there is no reasonable prospect of the facts necessary for liability from being established- HHJ Kalyany Kaul KC v Ministry of Justice and Others

[2023] EAT 41

- para 18-21. Deposit Order

[24]Deposit orders are regulated by rule 40 of the Employment Tribunal Procedure Rules 2024, which states that the test is: ‘(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.’

[25]The threshold of ‘little reasonable prospect of success’ is not as high as its strike out counterpart in rule 38 of ‘no reasonable prospect of success’ and must be applied against that background. Secondly, and also in contrast to the procedure under rule 38, the Tribunal can make a summary assessment of the factual position to determine whether the threshold is met. That assessment is designed to avoid cost and delay and should not involve a mini trial of the facts, as this would defeat the object of the exercise: per Simler J, in Hemdan v Ishmail

[2017] IRLR 228

at §13. This case also noted that the purpose of a deposit order ‘is emphatically not ... to make it difficult to access justice or to effect a strike out through the back door’.

[26]As highlighted in HM Prison Service v Dolby

[2003] IRLR 694

a deposit order is the ‘yellow card’ of case management powers in cases deemed to have little prospect of success when looking at the credibility of the facts asserted and the likelihood they can be established at final hearing. Conclusions Harassment related to race

Conclusions

[27]The first allegation I will deal with is the allegation of harassment related to race. That being, in 2023, a senior staff member in A&E called “Zoey” said to the Claimant, “You’ve got body odour, you smell nasty” and demanded that the Claimant change into new clothes. I remind myself that this comes from paragraph 4 of the Claimant’s further and better particulars dated 2 June 2025. There is also reference to it at paragraph 2.7 of that document.

[28]This is an allegation which has not been adequately particularized by the Claimant. Despite there being four preliminary hearings to date, the Claimant has been unable to provide a date when the statement was made or who the statement was made by, save for the first name of an individual who is unknown to the first Respondent. So, this is a one-off comment made by an unknown staff member at some point on an unknown date in 2023.

[29]Taking that allegation at its highest, even if the Claimant could prove the comment was made and even if she can show it had the required effect on her, so for example, e.g. it humiliated her, it appears to me that this comment was not related to race. There is no obvious explanation, save for the submission by the Claimant’s representative that this is a racial stereotype or trope, that this is related to race. I reject the Claimant’s submission on that point. The comment does not appear to me to be related to race in any way, shape or form. Even bearing in mind that discrimination cases should be sparingly struck out, this is an allegation which has no reasonable prospects of success and so will be struck out. Allegation 2.4

[30]I now move to consider allegation 2.4, that being on 23 April 2024 while limited to two patients under an action plan, Laura Brett assigned the Claimant five unstable patients in zone C without health care assistant support and her supervising nurse Colleta was removed. On its face, this is a bare assertion by the Claimant. Of more concern is that the Claimant’s ET1 details this allegation and provides the reason for the alleged treatment as not being on the grounds of race. The Claimant’s ET1 states: so page 18 of the bundle, which deals with this allegation, states, “Excessive and unfair workload - On 23 April 2024, the Claimant was assigned the responsibility for 5 unstable patients without supervision of nurse Colleta, (her assigned supervisor) against the ongoing action plan of handling only 2 stable patients. This was due to and exacerbated by the relocation of her supervisor Colletta who was reassigned to work in the resus area of A&E.” (page 18 of the first Respondent’s bundle)

[31]That account from the ET1 conflicts with how the case is now put. It is now put that the Claimant’s excessive workload was caused by Laura Brett assigning the Claimant five unstable patients and that Laura Brett did that because of the Claimant’s race. However, the ET1 provides the reason for the excessive workload as due to the reallocation of the Claimant’s supervisor. Those two reasons appear contradictory.

[32]In addition, as previously stated, the alleged act is a bare assertion, and it has not been explained why the Claimant says the reason for the treatment was her race. That is despite there being four preliminary hearings to date in respect of this matter. This is an allegation which has little reasonable prospect of success and so a deposit order shall be made. It is not appropriate to strike out this allegation as there is a conflict of evidence between the parties which will need to be resolved between them at the final hearing in respect of this allegation. Allegation 2.6 - Suspension

[33]I now move to consider allegation 2.6 which is now split into three discrete allegations. The first is that on 25 April 2024, Michelle Hailey, Jo Foster and Laura Young suspended the Claimant. Again, despite there having been four preliminary hearings, the alleged act is a bare assertion, and the Claimant has not explained why the reason for this alleged treatment was her race.

[34]It has been put to me by the first Respondent’s representative that it is unlikely that three individuals would have colluded or committed an act of discrimination together. I take that on board, but it is not impossible that three individuals would have committed an act of discrimination together. Taking everything into account then, I conclude that this is an allegation which has little reasonable prospect of success as it is

[35]It is not appropriate to strike out this allegation as there is a conflict of evidence between the parties which will need to be resolved between them at the final hearing in respect of this allegation. Allegation 2.6 - Investigation

[36]The second aspect of 2.6 concerns the investigation into the Claimant. This has been put now as Jo Foster and Debbie Bray undertook a flawed investigation into the allegations against the Claimant. Again, this remains another bare assertion. The Claimant does not explain why the reason for the treatment was her race. She has also not explained why the investigation was flawed.

[37]I have also been referred to a letter which appears at page 171 in the first Respondent’s bundle. That indicates that neither Jo Foster or Debbie Brae investigated the Claimant, however I bear in mind that I have not heard evidence on that point and so there is a conflict of evidence between the parties which will need to be resolved between them at the final hearing in respect of this allegation. Consequently, it is not appropriate to strike out this allegation at this stage.

[38]However, due to the inadequate particularisation of this allegation and the fact it remains a bare assertion, it has in my opinion little reasonable prospect of success at a final hearing. A deposit order shall be made. Allegation 2.6 – Referral to the NMC

[39]Moving to the next allegation which is that Michelle Hailey referred the Claimant to the Nursing and Midwifery Council. This is yet another bare assertion. Again, the Claimant has not explained why the reason for the treatment in question was her race.

[40]The first’s Respondent’s representative submitted that the comparators cited by the Claimant have different circumstances. That certainly appears plausible from page 105 of the first Respondent’s bundle. To put that document into context, page 105 relates to the Claimant’s second set of further and better particulars which she produced on 20 August 2025. I am satisfied this allegation has little reasonable prospect of success, but I am not persuaded it has no reasonable prospect of success. There is a factual dispute that will need to be resolved by evidence at the final hearing and so it is not appropriate to strike out this allegation. A deposit order shall however be made in respect of this allegation.

[41]I have taken into account the claimant’s financial circumstances in considering the amount I should make her pay in respect of the deposit orders made. The claim against the second Respondent

[42]Moving to the claims of indirect discrimination against the second Respondent, I am satisfied that the entirety of the claim should be struck out. The Claimant’s case is fundamentally misguided. My reasons for reaching that conclusion are as follows: (1)I am satisfied that the Claimant will not be able to show that the second Respondent had any of the three provision criterion or practices (“PCPs”) which she seeks to rely on. My reason for reaching that conclusion is that the three PCPs relied on run completely contrary to the Nursing and Midwifery Order 2001 and the Nursing and Midwifery Council Fitness to Practice Rules 2004. Those are the relevant statutory authorities which relate to the regulation and organisation of the second Respondent and how it should conduct itself. (2)In addition, and relating specifically to PCP 3, the Claimant has not particularised what policies the Nursing and Midwifery Council should have implemented to mitigate racial disparities. This is a poorly pleaded allegation. (3) I bear in mind that there is a defence available to the second Respondent in a claim for indirect discrimination. In short, if a PCP is a proportionate means of achieving a legitimate aim, the second Respondent would have a defence. To put this into context, the Nursing and Midwifery Council is the regulator for nursing and midwifery professions in the UK. It maintains a register of all nurses and has been a statutory body since 2002. It has a statutory duty to investigate all referrals it receives. That statutory duty applies regardless of the race or ethnicity of the individuals referred and arises from article 22 of the Nursing and Midwifery Order 2001. That would appear to give the second Respondent a valid defence to any complaints of indirect discrimination being pursued against it. Approved by: