Mr O Onyibe v Barking, Havering and Redbridge University Hospitals NHS Trust: 3201915/2023
EMPLOYMENT TRIBUNALS
Case No 3201915/2023
Between
Mr O OnyibeClaimantBarking, Havering and Redbridge University Hospitals NHS TrustRespondent
Before
Employment Judge L TownleyIn person for claimantDate 22 April 2025
JUDGMENT
[1]Pursuant to Rule 38 of the Employment Tribunal Rules 2024, the Claimant’s claims for Direct Race Discrimination pursuant to s 13 of the Equality Act 2010, are out of time and are struck out.[2]Pursuant to Rule 38 of the Employment Tribunal Rules 2024, the Claimant’s claims for Unlawful Deduction from Wages pursuant to s 13 of the Employment Rights Act 1996 have no reasonable prospect of success and are struck out.
REASONS
[1]At a preliminary hearing on 23 January 2024 before Regional Employment Judge (REJ) Burgher, the Claimants case was set down for a ten-day full merits hearing to take place on 1,2,3,7,8,9,10,14,15 and 16 October 2025.[2]The Claimant was employed by the Respondent on a one-year fixed term contract as a Clinical Fellow in Neurosurgery from 29 May 2022 until termination on 29 May 2023. The background facts of the case, as set out in the case management summary of REJ Burgher dated 5 February 2024, relate to the Claimant not being placed on an ‘on-call rota’ during the entirety of his employment with the Respondent and the Respondent’s handling of a patient’s relative’s complaint concerning the Claimant in August 2022 (which the Claimant argues was unfair and inappropriate and prolonged him not being placed on the rota). The Claimant asserts that in so doing the Respondent has treated him less favorably than it treated, or would treat, someone of a different race (see paragraph 3 below). For the purposes of his claim, the Claimant relies on his Nigerian nationality. The Claimant also makes claims for unlawful deduction from wages (see paragraph 4 below).[3]The Claimant’s claims for direct race discrimination under s. 13 of the Equality Act 2010 (EqA), as set out in the case management summary of 5 February 2024, are as follows:a. Mr Raghu Vindlacheruvu not placing the Claimant on the rota within 28 days of commencement;b. Mr Sebastian Toescu not investigating a complaint that was made by a patient on 1 August 2022 regarding the Claimant’s treatment;c. On 2 August 2022 Mr Toescu escalating the patient complaint without speaking to the Claimant;d. On 3 August 2022 Mr Vindlacheruvu not permitting the Claimant on the rota until appraisal feedback placed on e-Horas;e. On 4 January 2023 Mr Barbar Vaqas and Ms Hannah Holmes indicating that the Claimant should go on the rota but Claimant not put on it;f. In April 2023 Mr Barbar Vaqas and Ms Hannah Holmes indicating that the Claimant should go on the rota but were informed by Mr Shoakazemi the Claimant should not be placed on it.[4]The Claimant also brings the following claims for alleged deduction of wages:a. Non-payment of one day’s pay in May 2023;b. The Respondent’s non-payment of ‘Agenda for Change’ payment.[5]The Claimant also argued that his not being placed on the rota creates a gap in his portfolio that as resulted in financial loss, but no further details of the same were provided.[6]In his preliminary hearing summary (5 February 2024), in respect of the alleged unlawful deduction from wages claims, REJ Burgher observed whether the parties would be well placed to resolve this aspect of their dispute more proportionately by reviewing the documents acting accordingly.[7]In terms of jurisdiction, The Claimant presented his claim to the tribunal on 18 October 2023, having commenced the ACAS Early Conciliation (EC) process on 24 August 2023. The ACAS EC certificate was issued on 5 October 2023, therefore any act or omission about which the Claimant complaints, which occurred prior to 25 May 2023, is prima facie out of time. The Respondent’s Applications[8]On 1 November 2024, the Respondent made an application, pursuant to Rule 38 of the Employment Tribunal Rules 2024 to strike out the Claimant’s claim. In the alternative, pursuant to Rule 40 of the Employment Tribunal Rules 2024, the Respondent applied for a deposit order in relation to all parts of the claim (or any parts that have not already been struck out), should the application to strike out be unsuccessful. The Respondent also argues that the Claimant’s claims for race discrimination should be struck as they were presented out-of-time.[9]The matter was listed for a preliminary hearing on 27 February 2025 for the purposes of deciding the following:a. Should the complaints of Direct Race Discrimination, EqA, section 13, (or any part of it), be struck out because the Claimant has no reasonable prospect of establishing that: i. There was discriminatory conduct over a period ending on or after 25 May 2023; or ii It would be just and equitable to extend the time limit for bringing the claim? iii If not, should the Claimant be ordered to pay a deposit of between £1 and £1,000 as a condition of continuing with the claim or any part of it, because they have little reasonable prospect of establishing those things?b. Should the complaints of unlawful deduction from wages, Employment Rights Act 1996, section 13, be struck out because they have no reasonable prospect of success? If not, should the Claimant be ordered to pay a deposit of between £1 and £1,000 as a condition of continuing with the claim or any part of it, because they have little reasonable prospect of establishing those things?
The hearing
[10]The Respondent set out its arguments in relation to its application under e-mail dated 1 November 2024 (which Mr Banham elaborated upon in his written submissions (dated 27 November 2025) e-mailed to the Claimant and the tribunal prior to the commencement of the hearing). The Claimant responded to the Respondent’s e-mail by e-mail sent on 8 November 2024. In preparation for the hearing the Respondent’s solicitors presented a 101 page bundle of documents and a 60 page bundle of witness statements, containing a witness from the Claimant (adopted at the hearing and signed and dated on 27 February 2025) and appendices (55 pages) and a statement of Ms Laura Jones (General Manager for the Neurosciences Department of the Respondent) (adopted at the hearing and signed and dated 27 February 2025) (5 pages). This preliminary hearing was listed for a one day in-person hearing at the East London Hearing Centre. The Claimant gave evidence on his own behalf and Ms Jones gave evidence for the Respondent. Both elected to give their evidence under affirmation.[11]After adopting his evidence, the Claimant said that he sought to add a claim for unlawful deduction from wages, namely that he should have been paid an ‘overseas increment’ and that he was not. The Respondent objected to the addition of this further claim at this time given that it had not been mentioned in the case management order of REJ Burgher dated 5 February 2024, that it was unclear whether the Claimant was suggesting that the increment should be paid for the entirety of his fixed term contract, and that it would impact on his unlawful deduction of wages claims which the Respondent argues had been paid (statement of Laura Jones, witness statement bundle, page 60). In refusing the Claimant’s application to amend to add this further allegation, I noted that while the Claimant had mentioned ‘overseas incremental credit conflict’ in his ET1 (and said ‘I am praying for 12 months’ arrears). However, the case management order setting out his claims for unlawful deduction of wages following discussion with REJ Burgher had not mentioned the same. In addition to his claim for non-payment of one day’s pay in May 2023 and the claim for the ‘Agenda for Change’ payment, the record of preliminary hearing stated ‘The Claimant no longer alleges breach of contract, but states that by not placing him on the rota created a gap in his portfolio that has resulted in financial loss’. When I asked the Claimant whether REJ Burgher’s order had reflected his claims he said that the Judge ‘had done a very good job’. Furthermore, the Claimant had had over a year to reflect on the case management order which had clearly set out (at paragraph 29) that an application may be made to vary, amend or set it aside. The Claimant had not done so and no issue had been raised about it in advance of the preliminary hearing, despite there being further opportunity to do so following the Case Management Order of Employment Judge Beyzade dated 13 December 2024, which again set out the Claimant’s claims in full. Having regard to the overriding objective to ensure that parties are, as far as practicable, placed on an equal footing and to deal with cases fairly and justly, I refused the Claimant’s application to add this allegation to his claim on the basis of the procedural history that I have outlined. This indicates that the Claimant had had opportunities to seek to amend his claim prior to this hearing but had not taken the opportunity to do so and that it would be unfair to permit the amendment at this stage.[12]Due to insufficient time to consider and deliver judgment following the arguments, judgment was reserved. The application to strike out the Direct Race Discrimination allegations (see paragraph 3, (a) – (f) above) – Time Limits The respective positions of the parties[13]The Respondent submits that the final discriminatory act for the purpose of the application to strike out occurred in April 2023 based on the Claimant’s own case as asserted (see paragraph 3 (f) above). However, the Respondent’s case, based on contemporaneous e-mail correspondence, is that the Claimant was informed in April 2023 only that his contract was not going to be renewed, having been informed that he was not going to be placed on the rota in January 2023 (the last act of discrimination). The Respondent argues that the allegations regarding unlawful deduction of wages (which are subsequent to the discrimination claims) were not pleaded as discrimination, nor are they linked to the allegations of discrimination.[14]The Respondent submits that there are four routes by which a direct race discrimination claim can be brought in time under EqA, s 123 in this case. Namely,(a) the act complained of took place within the primary limitation period which began on 25 May 2023;(b) the act or omission took place over a period and the period concluded within the primary limitation period;(c) The act was a number of apparently separate acts, which together amount to a continuing act, which extended into the primary limitation period as part of a continuing discriminatory state of affairs, (applying the guidance of the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2002] EWCA Civ 1689) and(d) If the claim is otherwise out of time, the case may nonetheless proceed if it is just and equitable to permit it to do so.[15]The Respondent argues that routes (a), (b) and (c) are not applicable as there was no act or omission which concluded or took place as a separate act within the primary limitation period , nor was there an act which extended into the primary limitation period as part of a continuing discriminatory state of affairs. The claim for direct discrimination, as pleaded, had its final act in April 2023. Therefore, the claim was not presented in time. Acts or omissions which occurred before 25 May 2023 were out of time and the only material route for the Claimant to argue was whether the Employment Tribunal may nonetheless proceed on the ‘just and equitable’ basis. The Respondent argues that it is not just and equitable to extend time as the Claimant has failed to give any reasons for the delay, that there is obvious prejudice occasioned to the Respondent of having to meet a claim presented out of time (including the cost and effort that must go into defending such a claim for a publicly funded body and fact that a number of senior doctors will be taken away from their duties), and that the claim has weak merits.[16]The Claimant stated that he relies on route (c), namely that the act was one of a number of apparently separate acts, which together amount to a continuing act, which extended into the primary limitation period as part of a continuing discriminatory state of affairs. When cross-examined about his claims as currently set out the order of 5 February 2024, the Claimant said that he did not agree with how his claim was presented on the list of issues. The Unlawful deduction of wages allegations[17]The Respondent’s position is that all outstanding wages payments have now been paid (statement of Laura Jones (General Manager for the Neurosciences Department of the Respondent), witness statement bundle, page 60 further sets out the basis on which these have been calculated) and the relevant pay slips are provided in the bundle. The Claimant’s position is that he accepts that he was sent ‘random’ payments after the termination of his employment, but that he still maintains his claims for unlawful deduction from wages.[18]The Claimant argues that the wages claims are part of the discrimination claim, while the Respondent argues that they form no part of the discrimination claim. The case management order of 5 February 2024 indicates that they are separate claims brought under the ERA not the EqA respectively. It also says that the wages dispute had now been reduced to alleged non-payment of one day’s pay (29 May 2023) and the Claimant’s pay-rise under the ‘Agenda for Change’. REJ Burgher also indicated that the parties should seek to resolve these claims by reviewing the relevant documents and act accordingly. On his ET1 the Claimant linked his allegations of non-payment of wages in May 2023 to his breach of contract claim (which he refers to as the ‘unlawful shortening of his contract’), a claim which he abandoned following the preliminary hearing (as noted in the record of preliminary hearing dated 5 February 2025). There was a further claim for non-payment of wages related to working on the Queen’s birthday. The Claimant asserted that this was due to discrimination as he was the only Nigerian working on this shift. This claim was not pursued at the preliminary hearing on 23 January 2024. This left the ‘Agenda for Change’ payment which the Claimant says on his ET1 was ‘malicious, unacceptable and discriminatory’. He says that he was entitled to this payment from April 2023 following the Government’s announcement about a 6% pay increase for health care professionals. In his ET1 documentation he says that it had not been paid by June 2023 and that he had to follow it up with payroll.[19]The Respondent relies on the Claimant’s pay slips which it says confirm that the Claimant’s arrears of his ‘Agenda for Change’ payments were paid in September 2023 and that separate payments noted in the pay slip, dated 27 September 2023, reflect these arrears (namely a 6 % increase in basic pay from 1 April – 29 May 2023, a 50% banding supplement for the 6% pay on his basic pay form 1 April – 29 May 2023, and a pro rata payment of £1250 for each pay point annually paid on a monthly basis from 1 April – 29 May 2023 (Bundle, p 105)). The law to be applied Discretion to extend time in the absence of discriminatory conduct over a period ending on or after 25 May 2023[20]When exercising a discretion under s 123(1)(b) of the Equality Act 2010, and deciding whether it would be just and equitable to extend time, the tribunal had to assess all relevant factors in a case, including the length of, and reasons for, the delay (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23).[21]With reference to British Coal Corporation v Keeble [1997] IRLF 336 and DPP v Marshall [1998] IRLR 494, the tribunal’s discretion, when extending time, is as wide as that of the civil courts under s 33 of the Limitation Act 1980. This requires courts to consider factors relevant to the prejudice that each party would suffer if the extension of time were refused, including(i) the length of and reasons for the delay;(ii) the extent to which the cogency of the evidence is likely to be affected by the delay(iii) the extent to which the party sued had cooperated with any requests for information.(iv) the promptness with which the claimant acted once they knew of the possibility of taking action, and(v) the steps taken by the claimant to obtain appropriate advice once they knew of the possibility of taking action. However, the list is not exhaustive. Reason for delay[22]The onus falls on the Claimant to persuade the tribunal that it is just and equitable to grant an extension of time. The case of Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0320/15 (18 February 2016, unreported) states that ‘it is always necessary for a tribunal to make some finding about the reason for delay in starting a claim’ [when considering whether it is ‘just and equitable’ to extend time].[23]Further guidance is provided in Harvey on Industrial Relations and Employment Law, (at 281.05): ‘Whilst again there exists no absolute rule that a litigant who:(a) provides no reasons for the delay;(b) provides reasons which are disbelieved or not established by the evidence; or(c) who provides reasons which are not considered good reasons, will be refused a just and equitable extension, this will often be the conclusion drawn. Many tribunals will rightly feel uncomfortable in holding that an extension of time would be “just and equitable” in the absence of a good reason for the delay, whether or not the claim was only just out of time, had strong merits and whether or not the claimant would suffer prejudice from the claim being held to be out of time.’ Merits[24]Guidance for Employment Tribunals is provided on the relevance of the merits of an out-of-time complaint in the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132: ‘It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it.’ Prejudice[25]In the case of Concentrix CVG Intelligent Contract Ltd v Miss D Obi [2022] EAT 149 dealing with three claims of sexual harassment spread out over the course of a year where the claim was one day out of time in relation to the last act, the EAT held (at para 43 - 44): ‘… As explained in Miller v Ministry of Justice UKEAT/003/14, referring to the earlier discussion in DCA v Jones EWCA Civ 894; [2007] IRLR 128, the fact that, if time were not extended, a claimant will be unable to pursue a complaint that might be meritorious, and, if it is, a respondent will be obliged to defend and be at risk of losing in respect of, a complaint that it would not otherwise have had to defend, are always customarily relevant, and this tribunal was plainly alive to that. But what was particularly relevant in this case, above and beyond that, was the issue of whether there was any forensic prejudice to the respondent if time were extended. It this case the tribunal had considered both aspects and what weight it placed on these features was a matter for it, with which the EAT could not interfere …in a case where the tribunal will need, in order to resolve a complaint or complaints, to look at events historically going further back in time than the date on which the cause of action formally arises, then it would be an error for the tribunal not to consider at all the forensic prejudice that a respondent might suffer by having to deal with events in reality going back in point of time in that way’. Conclusions Time Limits – Discrimination Claims and Unlawful deduction from wages claims
Conclusions
[26]I find that the remaining unlawful deduction from wages (non-payment of a day’s pay on 29 May 2023 and the ‘Agenda for Change’ payment) are separate claims from the Claimant’s discrimination claims. They were pleaded under the ERA and not the EqA and REJ Burgher had commented that they were capable of resolution on the existing documentation and could be resolved more proportionately in that way. If I am wrong about this, I find that those claims should be struck out as having no reasonable prospect of success. The Respondent produced evidence by way of contemporaneous documentation, namely a pay slip (Bundle, p 102) which shows proof of payment for 29 May 2023. In relation to the Claimant’s ‘Agenda for Change’ payment arrears from 1 April – 29 May 2023, the Respondent has produced a contemporary document, namely the Claimant’s pay slip of 27 September 2023 which details the breakdown of these payments (paragraph 19 above refers). The payments were also detailed by Laura Jones in her statement. The Claimant did not challenge the calculations when afforded the opportunity to cross-examine Ms Jones and he presented no documentary evidence in support of his own contentions. Furthermore, when cross-examined on this issue by Mr Banham, the Claimant said that he ‘did not disagree’ with Ms Jones’ calculations.[27]Turning to the remaining discrimination allegations, given my finding at paragraph 26 in relation to the deduction from wages claims, the Claimant’s remaining allegations of discrimination relate to issues surrounding his noninclusion on the on-call rota. While I accept the Respondent’s evidence of contemporaneous emails (bundle, pp 62 and 63) that the decision that the Claimant remain off the rota was taken on 18 January 2023 (email of Mr Shoakazemi (Clinical Supervisor) indicating that concerns about patient safety, if the Claimant were to be on the rota, were raised at the Junior Doctors’ Forum), when cross-examined I noted that the Claimant said that he was initially ‘left in limbo’ about this decision. I accept that it may not have been clear to him on 18 January and I also that on 17 January 2023 Mr Vaqas (Educational Lead) had stated that the e-horas 360 degree feedback about the Claimant had been positive and that he could start with shadowing before going on the rota solo. When cross-examined, the Claimant said that he became aware that he was not going to be included in the rota in February 2023. The Respondent relies on e-mail correspondence within the bundle stating that the rota may have been discussed the Claimant at a meeting on 6 April 2023 with Mr Vaqas and Ms Holmes (Service Manager), that he was told at that meeting that his contract would not be renewed (e-mail of Hannah Holmes dated 27 April 2023, bundle, p 97). In all the circumstances, I am prepared to give the Claimant the benefit of the doubt and find that the last act discriminatory act was on 6 April 2023 as the Respondent accepts that he would likely have discussed the issue of the Claimant not being on the rota on that day. Therefore, time starts to run from 6 April 2023 for the purposes of the EqA. It follows that all the Claimant’s allegations of discrimination are prima facie out of time. In the absence of discriminatory conduct on or after 25 May 2023, it then falls to be considered whether it is just and equitable to extend time in respect of the Claimant’s allegations of discrimination. Whether just and equitable to extend time in respect of the discrimination allegations[28]In his written evidence the Claimant did not give any reason for his delay in bringing his claim. When cross-examined, he said that he was relying on informal conflict resolution which existed with the NHS; that he wanted to try to maintain good relations with his employer, and that he did not want to put noses out of joint. However, the Claimant conceded, when cross-examined, that he was aware that he was not going to be placed on the rota and that his improvement plan had effectively been abandoned in February 2023. His not being on the rota was also discussed at a meeting on 6 April 2023 when he was informed that his contract was not going to be renewed. Therefore, I do not find the reasons given by the Claimant to be an adequate reason for delaying his claim. He had been aware from 6 April 2023 that his employment with the Respondent was ending. It is his case that his remaining off the rota was impacting on his health and denying him professional opportunities and causing a gap in his employment record. In these circumstances and given that his employment was ending in any event, it would be expected that the Claimant would bring his complaint without delay to mitigate any further impact upon his health and career opportunities of which he complained. However, he had not done so. The Claimant had also mentioned submitting a grievance on 31 May 2023. When questioned about this further by the tribunal and then by Mr Banham, the Claimant said that he was waiting for the resolution of his grievance before the grievance committee before contacting ACAS and that it was only after he had received the outcome that he felt that he could be open about what was going on. However, when the Claimant lodged his grievance his employment with the Respondent had already ceased and any decision about the outcome of a grievance did not necessarily preclude him from notifying ACAS about his claim.[29]Turning to the merits of the claim, taking the Claimant’s claim at its highest, it is difficult to discern how he maintains that he was treated less favorably by the Respondent than others would have been because of his race. While the Claimant denies saying, as was noted on the preliminary hearing record of 5 February 2025, that he would have expected to have been placed on the rota within 28 days of commencement of his employment with the Respondent, this would not have been possible as the neurosurgery department operates a model of reviewing and assessing skills and competencies for the first two week period during which time they are peer reviewed. Following this, if deemed competent, they undertake a period of shadowing which takes approximately six weeks, therefore it would not have been possible for the Claimant to have been placed on the rota within 28 days (statement of Laura Jones which was not challenged by the Claimant). In relation to the Claimant’s allegations about how Mr Toescu dealt with the patient’s relatives complaint about him (raised on 2 August 2022), the Respondent has provided evidence, by way of contemporary documentation that indicates that the patient’s relatives concerns were dealt with according to the usual protocols in place (Bundle, pp 88, 92 – 93) which applied to all staff. The Respondent has also provided contemporary documentation in relation to the Claimant’s allegations about not being placed on the rota in August 2022, April and January 2023. These indicate a context that the Claimant was undergoing a period of monitoring after being initially deemed not competent to go onto the rota on 13 June 2022 (pp 62, 94 – 95).[30]Furthermore, on the evidence of Laura Jones, which the Claimant did not challenge and which I accept, the Respondent does not permit junior doctors to be placed on the on-call rota until they are deemed competent as they are being entrusted to care for seriously ill patients without supervision. The Claimant was also paid for working on the on-call rota despite the fact that he was not doing so, and it was therefore not in the trust’s interests to keep him off the rota as it resulted in a financial detriment to the trust. Based on the contemporary documentation available in this case as contained in the bundle (referred to at paragraph 29 above), I find the Claimant’s direct race discrimination claims are weak in their entirety. In this respect, I also note that the Claimant failed to raise any complaint that he had been discriminated against because of his race in his grievance which was lodged following the termination of his employment (despite his referring to a denial of a place on the on-call rota). For the avoidance of any doubt, I make it clear that for the purposes of deciding this application, that I am considering only the merits the Claimant’s discrimination claims in the context of whether or not they were submitted out-of-time. I make no finding on the Claimant’s level of competency or on the truth of any allegations about his level of competence, including that he was not competent or clinically safe to be on the on-call rota and my findings on the merits of the Claimant’s discrimination claims should not be viewed as indicative of any finding.[31]When weighing up the balance of prejudice, while I accept that the Claimant’s claims are important of themselves and that they are time-barred by a matter of months, this has to be viewed in the context of the case as a whole, noting that the allegations date back almost three years. Not only does the passage of time not only cause significant forensic prejudice to the Respondent, but there will also be a significant cost to the public purse as well as taking senior NHS staff away from their front-line duties to make statements and to attend the tribunal which is listed for ten days. Given my findings on the reason for delay, it follows that the Claimant was in a position to have brought his claims within the statutory time limits. To permit the Claimant an extension would result in the balance of prejudice falling upon the Respondent, which is a publicly funded body which does not enjoy unlimited resources.[32]Having regard to all of these considerations, I find that it is not just and equitable to extend time in respect of the Claimant’s direct race discrimination claims.[33]Given this finding and my findings on the Claimant’s claims for unlawful deduction from wages, it is not necessary for me to consider the Respondent’s application for deposit orders.