Ms T Anyanful v London Northwest University Healthcare NHS Trust: 3313309/2020 and Others Ms T Anyanful v London Northwest University Healthcare NHS Trust: 3313309/2020 and Others

EMPLOYMENT TRIBUNALS

Case No 3313309/2020

Between

Ms T AnyanfulClaimant

London Northwest University Healthcare NHS TrustRespondent

Before

Employment Judge K J Palmer

Members

Mrs A Buck and Mr Alan Chin-Shaw

Mr C McDevitt (instructed by Counsel) for respondent

Date 27 June 2025

JUDGMENT

PURSUANT TO A HEARING CONDUCTED BY CVP It is the unanimous judgment of this Tribunal as follows:

[1]The Claimant’s claims in direct race discrimination under section 13 of the Equality Act are all out of time under section 123 of the Equality Act 2010. It is not just and equitable to extend time to validate those claims and the Tribunal has no jurisdiction to hear these claims and they are dismissed. In respect of the Claimant’s claims in victimisation under section 27 of the Equality Act and for detriments arising from a protected disclosure under section 47B of the Employment Rights Act, save for one claim, these are out of time. It is not just and equitable to extend time and the Tribunal has no jurisdiction to hear these claims and they are dismissed.

[2]In respect of the one claim under section 27 of the EQA 2010 and 43B/103A of the ERA 1996 which is in time, the Claimant’s claims fail and are dismissed.

[3]The Claimant’s claim for unfair dismissal fails and is dismissed. General

[4]This claim took place over a disparate number of days in November 2024 and March 2025. The Tribunal heard evidence from 12 witnesses, including the Claimant. The whole of the hearing was conducted by CVP. The Tribunal is bound to comment that an 18 day hearing by CVP is not desirable. Lengthy multi-day hearings conducted by CVP with a considerable number of witnesses giving evidence by CVP with an advocate for the Claimant who was not legally qualified, present particular challenges to a Tribunal. Hearing evidence from that number of witnesses by video link should be avoided. The Tribunal countered the difficulties experienced by such a lengthy CVP hearing by having regular breaks but this, together with other factors, caused the hearing to move slowly. It is considerably more desirable for such lengthy hearings to be held in person.

[5]This matter has something of a history. The Claimant issued five claims, two of which were withdrawn. The five claims were all considered by EJ Manley in a three day Case Management Preliminary Hearing which took place by CVP before the Watford Employment Tribunal on 19, 20 and 21 April 2023.

[6]The Case Management Summary arising out of that hearing, set out a detailed list of issues.

[7]That list of issues does not appear to include the unfair dismissal claim pursued in claim 5 and so therefore claim 5 appears to have been not case managed. However, it is clear in claim 5 that the Claimant pursues a claim for unfair dismissal pursuant to her dismissal on 20 May 2022. In that fifth claim, the Claimant ticks the box for unfair dismissal and also race discrimination and other payments. The claim was presented by the Claimant with the assistance of Mr Richard Andorful, who appears before this Tribunal as the Claimant’s next friend, representing the Claimant. That claim is an unfair dismissal claim but does not feature in the list of issues in the summary of EJ Manley.

[8]There is also raised a one line claim relating to unauthorised deductions/non payment, which does not appear to have been included in the list of issues and was not mentioned during these proceedings.

[9]The list of issues, therefore, sets out some 13 acts of direct race discrimination relied upon, some four acts cited as protected acts under section 27 of the Equality Act, some three acts cited as protected disclosures under section 43B of the Employment Rights Act 1996 and sixteen acts of detriment relied upon as being acts of detriment which amount to both victimisation and detriments arising from the protected disclosures, including dismissal (section 103A). No mention is made of the unfair dismissal claim but, of course, we must deal with that here. Time issues

[10]The Case Management Summary and list of issues correctly identifies that there are considerable time issues with respect to the majority of the Claimant’s claims in direct race discrimination, victimisation and protected disclosure detriment.

[11]There appears no doubt that the unfair dismissal claim, the victimisation claim arising out of the dismissal and the detriment claim arising out of a protected disclosure relying on the dismissal as the detriment, are in time.

[12]On the face of it, the rest of the Claimant’s claims appear to be potentially out of time. Of the Claimant’s three remaining live claims, the first was presented to the Tribunal on 7 November 2020. The last on 30 May 2022. Taking into account early conciliation for the first claim, potentially any allegation or act relied upon which took place before 1 July 2020, is out of

[13]Of the 13 acts of direct discrimination relied upon other than act 13, all took place prior to May 2018 and many in November/December 2017. The vast majority of acts relied upon, therefore, took place 2-2½ years before the first claim was presented. Many of the same acts relied upon are repeated in the victimisation and protected disclosure claims.

[14]This was clearly discussed at the Case Management Discussion Preliminary Hearing before EJ Manley, where both parties were represented by Counsel. As at paragraph 9 of EJ Manley’s summary she said there remained significant questions as to whether the Equality Act and public interest disclosure claims being pursued are in time. She specifies that these issues will be dealt with as part of the final hearing. Whether there was any further detailed discussion as to whether, in light of the fact that so many of the claims seemed so manifestly out of time on their face, the parties would have benefitted from a further Preliminary Hearing to determine those time points is not clear. However, it is clear that the matter had had some considerable history before then and had become very complex due to five separate claims being issued. It is entirely understandable, having case managed the claims over a lengthy three day Case Management Hearing, that EJ Manley felt that anything further really should be dealt with at the Full Merits Hearing.

[15]We note that at paragraph 7 EJ Manley refers to claims for unpaid wages and other monetary claims having been withdrawn so this deals with the point we raise above.

[16]EJ Manley originally listed the claim for 15 days but, of course, with deliberations and judgment on liability it has taken 18.

[17]It is unfortunate that there were not 15 days available in November and the claim was referred to this Tribunal on the basis that there were 14 days available. Sadly, EJ Palmer in this case, was unwell for two of those days and therefore only 12 were possible at that time. Nevertheless, it would not have been possible to complete the liability hearing judgment in the original 15 days listed.

[18]For reasons which will become clear below, it is necessary to point out that EJ Manley made it clear in her summary that the 15 day listing was to deal with liability only. The start of this hearing and the preliminary issues raised by Mr Andorful.

[19]Mr Andorful, who represents the Claimant, is not qualified and appears as the Claimant’s next friend. He raised two specific preliminary issues at the outset of this hearing. One issue relates to specific disclosure that Mr Andorful sought. This had been an issued raised in correspondence between Mr Andorful and those instructing Mr McDevitt. The second related to an application for witness orders in respect of three witnesses which the Claimant sought to have appear before the Tribunal so that he could crossexamine them. The specific disclosure application.

[20]Mr Andorful, on behalf of the Claimant, raised an application at the outset of this hearing. This was a fresh application and had not been submitted to the Tribunal in advance, or indeed at any stage. This request, and now application, mirrors requests made by Mr Andorful to those representing the Respondents in writing. The latest exchange of correspondence appeared before the Tribunal at the beginning of the supplementary bundle and involved an exchange of correspondence on 19 and 21 October, shortly before this hearing commenced.

[21]In essence, the request by Mr Andorful reiterated before this Tribunal is that he feels that certain policy documents should be included in the bundle which he considers to be relevant. The documents he seeks inclusion of are the Claimant’s Performance Development Review documents of 2017 and 2018 and the Respondent’s Recruitment Policy and Equal Opportunity Policy for the relevant period of 2017 and 2018.

[22]This repeats a request he has made of the Respondent in writing. The Respondent’s response in writing, which is repeated by Mr McDevitt before this Tribunal today, is that the documents requested are no longer available. The Trust completed a transfer under TUPE during 2017 and some documents, going back as far as that, are no longer available and cannot be found. This was explained to Mr Andorful in the Respondent’s solicitor’s response of 21 October 2024. Essentially, the Respondents have conducted a search for those documents and they cannot be found. Mr Andorful does not wish to accept that explanation.

[23]The Respondents also express a view that it is unclear what the relevance of those documents will be to those proceedings. Basically, that there is no specific equal opportunities policy but they attach and have provided, copies of the Respondent’s Equity, Diversity and Inclusion Policy from October 2020 and the Dignity and Respect at Work Policy from March 2018. They have also sent to Mr Andorful a copy of the Recruitment and Selection Policy from June 2019. They express that they do not consider any of those policies to be relevant but they have included them anyway.

[24]Mr McDevitt has again today reiterated the Respondent’s position and said that the documents specifically requested by Mr Andorful, no longer exist and cannot be found. He says that, in any event, they are not relevant to the issues to be determined.

[25]It is perhaps significant that many of the Claimant’s claims before this Tribunal are in respect of acts which occurred many years before proceedings were issued and it is therefore perhaps not unsurprising that documents going back to 2017 and 2018 are no longer available, particularly when there was a TUPE transfer in 2017.

[26]The Tribunal was unconvinced as to the relevance of these documents in any event but as they no longer exist it is not possible for the Tribunal to make an order for specific disclosure for the documents that Mr Andorful requests.

[27]The Tribunal notes that since that decision was given on the morning of 5 November 2024, Mr Andorful has written to the Tribunal for the attention of EJ Palmer on more than one occasion, requesting written reasons of the decision not to order specific disclosure of the documents which Mr Andorful seeks, even though the Respondents have conducted a search for them and they no longer exist. Whilst the Tribunal was not prepared to enter into correspondence with Mr Andorful during the course of a final hearing which was part heard from November and reconvened in March, EJ Palmer did cause an email to be sent to Mr Andorful explaining that full reasons for the Tribunal’s decision would be given in this judgment in due course but that the Tribunal would not enter into discussion with Mr Andorful during the course of the proceedings as that would be improper.

[28]The Tribunal gathers that Mr Andorful has, since his correspondence in December lodged an appeal with the EAT and insofar as we have seen any communication from the EAT, they appear to be ad idem with the Tribunal’s view that Mr Andorful is premature in seeking to complain about the decision which has not yet been recorded in a judgment.

[29]The reasons are given above. Witness orders

[30]At the same time as his application for specific disclosure made before the Tribunal on 5 November, Mr Andorful, for the first time, sought witness orders against three invidivuals. These are the Respondent’s HR business partner, Mr Kavi Gungaphul, who did attend significant proportions of this hearing, the Claimant also sought witness orders against Susan Feretti and Carol Wallace who were formerly engaged by the Respondents. We understand that Susan Feretti was not an employee but was a Consultant. Both were involved in the decision to ask Dawn Hall to act up as a Band 8 nurse for a short period of time in 2017, which forms the basis of one of the acts complained of by the Claimant in these proceedings. We should point out that these applications were first put before the Tribunal in the live hearing on 5 November 2024, no previous written application had been made. With respect to Carol Wallace and Susan Feretti, we understand that Carol Wallace is no longer employed by the Respondent and in fact left on 8 March 2020. Susan Feretti was never an employee and was merely an agency/consultancy worker and has not worked at the Trust for some considerable time, perhaps even before March 2020. Mr Andorful had no details of how to contact those individuals and was unable to articulate clearly, the relevance of any evidence that they might give. Moreover, Mr Andorful wished to have those witnesses before the Tribunal for the purpose of him cross-examining them as to their involvement in the decision to ask Dawn Hall to act up in 2017. The Tribunal refused the application to make a witness order for those two individuals for a number of reasons. First, this hearing had already started. Second Mr Andorful has no details of where Ms Wallace and Ms Feretti are and no means of providing us with information to enable anyone to contact them. The Respondents have no such information. Third Neither have been involved at the Respondents for many many years. Fourth It would be impossible to contact them and put them in a position whereby they had to give evidence before this Tribunal without significantly disrupting these proceedings and possibly even postponing them. It was simply not in the interests of justice nor in keeping with the overriding objective for such disruption to be countenanced. Tribunals have to make decisions which are proportionate and reasonable and any such decision would not have been so in light of how long ago they were at the respondents and the fact that nobody had any information about where they were now. Moreover, tribunals will not make witness orders for the purposes an advocate cross-examining the witness. Had Mr Andorful been serious about taking evidence from these two individuals, he should have attempted to contact them himself some time ago and asked them to give evidence. He did not do so and has, during the course of this hearing, visited an application on the Tribunal out of the blue. There is simply no merit in his application with respect to Susan Feretti and Carol Wallace and, in that respect, his application for witness orders in respect of those two is refused.

[31]With respect to Mr Kavi Gungaphul, of course, he remains in the employment of the Respondents and has attended this Tribunal as an observer. It would have been possible to identify him and make a witness order against him. However, as indicated above, tribunals will not make witness orders against individuals for the purposes of cross-examination. There is no suggestion that Mr Andorful has previously approached Mr Gungaphul and asked him to give evidence on the Claimant’s behalf. It is frankly too late to do so on the second day of the Full Merits Hearing. Moreover, no explanation as to the relevance of the evidence that Mr Gungaphul could give had been put forward by Mr Andorful. Mr Gungaphul does not feature in any of the allegations and acts complained of that formulate the Claimant’s case before this Tribunal. It is for the Respondents to decide who they call to give evidence. It is not for the Claimant to dictate who gives evidence on behalf of the Respondent. If the Respondents are misguided in who they call and a highly relevant witness is not called, then it may well be that the Respondent’s case is harmed by that evidence not being before the Tribunal. But that is a matter for the Respondents. There is no justification for the Tribunal during the course of the hearing seeking to issue a witness order to compel Mr Gungaphul to give evidence. The application is refused.

[32]Mr Andorful has also included this refusal in respect of the three witnesses he seeks in his premature application to the EAT for an appeal. Other matters raised by Mr Andorful in his communication of 6 December which was essentially an email sent to the Tribunal administration offices for the attention of EJ Palmer. EJ Palmer caused the administration to respond to indicate that the Tribunal could not engage in correspondence during the course of a hearing which had been adjourned part heard.

[33]That response simply said that detailed reasons as to the decision to refuse the application for specific disclosure and witness orders would be given in the eventual judgment handed down in this matter. Both now have been.

[34]We do also feel it is important to deal with two other points raised by Mr Andorful in his email of 6 December. The first of these is that he alleges that the Tribunal prevented Mr Andorful from cross-examining two of the Respondent’s witnesses, Rachel Tunstall and Katryana Benson. This is wholly untrue. Mr Andorful was given more than an adequate opportunity to cross-examine all of the Respondent’s witnesses and in fact the reason why the matter went part heard was because Mr Andorful, who is not legally qualified, was extremely slow in the process of his cross-examination, constantly repeating questions put to witnesses over and over again when he did not agree with the answer that he was given. Whilst EJ Palmer attempted to explain to Mr Andorful that this was unhelpful and caused delay, Mr Andorful continued to do it. The point raised in his email of 6 December by Mr Andorful where he alleges that the Tribunal prevented him from cross-examining Rachel Tunstall and Katryana Benson is not true. Mr Andorful was permitted to cross-examine both fulsomely. Where the Judge intervened was when Mr Andorful was cross-examining Rachel Tunstall and he asked her if she agreed with evidence given by Katryana Benson in respect of a point which Katryana Benson had not given evidence in the way Mr Andorful was suggesting. Mr Andorful’s interpretation of Katryana Benson’s evidence did not accord with any of the notes of EJ Palmer, the Tribunal members or indeed Mr McDevitt. The Tribunal was halted for a period of time while we all checked our notes and we disagreed with the assertion that Katryana Benson had given evidence on a particular point in the way in which Mr Andorful asserted she had. We understand that Mr Andorful still disagrees with the notes of the Tribunal, its members and Mr McDevitt and is seeking to challenge those notes, having applied for a transcript of that days’ hearing. We should also add that we did not think anything turns on the point of dispute as to what Katryana Benson did or didn’t say during the course of her cross-examination. Mr Andorful also, at paragraph 3(i), indicates that he considers that the Tribunal, at the outset of these proceedings, has already made its decision about the Claimant’s case. He has drawn this conclusion because of a comment made by EJ Palmer which Mr Andorful has taken out of context and described as EJ Palmer saying about the Claimant’s claim that there was “No prospect of liability of remedy”. The Tribunal considers that this may simply be a misunderstanding on behalf of Mr Andorful. EJ Palmer did not say this but he did say that there was no prospect of remedy being dealt with during the course of this hearing. That was in response to a specific question from Mr McDevitt when he was about to start cross-examining the Claimant. He asked whether he should include in his cross-examination, questions that relate to remedy. As EJ Manley had made it clear in her Case Management Summary, this hearing and its part-heard reconvened 6 days, would only deal with liability. EJ Palmer made that comment in light of the fact that he knew that the full listing anticipated by EJ Manley would not be achieved and simply said there would be no prospect of a remedy hearing due to a lack of time. In any event, it had been indicated in Judge Manley’s Order that this would be the case. This, in no way, is an indication that the Tribunal having made its mind of in advance which seems to be Mr Andorful’s suggestion.

[35]In light of the rather unusual communications sent by Mr Andorful during the course of these proceedings, the Tribunal took the view that it was necessary to pick up on these points in the hope that this would provide some clarity. Submissions

[36]When the Tribunal ran out of time in November and this matter went partheard for 6 days in March, it was agreed and made very clear that there would be a certain amount of time for submissions plus to hear evidence from the two remaining Respondent’s witnesses who had yet to give evidence when the hearing went part-heard. Sadly, throughout the course of these proceedings, the Tribunal has tried to manage a time table, as best it could, particularly with respect to time given to Mr Andorful for crossexamination. Mr Andorful agreed with that timetable and yet time and time again failed to comply with it. EJ Palmer allowed a considerable number of extensions to what was originally agreed to be time given to Mr Andorful to cross-examine various of the Respondent’s witnesses and even extensions upon extensions. The Tribunal considers that it was extraordinarily lenient with Mr Andorful and Mr Andorful had more than enough time to crossexamine those witnesses that he wished to do so. Sadly, his crossexamination was, almost without fail, repetitive whereupon he asked the same question over and over again and it was necessary for EJ Palmer to intervene. It was agreed that Mr Andorful and Mr McDevitt would have the same amount of time to present oral submissions once the final two witnesses of the Respondent had given their evidence at the reconvened hearing. Despite this, Mr Andorful was given 3½ hours whereas Mr McDevitt’s oral submissions were completed within 2½ hours. Mr Andorful seemed aggrieved and expressed the view that he wasn’t being given enough time. He was given ample and adequate time in all the circumstances and more time than Mr McDevitt.

[37]Shortly after the termination of this hearing Mr Andorful then sent written submissions in a 47 page document to the Watford Employment Tribunal. The Tribunal confirms that irrespective of the fact that it had explained to Mr Andorful that 3½ hours should be more than sufficient for him to put submissions to this Tribunal, they have nevertheless still read his 47 page written submissions and taken those into account. The Claimant’s claims and the time issues

[38]Often in employment Tribunal proceedings when claims are the subject of a time limit issue, the matter is dealt with at the end of the Full Merits Hearing. Often it is lost and relegated to minor billing when the Full Merits Hearing has already dealt with all the issues and heard all the evidence. Tribunals in judgments often deal with time limit issues at the end of their judgment.

[39]In this case, however, we feel that the time limit issues are so significant as on the face of the majority of the Claimant’s claims, they are out of time, that it is only right and proper that we deal with them at the outset. Accordingly, we do so.

[40]We are grateful to Mr McDevitt for his detailed submissions on time. We must say that we have heard no evidence from the Claimant to explain, in any way, why the majority of her claims were issued and presented so manifestly out of time. No explanation for the contumelious delay has at any stage been advanced by the Claimant in evidence or by Mr Andoful in submission. Mr Andoful, in his submissions, repeated the core of the Claimant’s case many many times. The core appears to be the Claimant’s ire at Dawn Hall being asked to act up as a Band 8 nurse without anyone else being given the opportunity to apply for that temporary position. This was stressed time and time and time again by Mr Andoful during his submission. He did mention the case of Hendricks v Commissioner of Police for the Metropolis

(2003) ICR 530

but did not seem to link this in any way to any submissions about time. We have considered that authority in our deliberations below. The Claimant’s claims and the time limits. Equality Act 2010, Section 123 – Time limits(1) 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.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it.

[41]Where complaining of an act of discrimination, the claim must be presented to the Tribunal within 3 months of the act complained of. That is 123(1)(a).

[42]Where conduct extends over a period then the act is deemed to be treated as done at the end of that period – 123(3)(a).

[43]Where a claim has been presented out of time, the time limit is not absolute in that Employment Tribunals have a discretion to extend the time limit for presenting a complaint where they think it is “just and equitable” to do so – section 123(1)(b).

[44]This discretion is broader in respect of discrimination claims than is the case for unfair dismissal or whistle blowing claims. The test for considering extending an out of time unfair dismissal claim or whistleblowing is whether the Claimant can show that it was “not reasonably practicable” to present the claim in time. In respect of discrimination claims, the power to extend time is on “just and equitable” grounds.

[45]The Tribunal firstly has to consider whether claims are in or out of time. If a Tribunal concludes that there was conduct extending over a period under 123(3)(a) then the claim is in time and there is no necessity to consider the discretion to extend on the just and equitable basis. Tribunals are assisted by authorities. In Robertson v Bexley Community Centre T/A Leisure Link

[2003] IRLR434

, the Court of Appeal stated that when employment tribunals consider exercising the discretion under 12(1)(b), there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a claim unless the Claimant convinces it that it is just and equitable to extend time. The exercise of discretion is the exception rather than the rule. This does not mean, however, that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. All that is required is that an extension of time should be just and equitable.

[46]When considering whether an act or acts are continuing over a period of time, the leading case for tribunals to have regard to is the Commissioner of Police of the Metropolis v Hendricks

[2003] ICR530

Court of Appeal. The Court of Appeal made it clear that it is not appropriate for Employment Tribunals to take too literal an approach to the question of what amounts to continuing acts by focusing on whether the concepts of policy, rule, scheme, regime, or practice fit the facts of a particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement. Hendricks tells an Employment Tribunal that the focus has to be on the substance of the Claimant’s allegations and whether those allegations constitute a continuing state of affairs. The question is whether there is an act extending over a period as distinct from a succession of unconnected isolated specific acts for which time will begin to run from the date when each specific act was committed.

[47]The case of Hendricks was at variance with the case of Robertson v Bexley Community Centre T/A Leisure Link

[2003] IRLR 434

but was resolved in favour of the tests set out in Hendricks by the Court of Appeal in Lyfar v Brighton and Sussex University Hospital Trust

[2006] EWCA CIV 1548

Court of Appeal.

[48]Hendricks was also cited with approval in a further Court of Appeal case of Aziz v FDA [2010] EWCA CIV304 Court of Appeal. Here the Court noted that in considering whether separate incidents formed part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents. If different individuals are involved in different acts, it is less likely that those acts can be considered to be continuing. In a case where an act is deemed to be out of time, the Tribunal, in a discrimination case, must consider whether to extend time on the just and equitable principle. In exercising their discretion to allow out of time claims to proceed, tribunals may have regard to the check list contained in section 33 of the Limitation Act 1990, as modified by the EAT and British Coal Corporation v Keeble and others

[1997] IRLR 336

EAT. Section 33 deals with the exercise of discretion in Civil Courts in personal injury cases and requires the Court to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all of the circumstances in the case, in particular the length of and the reasons for the delay, the extent to which the cogence of the evidence is likely to be affected by the delay, the extent to which the parties sued has cooperated with any request for information, the promptness with which the Plaintiff acted once he/she knew of the facts giving rise to the course of action and the steps taken by the Claimant to obtain appropriate advice once he/she knew of the possibility of taking action. In the Department of Constitutional Affairs v Jones

[2008] IRLR 128

CA, the Court of Appeal emphasised that these factors are a valuable reminder of what may be taken into account but their relevance depends on the facts of the individual cases and tribunals do not need to consider all the factors in each and every case. However, a Tribunal may be found to have erred if a significant factor is not considered.

[49]The relevance of those factors was revisited in Adedeji v University Hospital Birmingham NHS Foundation Trust [2021] ICR CA. In that case the Court of Appeal upheld an Employment Judge’s refusal to extend time for a race discrimination claim presented three days late. It noted that the Judge had referred to the factors set out in Section 33(3) with the Limitation Act 1980, following the case of Keeble. It went on to say that the best approach for a Tribunal in considering the exercise of the discretion, is to assess all the factors in the particular case that it considers relevant, including in particular, the length of, and the reasons for the delay. Present case

[50]The list of issues set out by EJ Manley clearly sets out the issues facing this Tribunal when considering time limits. Three claims are currently live before this Tribunal. The first claim, claim 1, was presented on 7 November 2020. ACAS early conciliation took place between 30 September and 19 October 2020. Therefore, any allegation which took place before 1 July 2020 is prima facie out of time.

[51]In respect of the second claim, claim 2, the claim was presented on 22 February 2021 which was the same date as the ACAS early conciliation took place. Thus, any allegation which took place before 23 November 2020 is prima facie out of time.

[52]In respect of the fifth claim, claim 5, this was presented on 30 May 2022. ACAS early conciliation took place between 23 and 24 May 2022. Any allegation which took place before 24 February 2022 is prima facie out of

[53]Thus, looking at the earliest of those claims, any the allegation which took place before 1 July 2020 is prima facie out of time.

[54]The 13 acts that the Claimant relies upon as being acts of direct discrimination are set out in the list of issues. The Claimant relies on her colour, being black and her Ghanaian national heritage.

[55]Leaving aside claim number 13, all of the acts referred to in paragraphs 1- 12 of the list of issues ocurred between November 2017 and at the latest, May 2018. Thus, even the latest of those acts is two years and two months out of time. The earliest is two years and seven months out of time.

[56]With respect to the act upon numbered 13, this relates to an alleged email sent by Miss Hall on 23 January 2020. On the face of that it is five months out of time.

[57]Considering whether any of those acts could be considered to be continuing acts on the basis of the principles set out in Hendricks and other cases, we have to look at the substance of each of the 13 acts relied upon.

[58]The first act, which is an act alleged to have happened in November 2017, is an act where a Dr Holden, a Dr Rubenstein are accused of the discriminatory conduct.

[59]The second act relates to discriminatory conduct alleged to have taken place between July and November of 2017 with respect of Miss Hall being allowed to relinquish her clinical duties and being provided with the assistance of a Band 5 Nurse.

[60]The third is also allied to the first two in that it relates to the complainant’s complaint that Dawn Hall was allowed to act up as a Band 8 nurse without others being allowed to apply for the position.

[61]Act four also relate to that incident in or around November 2017.

[62]It could be said, therefore, that the complaints 1-4 arise out of the same set of circumstances and that the substance of those claims is the acting up of Dawn Hall and what accompanied that acting up. However, even taking those as a continuing act, the last date and in respect of which time would start to run, would have been November 2017. Arguably, and perhaps potentially, the act continued throughout the period that Dawn Hall acted up. However, she acted up only for a few months and those four acts complained of even taking the Claimant’s position at its very highest, would have attached to them, time starting to run when she stood down from that position. Thus, even on that generous analysis the Claimant’s claims in respect of these four acts is well over two years out of time.

[63]Claim 5 relates to alleged discrimination by Dr Rubenstein in respect of requiring the Claimant to undertaken certain training. This is not, in substance, in any way connected with the first four. In any event it is still an act which is said to have taken place in November 2017, some two years and seven months out of time. Claim 6 and 7 also relate to the allegations against Dr Rubenstein and the required training, including a meeting in December 2017, with is the subject of act 7 relied upon. Even allowing for 5, 6 and 7 to be part of a continuing act relied upon, the latest date is that meeting on 14 December 2017, meaning that the claims are 2 years 7 months out of time.

[64]Claim 8 is a standalone separate claim against Dr Holden concerning allegations that Dr Holden made the Claimant start her clinics at a specific time when all other clinics started later. This is said to have occurred between December 2017 and July 2018. Therefore, at least 2 years out of

[65]Claim 9 is an unrelated claim concerning alleged emails from Dr Rubenstein and Ms Hall in March 2018, well over 2 years out of time.

[66]Paragraph 10 relates to another separate allegation about alleged false reporting to the CAF by Dr Rubenstein but is said to have happened in May 2018, well over 2 years out of time. 67. 11 appears to be connected with the allegation 10 but is also said to have taken place on 8 May 2018, over 2 years out of time.

[68]Allegation 12 is said to have occurred between July 2017 and May 2018 and relates to a separate and distinct allegation about an act allegedly perpetrated by Dr Holden and Dr Rubenstein. This is well over 2 years out of time.

[69]With respect to allegation 13, this is alleged to have taken place in January 2020 and relates to Dawn Hall and the sending of an email by Dawn Hall, allegedly falsely accusing the Claimant of making personal telephone calls between 9.30 am and 10.55 am. This is clearly a standalone claim against Dawn Hall and could not, on any reasonable analysis, be connected with the first 12 allegations, or be deemed to be part of a continuing act. Even so, itself it is some 5 months out of time.

[70]It is clear, therefore, that all of the Claimant’s claims in direct discrimination are manifestly out of time, most well over 2 years and the earliest is some 5 months out of time.

[71]Significantly, we heard no evidence and no reasons as to why these claims being presented so late.

[72]The Claimant had been represented by union officials and had raised earlier grievances and complaints which included some of the claims raised in acts 1-13. No mention of any of these claims being related to race, however, was ever made by the Claimant until 28 September 2020, some 2 months before she presented the first claim.

[73]We heard no evidence as to why the claims were not presented earlier. None was volunteered and none was in the Claimant’s witness statements. The Claimant had complained much earlier about these acts but chose not to initiate proceedings until some 2 years later.

[74]No explanation has been given by the Claimant for the late presentation.

[75]The question then arises as to whether time should be extended to validate these claims on the just and equitable principle. The Claimant was well aware that this was a key issue to be determined at these proceedings. It was set out as the first thing to be determined in the list of issues. Mr Andorful made vague reference in his submissions to the case of Hendricks but did not, in any way, connect that with any argument relating to claims being out of time. Taking into account the length of the delay, it is very significant. Whilst we have heard evidence from those involved in the alleged acts, it is perhaps not a surprise that Ms Feretti and Ms Wallace were not called by the Respondents to give evidence as they left the Trust’s employ many many years ago and before any of the proceedings were presented. It is very difficult for a Respondent to deal with allegations that allegedly took place many years before the claim was presented and it is prejudicial to them having to do so. Memories fade, witnesses are not available. We have been given no reason for the delay.

[76]Nothing has been said to us as to why the Claimant took so long. She had the benefit of advice from the Union and from Mr Andorful, who, albeit is not a qualified lawyer but is well versed in litigation as he has pointed out to us and is more than capable of understanding concepts in employment law as indicated in his 47 page written submissions. The Claimant clearly had access to knowledge about time limits and should have known that there was a three month time limit.

[77]A key factor here is the absolute length of the delay being over two years in all but one case.

[78]There is simply nothing before us which persuades us that we should exercise our discretion and extend time to validate these claims. They are out of time and discretion is not exercised, therefore the Tribunal has no jurisdiction to hear them and they are dismissed. It must be remembered that the Claimant bears the burden of persuading the Tribunal to exercise its discretion to extend time and whilst it is not a heavy burden the Claimant has not done this in any sense or even attempted to.

[79]It is therefore necessary to turn to the remainder of the Claimant’s claims save for claim number 36 which clearly is in time as it arises out of the Claimant’s dismissal in May 2022. The Tribunal will deal with claim number 36 separately.

[80]Claims number 22-29 inclusive repeat acts relied upon in the direct discrimination claim and all relate to events taking place on or before 23 January 2020. In fact, 22-28 all repeat acts relied upon in the direct discrimination claim and rely on events, the latest of which, is May 2018. Well over 2 years out of time.

[81]Claim 29 is at least 5 months out of time and repeats claim 13. These acts are said to be acts of detriment arising out of protected acts and protected disclosures in the Claimant’s claims under section 27 and 47B.

[82]Precisely the same reasoning applied to the direct discrimination acts relied upon above, they are manifestly out of time and the Tribunal has no grounds to exercise its discretion to extend time on the just and equitable principle or on the basis of the not reasonably practical test. Those claims are therefore out of time and the Tribunal has no jurisdiction to hear them and they are dismissed.

[83]The allegations raised at 30-35 and allegation 37 are not repetitions of acts relied upon under the direct discrimination claim.

[84]Looking at allegation 30 in the protected disclosure and protected act claims, the allegation that the Respondent failed to investigate her discrimination complaint properly, or at all, refers to the Claimant’s plethora of grievance letters sent. The complaint is that the grievance was not dealt with. In fact, the grievance was dealt with comprehensively in a grievance outcome letter sent to the Claimant on 18 November 2020 by Dr John McSorely, a Consultant Physician. This was pursuant to an investigation carried out and investigation report produced by Dr Siobhan Murphy, Consultant in Genito-urinary medicine.

[85]In terms of timing, we are invited by Mr McDevitt to accept that the end of this act was the production of the grievance outcome. Notably the Claimant, despite having raised grievances, chose not to engage in the grievance process or indeed the appeal process by refusing to attend either a grievance meeting or the appeal meeting. That is by the by for now in terms of assessing whether the claim is in or out of time. The date of the grievance outcome is 18 November 2020. This complaint at paragraph 30 is not included in claim 1 which was presented on 7 November 2020 and can only have been included in claim 2 in respect of which anything prior to 23 November was out of time. Thus this claim is five days out of time.

[86]It is worth repeating that the regime for presenting a claim under the whistleblowing legislation is different from that under the discrimination legislation under the Equality Act 2010 and in fact the presentation of such a claim is governed by section 48(3) of the Employment Rights Act 1996. That imposes a similar 3 month time limit and a discretion to extend but on the “not reasonably practicable” test which harsher than the just and equitable test.

[87]Claim 30 is out of time and the Tribunal has heard no evidence to persuade it that it was not reasonably practicable for the Claimant to lodge or present that claim in time in respect of her whistleblowing claim, nor any evidence to persuade the Tribunal that it was just and equitable to extend time to validate her victimisation claim under 30. 30 is therefore out of time and the Tribunal has no jurisdiction to hear it and it is dismissed.

[88]Allegations 31, 32, 33 34 and 35 are all also out of time. The Tribunal has heard no evidence to persuade it to extend time on either the not reasonably practicable principle or the just and equitable principle.

[89]Allegation 36 is in time as it relates to the dismissal.

[90]Allegation 37 is also out of time and we are persuaded of this by Mr McDevitt’s submissions. This allegation is not contained in claims 1 or 2 and can only be part of claim 5. In respect of claim 5, anything before 24 February 2022 is prima facie out of time. Both of these could only have extended to the point where the grievance appeal outcome was delivered. Once again, the Claimant failed to attend. That was delivered on 25 October 2021, some four months before 24 February 2022. It is therefore out of time. For the reasons specified above, we heard no evidence and no explanation as to why it was out of time and we therefore are not persuaded to extend time either on the reasonably practicable basis or the just and equitable basis.

[91]Those claims are all therefore out of time and the Tribunal has no jurisdiction to hear them and they are dismissed. The evidence we heard and further findings of fact.

[92]Whilst we have identified that the vast majority of the Claimant’s claims are out of time, having heard all the evidence from all the witnesses during a Full Merits Hearing lasting 18 days (to include deliberations and judgment) we feel that in order to do justice to the amount of time and effort that went into preparing this case and delivering the evidence, it is appropriate and proper that we deal with it in detail and of course, in any event, paragraph 36 of the Claimant’s claims in victimisation and whistleblowing survive as does the Claimant’s claim for unfair dismissal.

[93]The evidence we heard from the Claimant was, we consider, to be revealing. We are invited by Mr McDevitt in his submissions to conclude that the Claimant’s perception of events over the period of time from 2017 through to her dismissal, purportedly by reason of capability, on 20 May 2022, does often not accord with reality.

[94]There are a number of aspects of the Claimant’s evidence and her behaviour during that period which lead us to agree with this conclusion.

[95]There were at least two occasions during the giving of her evidence under cross examination when the Claimant deliberately either told a lie or avoided the truth and refused to accept the truth. This is most concerning.

[96]Under cross examination on Wednesday 6 November, the Claimant refused to accept that she had raised a grievance against Pia Krohn, (HR Officer). She denied this in cross-examination, even when she was taken to the document at page 664 of the bundle before us, which in its heading, indicated that it was indeed a grievance against Pia Krohn, she refused to accept it.

[97]Moreover, when being questioned about the behaviour of her and Mr Andorful, who was representing her at the final long-term sickness review meeting, which led to her dismissal, her answers give us considerable cause to treat her evidence generally with caution.

[98]At that meeting we heard evidence to the effect from those present, that the meeting was disrupted by Mr Andorful and the Claimant in that they refused to allow the meeting to proceed properly and shouted over the Chair Jacynth Jeffers, causing the meeting to be abandoned. One particular point that she was taken to was, in a short statement prepared immediately after that meeting by Kavi Gungaphul, Senior Human Resources Advisor. In this statement Mr Gungaphul repeated words used by the Claimant to the effect that “As soon as a black person raised our voice you accuse us and don’t let us speak”. This shocked those at the meeting as all of the people present at the meeting were from black and Asian minority ethnic background.

[99]When questioned about this by Mr McDevitt, the Claimant was being evasive. EJ Palmer intervened and asked her whether she could confirm that she had actually used those words as set out in the brief statement of Mr Gungaphul. She paused and hesitated for a lengthy period of time before saying “no”. Having heard from Miss Jeffers and others present at that meeting, we do not accept that she did not make that comment and consider that she did. Yet faced with considerable evidence to the contrary, she was prepared to tell the Judge in these proceedings that she did not.

[100]More generally, the Claimant’s response to cross-examination was evasive and unhelpful. She evinced a belief that she was the subject of a conspiracy at the Respondents, a conspiracy conducted by Dr Holden, Dr Rubenstein and others. What is clear to us is that the Claimant certainly had a difficult relationship with some her colleagues at the hospital due to her own behaviour and actions but that, amongst all the witnesses we heard, there was no evidence at all of any conspiracy to remove her from her role. She accused Dr Holden and Dr Rubenstein of having colluded and made things up. This is a bare allegation with no cogent supporting evidence.

[101]We accept Mr McDevitt’s submissions that the Claimant had a distorted perception of reality throughout the material time relevant to these proceedings. She would raise a grievance and then when someone was appointed to assist and deal with that grievance she would invariably raise a grievance against them. Her actions were entirely unhelpful. It appears that she simply could not or cannot accept any constructive criticism and as a result she pursued eleven separate grievances against Dr Holden, Dr Rubenstein, Dawn Hall, Pia Krohn, Katryana Benson, Ms Adcock, Rosemary Gordon and others. She raised a public interest disclosure request which was dismissed. She complained to the Health Ombudsman, which complaint was dismissed. She complained to the Quality Care Commission which the complaint was dismissed, she complained to the Nursing and Midwifery Council which the complaint was dismissed. In essence, the Claimant is a serial complainer and it is telling that each and every one of the complaints she raised outside the trust were dismissed as unmeritorious. She raised considerable vituperative and unpleasant accusatory correspondence threatening legal action and referrals to the General Medical Council in respect of Dr Holden, Dr Rubenstein and Dawn Hall, threatening legal action and referral to the General Medical Council and the Nursing and Midwifery Council. It is clear, from the evidence we have heard from Dr Holden, Dr Rubenstein, Dawn Hall and others, that many at the Respondents were wholly intimidated by the Claimant and her approach and dealing with colleagues.

[102]An example of the Claimant’s complete misunderstanding and lack of true perception was ably demonstrated in respect of evidence we heard from Dr Rubenstein.

[103]Dr Rubenstein explained to us that the Claimant appeared to be very unhappy and it has formed the basis of some of the Claimant’s complaints that the Appellant was extremely unhappy that the Trust introduced a competency framework known as STIF (what does that stand for?) which was a nationally recognised system of assessing and recording staff competency over key areas making it easier to identify where additional work support may be required.

[104]This was introduced in the Trust after the TUPE transfer. Dr Rubenstein explained to us that she was a qualified STIF trainer following completion of the training programme.

[105]Clearly, the Claimant was unhappy that the Trust decision to introduce the STIF framework for nurses training and the requirement to be assessed in respect of competencies. She was required to undertake such training and the outcome of that training appears to have been, amongst other issues, the focus of the Claimant’s conspiracy theories which have led to these lengthy and protracted proceedings.

[106]Her STIF competency was assessed and Dr Rubenstein undertook that assessment scoring the Claimant as 7 throughout with an overall comment of satisfactory. The Claimant appears to have then become fixated with this assessment as effectively being a pronouncement by Dr Rubenstein that she was incompetent.

[107]There is no evidence to support this. In fact, the Trust was at pains throughout to point out to the Claimant, despite her assertions to the contrary, that this was not the case.

[108]In fact, the Trust wrote to the Claimant on four separate occasions pointing out that her clinical competence was not, in any way, being questioned. Despite this the Claimant still maintained and maintains today that it was. This was just another example of the Claimant’s somewhat distorted perception of reality.

[109]During cross-examination she claimed that there was a conspiracy of five people, Dr Holden, Dr Rubenstein, Dawn Hall, Ms Adcock and Dr McSorley, all against her. She considers that Dawn Hall was tasked to spy on her yet she could not explain who had instructed Dawn Hall to do so. The Claimant’s claims in race discrimination.

[110]When under cross-examination by Mr McDevitt, the Claimant seemed uncertain as to the nature of her claims. On numerous occasions she was questioned by Mr McDevitt as to why she should think that individuals with whom she worked were engaged in a conspiracy against her. In response to this she said, “Because I complained about them”. When it was put to her that her claim was that the act she was complaining of were because of her race/national origin she added as an afterthought, “Well yes, that as well”.

[111]The Claimant’s actions throughout the material period of this claim between 2017 and her dismissal in May 2022, somewhat belie the fact that she now says she genuinely believes the treatment she complains of was because of her race and/or national origin. Her national origin is Ghanaian. She seemed wholly confused by what the nature of her claim was supposed to be about. This is borne out by her behaviour throughout the period when, despite raising innumerable grievances about colleagues she was working with and claiming that she was being bullied and/or harassed, no mention of race was ever raised in any of her complaints until 28 September 2020. This is the first mention of race despite innumerable complaints and grievances and threats raised throughout the preceding two years.

[112]The Tribunal considers that to be most revealing. And, even before this Tribunal, the Claimant did not seem, even in her own mind, to be complaining about race discrimination just about incidents where she considers she was mistreated by colleagues. One cannot help but conclude that the race discrimination was something of an afterthought.

[113]With respect to the evidence we heard from those witnesses called by the Respondent, we have no reason to doubt their veracity. We were particularly impressed by the evidence of Dr Rubenstein, Dr Holden, Dawn Hall, Dr McSorley, Katryana Benson and Jacynth Jeffers. We must say that all appear to have had immense difficulty in dealing with the Claimant and clearly they felt intimidated by the Claimant and Mr Andorful, who had written many of the missives on the Claimant’s behalf and had been involved in assisting the Claimant throughout her complaints in these proceedings and before. It is clear that the witnesses produced by the Respondent were intimidated by Mr Andorful and wary of his crossexamination.

[114]For the reasons we have outlined we consider that we must treat the Claimant’s evidence with extreme caution. Where there is a dispute on the facts, we prefer the evidence of the Respondent’s witnesses to that of the Claimant. The direct discrimination claim

[115]Despite the fact that all of the direct race discrimination claims are out of time and we have dismissed them as a result, we do feel it important for us to say, having sat through all the evidence, that there is not a scintilla of evidence that any of the issues complained about in the Claimant’s direct discrimination claims, were in any way tainted by her race or national origin being Ghanaian. The Claimant and her Representative seemed to think that as she considers she has suffered mistreatment at the hands of a number of individuals at the Trust, it must be because of her race and/or her Ghanaian heritage. There is simply no evidence to support this and even Mr Andorful, on her behalf, has not suggested anything which would make such a connection.

[116]The NHS, and this Trust is no exception, is a very diverse organisation employing a huge spread of different ethnic minorities and nationalities. Many of those the Claimant accused of race discrimination are themselves black or from ethnic minority backgrounds. There is simply not a shred of evidence to suggest that the treatment the Claimant complains of is connected to her race or national identify. For the reasons we have explained above, we do not actually believe that the Claimant thinks this either.

[117]This is despite the fact that in any event we do not accept that the 13 acts she complains of actually happened in the way in which the Claimant alleges in her list of issues. However, we do not propose to analyse each and every one as it is not now necessary in light of the fact that they are out of time and we have not extended time to validate them. Save to say, however, that even if we accepted, which we do not, that each and every incident in those 13 issues occurred in a way in which the Claimant alleges, none of them were in any way tainted by the Claimant’s race or national origin.

[118]Despite the fact that all but one of the Claimant’s claims under the heading of detriment arising out of protected acts and protected disclosures are out of time and time had not been extended to validate them, we do think it appropriate to just indicate what our position would have been had time been extended or had those claims been in time. Victimisation

[119]Section 27 Equality Act 2010 Victimisation 27.(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

[120]The protected acts relied upon by the Claimant are set out at paragraphs 14, 15,16 and 17 of the list of issues.

[121]The first of those is the very historic meeting which descended into something of an argument between the Claimant and Dr Rubenstein in December 2014. Here, we do not accept that the Claimant, pursuant to that meeting, accused Dr Rubenstein of prejudice, discrimination and bias. She recorded her complaint pursuant to that meeting in a document before us which we have in front of us in the bundle. The meeting descended into something of an argument between the Claimant and Dr Rubenstein, a fact which Dr Rubenstein admitted and subsequently regretted. There was clearly evidence of the difficult relationship between the two. The Claimant had difficult relationships with many of her colleagues. In the Datix document before us, which recorded the Claimant’s view of that meeting and the incident that occurred, there was no mention of the Claimant considering herself to have been the subject of discrimination. That is even on the Claimant’s own version of events which we do not, in any event, accept. But even taking the Claimant’s position at its highest on the basis of her own record of that meeting did she suggest that she had been the subject of any discriminatory behaviour. She said she felt bullied and humiliated. We therefore do not consider that this can be a protected act under definition set out in section 27.

[122]In respect to paragraph 15, this refers to the grievance raised by the Claimant on 19 December 2017. We had this document before us. It is simply not true to suggest that is the case in paragraph 15 of the list that the Claimant complained in this letter about race discrimination. There is no mention of any discriminatory behaviour in this letter at all. This cannot be a protected act.

[123]Paragraph 16 relates to 12 communications which the Claimant relies upon as being protected acts. The first relied upon being on 27 February 2018 was before us and makes no mention of any allegation related to race discrimination or anything which could bring it under the envelope of section 27. This cannot be a protected act.

[124]As for the 30 April 2018 complaint, exactly the same applies. There is no mention of anything which could be construed as being anything that could be considered an allegation under the terms of 27(2)(d). This cannot be a protected act.

[125]With respect to the 14 May 2018 complaint, the same applies. There is a reference to bullying but no reference to discrimination and no reference to anything which could be deemed to be an allegation under 27(2)(d) which would constitute a protected act.

[126]With respect to the alleged protected act being a complaint made on 29 July 2018, this cannot be a protected act. The word discrimination is used but no protected characteristic is referred to. There is nothing here which qualifies under section 27(2)(d) or any other definition of the protected act under section 27.

[127]Precisely the same applies to the complaint on 9 August 2018. The same applies to the complaint on 27 February 2020 and 3 March 2020.

[128]The Respondents accept, and the Tribunal agrees, that the complaint on 28 September 2020, being a race discrimination questionnaire, is a protected act. This is the first time that the Claimant, in any of her plethora of complaints, has ever raised the issue of race discrimination.

[129]The complaint on 5 October 2020 is not a protected act. There is no reference to race. The complaint on 13 November 2020 is accepted by the Respondents as a protected act and the Tribunal agrees. The complaint on 14 December 2020 is not a protected act, no mention is made of anything which could be construed to be so under section 27. The complaint of 20 February 2021 is accepted by the Respondents as being a protected act and the Tribunal agrees.

[130]As for paragraph 17, all three live proceedings, claim 1, claim 2 and claim 5 are protected acts. Alleged detriments

[131]Paragraph 4.1 of the alleged detriments are out of time and are dismissed. However, even if they had been construed to be in time, which they are not, paragraphs 22, 23, 24, 25, 26, 27, 28 all relate to alleged detriments which pre-date the protected acts above. Therefore, they could not be connected and cannot be victimisation. Paragraph 29 is not, in any way, connected with any of the three protected acts. The email Miss Hall sent was sent in error and we heard evidence from her that it was an aid memoir for her which she mistakenly sent to the Claimant. We do not accept that it was in any way connected with the three protected acts above. In any event, we do not see that there was a detriment and it was simply a mistaken email sent to the Claimant and is not evidence of Miss Hall having been tasked with monitoring her, as the Claimant suggests.

[132]The acts complained of at paragraph 30, all pre-date the protected act set out above.

[133]Paragraph 31, 32, 33, 34 and 35 all pre-date the protected acts, being the three set out above.

[134]As to paragraph 36, which is the only paragraph in the Claimant’s victimisation claim which is live and in time. This relates to the dismissal. This is something of a rambling complaint but the gist of it is that the Claimant considers she was dismissed because she continued to insist that her grievances had been dealt with when she says they were not. Despite the fact that as a matter of fact, it is simply not supported by the evidence as detailed below, there is no evidence before us which we have heard to suggest that the Claimant was dismissed because she made any of the protected acts above. We deal with this in more detail later. The Tribunal does not consider that it has heard any evidence to support the assertion that the events in paragraph 37 are in anyway because of the alleged protected acts. Protected disclosures and detriments under section 47B

[135]The same must be repeated in respect of the Claimant’s protected disclosure/detriment or whistleblowing claim in that the acts relied upon as alleged detriments are all out of time save for the one relating to the dismissal.

[136]However, it is probably wise that the Tribunal indicate its position had those claims been in time. There were three acts relied upon at 18, 19 and 20 in the list of issues as being acts capable of protection as protected disclosures. The law relating to protected disclosures is at 43A and 43B of the Employment Rights Act. These are as follows: 43A Meaning of “protected disclosure”. In this Act a “ protected disclosure ” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[137]The Claimant alleges three alleged protected disclosures set out at 18, 19 and 20 of the list of issues. No mention pursuant to the meeting with Dr Rubinstein or at that meeting was made by the Claimant that she considered Dr Rubenstein’s behaviour to amount to race discrimination. In fact, no mention of discrimination at all was made. We do not consider that the issues raised pursuant to that meeting render the complaint a qualifying disclosure under 43B. We have, at no stage, had any evidence from the Claimant or had any submissions to indicate to us which of the six protected categories under 43B the Claimant considers this fell into but, having reviewed those categories, there is nothing in that document/complaint which would qualify. The same can be said of the informal grievance made on 19 December 2017. There is no mention of anything which could be construed as falling into any of the categories under 43B nor has it been suggested to us that this is the case. There has simply been a bare assertion by the Claimant that this is somehow a protected disclosure. That is nor sufficient.

[138]Paragraph 20 repeats paragraph 16 with respect to the Claimant’s victimisation claim. The same applies in that there are three disclosures which could be construed as being protected disclosures, that of 28 September 2020, 13 November 2020 and 20 February 2021. The Respondents accept that these could amount to protected disclosures.

[139]With respect to the detriments relied upon, the same applies as with the victimisation claim, paragraphs 22, 23, 24, 25, 26, 27 and 28, all rely on acts that pre-date the protected disclosures, therefore they could not have arisen as a result of them. Detriments pursuant to protected disclosure are dealt with under section 47B of the Employment Rights Act: 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[140]Paragraph 29 relates to the email sent by Dawn Hall on 23 February 2020 to the Claimant in error. On the evidence we have heard there is no evidence to support the suggestion that this was sent pursuant to any of the three protected disclosures above. One of those disclosures post-dates the detriment relied upon. With respect to the other two, the actions of Dawn Hall are in no way connected with those protected disclosures. She did not even know about them.

[141]Paragraph 30 pre-dates any of the protected disclosures above and therefore could not be as a consequence of any of them.

[142]Paragraphs 31, 32, 33, 34, 35 all pre-date the protected disclosure and could not therefore be acts that are detriments arising as a result of them under section 47B.

[143]That leaves just paragraph 36 of the list of issues. This is where the Claimant’s claim relating to dismissal pursuant to the protected act lies. Dismissal pursuant to a protected act is under section 103A of the Employment Rights Act: Section 103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. As a matter of fact we do not accept, having heard evidence from those who carried out the ill health capability dismissal, that the dismissal was in any way connected with the three protected disclosures above. Therefore, the Claimant’s claim under section 103A must fail as the reason for the dismissal was not a reason connected with the protected disclosure, or any of them. We go into more detail about the real reason for the dismissal below in the unfair dismissal claim judgment. The matters referred to in paragraph 37 are not in our Judgment events that occured as a result of any protected disclosures. There is no evidence to connect them. The Claimant’s unfair dismissal claim.

[144]The Claimant claims that she was dismissed unfairly. She says the real reason she was dismissed was that she continued to insist that her longstanding grievances be properly dealt with and that they were not.

[145]The Claimant’s position is that the Claimant was dismissed fairly by reason of capability. Findings of fact.

[146]The Claimant had pursued grievances for a number of years against various colleagues at the Trust. It was only in September 2020 that the Claimant indicated that her complaints against her colleagues arose out of alleged race discrimination. Prior to that, no mention of race discrimination had ever been made.

[147]Ultimately, the Tribunal regards that the Respondents conducted a very thorough detailed grievance process over a period of time resulting in a grievance outcome letter dated 18 November 2020. This was pursuant to a grievance investigation and report produced by Dr Siobhan Murphy and was a grievance conducted and determined by Dr John McSorely, a Consultant Physician. He sent his grievance outcome letter to the Claimant on 18 November 2020. That spanned 7 pages and pooled together all the Claimant’s various grievances, including the suggestion that the treatment of her was discriminatory on the grounds of race, first ventilated in September 2020. The Claimant raised three race questionnaires from September 2020 onwards and these were swept up and dealt with as part of the grievance process.

[148]Having heard from Dr McSorely and considered the documents in the bundle before us, the Tribunal concludes that the Trust conducted a detailed and reasonable grievance investigation and outcome which was then sent to the Claimant.

[149]The meeting took place on 14 October 2020. Dr McSorely chaired the meeting and was supported by David Jones, Senior HR Business Partner. Dr Siobhan Murphy also attended to present the investigation report and was supported by Caroline Burn, HR Advisor. The Claimant attended together with Richard Andorful, the Claimant’s Representative in these proceedings who, according to the Respondent, indicated he was a Unison Representative from the Hounslow branch. Mr Andorful has since confirmed that he is not a Unison Representative.

[150]It would appear that Mr Andorful had represented himself as a Unison Representative from the Hounslow branch and he even offered to provide his Unison membership number. However, when pressed on this he said that he would provide it after the meeting and promptly. No such membership number was forthcoming and the Respondents contacted Unison Head Office and they confirmed that Mr Andorful was not the Union Representative and that they did not recognise his name.

[151]This is a disturbing turn of events and whilst this case is clearly not about Mr Andorful, it is perhaps indicative of the approach taken by the Claimant and Mr Andorful in their conduct of their dealings with the Trust.

[152]Pursuant to that meeting and the outcome of the grievance, the Claimant indicated that she would no longer be prepared to attend work until she received what she regarded as a satisfactory outcome to the grievance. She went off sick on 15 December 2020. She never returned to work thereafter. The Claimant then had a lengthy period of sickness including a bout of Covid. The Claimant continued to complain about the same acts which she had complained about previously and continued to relodge and reiterate the same grievances against Dr Holden and Dr Rubenstein, Dawn Hall and others. Interestingly, in a form completed by the Claimant and submitted on 23 November 2020, shortly after the grievance outcome had been sent to the Claimant, she lodged a further grievance arguing that no attempt had been made to deal with her previous grievances and accusing all involved of a deliberate cover up of clinical manipulation which the Trust was refusing to investigate.

[153]This is simply not supported by the facts. We heard evidence from those involved in pursuing what was a detailed and reasonable grievance process. We accept and understand that, on occasions, grievance outcomes are not deemed to be satisfactory by those employees who raise them. Clearly, Mrs Anyanful, the Claimant, was unhappy with the outcome of the grievance but that does not alter the fact that a grievance process was conducted and it was reasonable, considered and detailed. Some of the Claimant’s complaints were upheld but no aspect of the Claimant’s claims relating to race discrimination were upheld.

[154]The Claimant was written to by Kimberly Dzvova, on 27 November, indicating that it was her expectation that the Claimant returned to work and undertake her clinical duties. Ms Dzvova is Matron of Integrated Sexual and Reproductive Health Care/HIV Services. The Claimant did not return to work and responded to what the Tribunal considers to be a reasonable request, written with sympathy and understanding in a letter dated 28 November 2020, exhibiting a great many of the traits that we observe during the giving of her evidence. She continued to assert that the grievance had not been dealt with and that allegations of incompetence had been made against her by clinical consultants which is simply not the case. Words such as frivolous, malicious or vexatious are used and she refers to the conspiracy of colluded attacks against her. She then pursued an appeal against the grievance in a formal notice sent to Dr McSorely on 28 November 2020. There was then a formal grievance appeal process and the Claimant’s position is neatly summarised in a letter from Kimberly Dzvova to Dr Eugene Gaal, where she says: “Theresa has said she is unwilling to carry out clinical work until the issues she has raised have formally been resolved. TA steadfastly believes the Trust has called her competency into question, even though she has been told that she is competent to carry out her duties. TA is unwilling to work elsewhere as an alternative. Is there any underlying health issues that may be relevant or where adjustments would help a return to full duties”. Dr Gaal is an Occupational Health Therapist. Dr Gaal then produced an OH report.

[155]It is worth noting that a series of exchanges between Kimberly Dzvova and the Claimant prompted the Claimant to become even more aggressive and to lodge complaints about Ms Dzvova.

[156]It is the Tribunal’s view, having weighed and sifted the evidence before it, that the Claimant was simply unable to accept the outcome of a grievance that was sent to her. She was, of course, entitled to appeal and she did so. The Claimant continued to be signed off sick, the sicknotes indicating stress at work as being the reason for her absence.

[157]The appeal was then dealt with and a Management Case was prepared by Dr John McSorley, who conducted the original grievance. This was a very detailed report which was before the Tribunal and was some 20 pages long. The Claimant continued to raise grievances including one against Kimberly Dzvova and to repeat her original grievances. Katryana Benson replied, indicating that she had stepped into the breach due to Kimberly Dzvova now having had a grievance raised against her and she indicated that the appeal would go ahead but that it appeared to repeat issues raised previously which had been dealt with. A grievance appeal meeting ultimately did take place and the outcome was sent to the Claimant on 5 October 2021. The appeal was chaired by Rachel Tunstall, General Manager Cardiology and Dermatology, and a detailed outcome letter was sent to the Claimant under cover of a letter dated 25 October 2021. This was some 14 pages long. The Tribunal considers that this is a comprehensive appeal process.

[158]The reason why there was such delay was because the Claimant had failed to engage during a considerable period of time and the only engagement that the Claimant entered into was the raising of further complaints and further grievances akin to those already dealt with, either by her or Mr Andorful acting on her behalf.

[159]The Respondents had seen an updated Occupational Health Report which had been withheld by the Claimant for some time. Despite the fact that the Claimant and Mr Andorful asserted that the Claimant was not fit to attend the appeal hearing, the Occupational Health Report disagreed and noted that the Claimant would be fit to attend such a meeting. Ultimately, the Respondent’s determined that they must go ahead and deal with the appeal, which they did. The Claimant failed to attend and failed to send her Representatives.

[160]The Tribunal considers that the actions of the Trust, the Respondent, were more than reasonable throughout the process of the appeal and that the appeal was conducted in a fulsome and detailed manner with a comprehensive and detailed outcome. The result was that the appeal was not upheld on any of the 28 grounds of appeal.

[161]That appeal outcome indicated that there was no further right of appeal.

[162]Thereafter, the Respondents sought to deal with the Claimant’s long term sickness absence.

[163]In this respect the Tribunal heard evidence from Jacynth Jeffers, who dealt with the final sickness review meeting which resulted in the Claimant’s dismissal. Pursuant to the Claimant’s lengthy period of sickness stretching from 15 December 2020 through to May 2022, the Respondents had attempted to manage the Claimant’s sickness and the Claimant was invited to formal sickness absence meetings on six occasions in line with the sickness absence policy of the Trust. The Claimant failed to attend any of those meetings and failed to engage with the process.

[164]Miss Jeffers had no previous dealings with the Claimant and had not in any way been involved in the grievance process which terminated when the grievance appeal outcome was sent to the Claimant in October 2021.

[165]I must say we were very impressed with the evidence of Miss Jeffers who came across calmly and measured and considered. This is despite the fact that, for reasons explained below, she had had a very bad experience with the Claimant and Mr Andorful at the final sickness meeting and was then confronted by Mr Andorful asking questions in cross-examination. We consider that the evidence of Miss Jeffers was to be believed and we had no reason to doubt any of the evidence we heard from her.

[166]Miss Jeffers wrote to the Claimant on 31 March 2022, inviting her to a final review meeting to be held on 11 April 2022. The Claimant was advised that a possible outcome from the hearing may be termination of her contract of employment on the grounds of capability.

[167]On 10 April Mr Andorful responded on behalf of the Claimant, indicating that the Claimant hadn’t had enough notice of the meeting and that letter referred to Miss Jeffers to a letter sent to Miss Gordon on 6 April by the Claimant regarding an outstanding occupational health referral. This was apparently pursuant to an earlier submission that Miss Gordon had made to occupational health in February 2022 in order to seek advice on how the trust could support the Claimant in her return to work. The referral was withdrawn because the Claimant refused to consent to the referral.

[168]She did ultimately consent to such referral on 10 March 2022 and Miss Gordon submitted a subsequent referral to occupational health on 14 March 2022.

[169]The meeting on 11 April still went ahead, albeit the Claimant did not attend. Mr Andorful attended and it is Miss Jeffers’ evidence that Mr Andorful behaved in a challenging and accusatory way. Mr Andorful continued to shout at Miss Jeffers during the meeting and interrupting her throughout the process. We accept the evidence of Miss Jeffers in this respect.

[170]Under the circumstances Miss Jeffers agreed to adjourn the final review meeting and schedule it following the now rearranged appointment with occupational health which the Claimant had ultimately consented to having previously not done so.

[171]A further final review meeting took place on 6 May 2022, after an occupational health report was received on 26 April 2022. That report stipulated that the Claimant as not currently fit for duties of her post and that the main barrier for her returning to work was the Claimant’s perceived concerns about the workplace rather than a medical condition. The report went on to confirm that the Claimant may be in a position to return to work if her work related concerns were identified and resolved.

[172]We heard evidence from Miss Jeffers, that it was her understanding that all of the concerns raised by the Claimant had been dealt with in the grievance and the appeal to that grievance. The problem was that the Claimant was just not prepared to accept the grievance outcome.

[173]For the avoidance of doubt the Tribunal accepts that this was indeed the case, that there was nothing other than the fact that the Claimant was unhappy with the outcome of that grievance and appeal which appeared to be the barrier preventing the Claimant returning to work.

[174]Mr Andorful was involved in the process and wrote a vituperative letter on 5 May 2022, making a number of serious allegations including abuse of position, intimidation, harassment and victimisation.

[175]The final review meeting went ahead and the Claimant attended together with Mr Andorful but, unfortunately, due to the behaviour of Mr Andorful and the Claimant, the meeting was short lived. The meeting was chaired by Miss Jeffers and included Miss Gordon, Mr Gungaphul and Aziza White Senior Resources Advisor who was HR Support for Miss Gordon. We accept the evidence of Miss Gordon and Miss Jeffers that Mr Andorful and the Claimant were aggressive and loud and intimidatory during that meeting.

[176]As mentioned above, the Claimant accused those present of race discrimination on the basis of the comment that “as soon as a black person starts talking you accuse them of shouting”.

[177]We accept and believe Miss Jeffers’ evidence that she tried in vain to proceed, in a civilised manner, with the meeting but was constantly interrupted by Mr Andorful who was shouting that it was “unlawful”. Miss Jeffers explained at the end of the meeting that the purpose of the meeting was to give the Claimant a fair opportunity to present her case and ask any questions that she wished to ask. Mr Andorful would not keep quiet and talked continuously for 10 minutes in a raised voice which Miss Jeffers told us was borderline shouting.

[178]Miss Jeffers did her best to calm the meeting but was shocked to be accused of racism by the Claimant, particularly as Miss Jeffers is of Caribbean heritage and all other participants in the meeting wherefrom a black Asian minority ethnic background. Miss Jeffers had to talk over Mr Andorful and pointed out to the Claimant that her comment was highly inappropriate and unacceptable.

[179]The meeting consequently deteriorated as a result of the behaviours of the Claimant and Mr Andorful and it is the view of Miss Jeffers which we accept that it was Mr Andorful’s intention to deliberately frustrate the meeting. He looked pleased when Miss Jefferson indicated that the meeting had become untenable and she decided to cancel it.

[180]We have seen statements from Mr Gungaphul, Miss White and Miss Gordon following that final review meeting and we accept their evidence.

[181]Thereafter, Miss Jeffers, entirely understandably, determined to deal with matters by way of written correspondence and was not prepared to entertain a further meeting. This she did by listing specific questions which she had intended to put to the Claimant during the review meeting. Mr Andorful continued to correspond on behalf of the Claimant in an aggressive fashion, raising issues that had previously been raised.

[182]Miss Jeffers and Mr Gungaphul met to consider the contents of that letter and others. They reviewed the grievance outcome and the grievance appeal outcome to satisfy themselves that despite the continued assertion by the Claimant and Mr Andorful on her behalf, that the grievance remained outstanding. It had in fact been fully dealt with. They also satisfied themselves that much of that which had been raised by Mr Andorful and the Claimant in correspondence was simply not true.

[183]After careful consideration Miss Jeffers wrote to the Claimant on 20 May, pursuant to her long term sickness absence of 15 months and the inevitable impact on the service of that continued absence and the lack of any indication of a return in the foreseeable future, led her to decide to terminate the Claimant’s employment on the grounds of ill health capability.

[184]That was a detailed letter which we consider to be entirely appropriate and to cover all necessary issues. We consider that Miss Jeffers, acting on behalf of the Respondent, conducted and followed a fair and proper process, considering both the sickness absence policy and the occupational health report which had been produced prior to the meeting. We heard evidence from Miss Jeffers and we accept that she considered other alternatives such as ill health, redeployment or a phased return to work. The Claimant did not meet the criteria for ill health retirement and the Claimant made it clear that she was not willing to return to work in her substantive role on a phased return or that she would consider returning in an alternative role. She also felt that in light of the Claimant’s failure to accept the outcome of the grievance and the appeal, it was clear that the Claimant’s relationship with her work colleagues had irretrievably broken down.

[185]The Claimant’s employment was therefore terminated on 20 May 2022. She was paid three months’ money in lieu of notice and informed of her right to appeal.

[186]The Claimant did lodge a notice of appeal, arguing that the decision to dismiss was pre-determined, raising a number of issues. Miss Jeffers prepared an appeal management statement and an appeal duly took place.

[187]The appeal was originally scheduled for 29 June 2022 but for various reasons the Claimant indicated that she was unable to attend on that date and on subsequent rescheduled dates. The appeal eventually took place on 16 November 2022. Jamie Zanardo, Divisional Director of Operations was nominated to chair the appeal from whom we heard evidence.

[188]With respect to the initial decision to dismiss by Miss Jeffers, we accept her evidence that she took into account the allegations raised by the Claimant and Mr Andorful, that the Claimant continued to argue that her grievances remained outstanding. The fact is that they were not outstanding. They had been properly completed but the Claimant refused to accept the outcome. The allegation that the Claimant was dismissed because she insisted that her grievances needed to be properly dealt with and had not been, had no basis. In fact, there is no evidence before us to suggest that this was the case. In fact, quite the opposite. We accept the evidence of Miss Jeffers.

[189]In the appeal hearing the dismissal was upheld. We heard evidence from Mr Zanardo and fully accept that evidence. Mr Zanardo went through a proper and detailed process and confirmed the decision to dismiss. Despite the fact that Mr Andorful was not a Union Representative, he was allowed to attend with the Claimant.

[190]Mr Zanardo experienced some of the same issues with the Claimant and Mr Andorful as had been experienced by Miss Jeffers, constant interrupting and Mr Zanardo gave evidence that he considered that it was hard work to keep the hearing on track. The Claimant asserted that her treatment had been unfair and unlawful and that she had been subjected to intimidation, victimisation and abuse of power. She continued to assert that complaints and grievances raised were not properly investigated or dealt with.

[191]We accept the evidence of Mr Zanardo as he went through each and every point raised by the Claimant in her appeal. He explained that the task that befell him was not to rehear or reconsider all of the issues which led to the Claimant’s period of sickness but simply to assess whether the Trust sickness absence policy was appropriately followed. The appeal panel, which included Zanita Patel, Clinical Director of Therapy Services and Jez Sidu, Human Resources Business Partner for Emergency and Ambulatory Care, concluded that there were no grounds of appeal which were upheld and the decision to dismiss was confirmed. The Law

[192]Unfair dismissal is governed by section 98 of the Employment Rights Act 1996: 98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or (d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a)— (a)“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b)“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[193]It is for the employer to show what the reason was for the dismissal. It is then a neutral burden for the Tribunal to determine that it was a reason that was potentially fair and ultimately whether the decision to dismiss was a fair one is governed by the section 98(4) test.

[194]The Tribunal is guided by a number of authorities in seeking to apply the section 98(4) test and this remains the case in circumstances where the reason for dismissal was capability.

[195]The approach remains that approved in the case of British Leyland (UK) Ltd v Swift 1981 IRLR [1991] Court of Appeal and further applied in the case of Iceland Frozen Foods Ltd v Jones

[1983] ICR17

EAT, where Tribunals must assess whether the decision to dismiss fell within the band of reasonable responses open to an employer faced with the circumstances with which the employer was faced. Often employers have at their disposal a range of reasonable responses to matters such as misconduct or capability which may span dismissal or some other outcome. It is inevitable that different employers will choose different options. A band of reasonable responses approach was therefore formulated. The Tribunal must ask itself, did the employer’s action fall within the band (or range) of reasonable responses open to an employer.

[196]It is very important that Tribunals do not substitute their own view as to what was reasonable. The test of whether or not the employer acted reasonably is an objective one. Tribunals must use their own collective wisdom as industrial juries can determine a way in which a reasonable employer, in those circumstances, in that line of business, would have behaved. What a Tribunal must not do is to put itself in the position of the employer and consider how it would have responded to the established reason for dismissal. Conclusions

[197]Having heard the detailed evidence of Miss Jeffers and Miss Gordon, we conclude that the reason for the Claimant’s dismissal was capability. The Respondents were sufficiently armed with evidence both put forward by the Claimant herself and the occupational health report recently obtained prior to the final sickness review meeting, that the Claimant was not capable of returning to work to fulfil her duties. Whilst this was something which the occupational health report indicated was not a medical issue, it was as a result of the fact that the Claimant simply could not accept the outcome of the grievance hearing and its appeal and refused to return to work on any basis as a result. This did render her incapable of performing the job for which she was employed. Having gone through a detailed process where the Claimant had refused to attend six review meetings and had deliberately failed to engage in the process but had made it clear that there was no prospect of a return to work, the Tribunal concludes that the decision to dismiss was by reason of capability and further, that this is a potentially fair reason under section 98(2) of the Employment Rights Act.

[198]Turning to the section 98(4) test, the Tribunal considers that in light of all of the evidence before it, the final sickness review panel chaired by Miss Jeffers, reached a conclusion which was open to it and that the decision to dismiss fell within the band of reasonable responses of an employer faced with that set of circumstances. Miss Jeffers did look at alternatives to dismissal but, in light of the Claimant’s position and the occupational health report before her, the Claimant’s behaviour, her failure to engage about the clear and unequivocal indication that she would not return to her duties, we do consider that it was open to Miss Jeffers to conclude that it was appropriate to dismiss the Claimant by reason of capability. That decision fell within the band of reasonable responses open to an employer in the circumstances.

[199]For that reason the Claimant’s unfair dismissal claim fails.

[200]All of the Claimant’s claims fail for the reasons set out above. Approved by: