J A McKendrick v Lothian Health Board: 4102567/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102567/2024

Venue Edinburgh

Hearing 24 April 2025

Between

Jacqueline Abizie McKendrickClaimant

Lothian Health BoardRespondent

Before

Employment Judge Sutherland

Ms Z Kerr, Solicitor for respondent

Date 12 May 2025

JUDGMENT

[1]Direct discrimination complaint 7 (required to meet with Deputy CEO despite grieving) is struck out as having no reasonable prospects of success;

[2]As a condition of advancing the following complaints which have little reasonable prospects of success the claimant is ordered to pay a deposit in sum of £30 in respect of each complaint:a. Direct discrimination complaint 2 (LH said I was “full of shit”);

b. Direct discrimination complaint 9 (asked to work from home whilst JusB stayed in work);

c. Direct discrimination complaint 10 (told JusB needed in the team);

d. Victimization complaint 9 (asked to work from home whilst JusB stayed in work);

e. Victimization complaint 10 (told JusB needed in the team).

[3]The respondent’s application for strike out failing which deposit is otherwise refused.

REASONS

[1]The claimant has made complaints of direct race discrimination, harassment related to race, victimisation and constructive dismissal. She relies upon the racial group of being black Ghanaian.

[2]On 24 March 2025 the respondent made an application for strike out failing which a deposit on the basis that the complaints have little or no reasonable prosects of success. A preliminary hearing listed for today to determined that application.

[3]Parties had prepared a joint bundle of documents and the claimant lodged supplementary documents. No witness gave oral testimony at this hearing. Both parties made oral submissions.

[4]Although she was born in the UK, the claimant was brought up in Ghana and English is not her first language. It was apparent from this hearing and from her correspondence with the tribunal that the claimant has a good command of written and spoken English.

[5]There have been two prior case management preliminary hearings (‘CMPH’) at which it was noted that her complaints were in narrative style and it was therefore difficult to identify which acts are relied upon or merely background information. At the first CMPH she was ordered to list all complaints of discrimination in date order which she did on 30 December 2024. At the second CMPH draft tables of her complaints was prepared in discussion with the claimant having regard to that list. She was then given 4 weeks to revise and fully populate those tables with a view to ensuring her complaints were adequately specified. It was explained that there should be a row in the relevant table for each act of discrimination relied upon and that she may need to insert new rows. Furthermore in respect of each act she was required to set out the basis of inference (i.e. the facts from which it could be inferred that the treatment was because of (or related to) her race). It was apparent that the claimant understood these directions and she provided revised tables on 17 February and these were updated by her on 12 March 2025.

[6]In light of the above, where a complaint has not been included within the revised tables it was understood that this complaint is no longer relied upon (e.g. although her claim refers to KR laughing at her when her English was not perfect it is understood that this claim is not insisted upon because it is not included within the tables of complaints). It was also explained to the claimant that she had not set out a basis of inference in respect of every complaint and in response the claimant gave further oral particulars which are included in the undernoted summary of complaints [in square brackets]. The complaints

[7]The following tables contain a summary of her complaints. The following initials are used in those tables. Table of initials Initials Name Job Title AR Agnes Ritchie Associate Nurse Director C Christina PEF, Royal Edinburgh Hospital CC Callum Campbell Ex CEO, Lothian Health Board CR Carla Rafferty Practice Assessor & B6 Rapid Response Team (RRT) JanB Janis Butler Director of Human Resources & Organisational Development Manager, Lothian Health Board JimC Jim Crombie Deputy CEO, Lothian Health Board JusB Justin Burrows B6, RRT (Jacqui’s Supervisor) KR Karen Ritchie Ex B8 RRT now Clinical Nurse Manager (CNM), REAS Lothian Health Board LH Louise Heatherill B3, RRT RS Rakiya Suleiman Equality & Diversity Officer, Lothian Health Board RB Ryan Bell B8, Acting Nurse in Charge RRT TM Tracey McKigen Service Director Royal Edinburgh Hospital (REAS), Lothian Health Board

[8]Each row in the following table has been populated with the following information in respect of each complaint of direct discrimination:a. the act or omission amounting less favourable treatment;

b. the date and the name of the perpetrator of that treatment;

c. the name of any person treated more favourably in the same circumstances (the comparator);

d. the factual basis upon which it could be inferred that the less favourable treatment was because of her race (the discriminatory factors). 1. July Told me in front JusB A white [He used an aggressive 2023 of staff that he nurse would and intimidating tone had not not have which he only uses with specifically told been treated me and not with other me that I could in that white colleagues] leave and made manner. [He me change did not give back into my that uniform. direction to anyone else.] 2. July Said I was LH A white [LH is higher band than 2023 talking “full of nurse would me. She did not speak shit” whilst not have to other white Caitlin (B6 duty been treated colleagues in that way.] nurse) for the in that day stood there manner. and watched. 3. 30 In the pool car RB JusB who is [Such meetings with July he informed me a white white colleagues never 2023 about a colleague take place in the car.] complaint made was given against me by feedback in Bethany a booked Dickson, room and Student Nurse. told he I was not given could bring the chance to a colleague bring a with him. colleague or union rep. 4. 30 Speaking to JusB [No other [He could have made July student’s white nurse plans to do this in 2023 nurses behind had respect of other staff.] my back and enquires fishing for made about information on them to the how they are student getting on with nurses] me; sending emails about me to RB, KR, CR, Christine 5. 31 [1. Investigation AR A white [1. Only part of my July Feedback nurse would grievance was upheld. 2024 Meeting not have AR didn’t think of asking Outcome letter. been treated a black observer to Only part of my in that attend. A black observer grievance was manner attended only because I upheld asked. (application to amend 2. 1 year before KR pending) KR acted in a racist manner] 2. In respect of the part that was upheld no action was taken i.e. by way of disciplinary action or transfer as a matter of their zero tolerance policy] 6. 14 Wanting me to JusB CC, CEO (a No other white member August call on a daily white of staff was required to 2023 basis although employee) do that father in law was not passed away asked to have daily calls 7. 18 Required to JimC [CC, CEO (a No other white member August meet with white of staff was required to 2023 Deputy CEO employee) do that despite grieving was not required to attending her grievance meeting] 8. 29 Required to RB CC, CEO CC, CEO on annual August attend absence leave was not required 2023 meeting with to attend a grievance RB and LG meeting with me when I was because he was grieving grieving my lost the loss of a family father in law member. (died 17 August) 9. 29 Asked to work RB No – I am only BAME / black August from home hypothetical nurse in the department. 2023 during the only This was contrary to bullying policy. investigation whilst white perpetrator JusB stayed at work 10. 29 RB told me RB No The Lothian Health August JusB was Board’s policy was that 2023 needed in the the perpetrator should team and the be moved but not the team couldn’t complainer operate without him Harassment related to race (Section 26 Equality Act 2020) 1. Each row in the following table has been populated with the following information in respect of each complaint of harassment: a. the act or omission amounting unwanted conduct; b. the date and the name of the perpetrator of that conduct; c. the factual basis upon which it could be inferred that the conduct related to her race (the discriminatory factors); d. Whether the conduct had the prohibited purpose or effect (violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment). Harassment related to race (Section 26 Equality Act 2020) No. Date Unwanted Perpetrator Basis of Purpose or conduct inference effect 1. July Said in front of JusB He used an I felt that I was 2023 staff that he had aggressive and treated not specifically intimidating differently and told me that I tone which he made to feel could not leave only used with insignificant. and made me me and not with I felt let down change back into other white and upset my uniform. colleagues 2. 30 Speaking to JusB At no point has I felt demeaned July student’s nurses JB gone to 2023 behind my back students and and fishing for asked how they information on felt about other how they are practice getting on with supervisors who me; sending were white. emails about me to RB, KR, CR, Christine Victimisation (Section 27 Equality Act 2020) 1. Each row in the following table has been populated with the following information in respect of each protected act: a. date and nature of the protected act (e.g. making an allegation of discrimination) Protected Act (Section 27 Equality Act 2020): No. Date Protected Act 1. 27th July I submitted a formal grievance against JusB which alleged race 2023 discrimination 2. Each row in the following table has been populated with the following information in respect of each complaint of victimisation: a. the act or omission amounting detrimental treatment; b. the date and the name of the perpetrator of that treatment; c. the factual basis upon which it could be inferred that the detrimental treatment was because of the protected act (the basis of inference). Victimisation (Section 27 Equality Act 2020): No. Date Detriment Perpetrator Basis of inference See above re acts of That I had made a compliant direct discrimination about JusB and all these post 27 July 2023 detriments followed Constructive dismissal (Section 95(c) Employment Rights Act 1996) 3. Each act of discrimination (considered together or individually) amounted to a repudiatory breach. Facts not in dispute

[9]The following facts were not in dispute -

[10]The claimant was employed by the respondent from at least 28 November 2016 to 5 September 2023 as a Mental Health Nurse. The claimant joined the Rapid Respondent Team (‘RRT’) in around 2020. The claimant reported to JusB, RRT who reported to RB, B6 Acting Nurse in Charge. RB reported to KR, B8 RRT.

[11]On 27 July 2023 the claimant submitted a formal grievance regarding her allegations of bullying and discrimination whilst working in the RRT.

[12]On 4 August 2023 the claimant resigned. On 18 August the claimant and JC, DCE agreed to put her resignation on hold with a view to the respondent investigating her grievance. The claimant was on special leave from 14 to 28 August. The claimant did not return to work thereafter and confirmed her resignation on 1 September. The claimant was off work from 4 August to 4 September 2023.

[13]The claimant engaged in ACAS Early Conciliation from 29 November 2023 to 3 January 2024. The claimant lodged her ET1 claim on 2 February 2024. Contemporaneous documentation

[14]The following is noted having regard to the contemporaneous documentation contained with the bundle of documents provided by the parties –

[15]On 12 December 2023 Tracey McKigen, Services Director for Royal Edinburgh and Associated Services noted that there is no place for racism in NHS Lothian but she has become increasingly aware that some BME staff continue to face racism and inviting staff to attend a meeting to discuss concerns about racism. On 28 November 2024 she apologized for the delay in developing an action place to address concerns and arranged a meeting to discuss it on 19 December 2024.

[16]The Bullying and Harassment Policy which provides that: “They will determine what supports can be put in place to allow the employee to continue working together during this period, such as alternative shift patterns. Where this is inappropriate, the employee alleged to have demonstrated the bullying or harassment behaviours or both will be moved to an alternative placement unless: the complainant requests remove; there is a legitimate service need which dictates that the other employee cannot be moved”.

[17]Letter from JC, DCE to claimant dated 23 August 2023 regarding her grievances noting the agreement to set aside her resignation; explaining the investigation process; noting her expectation that JusB, RB and KR would be suspended to enable her return to work; given the continuing service pressures and staffing gaps, noting staff would not be moved or suspended at this stage but JusB would instead work opposite shifts and her point of contact would change; noting that she was on special leave from 14 August to 28 August (related to her father in law), due to be on extended annual leave in September and that she could either return to work or be on special leave in the meantime.

[18]Emails between the claimant and CEO’s assistant dated 11 August 2023 during which the claimant was given the opportunity to reschedule the meeting with CC, CEO due to be held on 18 August.

[19]Emails between the claimant (or her union rep) and JC, DCE on 1 September 2023 confirming her resignation because JusB was not being removed from the RRT (by suspension or transfer).

[20]The detailed outcome of the grievance investigation regarding allegations of race discrimination dated 31 July 2024 which found no evidence of race discrimination by the Rapid Response Team including JusB, RB, and KR. However the investigation found evidence to support two allegations of bullying by JusB but were unable to share any actions or outcomes due to data protection. Financial circumstances

[21]The following was agreed between the parties for the purpose of this hearing –

[22]Following her resignation the claimant works around 6 shifts a month though an agency earning £540 gross per shift. Her husband’s salary is around £32k.

[23]The claimant and her husband have no savings and own their own home which is subject to a mortgage. The law on strike out

[24]Under Rule 37(1) of the Employment Tribunal Rules of Procedure, a Tribunal may strike out all or part of a claim or response on various grounds including- (a) that it is scandalous or vexatious or has no reasonable

[25]In light of the severe consequences of strike out, such a decision is considered a draconian step which should only be taken on the clearest grounds and as a matter of last resort. Its purpose is not to punish the conduct but rather to protect the other party from the consequences of the conduct (Bolch v Chipman

[2004] IRLR 140

, EAT).

[26]Before making a strike out order, the tribunal must give the relevant party a reasonable opportunity to make representations, either in writing or, if requested by that party, at a hearing. No reasonable prospects

[27]Having regard to the legal authorities referred to below the following is noted: strike-out on grounds of no reasonable prospects is considered by means of a summary determination; where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts; exceptional circumstances may arise where disputed facts are totally and inexplicably inconsistent with undisputed contemporaneous documentation; discrimination and unfair dismissal cases are generally fact sensitive and therefore strike out on this ground is exceptional; where there are no reasonable prospects the Tribunal must decide whether to exercise it’s discretion mindful that full evidence has not been heard, although the Tribunal should not be deterred in the most obvious of cases.

[28]The House of Lords in Anyanwu and Ors v South Bank Students’ union and Ors

[2001] IRLR 305

per Lord Steyn (par 24): “such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally factsensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”

[29]The Court of Appeal in Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

, per Maurice Kay LJ: (Para 27) “what is now in issue is whether an application has a realistic as opposed to a merely fanciful prospect of success… However, what is important is the particular nature and scope of the factual dispute in question… there may be cases which embrace disputed facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success” (Para 29) " there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise…It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation."

[30]The Court of Session in Tayside Public Transport company Ltd (t/a Travel Dundee) v Reilly [2012] Scot CS CSIH 46, per Lord Justice Clerk – [29] “The power of the ET to strike out a claim at a pre-hearing review may be exercised only where the ET determines that the claim "has no reasonable prospect of success"…Even if the Tribunal so determines, it retains a discretion not to strike out the claim”. [30] “the power conferred … may be exercised only in rare circumstances. It has been described as draconian ... In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel (2003) CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions... But in the normal case where there is a "crucial core of disputed facts," it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out…” [33]… the Tribunal will have to assess both the substantive issues…the fairness of the procedures by which the decision to dismiss was reached (British Home Stores Ltd v Burchell

[1980] ICR 301

; Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

; Foley v Post Office; HSBC Bank v Madden

[2000] IRLR 827

; Employment Rights Act 1996, s 98(4), supra). [34]… In my view, he should have considered whether a full Tribunal conducting a formal hearing into the claim might have fuller information before it than he had”.

[31]The Employment Appeal Tribunal in Mechkarov v Citibank NA

UKEAT/0041/16/DM

, having reviewed Anyanwu, Ezsias and Tayside, per Mr Justice Mitting (para 14): “On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows:(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the Claimant’s case must ordinarily be taken at its highest;

(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts”.

[32]The Court of Appeal in Ahir v British Airways Pic

[2017] EWCA Civ 1392

per Underhill LJ (para16): “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment”

[33]And Lord Hope (par 37): “I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence." The law on deposit

[34]Under Rule 39(1) of the Employment Tribunal Rules of Procedure, where the tribunal considers that any specific allegation or argument in a claim has little reasonable prospects of success, it may order the Claimant to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument.

[35]Whilst this is a lower hurdle than having no reasonable prospects of success (under Rule 37 on strike out), there must be a reasonable basis upon which to doubt that the legal arguments are valid or that the material facts necessary to support the allegation will be established.

[36]Even if there are little reasonable prospects of success, the Tribunal retains a discretion whether to make an order for a deposit having regard to the overriding objective to deal with cases fairly and justly. Relevant factors may include whether it will avoid delay (and save time), whether it will avoid expense (and save costs), and the importance of the issues.

[37]Under Rule 39(2), when deciding the amount of each deposit, the tribunal must make reasonable enquiries into the Claimant’s ability to pay the deposit and have regard to such information when deciding the amount of the deposit. Where multiple allegations or arguments are advanced (as is the case here) there may be multiple deposits ordered not exceeding £1000 each. However the tribunal should stand back and consider whether the total deposit awarded is proportionate (Wright v Nipponkoa Insurance (Europe) Ltd

UKEAT/0113/14

, EAT).

[38]The purpose of a deposit order is to identify weak claims, to flag that weakness to a party, and to warn of a risk of expenses (costs) if they proceed. Its purpose is not to achieve strike out indirectly by ordering a deposit that cannot reasonably be complied with (Hemdan v Ishmail

[2017] IRLR 228

, EAT).

[39]Under Rule 39(4), if a deposit is ordered and the Claimant fails to pay the deposit, the specific allegation or argument will be struck out.

[40]Under Rule 39(5), if a deposit is ordered and paid, the deposit shall be refunded to the Claimant unless tribunal ultimately decide to rejects the specific allegation or argument for substantially the same reasons. In these circumstances the Claimant may treated as having acted unreasonably when considering an award of expenses (costs) and further, the deposit shall be paid to the Respondent. Submissions

[41]The Respondent’s oral and written submissions were in summary as follows –a. The following complaints of direct discrimination should be struck out as having no reasonable prospects of success because there is no reasonable basis upon which it could be inferred that the following acts arose because of or were related to her race – i. Direct discrimination complaints no.s 2. (“full of shit”), 3. (feedback in pool car), 5. (investigation outcome), 6. (daily calls), 7. (required to meet with Deputy CEO), 8. (required to meet with RB) and 10. (JB needed in the team).

b. All of the complaints of victimisation should be struck out as having no reasonable prospects of success because there is no reasonable basis upon which it could be inferred that the acts arose because of or were related to her grievance (Croke v Leeds City Council

UKEAT/0512/07

c. The claimant had been given clear directions at two prior case management hearings regarding the need to provide such specification but had failed to do so. The claimant had understood the directions but gave further specification orally when asked to do so at this hearing. It was apparent that the claimant equated unfair treatment with discriminatory treatment because she was the only non-white nurse in the team but that does not provide a reasonable basis for inference. The fact that acts of detriment arose after the grievance is a necessary pre-requisite but not sufficient.

d. The following complaints should be struck out has having no reasonable prospects of success because they are subject to an outstanding application to amend: Direct discrimination no. 5. (investigation outcome).

e. The following complaints should be struck out has having no reasonable prospects of success because they rely upon facts which are inconsistent with undisputed documentary evidence (Mechkarov v Citibank NA [2016])- i. Direct discrimination complaint no. 7. (required to meeting with Deputy CEO): the claimant was given the opportunity to reschedule the meeting. ii. Direct discrimination complaint no. 8. (required to meet with RB): the claimant was given the opportunity to reschedule the meeting. iii. Direct discrimination complaint no. 9 (required to work from home): the claimant asserted that the failure to move JusB as the alleged perpetrator during the investigation was contrary to policy but the policy in fact permits this; she was not asked to work from home iv. Direct discrimination complaint no. 10 (JB needed in the team): the claimant initially asserted that this conversation took place at work on 3 or 4 September but this was not possible because the claimant was absent on special leave; it was explained to the claimant by JC on 23 August why JusB was not being moved or suspended.

f. The following complaints should be struck out has having no reasonable prospects of success because her comparator is not in the same circumstances - i. Direct discrimination complaint no. 6. (daily calls): her comparator is the CEO and the nature and duration of his absence and the frequency of contact is not specified. ii. Direct discrimination complaint no. 7. (required to meeting with Deputy CEO): her meeting was a management meeting to discuss her absence and the CEO was instead to chair a meeting to discuss her grievance.

g. The complaint of constructive dismissal is affected by the same considerations.

h. In the alternative these complaints have little reasonable prospects and deposit should be paid in respect of each complaint. In addition there are little reasonable prospects of the claimant establishing the basis of inference for direct discrimination complaint 4 and harassment complaint 2 (that no other white nurse had enquires made about them to the student nurses). The tribunal is entitled to have regard to the likelihood of the party being able to establish the essential facts (Van Rensburg v Royal Borough of Kingston-uponThames

UKEAT/0095/07

i. The respondent asserted that acts prior to 30 August 2023 are time barred unless there is a just and equitable extension of time. The respondent accepted that it could not be said that she had little or no reasonable prospect of a just and equitable extension given the month’s delay and her family circumstances at the time and this issue falls to be determined at the final hearing.

[42]The Claimant’s oral submissions were in summary as follows –a. It’s difficult for her to articulate the basis of inference because English is not her first language and she is a litigant in person

b. There was evidence of institutional racism

c. The claimant’s father-in-law died on 17 August 2023 and she had had previously been caring for him.

d. It was not policy to have her call on a daily basis when off sick

e. There was no service need to retain JusB – other Band 5s could have replaced him.

f. She’s entitled to have her evidence heard at a final hearing.

g. Her grievance was partially upheld.

h. She cannot afford to pay any deposit. Discussion and decision

[43]The respondent made an application for strike out failing which deposit in respect of certain complaints on the ground of little or no reasonable prospects of success. The complaints fall broadly into two categories – those which formed the subject matter of her grievance; and those which pertained to the management of that grievance.

[44]English is not the Claimant’s first language and it is therefore more difficult for her to properly articulate her complaints as a litigant in person. It was apparent from this hearing and from her correspondence with the tribunal that the claimant has a good command of written and spoken English. Furthermore the claimant was given time and support at this hearing and at two prior case management hearings to overcome any such difficulties. It is not accepted that these difficulties provided an explanation for any failure to adequately specify her complaints. It was apparent that the claimant understood the need to set out facts from which it could be inferred that the treatment was because of (or related to) her race (‘the basis of inference’) i.e. why she believed the treatment amounted to discrimination. Direct discrimination

[45]The complaints of direct discrimination are considered in turn –a. Complaint 1 (change into uniform) – no strike out or deposit sought or ordered.

b. Complaint 2 (“full of shit”) – the claimant did not provide a basis for inference until this hearing despite prior directions and opportunities to so. The claimant does not rely upon a named comparator who was treated more favourably in the same circumstances. She now asserts that LH did not speak to any white colleagues in that way. It was apparent that this was what she believed rather than what she knew. There appeared to be little reasonable prospect of the claiming proving facts from which discrimination could be inferred but it cannot be said that she has no reasonable prospects of success because she has now articulated a stateable complaint.

c. Complaint 3 (feedback in pool car) - the claimant did not provide a basis for inference until this hearing despite prior directions and opportunities to so. Whilst the claimant relies upon JusB as a named comparator the claimant was unable to confirm if they were in the same relevant circumstances. The claimant also now asserts that RB never held such meetings with white colleagues in the car but it was unclear how she would know this. There appeared to be little discrimination could be inferred but it cannot be said that she has no reasonable prospects of success because she has now articulated a stateable complaint.

d. Complaint 4 (speaking to student nurses) – the claimant did not provide a basis for inference until this this hearing despite prior directions and opportunities to so. The claimant does not rely upon a named comparator who was treated more favourably in the same circumstances but now asserts that JusB did not make any such enquiries about white nurses but it was unclear how she would know this. The context was that information was sought from a student nurse regarding a complaint. There appeared to be little reasonable prospect of the claiming proving facts from which discrimination could

e. Complaint 5. (investigation outcome) – this complaint is subject to an outstanding application to amend which is opposed. It would not be premature to order strike out or deposit in respect of a complaint which has not yet been included by amendment. The claimant has not yet articulated a basis upon which it could reasonably be inferred that part of her grievance was not upheld because of race and this will be relevant to determination of her application to amend.

f. Complaint 6. (daily calls) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that JusB was not his line manager. There appeared to be little reasonable prospect of the claiming proving facts from which discrimination could be inferred but it cannot be said that she has no reasonable prospects of success because she has now articulated a stateable complaint.

g. Complaint 7. (required to meet with Deputy CEO) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that JimC (the alleged perpetrator) was not his line manager. There appeared to be little discrimination could be inferred. Furthermore, there was incontrovertible documentary evidence that the claimant was not required to meet with the Deputy CEO and had the opportunity to postpone the meeting. Accordingly this complaint has no reasonable

h. Complaint 8. (required to meet with RB) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that RB (the alleged perpetrator) was not his line manager. There appeared to be little reasonable prospect of the claiming proving facts from which discrimination could

i. Complaints 9. (asked to work from home) and 10. (told JB needed in the team) - there was incontrovertible documentary evidence that the claimant was not required to work from home, that they were required to work opposite shifts, that this was not contrary to policy, and that JC explained to the claimant by on 23 August why JB was not being moved or suspended. In the circumstances these complaints have no reasonable prospects of success. Harassment

[46]The complaints of harassment are considered in turn –a. Complaint 1 (change into uniform) – no strike out or deposit sought or ordered.

b. Complaint 2 (speaking to student nurses) – The act of making enquiries with a student nurse who has complained is not inherently related to her race. The claimant asserts that JusB did not make any such enquiries about white nurses but she does not identify anyone who was treated more favourably in the same circumstances. It therefore appeared that this was what she believed rather than what she knew. There appeared to be little reasonable prospect of the claiming proving facts from which could be inferred that this was related to her race but it cannot be said that she has no reasonable Victimisation

[47]The complaints of victimization are considered –a. The claimant has reasonable prospects of establishing that her grievance which alleged race discrimination amounted to a protected act although there is incontrovertible documentary evidence that the grievance was lodged after Complaint 3 (feedback in pool car) which occurred on 30 July 2023 and on or before her resignation on 4 August 2023 (and not 27 July 2023 as plead).

b. It is necessary but not sufficient for the acts of detriment to have occurred after the protected act. It was explained to the claimant at the case management hearings that she required to set out facts from which it could be inferred that she was subjected to the detriment because she raised a grievance (‘the basis of inference’) i.e. why she believed the treatment amounted to victimisation. It was apparent that the claimant understood that direction because she provided some information to that effect.

c. Complaint 6. (daily calls) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that JusB was not his line manager. There appeared to be little reasonable prospect of the claiming proving facts from which victimisation could be inferred but it cannot be said that she has no reasonable prospects of success because she has now articulated a stateable complaint.

d. Complaint 7. (required to meet with JimC, Deputy CEO) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that JimC (the alleged perpetrator) was not his line manager. There appeared to be little victimisation could be inferred. Furthermore, there was incontrovertible documentary evidence that the claimant was not required to meet with the Deputy CEO and had the opportunity to postpone the meeting. Accordingly this complaint has no reasonable

e. Complaint 8. (required to meet with RB) - Whilst the claimant relies upon CC, CEO as a named comparator they did not appear to be in the same relevant circumstances given the material difference in their roles and seniority and given that RB (the alleged perpetrator) was not his line manager. There appeared to be little reasonable prospect of the claiming proving facts from which victimisation could

f. Complaints 9. (asked to work from home) and 10. (told JB needed in the team) - there was incontrovertible documentary evidence that the claimant was not required to work from home, that JusB was required to change shifts, that this was not contrary to policy and this was explained to the claimant. In the circumstances these complaints have no reasonable prospects of success. Constructive dismissal

[48]The claimant asserts that each act of discrimination (considered together or individually) amounted to a repudiatory breach. Her complaint of constructive dismissal relies upon the assertions of discrimination and is therefore affected by the same considerations. In her claim she states “the claimant made the decision to resign as JusB had been bullying her again and she could simply not cope”. It is therefore understood that what prompted her to resign initially on 4 August was treatment in July perpetrated by JB namely complaint 1 (change into uniform) and complaint 4 (speaking to student nurses behind her back). The claimant was then persuaded to reconsider matters pending an investigation into her complaints. It is apparent from the documentary evidence that what prompted her to confirm her resignation on 1 August was complaints 9 (asked to work from home whilst JusB stayed at work) and 10 (told JusB needed in the team). Strike out

[49]Strike out is a draconian step which should only be taken on the clearest grounds. Discrimination complaints are generally fact sensitive and ordinarily fall to be determined at a full hearing of the evidence. Even where a complaint does not have reasonable prospects the tribunal retains a discretion not to strike out having regard to the overriding objective to deal with cases fairly and justly including consideration of delay, expense and importance of the issues. However a tribunal should not be deterred from striking out a complaint if they are satisfied that there is indeed no reasonable prospect of establishing the necessary facts. The following complaints have no reasonable prospects of success: complaints 7. (required to meet with Deputy CEO), 9 (asked to work from home), and 10 (told JusB needed in the team).

[50]In respect of complaint 7. (requirement to meet with Deputy CEO), the claimant’s detailed claim and agenda did not make this complaint or assert any act of discrimination on the part of JC, Deputy CEO. Furthermore, there was incontrovertible documentary evidence that the claimant was not required to meet with the Deputy CEO and had the opportunity to postpone the meeting. In these circumstances it is considered in furtherance of the overriding objective for complaint 7 (requirement to meet with Deputy CEO) to be struck out from her complaints (both of discrimination and victimisation).

[51]In respect of complaint 9 (asked to work from home), and 10 (told JusB needed in the team), the claimant’s detailed claim and agenda makes reference to this complaint about RB. Given that this case may proceed to a final hearing in respect of the other complaints involving RB and given the proximity of these complaints to her resignation, it is not considered to be in furtherance of the overring objective for these complaints to be struck out. Deposit

[52]Whilst having little reasonable prospects of success is a lower hurdle than having no reasonable prospects, there must be a reasonable basis upon which to doubt that the legal arguments are valid or that the material facts necessary to support the allegation will be established. Even if there are little reasonable prospects of success, the Tribunal retains a discretion whether to make an order for a deposit having regard to the overriding objective to deal with cases fairly and justly. Considering each complaint in turna. Complaint 2 (“full of shit”) – the claimant’s detailed claim and agenda makes reference to this complaint regarding LH but the focus is on the RB’s failure to chastise and further the weak basis of inference was only articulated in this hearing. Given that there are no other complaints involving LH it is considered in furtherance of the overriding objective for a deposit to be ordered.

b. Complaint 3 (feedback in pool car) - the claimant’s detailed claim and agenda makes reference to this complaint regarding RB and appears to have prompted her grievance. Given the apparent importance of this issue it is not considered to be in furtherance of the overriding objective for a deposit to be ordered.

c. Complaint 4 (speaking to student nurses) – the claimant’s detailed claim and agenda makes reference to this complaint regarding JusB and appears to have prompted her grievance. Given the apparent importance of this issue it is not considered to be in furtherance of the overriding objective for a deposit to be ordered.

d. Complaint 6. (daily calls) – the claimant’s detailed claim and agenda makes reference to this complaint regarding JusB and appears to have prompted her grievance. Given the apparent importance of this issue it is not considered to be in furtherance of the overriding objective for a deposit to be ordered.

e. Complaint 8. (required to meet with RB) – there is no reference to this complaint regarding RB in her detailed claim or agenda. Given the proximity of this to her confirmation of resignation and given the other complaints against RB it is not considered to be in furtherance of the overriding objective for a deposit to be ordered.

f. Complaints 9. (asked to work from home) and 10. (told JB needed in the team) – the claimant’s detailed claim and agenda makes reference to this complaint regarding RB albeit in vague terms. There was incontrovertible evidence that these complaints have little if any reasonable prospects of success. In the circumstances it is considered in furtherance of the overriding objective for a deposit to be ordered. Amount of deposit

[53]Having regard to the Claimant’s financial circumstances it is considered appropriate to order payment of a deposit in sum of £30 in respect of the following complaints –a. Complaint 2, 9 and 10 of direct discrimination

b. Complaint 9 and 10 of victimization

[54]A total deposit of £150 is an amount that can reasonably be paid by the Claimant having regard to her household earnings but one which highlights that these complaints are considered to have little reasonable prospects of success.