Mr A Ntiege v Rotherham Doncaster and South Humber NHS Foundation Trust: 6000184/2022

EMPLOYMENT TRIBUNALS

Case No 6000184/2022

Between

Mr A NtiegeClaimant

Rotherham Doncaster and South Humber NHS Foundation TrustRespondent

Before

Employment Judge JM Wade

In person for claimant

Mr M Stepanous for respondent

Date 10 May 2023

JUDGMENT

[1]It was reasonably practicable for the claimant to have presented Employment Rights Act complaints of unfair constructive dismissal, whistleblowing, and unlawful deductions/other payment complaints by 22 October 2022 (one month from the ACAS certificate). Having been presented on 30 December 2022 the Tribunal cannot consider those complaints and they are dismissed for limitation reasons.

[2]The Tribunal does not think a time limit of a further two months, one week (from 22 October 2022 until 30 December) is just and equitable, to permit the claimant’s Equality Act complaints to continue and they too are dismissed for limitation reasons.

[3]The Tribunal refuses permission to amend the claim form to add the further complaints identified subsequently.

[4]The proceedings are now at an end and the previously made deposit orders are of no effect.

[3]The Tribunal refuses permission to amend the claim form to add the further complaints identified subsequently.

[4]The proceedings are now at an end and the previously made deposit orders are of no effect.

REASONS

[1]The claimant worked as a Band 6 in the respondent’s mental health crisis team, a post he held from 2019 until his employment ended in June 2022 after his resignation. The context was a disciplinary decision to impose a first written warning. He told me on 5 April that he is 6ft 4” black male working predominantly with women in that crisis team and he believes his behaviour in challenging colleagues was mischaracterised because of his race and gender – that is a major theme of his case. He brought Equality Act and Employment Rights Act complaints in a claim from presented on 30 December 2022.

[2]On 29 January 2023 the Tribunal notified the parties of a case management hearing for 90 minutes on 5 April 2023. On 20 February the respondent applied for that hearing to be converted to a public hearing to consider deposit orders and because, said the respondent, “it appears the entirety of Claimant’s claims are out of time”.

[3]The claimant presented a two page response to that letter and an Employment Judge directed, in an amended notice of hearing, that there will be a preliminary hearing for three hours by telephone to determine: “whether the claim was presented in time and if not whether to extend time”. The Judge also directed that strike out and deposit be considered at the extended 5 April hearing. The claimant was ordered to provide a statement for that hearing.

[4]On 5 April the matter came before me and I varied the previous Judge’s order because since it was made, there were, during the course of case management discussions materially changed circumstances of which the Judge could not have been aware.

[5]Firstly the claimant told me on 5 April that he completed an earlier ACAS conciliation process (earlier than the one identified in his claim form) and that he has a previous certificate; secondly that the respondent’s speak up guardian told him to delay (in effect). Further, that there were documents (WhatsApp/text/emails) which he had which were relevant to the time limit issue.

[6]Added to that, on 5 April there was only time to clarify what the complaints in the claim form were, when they were alleged, and whether there were new matters requiring permission to amend (which the claimant had included in his response document to the respondent’s grounds of resistance and in a list of issues information prepared for the preliminary hearing). The claim form details contained ten lines from which it was difficult to discern complaints, the claimant having ticked boxes indicating unfair dismissal, race, sex and disability discrimination, whistleblowing, being owed other payments, and “misrepresentation to processes and policies to help force me out of my employment by friends withing the trust in managerial posts (WitchHunt). After lengthy discussion and taking the claimant’s additional information into account, the complaints were set out as follows for the parties: COMPLAINTS IN THE CLAIM FORM 1. The claimant is making the following allegations in the claim form and in relation to which he has given some further information in writing and today:1.1 from August 2021 (first allegation by student nurse Sian) until 22 July 2022 (appeal outcome) Ms Blankett (matron), Ms Scott (line manager), Mr Pollard, Ms Curtis (investigation officer) Mr Eastwood (decided written warning) and Ms Turner (decided appeal) manipulated the claimant’s conduct in clinical deliberations into disciplinary charges (Scott/Blankett/Curtis) and imposed and maintained a disciplinary sanction unfairly (Eastwood/Turner) (“misrepresentation....Box

8.1 and repeated at Box

8.2 )- less favourable treatment because of race and gender (the respondent did not and would not have treated a white and/or female colleague in the same way);

1.2 In August 2021 the claimant told Ms Scott in a supervision that there was race discrimination (in the disciplinary allegations), she disagreed and no action was taken to investigate his allegation (the claimant believes this was minuted); he compares this with treatment of student nurse Sian who raised an IR1 grievance against him in August 2021 and that was investigated and the matter closed.

1.3 The claimant alleged racism to Ms Makhanda in text and email exchanges (copies to be provided) from 24 August 2020 to 19 April 2022 (said to be protected disclosures) and no action was taken;

1.4 The claimant was underpaid in his last pay (June 2022) whether through wrong holiday pay/salary sacrifice/car lease scheme calculations thereby [subjecting] him to detrimental treatment - Ms Scott/Ms Blankett/HR shared services - because he had made protected disclosures/complained to Ms Scott of racism in August 2021;

1.5 The claimant says he is a disabled person because of lower back pain. He alleges that Between November 2020 and January 2021 although a riser desk was provided, a further workstation assessment or occupational health assessment did not happen and this is a failure to make reasonable adjustments.

1.6 The claimant further says he resigned in response to the conduct at 1.1 (with the exception of the appeal), 1.2, and 1.3 above, and that this conduct which was without reasonable and proper cause and calculated or likely to destroy trust and confidence. He alleges this is dismissal of him and is unfair. New complaints which the claimant seeks to add by amendment 1. Paula Thompson in August 2022 ensured the claimant was given a negative reference (Ms Scott/HR having previously given him a positive one in June 2022) - the claimant alleges this is whistleblowing detriment and/or equality act victimisation relying on the disclosures to Ms Makhanda and the allegation of racism to Ms Scott. 2. The respondent failed to take the claimant off the team WhatsApp group in June 2022, instead taking him off in February 2023; the claimant alleges this is [unclear].

[7]A further reason to adjourn the hearing was that, in a telephone hearing I was not content to address matters without hearing sworn evidence about the ACAS process and other matters which were said by the claimant to be the reasons for delay. That said, I was sufficiently clear about the allegations in two matters to make deposit orders, having conducted those case management discussions. The consequent orders for adjournment and deposit were sent to the parties, together with a revised list of the matters to be determined at the adjourned hearing as follows: 7.1. What is the effect of the earlier ACAS certificate on these proceedings? 7.2. With an effective termination date of 10 June 2022 (which is not in dispute) when did that claim have to be presented? 7.3. When did unlawful deductions/breach of contract claims about final pay have to be presented? 7.4. When did whistleblowing detriment claims have to be presented? 7.5. Taking those dates into account, was it reasonably practicable for the claimant to have presented those claims by that date? (If it was, those claims will be dismissed). 7.6. If not, within what further period was it reasonable for her to do so, and did he present it/them within that further period? 7.7. As to the Equality Act allegations does the Tribunal consider any of them have little or no reasonable prospects of success (including overcoming time limit difficulties) such that they should be struck out and/or a deposit ordered? 7.8. In relation to any clear, arguable, Equality Act allegations, is it arguable that the claimant can establish discriminatory conduct extending over a period such that limitation can only be decided at a final hearing? 7.9. In relation to any clear, arguable, Equality Act allegations, does the Tribunal think another time limit should apply rather than the three month limit in Section 123(1)(a) of the Equality Act 2010 in order that they should proceed to a final hearing? 7.10. What time limit would apply to the allegations in respect of which the claimant seeks permission to amend? 7.11. Should the Tribunal give the claimant permission to amend his claim form? Evidence

[8]I have had the opportunity of hearing sworn evidence of Mr Ntiege. Let me be very clear, like those that heard his disciplinary proceedings and appeal, I have no doubt about Mr Ntiege has been straightforward and honest with the Tribunal and I accept his evidence, or at least a great deal of it.

[9]I also can see from the documentation in the hearing file that when he was acting as an advocate for patient care, he was seeking to do his best by his patients and service users. That remains his clinical record, certainly on the documents in front of me.

[10]As to those documents, there were 126 pages in a file, including the additional documents ordered on the last occasion (relating to ACAS and Ms Makhanda, and to that there was added email chains between the claimant and the union and ACAS, and text messages with an agency, and his removal from a WhatsApp group, which he had forwarded this morning. Submissions

[11]At the end of the evidence I heard oral submissions from Mr Stepanous and then from the claimant. I do not repeat them here, and it will be apparent below where they have born fruit or not. The claimant explained his position and said, again very straightforwardly, that in all fairness on paper his reasons for delay were quite shallow and insufficient – perhaps reflecting the limits of his evidence about Ms Makhanda and his union - and that he had fallen short in providing medical evidence. He referred to a “non diagnosis of recurrent aggression” and that was a reason for righting wrongdoings, but having to balance that with his health. His position was arguable on the basis of his oral evidence, and these reasons address those arguments.

[12]Mr Stepanous also said that If I was against him on time, he sought further deposit orders on an assessment of the merits, given the evidence traversed in this hearing. Background and findings

[13]The claimant’s employment ended on 10 June following his resignation on 15 April. His resignation was in reaction to, and was a considered decision about, the disciplinary proceedings to which he had been subject which resulted in a first written warning concerning five allegations of misconduct, set out in a four page letter after a disciplinary hearing.

[14]The claimant had a similar experience of threatened disciplinary proceedings in 2019, he tells me. Through exchanges with Ms Makhanda, the respondent’s whistleblowing champion/Freedom to Speak Up guardian, he said, “things were resolved” or “the Trust backed off” - he managed to shake it off with her help and he thought she would so the same in 2022.

[15]On his case the 2022 disciplinary proceedings were because he was raising matters of patient care with his colleagues as an assertive black man.

[16]In the latest disciplinary proceedings, the claimant again updated Ms Makhanda with developments from time to time, making clear his belief that a witch hunt was taking place during March and April 2022, and after the disciplinary outcome letter.

[17]Her advice to him on 19 April (after his resignation) was to “raise a formal documented action ask union to help”. He replied this: “They (union) don’t want the “smoke” or the troubles (I mean the union). And I’m better leaving. Submitted my Notice as if I was stay I will get myself in more trouble than First Written Warning (from clinical deliberations with colleagues) The common denominator there is Management.”

[18]When these exchanges of messages were put to him, he described also having a couple of telephone calls with Ms Mkhanda, but it soon became clear that Ms Makhanda had not advised the claimant to delay Tribunal proceedings; she had advised him to pursue action with the union’s support. He now considers that was bad advice in that he does not consider the subsequent appeal process was just.

[19]The claimant had his union representative, a Mr Fluke present with him throughout the disciplinary matters. He did present an appeal about the written warning in May, he had a meeting on 29 June to discuss his appeal and he had an outcome posted to him in a letter dated 20 July, coming to him on 22 July 2022.

[20]From June to September the claimant worked in a completely different field, a technology post, having been given a positive reference from his former line manager Ms Scott. He found working in that setting therapeutic. Ms Scott had arranged with HR for there to be some remission of the hardship caused in recouping car benefit through payroll, and the payment to him of holiday pay. The claimant’s case on being in dispute about his pay appears misconceived and he could not explain it. My assessment on the limited information before me and on the last occasion is that his resignation brought about payroll consequences, which he had not foreseen, and Ms Scott did her best to ameliorate matters.

[21]In early August the claimant saw an opportunity to work through an agency for the respondent in Doncaster (he had previously been in Rotherham); the recruiter told him that the respondent did not want him placed there because of some issue that happened in Rotherham -he told him no more than that.

[22]The claimant then notified ACAS of a potential dispute, recorded on a first certificate (R207654/22/04) on 11 August 2022. ACAS advised him to contact his union.

[23]He did so and attended a case conference with his union and Ms Fennell of the Doncaster unison office, who conducted an initial screening for assistance for race discrimination complaints. She had assisted him with completing a case form for referral to the Regional Organiser.

[24]On 19 August, a written reference was provided to the recruitment agency for the claimant by a Mr Reeves from the respondent; the reference cannot be described as a poor reference. It says that the respondent would re-employ the claimant, that he had not been subject to disciplinary or safeguarding concerns, and that his reason for leaving was voluntary resignation. All other matters marked under “Performance” were marked “N/A”.

[25]On 22 August the claimant contacted ACAS seeking “EAP” – as he understood it, the early conciliation process - to be paused or delayed – “can we put EAP on hold please...I have been advised ACAS Early Conciliation Process cannot run at the same time as the support from Unison. Will like to conclude with the Unison enquiries before following up on the EAP.”

[26]On the same day his form for union legal assistance was sent to the Regional Organiser for assistance. That initially said ACAS conciliation had been commenced and then said it was a mistake and ACAS conciliation had not been lodged.

[27]The claimant subsequently received information that union legal assistance for a claim was not to be provided, including discrimination and other complaints.

[28]The first ACAS certificate was provided to him on 22 September. The certificate contained the usual information about it being used to submit a Tribunal claim, and “make sure you submit your employment tribunal on time”, and “if you notified us of the dispute within the time limit, you’ll have at least 1 month from the date you receive this certificate to submit your claim”.

[29]Instead of the Doncaster placement, the claimant then took up work for a different trust in Sheffield and then Harrogate, and then back to Sheffield again. From the end of his employment with the respondent - June - the claimant worked throughout.

[30]On 20 October the claimant sought conciliation again - a second ACAS certificate recorded that conciliation commenced by EC notification on 20 October 2022. The second certificate was issued on 1 December. The claimant then issued his claim form on 30 December 2022.

[31]That claim form did not contain the allegation about the reference, and was very sparse in its information, but the gist of the allegations, certainly the boxes that were ticked, presented a great number of allegations.

[32]I also record that in the remedy section Mr Ntiege has simply said that he would seek by way of remedy: “medium band £34,000”. That suggests to me, as was confirmed today in his evidence, that the claimant had had the support of his union informally, throughout, and that he understood and had done some research about remedies for discrimination or whistle blowing complaints.

[33]The claimant had previously been declared unfit to work for the respondent, which is apparent in the acknowledgement of his resignation. The events in connection with the disciplinary proceedings had worsened his emotional well-being, depression and anxiety and he tells me that his medication may have been adjusted as a result. I accept that.

[34]The claimant had good insight into what was good for him and what was good for his family. He was, during this period, keeping all of those plates spinning: working and family. Pursuing a complaint in the Tribunal at a particular moment in time did not directly help those circumstances and particularly when he did not have a great deal of emotional resilience. It was a rational and conscious decision on the part of the claimant to delay hoping for union assistance. When that was not forthcoming, he sought another period of conciliation from 20 October.

[35]The claimant did not share with the Tribunal the date on which the union declined to lend its assistance, or its assessment (which may well be privileged in any event). He did not disclose to the respondent or the Tribunal until the hearing before me in April, the existence of the first certificate.

The Law

[36]The relevant provisions are encompassed in the first five questions I set out above. Section 111(2) of the Employment Rights Act 1996 provides: Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a)before the end of the period of three months beginning with the effective date of termination, or (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

[37]There are similar provisions concerning unlawful deductions from wages (Section 23 (2)(a) and (4)) and protected disclosure detriment (Section 48(3)(a) and (b)); and breach of contract claims (paragraphs (7(a) and ( c) of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.

[38]Case law has established that reasonably practicable means, was it “reasonably doable” for the claimant to present his claim. Firstly, this involves consideration of whether the time limit was known. In this case it was.

[39]The Tribunal must in such a case assess the length of the delay and the reasons for delay, and ask itself whether those reasons made it not reasonably practicable, or doable, for the claim to have been presented in time. Examples include where a claimant has been hospitalised or otherwise incapacitated through bereavement or similar during the relevant period - there are a wide range of human circumstances which make it not doable for a claim to be presented in time. That said, case law has also established that some matters, for example, errors by advisers, are not matters which generally make it “not reasonably practicable” for the complaint to have been presented in time.

[40]Section 123 of the Equality Act relevantly provides: (1) Subject to section 140 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. … (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. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[41]An Employment Tribunal has a wide discretion in determining whether or not it is just and equitable to extend time. That said the power of the Tribunal is a discretion and the burden is on the Claimant to convince the Tribunal that it is just and equitable to extend time. The discretion is the exception rather than the rule, Robertson-v-Bexley Community Centre

2003 IRLR 434

CA.

[42]If there are circumstances which would otherwise render it just and equitable to extend time, the length of extension required is not of itself, a limiting factor unless the delay would prejudice the possibility of a fair trial see Afolabi -v- Southwark LBC

2003 EWCA Civ 15

[43]In exercising my discretion under the Section 123 (1)(b) case law has also established that I must again consider the length and reasons for delay, and consider the prejudice to both parties and weigh that prejudice.

[44]Section 33(3) of the Limitation Act 1980 contains a helpful checklist of other matters which might need to be considered (in personal injury and other claims with longer time limits), but also to bear in mind by analogy: the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any requests for information; the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[45]In this case the extent to which these or similar factors were discussed in the hearing will be apparent below.

[46]Finally, in each of the provisions above about time limits, there are further provisions which provide extensions for ACAS early conciliation to take account of Section 18A of the Employment Tribunals Act 1996. There is settled law that a second ACAS certificate does not impact the limitation period in these circumstances – see HM Revenue and Customs v Garau

[2017] ICR 112

; and also Romero v Nottingham City Council EAT 0303/17. Analysis and Conclusions

[47]Dealing with the first of the questions I had previously identified, what is the effect of the earlier ACAS certificate on these proceedings? In light of the claims within the claim form, it is clear that the second certificate was in relation to the same matter and it cannot therefore extend time further- there was nothing in the chain of events to suggest the second certificate was in relation to a different matter. There was nothing more in the chain of events about which the claimant wanted to complain.

[48]As for the dates by complaints had to be presented, this is complex and the judgment above comprises a summary. Unfair dismissal and breach of contract complaints about wages (time running from 10 June) needed to be presented by 22 October (within a month of 22 September - the stop the clock provisions of 42 days would take the claimant to 21 October). Those complaints are two months and just over a week late.

[49]As for the detriment complaints, and unlawful deductions from wages (understanding that final wages are not paid on the date of termination typically but often at the end of that month), the last detriment allegation is in the appeal outcome received on 22 July (the earliest being from 2020). Time would typically run from 20 July 2022 (the date of the last alleged detriment) but the claimant’s lack of knowledge of that outcome would be a reason to consider it not reasonably practicable to present his claim until within a period of him knowing of the alleged detriment - on 22 July in the outcome letter. Ordinarily then, I could safely conclude that the period within which it was reasonably practicable to present these complaints then was by 2 December 2022, applying the stop the clock provisions, of 42 days.

[50]The question for me, taking those dates into account, was it reasonably practicable for the claimant to have presented those claims by those dates, namely by 22 October (and 2 December)?

[51]I am very clear that it was reasonably practicable for these complaints to have been so presented. ACAS was contacted in time and issued a certificate with the right advice about issuing a claim and time limits. The claimant knew the union was not to assist well before 22 October. He was able to complete a second certificate application on 20 October – he could then, have simply completed the online claim form on 20 October, in the short form that he did on 30 December.

[52]I accept from him that his mental health was not at its best, but he was able to work throughout and make conscious and rational decisions – the tone of his communications at this time reflect that, albeit his medication was adjusted.

[53]On my findings he had not been misled by the employer, Ms Makhanda, about time limits.

[54]Even accepting that he had been told that the ACAS and union process could not run alongside each other (about which I have some doubt), his request of 22 August was to pause the process – to put conciliation on hold – before following up on it – and in fact that is what happened. A certificate was not issued until 22 September – the conciliation period was extended from four to more than five weeks, and the certificate was issued a month after he asked to put it on hold, rather than sooner, as sometimes happens.

[55]To the extent the claimant’s case could be understood as, he believed he could start ACAS again and secure a further extension of time, which he did not say in terms, I do not consider he would have been reasonable in that belief, given the communications from ACAS and the chronology above.

[56]In these circumstances the Employment Rights Act/breach of contract complaints, are dismissed. That included unfair constructive dismissal, protected disclosure detriment, unlawful deductions from wages and breach of contract in connection with wages.

[57]As far as the Equality Act complaints are concerned, while they span a lengthy period (August 2020 to 20 July 2022), I focus on the length of the delay from the last allegation.

[58]As the last allegation is the same as the last detriment complaint, the appeal outcome, I focus on that delay, working on the basis that it would be very difficult, outside a final hearing, to assess whether earlier allegations amounted to conduct extending over a period.

[59]Applying the Equality Act Section 123(1)(a) the claimant’s complaints needed to have been presented by 22 October (strictly 19 October but see above concerning receipt of the letter of appeal). Relying on the first certificate would permit an extension using the stop the clock provisions of 42 days until 2 December. As the complaints were not presented within the stop the clock extension, it does not apply. He has presented a complaint on 30 December 2022 relating to a last Equality Act allegation of 20 July 2022.

[60]He asks me to exercise my discretion to extend time to bridge that gap, because he wants to right wrongs. I have read the appeal outcome of 20 July 2022.

[61]At the heart of Mr Ntiege’s complaint is that he alleges in the claim that his behaviour was judged more harshly because he was seeking to raise clinical issues and did not agree with those around him about the treatment of patients – he also alleges his treatment – the disciplinary proceedings and outcome – was conduct related to his race and sex. (He also made a disability discrimination complaint but this subject to a deposit order for the reasons explained on the last occasion).

[62]I do consider the potential merits of the Equality Act allegations, because that has a bearing on potential prejudice. I consider whether this is a claim that may very well succeed? Is it arguable but beyond that I cannot say on the basis of the information before me? Is this a claim which is going to struggle, evidentially? The prejudice to a claimant in being prevented from pursuing a claim which is likely to struggle is much less than the prejudice in pursuing a claim which may very well succeed.

[63]Throughout the communications that I have read with Miss Makhanda and in other communications with the union and so on, there is very little reference to feelings of race or sex discrimination, and much reference to the whistle blowing case, namely that I am being treated this way because I speak up and disagree about patient treatment (hence the Speak Up guardian’s involvement). The claimant’s case is therefore based on belief, without an actual evidential comparator, namely a white, female colleague who puts her views strongly and engages in behaviours while doing so, which other colleagues find unsettling such that they complain. A Tribunal will most likely be looking to make findings about the hypothetical and about the subconscious thinking of those involved – and these are difficult cases.

[64]The claimant’s allegations are arguable, but the prejudice to him in not being able to run this case is not as great as when claims are more obviously evidentially grounded.

[65]A further consequence of the failure to put his appeal on the basis of discrimination, is that the appeal outcome includes reference to the words that the claimant attributed to Miss Makhanda - about “the [disciplinary] train having started”. The appeal meeting and the outcome did therefore grapple with the fundamental whistleblowing complaint but it did not engage with the idea that the claimant’s disciplinary warning was somehow influenced by his race or sex, because it was not asked to address that. There is, therefore, no evidential enquiry or contemporaneous material about that in the disciplinary process, which would be available to a Tribunal hearing this case later in 2023 about events going back to 2020.

[66]It is also important that I consider the claimant’s amendment applications, or potentially their impact on limitation – such that I can answer question 10 above.

[67]The WhatsApp amendment application has no impact on limitation. It is that the respondent failed to remove the claimant from a team WhatsApp group in June 2022, (but removed him in February of 2023) - this is simply not an arguable allegation for which I would give permission to amend and the claimant cannot clarify how it is pursued. The claimant provided the relevant screen shot of 22 February 2023. This was the date when he was removed from his former work colleagues’ group, from which he resigned in April 2022, leaving employment on 10 June.

[68]He had the option to remove himself from the group on resignation or on leaving. He did not do so. To the extent he says he was unaware until he received the removal notification, so be it, but in which case, there is no arguable whistleblowing or Equality Act detriment. This is fanciful. There is no prejudice in refusing such an amendment.

[69]As for the reference amendment, the claimant is seeking permission to add back to his claim the matter which he did not pursue back in August 2022. He put before me a WhatsApp exchange with the agency recruiter who says, in terms, “all they said is they wouldn’t take you back on”, “at that time”, “that is all”, “it was verbal”, and when asked who or which department said, “I don’t know any more”.

[70]I can see of course that there is little value in the positive written reference provided after the claimant contacted ACAS, to the effect the respondent would re-hire him, if when a phone conversation takes place, another person says the opposite. The time line in this case is likely the opposite - a verbal conversation has taken place and a written reference has been given subsequently to correct the position.

[71]My industrial knowledge tells me that this is in fact the way the world works - people say things in telephone calls that they would not put in writing, and when challenged (likely by ACAS), they put the record straight. I can therefore see that the allegation as understood today is factually arguable, on the evidence that has been put before me. If, why, and by whom, a verbal instruction was given to the recruiter, it would now be difficult to unravel such as to make findings, and the detriment, given the very swift positive paper reference and the claimant’s return to clinical work, is harder to establish.

[72]Assuming the conversation with the recruiter took place on or before 11 August 2022, the date of commencement of conciliation, it is still unclear why it did not appear in the claim form details and was not put as an allegation until late February 2023/early March of this year – that is in the claimant’s response to the grounds of resistance which was undated in my file but logical was around this time.

[73]In truth it appears the claimant accepted the union’s advice in 2022 that the written reference was not “a bad reference”. Either way, it was not pursued when reasonably it could have been.

[74]Looking at matters in the round, if I permit the reference amendment, notwithstanding the time limit difficulties, the claimant could arguably say that all Equality Act matters (and arguably whistleblowing detriment such as to reverse my decision above concerning whistleblowing detriment) are arguably in time on the basis of conduct extending over a period.

[75]The time limit for the reference allegation as now understood is not later than 22 December, assuming the claimant learned of the reference on 11 August at the latest – the day he commenced conciliation, and applying the stop the clock extension which would have been available from that certificate.

[76]Standing back, I come back to the balance of prejudice. The allegations in the claimant’s claim are lengthy. The importance to him is partly financial, he seeks around £30,000, and partly to right perceived wrongs, because he considers that will be therapeutic for his mental health.

[77]If I refuse the amendment or refuse to grant an equitable extension, the claimant’s pursuit of those objectives comes to an end, and quickly. I bear in mind that the difficulties with many of the allegations in the case are such that after a great deal of time, emotional strain, and potentially money (if he loses pay while attending the Tribunal), he may not achieve his objectives, as he perceives them. They will have come to an end, but slowly.

[78]The potential prejudice to the respondent includes that it loses a limitation defence, which is prejudice in itself. Further, it faces the no doubt considerable cost to the public purse of defending these allegations, having followed lengthy internal disciplinary processes after which the claimant made a considered choice to resign, and his line manager then helped him in a number of ways. The claimant also had the support of his union throughout.

[79]The respondent’s relevant witnesses, including its speak up guardian, would also, if I decide in his favour, face the strain of stigmatising allegations hanging over them.

[80]In my judgment the circumstances are not compellingly in favour of an extension, or granting of the reference amendment. The circumstances are not exceptional, albeit the length of extension is not great.

[81]In the round I have decided I do not consider it in the interests of justice to grant the amendment, weighing the balance of prejudice as I must. Nor do I think a different and longer time limit is in the interests of justice in this case in all the circumstances above.

[82]These hearings will no doubt have informed the claimant for the future and I hope very much his clinical passion serves the public and his service users well, going forward and that if he encounters perceived prejudice in the future he will raise that promptly.

[83]It follows from these decision that my Deposit Orders on the previous occasion fall away. There is no need for those deposit orders to be paid. These proceedings are now at an end and the complaints dismissed.