Miss T J Muchemwa v The Princess Alexandra Hospital NHS Trust: 6006737/2025
EMPLOYMENT TRIBUNALS
Case No 6006737/2025
Between
Miss T J MuchemwaClaimantThe Princess Alexandra Hospital NHS TrustRespondent
Before
Employment Judge BarrettNot represented for claimantMs Defriend (instructed by counsel) for respondentDate 21 July 2025
JUDGMENT
[1]The Claimant’s claim is struck out pursuant to Employment Tribunal Rule 38(1)(b).
REASONS
This has been a remote hearing, which has not been objected to by the parties. The form of remote hearing was by CVP. A face-to-face hearing was not held, because it was not practicable, and all issues could be determined in a remote hearing.
Introduction
[1]The Claimant was engaged by the Respondent NHS Trust via NHS Professionals as a Personal Assistant to the Associate Director of Estates and Facilities between January and April 2024. Following early conciliation between 14 May and 25 June 2024, the Claimant presented her first ET1 claim form on 27 June 2027 making a complaint that she had been subjected to detriments because she had made protected disclosure. That claim was assigned to case number 6004660/2024.[2]Following a preliminary hearing on 7 October 2024, a list of issues for determination in the first claim has been finalised and agreed. The list sets out three alleged disclosures (one made on 27 March 2024 and two on 28 March 2024) and seven alleged detriments including the termination of the Claimant’s engagement. The parties have complied with case management orders made in the first claim, including in relation to disclosure, preparation of a hearing file and exchange of witness statements. A listing hearing took place on 25 March 2025 and a listing notification for a 5-day final hearing in the first claim is awaited.[3]On 27 February 2025, the Claimant submitted a further ET1 claim form, which is the subject of this hearing. This second claim form has been assigned case number 6006737/2025. It is also a claim for protected interest disclosure detriments based on the same period of work for the Respondent.
The hearing
[4]This hearing was initially listed as a preliminary hearing for case management of the second claim at 12pm on 21 July 2025. The Respondent on 17 April 2025 applied to strike out the second claim on the basis that the manner in which the Claimant had conducted the proceedings was unreasonable under Rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024 and / or because the claim was out of time. On 10 July 2025, Employment Judge Gardiner directed that the hearing be converted into a public preliminary hearing to determine the Respondent’s application. The Tribunal also wrote to the parties changing the time of the hearing from 12pm to 2pm.[5]The Claimant did not attend the hearing. The Tribunal clerk attempted to call her repeatedly but the call went through to her answerphone. The Tribunal clerk also emailed the Claimant to ask whether she intended to join the hearing but received no response. After waiting for 15 minutes, I opened the video hearing to speak to the Respondent’s counsel. The Respondent’s preference was for the hearing to go ahead in the Claimant’s absence.[6]I considered rule 47 of the Employment Tribunal rules, which provides that: If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[7]I considered that the Tribunal clerk had made all practicable enquiries. Other than speculating that it was possible the Claimant had missed the notification of the change of time of the hearing, I had no information about the reasons for the Claimant’s non-attendance. I considered that I was in a position fairly to determine the Respondent’s application based on the information in the papers and that it would be in accordance with the overriding objective, in particular to avoid undue delay, to proceed in the Claimant’s absence.[8]I therefore heard submissions from the Respondent, and delivered judgment on the application. As the Claimant was not present I am here providing full written reasons for my decision. The Respondent’s submissions[9]The Respondent had provided written submissions in advance explaining why it said the Claimant’s second claim ought to be struck out under rule 38 and on the basis of time limitation. In the hearing, Ms Defriend fairly acknowledged that it was not appropriate to make submissions on time limitation in the Claimant’s absence, given that the Claimant might have something to say about the reasons for delay, and therefore she focussed her oral submissions on rule 38. She submitted that the second claim overlapped with the first claim, to the extent that it was not simply duplicative then the allegations could and should have been brought as part of the first claim, and that it was unreasonable of the Claimant to submit the second claim after witness statements had been exchanged in the first claim.
The law
[10]Rule 38 provides as follows:(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[11]The Respondent says, and I accept, that a two-stage test applies to an application for strike out, namely:(1) the threshold in rule 38(1)(b) is satisfied; and(2) that strike out is an appropriate exercise of discretion: Hasan v Tesco Stores Ltd UKEAT/0098/16.[12]The case of Henderson v Henderson 1843 3 Hare 100, ChD established the rule that parties to litigation must “bring forward their whole case”. This means that, generally, a Claimant cannot bring a second claim against the same Respondent making allegations that could and should have been included in the first claim. In deciding whether an allegation could and should have been brought as part of an earlier claim, a Tribunal should take a broad, merits-based approach (Johnson v Gore Wood and Co [2002] 2 AC 1, HL).
Conclusions
[13]Although the Claimant was not present at the hearing she had a reasonable opportunity to make submissions in writing in response to the Respondent’s written application and subsequent written submissions, as well as a reasonable opportunity (insofar as I was aware) to attend the hearing and make oral representations as well.[14]I spent some time comparing the content of the Claimant’s first and second claims. The details of claim entered at box 8.2 of the ET1 in the Claimant’s second claim relate to the same events which form the basis of her first claim. In the details of claim box, the Claimant describes three conversations which might constitute protected disclosures, of which two are relied on as protected disclosures in the first claim and the third is an exploratory initial conversation with an HR advisor which is not listed as a protected disclosure in the first claim but relates to the same substantive concerns. The details of claim box also contains information about what is said to have happened in response to the Claimant raising concerns in those conversations, which largely overlaps with the alleged detriments in the first claim, although not entirely. There is one allegation, namely that a Freedom to Speak Up Ambassador made a dismissive comment in response to the Claimant’s disclosure, which does not appear in the list of issues in the first claim (although the disclosure in question does). Ms Defriend informed me that this allegation does not feature in the Claimant’s witness statement for the first claim either.[15]The Claimant is a litigant in person and is not expected to have the same knowledge of Tribunal procedure as a represented party but is nonetheless required by the Employment Tribunal Rules to conduct the litigation reasonably. On comparison of the two claims, I conclude that to the extent that the claims are duplicative, this amounts to an abuse of process and it was unreasonable of the Claimant to bring the second claim. To the extent that there are allegations in the second claim which are not in the first claim, they are so closely linked to the events narrated in the first claim that the Claimant certainly could, and in my view should, have made the allegations in the first claim. She might have done so in her initial ET1, or by way of providing further details of her allegations at the preliminary hearing, in correspondence with the Respondent, or at the listing hearing where the finalised agreed list of issues was adopted. It was also open to the Claimant to apply to amend her first claim to add these allegations. Therefore, to allow the additional allegations in the second claim to proceed would be contrary to the rule in Henderson v Henderson. In bringing these allegations as part of a second claim rather than particularising (or if necessary, amending) her first claim, the Claimant has acted unreasonably.[16]The threshold at rule 38(1)(b) is met. I further conclude that it would be an appropriate exercise of my discretion to strike out the second claim. The Claimant is still able to litigate the same substantive matters in her first claim. The first claim is trial-ready and awaiting listing; it would be contrary to the overriding objective to allow parallel proceedings at an earlier case management stage to introduce confusion and delay, to little (if any) practical advantage from the Claimant’s perspective. The claim is therefore struck out.