Mrs N M Rogerson v Mid Cheshire Hospitals NHS Foundation Trust: 6012120/2024

EMPLOYMENT TRIBUNALS

Case No 6012120/2024

Between

Mrs N M RogersonClaimant

Mid Cheshire Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Swann

In person for claimant

Miss Martin (instructed by Counsel) for respondent

Date 29 July 2025

REASONS

[1]This claim was listed today for a public Preliminary hearing by Employment Judge Harding following an earlier case management hearing that took place on the 2nd of May 2025. At that hearing Judge Harding identified that the two claims that the claimant was pursuing amounted to claims of constructive unfair dismissal and a claim of indirect disability discrimination by association. The claimant was employed as a lead nurse by the respondent. Having tendered her resignation, her effective date of termination of employment was the 26th of May 2024. She commenced early conciliation on the 17th of September 2024 which ended on the same day. She presented her ET1 for both claims before the Employment tribunal on the 18th of September 2024. Taking the above into account, the limitation period for lodging the claims was the 25th of August 2024. Both claims therefore were presented out of time. In respect of the claim of disability discrimination it was also the respondent’s submission that the date of the last act that could have been relied on for the purposes of this head of claim was the 13 March 2024

[2]The Issues to be determined today are whether or not the claim of constructive unfair dismissal should be allowed to proceed on the basis that it had not been reasonably practicable to have lodged the claim in time and that it was lodged within such time as was reasonable thereafter. Secondly, in regard to the claim of discrimination whether or not it was just and equitable to allow time to be extended and therefore for the claim to proceed

[3]In this regard I received from the parties an agreed bundle of documents and a supplementary bundle. I received a witness statement on behalf of the claimant from the claimant’s registered Cunsellor specializing in person centered counselling ie Mrs Zara Kyd and a witness statement from the claimant and heard evidence under oath from her. Mrs Kyd did not attend to give live evidence and I informed the claimant that whilst I would consider and take into account the said statement in the absence of the witness giving evidence under oath I would attach such weight to the statement as was appropriate. The claimant represented herself the respondent was represented by Miss Martin of Counsel. I have taken into account all of the above documentary evidence that I was directed to in reaching my judgement in this matter.

[4]The relevant statute Law

[5]In regard to the claim of unfair dismissal section 111 of the Employment Rights Act 1996 records that a complaint of unfair dismissal may be presented to the Employment tribunal. Section 111 (2) records that a 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.

[6]In regard to the claim of indirect disability discrimination section 123 of the Equality act 2010 records the time limit within which such a claim should be presented to the tribunal. By section 123 (1) proceedings on a complaint within section 120 may not be brought after the end of (a) the period of three 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.

[7]Case Law cited and taken into account

[8]In addition to the above statute law the following cases were cited by Counsel for the respondent namely: Palmer and another v Southend- on-Sea Borough Council

1984 ICR 372

CA; London Underground Limited v Noel

2000 ICR 109

; Porter v Bandridge Ltd

1978 1 WLR 145

; Nolan v Balfour Beatty Engineering Services EAT 0109/11; Barclays Bank v Kapur and Others

1991 IRLR 136

HL; Owusu v LFCDA

1995 IRLR 574

EAT; Fairlead Maritime Limited v Mr V Parsoya; Chief Constable of Lincolnshire Police v Caston

2009 EWCA Civ 1298

I have also considered British Coal v Keeble and ors

1997 IRLR 336

[9]The relevant material facts

[10]In finding the following material facts I have confined my findings to those matters relating to the issues I am determining rather than encroach upon those matters and issues relating to the substance of the claims themselves.

[11]The claimant had previously been employed by the respondent trust from 2019 to 2020 (as put by the respondent) when she resigned and continued to work on a bank basis. Having remained in touch with her previous manager the claimant responded to a band seven lead nurse role being advertised by the respondent. The claimant was interviewed and was offered the post of lead nurse commencing on the 16th of July 2023. She was required to work 37.5 hours per week. The employment contract referred to a probation period of six months during which the claimant’s performance ,conduct and attendance would be closely monitored.

[12]The claimant commenced employment on the 16th of July 2023. Prior to that the claimant advised the respondent that she had separated from her husband and whilst needing to work full-time to support her four children she would require some flexibility in working patterns to accommodate childcare. The claimant struggled to fulfil the required contractual hours rota and in October 2023 submitted a flexible working request to further support her children but to retain her full contractual hours working a different shift pattern. The application was approved by the respondent.

[13]Despite the above alternative arrangements having been agreed the claimant because of her personal circumstances continued to struggle to cope with her domestic and childcare responsibilities and the need to work for the respondent and retain her salary. A number of meetings took place at the end of 2023 and the beginning of 2024 relating to the claimant’s performance, attendance and the issues that she was suffering in her personal life as a result of the breakdown of her marriage and and the conduct of her estranged husband. In January 2024 she was signed off work because of illness relating to all the above and covid.

[14]At the beginning of March 2024 the claimant was contacted by children’s services concerning a safeguarding issue about one of her children. This related to ongoing conflicts at home and she was called to a meeting on the 12th of March by the respondent where she was advised that due to the safeguarding issue there was a proposal to remove her from clinical duties. On the 13th of March 2024 the claimant went on long- term sickness absence and did not again return to duty although she continued to attend meetings.

[15]On the 20th of April 2024 the claimant had a meeting with HR and was represented by her trade union representative Mr Patrick Cornes. At that meeting the claimant accepts that she raised the issue of dismissal. The question of dismissal was therefore clearly on her mind at that time given the forthcoming proposal by the respondent for a probation meeting in May. Given the above the claimant accepted that she could have spoken to Mr Cornes about the Employment tribunal and any potential action if she was dismissed. She maintains that she did not do so because Mr. Cornes was not supportive of her in any of the meetings. The claimant maintains that she had an informal discussion raising her concerns about the advice being given but matters appear to have been taken no further.

[16]On the 25th of April 2024 the claimant tendered her resignation with one months notice. Prior to this on the 25th of March the claimant had emailed the respondent to advise that she felt that the lead nurse role was not suitable for her and that she had been offered another post. The claimant confirmed in the email that she wasn’t in a position to accept this until the safeguarding issue regarding her child had been cleared up. On the 4th of April 2024 again accompanied by Mr Cornes the claimant attended a meeting with Miss Sunderland and Miss Bradbury of the respondent. There was a proposal for an improvement plan to be put into force. Mr. Cornes at the meeting asked if this could be paused as the claimant had obtained another role and if she could be given six weeks notice and remain absent for that time. The claimant maintains that the new role was still not firm in her mind because of her personal circumstances prevailing at that time.

[17]The claimant when challenged produced a written copy of the proposed contract with her new employer. This written offer was dated the 20th of May 2024. The claimant maintained that this was the first document that really confirmed the offer of the role. She recalled having a telephone conversation beforehand confirming the role offer, but that was at most only 24 hours earlier.

[18]Prior to commencing the new role questions were raised by her new employer as to the claimant’s attendance record with the current respondent. At page 72 of the bundle is a lengthy email from the claimant to her new employer setting out the background and reasons for her absences. This the claimant submitted arose as a result of references from the respondent. Whilst a meeting was planned with her new employer to discuss this with the claimant, her said email and the material that she had provided meant that her new employer did not require another face-to-face meeting. As a result, the claimant was able to commence her new role on the 27th of May the day after her notice period expired with the respondent.

[19]Although she had changed roles, the claimant encountered a significant drop in salary which ultimately led to her having to move house at least twice between the end of May and August 2024. She maintained that although she was ill and suffering from anxiety she could not afford to take sickness absence and had to work in order to support her children and save funds for further rented accommodation deposit. During this time she was also homeless for a period because she couldn’t maintain her house rental payments and was living with friends and family and receiving childcare help from them. She applied for and received a grant from the Queens nursing Institute copied at page 80 of the bundle in the sum of £500. The claimant maintained that she was struggling to support her children and self throughout the period from June until she found more settled accommodation in August 2024.

[20]The claimant was throughout this period having counselling with her Counsellor Mrs. Kyd. The claimant accepted that Mrs Kyd was not medically qualified nor was the claimant producing for consideration any medical evidence concerning the anxiety that she maintains she suffered from throughout this period. Within the bundle commencing at page 69 are recorded notes of the meetings with her Counsellor throughout the period in question. In session 3 on the 15th of May 2024 whilst it records that things have got far worse than the claimant could have imagined mentally/anxiety, the case regarding her children’s safety had been closed. She had found a new role and had picked herself up from the ground. In session 4 on the 27th of June 2024. It is recorded that the claimant was more content with life but there was still a strong sense of feeling traumatized in the aftermath of the past several months. That she was trying to remain calm and reassured, making decisions on what felt right for her. When challenged about the apparent improvement in her personal life and why the claimant could not in June or July have submitted a claim to the tribunal the claimant maintained that it was at this time when she was losing her accommodation and in between homes for herself and her children. That the said notes did not paint the full picture and that her focus was on herself and her family and saving funds for a deposit for a new property.

[21]It was the end of August 2024 that the claimant finally moved into more settled accommodation. She then sought advice from ACAS and proceeded to commence Employment tribunal proceedings on the dates as set out above. The claimant accepts that there is nothing within her witness statement that indicated that she was ignorant of her rights to apply to an Employment tribunal. That whatever she may have thought about her trade union representative she could have sought clarity about her rights before the tribunal from her trade union but there is no evidence that she did so. The claimant maintains that her priorities throughout the period from the ending of her employment until the lodging of her ET1 were her family and trying to maintain a role to support her children.

[22]The submissions

[23]I received both a written skeleton argument from the respondent citing the caselaw referred to above and also oral submissions in support. In regard to the unfair dismissal claim and the test of reasonable practicability it was submitted that the burden was on the claimant to show cause why time should be extended. That the test is a strict one. It was submitted that the claimant was relying on two grounds to explain why she had not been able to bring the claim in time and that was for health and economic reasons.

[24]In turning firstly to the question of health it was submitted that no medical evidence had been tendered to the tribunal in support of this argument. That the caselaw shows that even if the tribunal was sympathetic towards the claimant’s health circumstances she had to establish that it wasn’t “feasible” to have lodged the claim in time. That the evidence of her own Counsellor showed that there was an improvement in May and June 2024. That she was able to commence a new job albeit at 30 hours per week immediately after the ending of her employment with the respondent. That she was able to organise at least two house moves during the period in question. That she was able to complete an application for funds from the Queen’s Nursing Institute. That her health had not prevented her in undertaking this.

[25]In turning to the second ground whilst the respondent fully accepts that financial difficulties can prove very stressful, for the vast majority of people who lose their roles they have no other role to go to and yet still manage to lodge their claims in time. That whilst the respondent accepts that the period from end of May and June and being in between pay slips, the claimant’s priorities may well have been elsewhere, nevertheless, this was only the first month of a three month time limit that she could subsequently have lodged her claim in and did not do so.

[26]In terms of ignorance of time limits and the right to claim before an Employment tribunal, whilst it was trite to say, the claimant could at any time have used a search engine on the Internet to establish her rights nevertheless she did not do so. Whilst her union representative was said to have been unhelpful, nevertheless her union could have been contacted by her about her rights. That whatever the position the completion of an ET1 form was not it was submitted a lengthy task.

[27]It was further submitted that even if the claimant satisfied the first hurdle that she did not then lodge her claim within such time as was reasonable thereafter. More particularly the claimant in her own evidence stated that by the 28th of August she had found the strength to deal with matters. She did not however present the claim until three weeks later which was a further additional delay.

[28]In regard to the discrimination claim it was submitted that rather than the date of the 26th of May 2024 being the relevant date for time consideration that in actual fact it was the 13th of March 2024. This was on the basis of the claimant was on long-term sickness absence from the 13th of March and did not again return to work for the trust. That therefore the indirect discrimination claim about working pattern policy could not have affected her from that time onwards. That whilst the just and equitable test Is less stringent than the reasonably practicable test, similar issues nevertheless overlap. That if it was accepted that the last date from which time ran was the 13th of March 2024, since then the claimant had continued to attend meetings with the trust; had obtained new employment; was able to apply for hardship funding and had moved her house twice. That she was able to do all of these things and could also have lodged her ET1 claim but did not do so. That therefore there should be no extension of time for this claim either.

[29]The claimant made oral submissions only. She confirmed that she appreciated that her claim was out of time, but submitted she had been very distressed throughout this period. In her long career of nursing her performance had never before being challenged. That she felt unsupported by the respondent despite her clear personal difficulties. That her trade union representative was also unsupportive and gave poor advice. That she had dropped from a band seven grade to band six and lost earnings as a result. That while she was able to attend meetings as submitted by the respondent, she only did so because she found the strength to do so. That taking matters to the Employment tribunal was not at the relevant time her priority. That she and her children were in turmoil at that time. That it was only at the end of August when in settled accommodation she was able to focus on bringing proceedings. That whilst she appreciated that the claims were out of time she submitted that her exceptional circumstances should in both cases permit the tribunal to extend time.

[30]The conclusions

[31]I have reached the following conclusions taking into account and consideration the evidence I have heard, the facts that I have found, the relevant statute law and case law and the submissions received from the parties for which I am grateful. I turn first to the claim of constructive unfair dismissal and the test of reasonable practicability.

[32]The test of reasonable practicability as set out in the Employment Rights Act 1996 is a strict one. The burden lies upon a claimant to persuade the tribunal that it was not reasonably practicable to have lodged their claim in time and if so persuaded, that the claim was then lodged as soon as was reasonable thereafter. The claimant was experiencing at the relevant period following the tendering of her resignation and indeed prior to that difficulties, both personally and financially. She had as recorded above faced a number of meetings where the respondent had genuine concerns about her ability to sustain the role that she had been selected for. This was also clearly something that was becoming apparent to the claimant having never experienced as she put it performance related issues before in her long career as a nurse.

[33]The claimant was represented at these meetings by her own trade union representative, indeed as the facts show and whilst the claimant was on long-term sickness absence it was he that argued for a six week notice period and the abandonment of the probation meeting that was scheduled in May because the claimant had obtained other employment. Whilst the claimant regarded his advice as being unsupportive and ineffective nevertheless it was clear in April that she had made the decision to leave her role with the respondent. It was clear in April that she was considering the alternative because of the prospect of dismissal from her role with the respondent. The claimant was represented by her trade union. She had the opportunity at that stage to ascertain from them what the consequences would be of a dismissal or indeed a resignation. There was no evidence before me that she chose to go down that path.

[34]The claimant was experiencing a number of challenges both personal and financial of the time when these events took place. She had separated from her husband she was trying to support four children. She faced a safeguarding issue for one of them and was therefore struggling to maintain the hours that she needed to earn the funds to support herself and her family. Nevertheless she was able to start work the day after her employment with the respondent ended, apply for funding by completing the forms for the Queens Nursing Institute and despite the challenges she encountered with her housing accommodation, she was able to resolve those challenges.

[35]Whilst the claimant has stated in evidence that throughout this period that she was suffering from anxiety, there is no medical evidence to sustain this that she seeks to rely on. The only evidence before the tribunal in that regard is the statement of her Counsellor and the notes arising from her meetings with that Counsellor. Her counsellor was not at the tribunal to give evidence and therefore be open to challenge by the respondent. As a consequence her witness statement carries less weight than it would have done if tested under oath. Nevertheless, as put by the respondent in May and June the notes show at least some improvement in the claimant’s personal health and consequently her ability to sustain her new role.

[36]The claimant did not in her witness statement suggest at all that she was ignorant of her right to apply to the employment tribunal or the time limits within which she would have to lodge her claims. It appears rather the case that a claim before the employment tribunal was not a priority given her circumstances. However it was open to her throughout this period of time following the three months since her resignation from the respondent to have explored this more thoroughly. She maintains that she only did so at the end of August when she and her family were in more settled accommodation. Even then her claim was not lodged until the 18th of September 2024 and this was only after she sought assistance from ACAS at the end of August 2024 . There was no evidence that she attempted before this date to either seek further assistance from her trade union or at the very least to explore the possibility of lodging a claim before the Employment tribunal by research on the Internet. I have come to the conclusion that despite the challenges that she faced at the relevant times there was the opportunity open to the claimant to prepare a claim before the tribunal and that it was reasonably practical for her to have done so within the relevant time limit and she did not do so. I conclude in this regard therefore but there is no basis upon which time should be extended and therefore the claim of unfair dismissal should stand as dismissed.

[37]In turning to the claim of indirect discrimination, the test to extend time for a claim lodged here is wider being on the basis of whether it is just and equitable to do so. Nevertheless, the burden still remains on the claimant to establish and show cause why time should be extended. This claim as noted in the record of Judge Harding’s case management summary is predicated on a requirement or expectation of the respondent that people work outside of their agreed shift pattern. The claimant argues that the disadvantage that this causes autistic people as a group is that it causes distress because of the need for predictability, routine and stability. It is her case that she was put to the same disadvantage as she needs predictability, routine and stability to care for her son who is autistic. I accept the argument therefore submitted by the respondent following the claimant’s long-term sickness absence from the 13th of March 2024 that this provision can no longer have applied to her and that therefore the last date of any act that could be complained of was the 13th of March 2024.

[38]Whilst the tribunal has a broad discretion to extend time in discrimination claims, I have to have regard to all of the relevant factors surrounding this issue. On the basis that the 13th of March 2024 was the last date in terms of any act of indirect discrimination as predicated by the claimant having an effect upon her it was some six months before her claiming in this regard was lodged. She was able to still attend meetings with the respondent as required. She was able to obtain at least a verbal offer of alternative employment. She was able to speak to her new employer about her references and email them and had the benefit of her trade union supporting her. There was no evidence before me that she sought guidance in this regard from the union (however she may have felt about the ability or otherwise of the representative assigned to her). She was able to complete forms for the hardship funds as cited above. She was participating in counselling and and was not seeking medical support. Her explanation for the delay centers around the same factors that she has submitted in regard to her claim of unfair dismissal but the same issues apply here about those factors as recorded above in regard to the claim of unfair dismissal. In this case there was even longer in terms of time in which to lodge her claim. Whilst weighing up the prejudice that this will cause to the claimant if her claim is not allowed to proceed equally I have to also balance the prejudice to the respondent now facing a claim for matters that occurred more than 12 months ago. There was the opportunity for the claimant to have prepared and lodged her a claim for discrimination well within the time period required to do so despite the personal difficulties she was facing. The claimant did not consider this until the end of August 2024 and did not then lodge this claim either until the 18th of September. I therefore also conclude in regard to a claim of discrimination that there is no just and equitable basis to extend the time for the lodging of this claim and that therefore this claim also stands as dismissed. Approved by