Mrs J Ganvir-Roche v Northern Care Alliance NHS Foundation Trust: 6012410/2024

EMPLOYMENT TRIBUNALS

Case No 6012410/2024

Between

Mrs J Ganvir-RocheClaimant

Northern Care Alliance NHS Foundation TrustRespondent

Before

Employment Judge Millns

In person for claimant

Mr S Proffitt (instructed by counsel) for respondent

Date 25 September 2025

JUDGMENT

[1]The allegation of victimisation at item 7.2.11 of the list of issues is dismissed upon withdrawal.

[2]The following allegations are struck out because the claimant has no reasonable prospects of establishing:a. that the alleged discriminatory acts were part of a course of conduct extending after 21 April 2024:

b. that is it just and equitable to extend the time limit for bringing complaints of discrimination in relation to those acts:

2.1 Paragraph 3.2.2 of the list of issues (workload)

2.2 Paragraph 3.4 of the list of issues (physical feature car park)

2.3 Paragraph 3.5 of the list of issues (orthopaedic chair)

[3]The claimant’s claim of direct discrimination at paragraph 6.2.18 of the list of issues (birthday card) is made subject to a deposit order on the grounds that is has little reasonable prospects of success. 1 of 12

REASONS

[1]The claimant brings complaints of failure to make reasonable adjustments, harassment related to disability, direct disability discrimination, direct race discrimination, harassment related to race and/or religion or belief and victimisation.

[2]At a first private preliminary hearing on 26 March 2025 Employment Judge Dunlop listed this public preliminary hearing; at that stage it was considered that it would (broadly) deal with time limits. The exact formulation of the public preliminary hearing was determined at the second private preliminary hearing before Employment Judge Dunlop on 19 May 2025 when it was decided that it should deal with whether any complaints should be struck out on the basis that the claimant has no reasonable prospect of success in demonstrating that the claims have been presented within the time limit in s123 Equality Act 2010 having regard to:a. The question of whether there was conduct extending over a period of time; and

b. The question of whether, if the complaint is out of time, it would be just and equitable to extend time. Alternatively, whether a deposit order should be made in the event that any part of the claim has little reasonable prospects of success.

[3]An agreed bundle of relevant documents (436 pages) and chronology had been prepared. Employment Judge Dunlop attached a List of Issues to the orders from the second preliminary hearing; following that hearing that List of Issues was amended by the respondent to reflect some updated information provided by the claimant. The updated version was in the hearing bundle at pages 158- 165 and is the version considered by the Tribunal.

[4]On 13 June 2025 the claimant made an application to amend her claim, which the Tribunal determined may be considered at today’s hearing, if appropriate. In the event the claimant withdrew that application during this hearing, so it did not need to be considered.

[5]The respondent provided a written application to strike out and/or for a deposit order dated 16 June 2025. The claimant provided a written response to that application. Both documents were in the hearing bundle. Mr Proffitt supplemented the written application to strike out with oral submissions after which the Tribunal allowed the claimant an additional break to consider those submissions, before the claimant went on to make oral submissions to supplement her written submissions.

[6]There was insufficient time for the Tribunal to deliberate and announce a decision at the conclusion of the hearing. The short remaining time was used to finalise general case management orders to get the parties ready for the final hearing, which are set out in separate case management orders. The Tribunal 2 of 12 also questioned the claimant about her means to prepare for the possibility that a deposit order might be made and explained the consequences of a deposit order. On 24 September 2025 the claimant forwarded further information about her means (uploaded to the portal), which the Tribunal considered.

[7]The claimant presented her claim on 21 September 2024. The claimant requested Early Conciliation on 20 July 2024 (Day A) and an Early Conciliation Certificate was issued on 31 August 2024 (Day B).

[8]It is common ground between the parties that any acts or omissions occurring before 21 April 2024 are out of time, unless it can be shown that they were part of a continuing act or there should be a just and equitable extension of the primary limitation period.

[9]The respondents’ written application to strike out sought to strike out the following claims from the List of Issues (alternatively that deposit orders be made):9.1 Failure to make reasonable adjustment – paragraph 3 of the List of Issues (comprising 4 allegations).

9.2 Harassment related to race and/or religion and belief – paragraph 4 of the List of Issues (comprising 2 allegations).

9.3 Harassment related to disability – paragraph 5 of the List of Issues (comprising 2 allegations).

9.4 Direct race discrimination – paragraphs 6.2.1 -6/2/17 of the List of Issues (comprising 18 allegations).

[10]Mr Proffitt provided oral submissions to supplement the respondents’ written application, during which he also invited the Tribunal to order a deposit or strike out in relation to the complaints of victimisation at paragraphs 7.2.2 and 7.2.4 of the List of Issues in so far as they relate to the individual KB )but not the individual SN). Whilst this submission was not mentioned in the written application, the Tribunal allowed this addition to application to strike out, ensuring that the Claimant had adequate opportunity to provide a response during the hearing after a break.

[11]Mr Proffitt also invited the Tribunal to make a deposit order of its own volition in respect of the allegation that KB sent the Claimant a birthday card in May 2024 - which is pleaded as both an allegation of direct race discrimination at paragraph 6.2.18 and of victimisation at paragraph 7.2.10.

[12]It is unnecessary for the Tribunal to make specific factual findings given that no final determination is being made as whether there was a continuing act or whether it would be just and equitable to extend time. I am entitled to take the Claimant’s case at its highest in order to decide whether in relation to any particular allegation there is no or little reasonable prospect of the claim succeeding, given the operation of statutory time limits. 3 of 12 Relevant legal principles

[13]The relevant part of Rule 38 Employment Tribunal Rules of Procedure say:- “38(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success … (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[14]The relevant legal principles to consider where the Tribunal is considering strike out an Equality Act 2010 claim on grounds of time limits were summarised by Ellenbogen J in E v X and others UKEAT 0079-2—RN (December 2020) as follows: 1) In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin; 2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson; 3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar; 4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or

(2) substantively to determine the limitation issue: Caterham; 5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar; 6) An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar; 4 of 12 7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz; 8) In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required — the matter will be decided on the claimant’s pleading: Caterham ; 9) A tribunal hearing a strike-out application should view the claimant’s case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson; 10) If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham; 11) Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham; 12) Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham; 13) If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham.

[15]At this hearing the Tribunal is not tasked with deciding whether the claimant’s allegations amount to continuing act. That would require a consideration of the evidence and would need to be considered at a final hearing. Rather it is whether the claimant’s case, taken at its highest, can establish that the various incidents relied upon were part of an act extending over a period or were 5 of 12 capable to being part of an act extending over a period. There must be a reasonable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs (Aziz).

[16]The power to make a deposit order is found at Rule 40 Employment Tribunals Rules of Procedure 2013. That rule provides:- “40.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.

(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”

[17]The making of a deposit order is intended to highlight that a preliminary view indicates that an allegation has little reasonable prospect of success. It also serves as a warning to a party that cost consequences may follow if they go on to lose an argument which has been made subject to a deposit order. However, at the same time, the intention is not to achieve a strike out ‘by the back door’ by setting an amount for the deposit which a party cannot afford or which serves to dissuade them from continuing a claim because the deposit is set at too high a level. 6 of 12

[18]The test is not as rigorous as the "no reasonable prospect of success" test in rule 38(1)(a) under which the tribunal can strike out a party's case. In Van Rensburg v Royal Borough of Kingston-Upon-Thames and others

UKEAT/0096/07

;

UKEAT/0095/07

, Mr Justice Elias concluded that "a tribunal has a greater leeway when considering whether or not to order a deposit" than when deciding whether or not to strike out and, following Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

, it was not wrong for a tribunal to make a provisional assessment of the credibility of a party's case when deciding whether to make a deposit order.

[19]In Amber v West Yorkshire Fire and Rescue Service

[2024] EAT 146

the EAT held that the last seven of the nine principles set out in Cox v Adecco and others

UKEAT/0339/19

in relation to strike-out, applied equally in relation to deposit orders. These included: 1) If the prospects of success turns on disputed factual issues, it is highly unlikely that a deposit order will be appropriate. 2) The party's case must ordinarily be taken at its highest. 3) It is necessary to determine what the claim and issues are. It is not possible to determine whether it has reasonable prospects of success without doing so. 4) Where one party is a litigant in person, their case should not be solely ascertained from the explanation they give at the hearing. The pleadings and any key documents should be considered. Legally represented parties should not take procedural advantage of litigants in person and should assist the tribunal in identifying the relevant documents. 5) If the case would have had reasonable prospects of success if it had been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test.

[20]The EAT held that taking the case at its highest requires the tribunal to test the factual account and examine it "through the prism of reality". This would include examining the case against basic logic, internal inconsistency or any contradiction by contemporaneous documentary evidence.

[21]Section 123 Equality Act 2010 is in the following terms: (1) Subject to section 140B 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— 7 of 12 (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.

[22]Conduct extending over a period is to be treated as done at the end of that period. The Tribunal must consider whether the conduct complained of is: “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed'.” (Commissioner of Police of the Metropolis v Hendricks [2003] I.C.R. 530 at paragraph 52).

[23]The discretion as to whether to allow a claim to proceed on grounds that it was submitted within such further period as the Tribunal considers just and equitable, was considered in Adedeji v University Hospital Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

when Underhill LJ cautioned against a mechanistic approach to what he described as “a very broad general discretion” adding that: “The best approach for a tribunal in considering the exercise of the discretion under section 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) "the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”

[24]There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised (Chief Constable of Lincolnshire Police v Caston at paragraph 31 per Sedley LJ).

[25]There are two main types of prejudice that a Respondent may suffer if the limitation period is extended: Firstly, the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence; and Secondly, the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused for example, by fading memories, loss of documents and losing touch with witnesses.

[26]The Tribunal will now turn to consider each of the distinct types of complaint in turn, applying the relevant legal principles above. Failure to make reasonable adjustments

[27]In a claim for failure to make reasonable adjustments, time starts to run from the date on which the respondent did an act inconsistent with making the adjustment. (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

per Leggatt LJ at paragraph 11).

[28]The failure to make reasonable adjustments claim is set out a paragraph 3 of the List of Issues. There are four allegations in total: two of discriminatory practices, one of a physical feature and one of a failure to provide an auxiliary aid. 8 of 12

[29]The first alleged discriminatory practice relates to giving the claimant an intensive workload in light of physical difficulties with her hips, which did not allow for movement breaks, which the claimant alleges put her at a substantial disadvantage because it caused pain. This first allegation dates to 2019 when the claimant started her employment with the respondent.

[30]The second alleged discriminatory practice relates to a hybrid working model, amended in May 2023, which provided for the claimant being allowed to work one day at home, which she alleges put her at a substantial disadvantage because of the pain of commuting to the office for the rest of the week.

[31]The claimant alleges the disadvantageous and discriminatory physical feature (the distance between the car parking spaces and office) was present from the start of her employment in November 2019 and that she ought to have been allocated a parking space close to the office from the start of her employment.

[32]The claimant alleges that she ought to have been provided with a bespoke orthopaedic chair from the start of her employment in November 2019.

[33]It is not in dispute that each of these four complaints are brought outside the statutory time limit. Having considered the other complaints of discrimination set out in the list of issues it is noted that the first complaint of discrimination following November 2019 is in 2022.

[34]In the circumstances, given the significant temporal gap between November 2019 and 2022, it seems there is no reasonable prospect of the claimant establishing a continuing course of conduct in respect of the three of those four allegations of failure to make reasonable adjustment.

[35]Further, the Tribunal finds there is no reasonable prospect of the claimant establishing that it would be just and equitable to extend time for such an extensive period when considering the balancing exercise that would need to be undertaken.

[36]The evidence to be considered to answer these allegations would require an assessment of the working practices of the claimant dating back to 2019. That is likely to be a significant factor in respect of forensic prejudice to the respondent weighing against any extension of time. Further these claims did not form part of a grievance raised by the claimant during her employment (unlike the other matters in issue, which were raised as part of that a grievance in December 2023). In the circumstances the respondent would need to make enquires about these allegations for the first time some 6 years later, to answer this claim.

[37]The allegations at paragraph 3.2.2 and paragraph 3.4 and paragraph 3.5 are accordingly, struck out.

[38]In respect of the second allegation relating to the hybrid working model, it is at least arguable that this formed part of a continuing act of discrimination when 9 of 12 taken together with the other allegations of discrimination, so the Tribunal declines to strike out that complaint on that basis. Harassment related to race and/or religion and belief – paragraph 4 of the List of Issues. Harassment related to disability – paragraph 5 of the List of Issues Direct race discrimination – paragraphs 6.2.1 -6/2/17 of the List of Issues Victimisation - paragraphs 7.2.2 and 7.2.4 of the List of Issues

List of Issues.

[39]The allegations of harassment (race/religion and disability), direct race discrimination and victimisation are considered together. It is not in dispute that all but one of these complaints were brought outside the time limit. The complaints have a common theme because they relate to allegations about the conduct of the claimant’s then line manager, KB. The one allegation brought against KB which is in time (set out at paragraph 7.2.10 of the List of Issues (the birthday card allegation) is said to have occurred in May 2024. The last act prior to that was in October 2023.

[40]The respondents’ written submissions stated that a gap of seven months between the last two acts by KB is insufficient for the Claimant to establish a continuing act. The Tribunal concludes that is arguable that such a gap is not inconsistent with a continuing act.

[41]The respondent’s main oral submission was that the ‘last act’ by KB would not succeed on its merit as an allegation of direct race discrimination or victimisation. The respondent noting that KB was one of 9 people who signed the card and that the claimant had sent an email of thanks about the card at the time to another manager, Shirley Naylor. The respondent submitted that the Tribunal should discount the presence of that allegation when considering the prospects of the claimant establishing a continuing act of discrimination. Mr Proffitt took the Tribunal to a copy the birthday card in the bundle. It is not in dispute that in the card KB wrote “Happy Birthday, Best wishes, Kerry” and that KB was one of 9 individuals who wrote a similar message in the card.

[42]The claimant said in submissions that she did not know who sent the card (the handwriting on the front of the envelope was not recognisable) or whose idea it was to send the card. The claimant believes that the timing of the card is significant because it was sent during the investigation of her grievance about KB, and she believes it was intended as a means of placating her and intimidating her. The claimant accepted that she sent an email of thanks for the birthday card to Shirley Naylor, who was a manager to both the claimant and KB. 10 of 12

[43]Taking the claimant’s case at its highest, the Tribunal concludes that is arguable that the birthday card allegation will succeed as one of victimisation, which means that it is also arguable that it formed part of a continuing act of discrimination.

[44]The Tribunal also records that the claimant argued that she will be seeking a just and equitable extension of time for the out of time complaints on the basis that the respondent ‘continuously stated’ that she had to complete the internal procedure first before she was permitted to do anything else, as her explanation for the delay in bringing her claim to the Tribunal. Noting that this is likely to be a contested fact, the Tribunal must take the claimant’s case at its highest. On that basis the Tribunal concludes that the claimant has an arguable case of being granted a just and equitable extension of time, particularly in circumstances where many of the complaints in the claimant’s grievance are those which are repeated in this claim i.e. they are not complaints that the respondent has heard for the first time when proceedings in the Tribunal were instituted. Direct discrimination; the birthday card allegation at paragraph 6.2.18 of

the List of Issues

[45]The claimant’s case is that the birthday card was sent by KB in response to her grievance to placate and/or intimidate her. On that basis, taking the claimant’s case at its highest, it seems there are little reasonable prospects of the claimant establishing that KB wrote/sent the card because of the claimant’s race. In the circumstances the claimant is ordered to pay a deposit to advance this allegation at the final hearing. However, the Tribunal does not make a deposit order in respect of the same complaint as one of victimisation, given the claimant’s assertion about the reason why she believes the card was sent is because she raised a grievance.

[46]The maximum amount of the deposit which can be awarded is £1,000 in respect of each argument or allegation which is found to have little reasonable prospect of success. In this case, that would total £1,000. The amount ordered to be paid as a deposit should not serve to place a bar on pursuing the claims because the claimant cannot afford to pay them. I must take means into account to be sure that the claimant is able to pay the deposit.

[47]The claimant gave information about her means and sent further information about means after the hearing. During the hearing I explained the consequences of an order being made and of the potential cost consequences which may follow should she lose after paying a deposit as is outlined by Rule 40(5)(a). Taking this together with the claimant’s limited means of surplus income of circa £300 per month, I considered it appropriate to require the claimant to pay £100 in respect of the deposit order.

[48]The claimant understands that failure to pay the deposit will lead to the claim being struck out. She also understands that, should the claims continue under 11 of 12 the deposit and she loses at trial, she will lose that deposit and she would need to show why continuation of the claims was not unreasonable for the purposes of one of the gateways for a costs award to be made under Rule 74