Dr M Al-Sakkal v Mersey and West Lancashire Teaching Hospitals NHS Trust and Dr S Mehdi: 6013543/2024
EMPLOYMENT TRIBUNALS
Case No 6013543/2024
Between
Dr M Al-SakkalClaimantMersey and West Lancashire Teaching Hospitals NHS Trust and Dr S MehdiRespondent
Before
Employment Judge HumbleIn person for claimantMr Profitt (instructed by Counsel) for respondentDate 4 November 2025
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The unfair dismissal claim is struck out since there is no reasonable prospect of the claimant being able to establish that it was not reasonably practicable for the claim to have been presented within the statutory time limit.[2]No other claims were presented which the tribunal had jurisdiction to hear.[3]The claims are dismissed.
REASONS
[1]This was a preliminary hearing to determine, in brief, whether the claims should be struck out as having no reasonable prospect of establishing that they were presented in time, or that they otherwise had no reasonable prospect of success.[2]It was a hybrid hearing which took place on the morning of 24 September 2025. The claimant represented herself and appeared before the tribunal in person, and the respondents were represented by Mr Profitt of Counsel who appeared by video link. The tribunal was referred to an agreed bundle of documents which extended to 330 pages, including the additional documents provided by the claimant. In addition to the content of the bundle, the claimant requested that the tribunal read some further documents which were sent by her to the tribunal and respondent on 10, 17 and 24 September 2025. The tribunal took some time to discuss and confirm the issues with the parties before adjourning to read the papers. Submissions were then taken from both sides and judgment was reserved.
The Issues
[3]The claims to be determined were agreed at an earlier case management discussion of 6 June 2025, and the issues for the tribunal to determine at this preliminary hearing were set out in a subsequent order of that date as follows:3.1 Should the claim for unfair dismissal against the first respondent be struck out because the claimant has no reasonable prospect of establishing that:(a) it was not reasonably practicable to present the claim within the time limit; and(b) the claim was presented within a further reasonable period?; or(c) the claim has no reasonable prospect of success for some other reason. If not, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with the claim or any part of it, because they have little reasonable prospect of establishing those things?3.2 Should the claim for unfair dismissal against the second respondent be struck out because it has no reasonable prospect of success? Alternatively does the claim have little reasonable prospect of success? If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it?3.3 Should the claim for the failure to respond to the claimant’s grievance adequately or at all be struck out because it has no reasonable prospect of success. Alternatively does the claim have little reasonable prospect of success? If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it?3.4 Should the claim for the failure to provide a reference adequately or at all be struck out because it has no reasonable prospect of success. Alternatively does the claim have little reasonable prospect of success? If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it?[4]A further issue arose during the course of the hearing as to whether the claimant had submitted an application to amend the claim form to include discrimination claims relying upon the protected characteristics of race, religion or belief, and/or age. In that respect the claimant relied upon her letters to the tribunal of 10 and 17 September. The respondent took issue with whether such an application had been made, and the tribunal indicated that it would therefore give consideration to a) whether a valid application was before it for consideration and, if so, b) whether leave to amend should be granted.
The Law
[5]In respect of the unfair dismissal claim section 111 (2) Employment Rights Act 1996 states: “…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.”[6]In relation to whether the complaints had no reasonable, or little reasonable prospect of success, Rule 39 and Rule 40 of the Employment Tribunal Rules of Procedures provide as follows: 38 (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... 40 (1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance the allegation or argument (“a deposit order”).[7]The respondents provided a detailed skeleton argument in this case, which is available as a matter of public record. The cases relied upon by the respondents, all of which related to timing issue, were: Pearce v Bank of America Merrill Lynch and ors [2019] 6 WLUK 771; Reed In Partnership Ltd v Fraine UKEAT/0520/10; Wall's Meat Co Ltd v Khan [1979] ICR 52; Marks & Spencer PLC -v- Sabrina Williams-Ryan [2005] EWCA Civ 470; Smith v Pimlico Plumbers UKEAT/0211/19, UKEAT/0003/20 and UKEAT/0040/20; Dedman -v- British Building and Engineering Appliances Ltd [1974] 1 WLR 17, para 17; Walls Meat Co Ltd v Khan [1979] ICR 52; and Palmer and another v Southend on Sea Borough Council [1984] IRLR 119. Beasley -v- National Grid Electricity Transmissions and Miller -v- Community Links Trust Limited were also referred to, but no references were provided for those two cases and the tribunal did not refer to them.[8]In respect of the appropriate test for whether a claim has no reasonable prospect of success, the tribunal had reference to Balls v Downham Market High School and College [2011] IRLR 217, EAT which is a reminder that a high threshold must be met, the appropriate test is not whether the claim is likely to fail but whether it has no reasonable prospect of success; and to Mechkarov v Citibank NA [2016] ICR 1121, EAT which provides that, when making that assessment, the claimant’s case must be taken at its highest, albeit that was in the context of a discrimination claim rather than one of unfair dismissal. The tribunal also had reference to the case of Aziz v FDA [2010] EWCA Civ 304.[9]In respect of amendments, the tribunal had reference to the principles in Selkent Bus v Moore [1996] IRLR 661, EAT. Findings of Fact The Employment Tribunal made the following findings on the balance of probabilities (the tribunal did not make findings upon all the matters presented but only made material findings of fact upon those matters relevant to the issues to be determined):
Background
[10]Mrs May Al-Sakkal (“the Claimant”) was employed by Mersey and West Lancashire Teaching Hospital NHS Trust (the “First Respondent”) from August 2021 until 7 February 2024. She was employed through a tripartite arrangement between the Lancashire Teaching Hospital, which is part of the First Respondent and was the host organisation, and NHS England (“NHSE”). Dr Syed Mehdi (the “Second Respondent”) is a Consultant and Clinical Director for Respiratory Medicine at the Lancashire Teaching Hospital.[11]The claimant was a resident doctor in training on placement at the Lancashire Teaching Hospital at the time of the termination of her employment. The Second Respondent was the claimant’s educational supervisor. Following an unsuccessful professional review on 24 January 2024, which the claimant says was caused by a report submitted by the Second Respondent, the claimant was released from training and this, in turn, led to the termination of her employment on 7 February 2024.[12]The claimant submitted a grievance to the First Respondent on or around 8 February 2024. The First Respondent conducted, what it described as a “desktop review” of her grievance and provided a response on 14 May 2024. The Claimant submitted an appeal to the grievance outcome on 14 May 2024. The First Respondent replied on 20 May 2024 to inform the claimant that she did not have a right of appeal.[13]The claimant notified ACAS of a potential claim against Lancashire Teaching Hospital on 7 August 2024 and the early conciliation certificate was issued on 16 August 2024. The claimant notified ACAS of a potential claim against the First Respondent on 28 August 2024 and the early conciliation certificate was issued on 30 September 2024. The claim form, in which the First and Second Respondents were named as respondents was issued on 1 October 2024.[14]In the claim form the claimant ticked the box at 8.1 to indicate that she was brining an unfair dismissal claim and also ticked the box to say that she was bringing “another type of claim”, which was specified simply as “unsatisfactory grievance”. The particulars of claim were brief, and stated: “I raised a grievance (on 08/02/24) after the dismissal, the outcome of which was unsatisfactory. I was told that I had no further rights because I was no longer employed. The report was released on 14/5/24 and I attempted to appeal but the final response indicated that the matter was closed and the trust will not engage in further correspondence concerning this matter. Doctor Syed Mehdi: He made an unfair educational supervisor report on 21/04/24 that led to losing my training on 24/01/24. Subsequently, he declined the provision of reference which led to limited employment opportunities last communication was on 29/09/2024.”[15]At the case management discussion, on 6 June 2025, it was confirmed that, in addition to the unfair dismissal claim, the claimant’s complaints were that her grievance was not responded to adequately and that she was not provided with a reference by the Second Respondent. The case management order from that hearing records that Employment Judge Serr, “explained to the claimant that the tribunal has no generalised jurisdiction to address disputes at work. In order to challenge a failure to address a grievance or to produce a reference there must be an allegation that that failure is either because of a protected characteristic, or because of a public interest disclosure or some other basis engaging one of the statutory provisions governing the Tribunal. It may well be unlawful to produce a reference that is not fair, truthful and accurate, however of itself the Tribunal would not have jurisdiction to determine that. As of today [the claimant] did not indicate any ground for not giving her a reference or answering the grievance which would provide jurisdiction to the Tribunal.” The claimant was invited to “reflect carefully on the matter”. The Timing Point[16]The effective date of termination of the claimant’s employment was 7 February 2024, which means that the limitation date for presenting an unfair dismissal claim was 6 May 2024. The claimant does not benefit from the ‘stop the clock’ provisions under the ACAS Early Conciliation regime since the limitation date had already expired when ACAS were first notified of a potential claim on 7 August 2024. The claim form was not presented until 1 October 2024 and was therefore 4 months and 24 days outside the statutory time limit for an unfair dismissal claim.[17]The respondent’s submissions in relation to this aspect of the case are set out in some detail in the skeleton argument and we do not therefore recite them here. The claimant’s submissions were made orally and were relatively brief. She said that she had no intention of wasting the tribunal’s time or unnecessary public money. Her decision to bring the claim was triggered by the respondent’s decision not to provide her with a reference, and she believed that she could proceed with the claim because ACAS had issued her with a certificate. She said that, during the period immediately following her dismissal, she was the subject of an investigation by the General Medical Council (“GMC”) and she was focussed upon that and “consumed” by it. She did not wish to “waste the time of anybody” but believed the reasons for the delay were justifiable.[18]There was nothing in the claimant’s submission to convince the tribunal that there was any reasonable prospect of her persuading a tribunal that it was not reasonably practicable to bring the claim within the statutory time limit. Her lack of knowledge of the appropriate time limit was not enough to render it not reasonably practicable to pursue a claim within the statutory time limit. The claimant is an intelligent person, a doctor in training, who ought to have taken steps to establish the relevant time limits; the fact that she was focussed on the GMC investigation did not prevent her from making reasonable enquiries as to her employment rights and acting upon them in a timely manner. No other meaningful explanation was given for the delay which was a relatively substantial one.[19]This preliminary hearing could simply have been listed for a straight determination on whether or not it was reasonably practicable for the claimant to have presented the claim within the relevant time limit since it is an unfair dismissal claim and not a discrimination claim which involves a continuing act in the manner of Aziz v FDA [2010] EWCA Civ 304. The tribunal was, however, bound by the Order of the previous tribunal and therefore assessed the timing point based on the Rule 38(1) test, having considered the submissions and the relevant documentation rather than hearing witness evidence. The tribunal held, taking the claimant’s case at its highest based upon her pleaded case and submissions, that there was no reasonable prospect of her persuading a tribunal that it was not reasonably practicable to bring the claim within the statutory time limit.[20]The unfair dismissal claim is therefore dismissed. Other claims[21]In relation to the other possible claims, we are first required to address whether there was any valid application to amend the claim form to include a claim for discrimination based on a protected characteristic within the Equality Act 2010. The tribunal first had reference to the claimant’s attempt to amend the claim form on 31 July 2025. This consisted simply of a re-issuing of the claim form with four additional brief points added to box 4 of the claim form, which did not disclose the basis of any new cause of action or identify any additional possible claim.[22]The tribunal then had reference to three additional documents which the claimant drew to its attention. The first was a document dated 10 September 2025 (page 277-280 of the bundle). This consists mainly of the claimant’s account of the events that post-dated her dismissal and her attempts to obtain a reference, and she then asks the question “why do I think this is discrimination?” and outlines some of the alleged deficiencies in the grievance followed by the comment, “This could also be triggered by one of my characteristics, I am older than the rest of my peers, and my background (from Iraq)” (page 278).[23]In the document headed, “Claimant’s responses to the respondent’s requests on 10 September 2025” (page 269-271), the claimant refers to “discriminatory treatment” and states: “The NHSE and the training provider (NW Deanery) have mistakenly put weight on the second respondents report to decide to withdraw my NTN unfairly, probably because they have anxiety about having me around due to my characteristics (an Iraqi doctor who suffered persecution due to her faith). This is clearly discriminatory because it is based on hidden agendas and self interests, rather than a fair assessment of me as a trainee.” This appears to be an allegation aimed at the NHSE and the training provider rather than the respondents and, in any event, the claimant concludes in her document that, “the only explanation for the employer’s approach described above is…[not a discriminatory motive based on a protected characteristic but]…a hierarchical priority rather than a commitment to justice”.[24]The third additional document is headed, “Review of the Preliminary Hearing bundle with responses 24/9/2025”, which contains further commentary from the claimant. There is a reference in that document to “harassment” and to a “discriminative approach pursued by both respondents” but no mention of any protected characteristic and no further explanation of how she had formed the view that that there was a discriminatory act falling within the ambit of the Equality Act 2010.[25]The tribunal was not convinced that there was any valid attempt to amend the claim form before it. It was not, in any of the documents to which our attention was drawn, spelt out in clear terms that the claimant was applying to amend her claims to bring additional complaints of discrimination based on her race, religion, or age. Nor was it explained why the claimant believed the alleged detriments were in some way related to her race, religion, or age. It was significant that those protected characteristics were not mentioned at all in her claim form, or at the earlier case management discussion of 6 June 2025. It seemed to be an afterthought which appeared several weeks after that tribunal drew her attention to the fact that, “in order to challenge a failure to address a grievance or to produce a reference there must be an allegation that that failure is either because of a protected characteristic, or because of a public interest disclosure or some other basis engaging one of the statutory provisions governing the Tribunal.”[26]Even if this tribunal had taken the view that there was a valid application to amend before it, it would not have granted leave to amend having consideration to the Selkent principles, including the balance of injustice and hardship test, and having particular regard to the fact that there was no meaningful explanation as to why any such application was made eleven months after presentation of the claim form, and a considerable time outside of the original time limit, and the basis of the alleged discrimination was still not properly particularised.[27]We have no doubt that the claimant genuinely believed that she was unfairly treated in relation to the rejection of her grievance and the omission of the respondents in providing her with a reference, but it does not follow that this is a matter for determination by an Employment Tribunal. Unfair treatment in itself is not something upon which the tribunal can adjudicate without an identifiable cause of action within its jurisdiction. We are not therefore required to dismiss any further claims since there are, in fact, no other valid claims before us. We simply record that the tribunal has no jurisdiction to hear the claimant’s remaining complaints.[28]Given our findings on the timing point, we were not required to assess whether there was no reasonable prospect of the claimant succeeding in an unfair dismissal claim:(1) against the First Respondent because her employment was conditional on her holding a place on a training programme and a National Training Number, which had been removed; and(2) against the Second Respondent because she was not the claimant’s employer. For completeness, however, the tribunal shall summarise its views on those issues.[29]In relation to (1), the claimant admitted that her training number was removed and that this led to her dismissal. It was less than clear, however, what influence the respondents had over that decision, and this would likely have required an examination of the evidence to properly assess reasonableness under section 98(4). On balance the tribunal’s view, prima facie, was that the claim was likely to have little reasonable prospect of success rather than no reasonable prospect, and therefore it is likely it would have been the subject of a deposit order.[30]In relation to (2), an unfair dismissal claim can only be pursued by an employee against their employer and, by the claimant’s own admission, the Second Respondent was not her employer. That claim had no reasonable prospect of success. Accordingly, the claims are dismissed.
Background
[1]The case was heard on 24th September 2025 and Judgment was reserved. The Reserved Judgment and Reasons, dated 4th November 2025, were sent to the parties on 14th November 2025. The claimant’s application for reconsideration was made on 25th November 2025, and comprised submission made on a two page document. The representations in relation to the timing point were simply, “the reasons provided for [the] delay were reasonable and justified” and “these explanations did not appear to be fully considered in the Tribunal’s decision”.[2]The reasons provided by the claimant, in relation to the delay in presenting the claim form, were set out at paragraph 17 of the Judgment. The tribunal also gave full consideration to the documents to which the claimant drew its attention (as referred at paragraph 2 of the Judgment). Having considered the documents, and the reasons provided, the tribunal were of the view that there was no reasonable prospect of the claimant being able to establish that it was not reasonably practicable to present the claim in time. The reasons for this finding are summarised at paragraph 18 of the Judgment. Case No. 6013543/2024[3]In her reconsideration application, the claimant has not presented any information or referred to any evidence from which the tribunal might form a view that a reconsideration application has any prospect of success.[4]Accordingly, the application for reconsideration has no reasonable prospect of success under Rule 70(2) and is dismissed. There must be finality in litigation.