Ms K Ward v South Devon NHS Foundation Trust: 6013800/2024

EMPLOYMENT TRIBUNALS

Case No 6013800/2024

Between

Ms Katie WardClaimant

South Devon NHS Foundation TrustRespondent

Before

Employment Judge C H O’Rourke

In person for claimant

Ms A Chute - counsel for respondent

Date 28 November 2025

JUDGMENT

[1]The Claimant’s application to amend her claim to include a claim of harassment, on the grounds of disability, is granted.

[2]The Claimant’s application to amend her claim to add a claim of detriment and automatic unfair dismissal on grounds of protected disclosure is refused.

[3]The Respondent’s application for strike out of the Claimant’s claim of constructive unfair dismissal, on grounds of no reasonable prospect of success is refused, but a supplementary application for a deposit order is granted. Employment Judge O’Rourke 28 November 2025 23 December 2025 Note - Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing, or a written request is presented by either party within 14 days of the sending of this written record of the decision.

[1]The Claimant was employed by the Respondent as a clinical governance coordinator. She resigned on 13 May 2024 and brought a claim to the Tribunal on 3 October 2024 alleging constructive unfair dismissal. She provided further and better particulars of her claim(s) on 17 February 2025, a ‘timeline’ of events, on 2 March and, on 12 March, a document setting out the nature of the alleged breaches of contract in respect of her claim of constructive unfair dismissal.

[2]She subsequently, on 24 April 2025, sought to amend her claim, (now clarified) to include claims of detriment/automatic constructive unfair dismissal on grounds of protected disclosure and harassment related to disability, which application was resisted by the Respondent [70]. In turn, the Respondent applied to have her claim of constructive unfair dismissal struck out, as having no reasonable prospects of success, or in the alternative that a deposit order be 1 of 6 made, on the basis that it has little reasonable prospects of success. Those issues were listed for hearing today.

[3]At the outset of the Hearing, the Claimant confirmed her claims to be of constructive unfair dismissal and (subject to amendment), the protected disclosure and harassment claims set out above.

[4]I was provided with a joint bundle of documents, as well as a supplementary bundle. I heard evidence from a Mr Kenny Naughton, a senior manager in the Trust, who oversaw a grievance brought by the Claimant on 20 May 2024. However, as his involvement postdated the date of resignation, it had no real relevance to the Claimant’s claim of constructive unfair dismissal (automatic or otherwise), and he was not involved in the alleged acts of unwanted conduct related to disability. He was not subject to cross-examination. The Law

[5]Selkent Bus Co Ltd v Moore

[1996] ICR 836

sets out general principles both as to the procedure to be followed and the criteria governing the ET’s exercise of discretion as to whether to allow the amendment. Regarding discretion, Selkent emphasised that the ET: “should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

[6]The relevant factors include:a. those listed in the Presidential Guidance on Case Management (the Guidance”, which in turn emanates from Selkent;

b. the nature of the amendment;

c. the applicability of time limits;

d. the timing and manner of application; and, if appropriate

e. the merits of the proposed amended claim.

[7]It being clear that both proposed amended claims are out of time, (ten months after the events in question and six months after presentation of the claim form) time limits will need to be considered, the test for an extension of time being one of it ‘not being reasonably practicable’ to present the claim in time (in respect of the protected disclosure claim) and whether it would be ‘just and equitable’ to extend time, in respect of the claim of harassment.

[8]Ms Chute made extensive reference to the relevant authorities in her skeleton argument, to which I have taken account.

[9]The Tribunal’s power to strike out a claim is set out in Rule 38 and that for a deposit order in Rule 40(1). In respect of strike out, Sajid v Bond Adams LLP Solicitors

[2016] UKEAT 0196_15_0306 (EAT)

indicated that exercise of that would power would not be appropriate where there is a serious dispute on the crucial facts - it is not for the ET to conduct an impromptu trial of the facts: Tayside Public Transport Co Ltd v Reilly

[2012] IRLR 755

, Ct Sess. Rather, 2 of 6 the ET will ordinarily examine the pleaded facts and assume that the claimant's version of any disputed facts is correct (unless there is a compelling reason not to do so). Submissions

[10]I heard extensive oral submissions from both parties and as stated, Ms Chute had provided a detailed skeleton argument [36]. I consider those submissions within my conclusions below. Conclusions

[11]Application to Amend the Claim. I considered the following factors of relevance:a. Time Limits. There is no dispute that both claims are considerably out of time and that therefore I needed to consider whether I should exercise my discretion to extend time. The reasons given by the Claimant for her failure to bring those claims in time was that she did not have all the information she needed to do so, until disclosure of documentation by the Respondent in early April 2025; that she is a litigant in person and did not understand the parameters of the claims available to her; that she did not realise that more space was available to her on the claim form than the two additional pages she presented and that she was in in illhealth throughout the relevant period. I am not satisfied that the Claimant has provided satisfactory explanations for the delay, for the following reasons: i. It was unclear to me why the Claimant needed to see the additional disclosure from the Respondent before deciding that she should bring these additional claims. She knew that she had made a complaint of bullying, which she considers to be a protected disclosure and that subsequently, she states, as a consequence, she was obliged to resign. She also, in respect of the claim of harassment, knew that she was in ill-health/disabled and on sick leave and that despite that she was being required to attend face to face meetings. I don’t see, therefore, that the Claimant needed any further information that may have been contained in the Respondent’s disclosure to consider that she had these claims (and indeed she did not refer to the detail of any such information). ii. The vast majority of claimants in this Tribunal are litigants in person, many less literate than the Claimant (as evidenced by her extensive correspondence to the Tribunal and the Respondent) and many even who do not have English as their first language, but they nonetheless manage, in general terms, to set out their claims in their ET1, perhaps subsequently requiring some clarification. They also often provide multi-page particulars of claim attached to their claim forms and therefore I don’t see why the Claimant considers that she was limited to two pages. In any event that would not have stopped the Claimant 3 of 6 from ticking the boxes in the claim form for ‘discrimination’ and ‘disability’ and ‘I am making a whistleblowing claim ..’, with perhaps one-line explanations of those claims in her particulars, but which she did not. I consider that she would have done so had she genuinely thought that she had been treated in such a way as to justify such claims. I note also that she had professional legal advice in the drafting of her further and better particulars, dated 17 February 2025 [36], two months earlier, but which made no reference to these additional claims, strengthening my view that they are an afterthought, brought in now in an attempt to bolster or broaden her claim. iii. The Claimant provided no medical evidence as to her alleged ill health during the relevant period, which may have influenced her inability to bring the additional claims at an earlier point.

b. Exercise of Discretion to extend Time. I find as follows: i. Protected Disclosure. For the reasons set out above, it was clearly reasonably practicable for the Claimant to have brought this claim within time, but she failed to do so, and I therefore do not extend time to permit this claim to be brought. ii. Harassment. It may, depending on my decision in respect of other factors, be just and equitable to extend time in respect of this claim, that being only one element of my considerations.

c. Nature of the Proposed Amendments. Both proposed amendments are for the bringing of entirely new claims, entirely unreferenced in the claim and subsequent further and better particulars and related documentation.

d. Merits of the Claims. I find as follows: i. Protected Disclosure. I don’t consider that the Claimant will meet the ‘public interest’ requirement, or establish a breach of the law by the Respondent, as required by s.43B of the Employment Rights Act 1996. This was a private, seemingly personality-driven dispute between her and the Respondent’s managers, with no wider ramifications for the public in general. The belated assertion made by her in this hearing that the managers’ alleged behaviour towards her had implications for patient safety is entirely fanciful. This claim, therefore, has little merit. ii. Harassment. In respect of this claim, the position is less clear. I don’t know if the Claimant would meet the definition of disability and whether such acts as she alleges would constitute harassment and therefore there is at least potentially some merit to this claim.

e. Balance of Prejudice. I find as follows: i. Protected Disclosure. In respect of this claim, the balance falls in the Respondent’s favour. Further evidence will need to be gathered, and 4 of 6 additional witnesses sought and the Respondent would have to do this, to face what I consider to be an unmeritorious claim. The Claimant continues to have a claim of constructive unfair dismissal, covering much of the same ground, so the prejudice to her is minimal. ii. Harassment. The balance of prejudice in this case falls in the Claimant’s favour. If disallowed, she would be disbarred from bringing a potentially valuable claim. The Respondent, on the other hand, will be dealing with very discrete, narrow allegations, perhaps requiring the calling of limited additional evidence as to the reason for the calling of three meetings over a two-week period. The Claimant may not, in any event, in due course, meet the definition of disability.

[12]Decision on Amendment. Considering all of those factors and placing them within the balancing exercise, I find, therefore, that the application to amend the claim to include a claim of detriment/automatic unfair dismissal on grounds of protected disclosure is refused, but that the application to amend in respect of the claim of harassment connected to disability is allowed.

[13]Respondent’s Application for Strike Out/Deposit Order in Respect of the Constructive Unfair Dismissal Claim. Having heard submissions from both parties I made a deposit order in respect of this claim, the reasons for which are set out in that Order, of 28 November 2025. I refused the Respondent’s application for strike-out of the claim, for the following reasons:a. Reliant on Sajid v Bond Adams LLP Solicitors, there is a dispute as to relevant facts in this matter, which I am not in a position to resolve. I am conscious of Ms Chute’s submissions that there is a range of contemporaneous documentation in the hearing bundle that counters the Claimant’s account of events and that the Claimant had the opportunity to provide her own documentary evidence, but having belatedly provided only some such documentation, now seeks to rely on documents that she states support her case, but which are not before this Tribunal. I note, also, that she declined to provide witness evidence, which opportunity was afforded to her. This is, however, an area where the Claimant’s position of being a litigant in person is relevant. The law and practice in respect of such applications and their handling at preliminary hearings is not straightforward and litigants-in-person, facing legal professionals, are obviously disadvantaged. The Claimant has decided that the Respondent has conspired against her, with such conspiracy extending into the conduct of these proceedings and she is therefore inherently suspicious of the Respondent’s motivations in the case management of this case. The Respondent having instructed solicitors and they, in turn, counsel, both of whom have professional standards to maintain and who have a duty of candour to the Tribunal, the Claimant is not entitled to continue to harbour such misconceptions and unfounded allegations by her of deceit or malpractice, if continued, may constitute vexatious, abusive or unreasonable behaviour on her part, justifying a costs order. She should not, therefore, in future, seek to rely on such misconceptions on her part, to excuse a failure to co-operate with case management. 5 of 6

b. While the Respondent both now (and at the final hearing) seeks to rely on the contents of meeting notes, or correspondence to support their case, the Claimant disputes the provenance of some of that documentation, asserting that it is either incomplete, or not disclosed to her at the time, or even retrospectively fabricated. I am not in a position to determine such matters.

c. I am also obliged to take the Claimant’s case at ‘its highest’. In this respect, I note that the Respondent admits that the ‘I could do your work in 4/5 hours a week’ comment was made (in the context of the Claimant spending 35 hours doing that work) and which the Claimant said she found demeaning. While the Respondent contends that this comment has been taken out of context and is not open to the interpretation given to it by the Claimant, I can’t see how that issue can be resolved without hearing witness evidence in relation to it. There is also a factual dispute as to whether or not an undisclosed redundancy exercise related to a section of the workforce, or to the Claimant alone. Further, the Respondent said that they conducted a ‘dip test’ into the Claimant’s allegations and found nothing, but that is surely no substitute for a thorough examination of the evidence, both documentary and oral, in a tribunal hearing.

[14]Judgment. Judgment is therefore as follows:a. The Claimant’s application to amend her claim to include a claim of harassment, on the grounds of disability, is granted.

b. The Claimant’s application to amend her claim to add a claim of detriment and automatic unfair dismissal on grounds of protected disclosure is refused.

c. The Respondent’s application for strike out of the Claimant’s claim of constructive unfair dismissal, on grounds of no reasonable prospect of success is refused, but a supplementary application for a deposit order is granted. C H O’Rourke 17 January 2026 13 February 2026 6 of 6