Ms S Tronk v Portsmouth Hospitals University NHS Trust: 6018787/2025
EMPLOYMENT TRIBUNALS
Case No 6018787/2025
Between
Ms S TronkClaimantPortsmouth Hospitals University NHS TrustRespondent
Before
Employment Judge Mr P CadneyIn person for claimant- MS A AMESU (instructed by COUNSEL) for respondentDate 23 February 2026
JUDGMENT
[1]The judgment of the tribunal is that:- i) The claimant’s claim for race discrimination is dismissed on withdrawal; ii) The claimant’s claim for unfair dismissal is dismissed as having been presented out of time. (As stated orally if either party seeks written reasons for the judgment it must apply in writing within 14 days of the date on which this judgment is sent to parties) ---1--- Case No: 6018787/2025[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL 26TH JANUARY 2026 HELD AT: BRISTOL ON: EMPLOYMENT JUDGE MR P CADNEY MEMBERS: (SITTING ALONE) APPEARANCES:- FOR THE CLAIMANT:- IN PERSON FOR THE RESPONDENT:- MS A AMESU (COUNSEL)[4]The judgment of the tribunal is that:- i) The claimant’s claim for race discrimination is dismissed on withdrawal; ii) The claimant’s claim for unfair dismissal is dismissed as having been presented out of time. ---1---
REASONS
[1]Following the decision announced orally at the hearing, followed by the judgment having been sent to the parties, the claimant has requested full written reasons for the decision.[2]By a claim form presented on 20th May 2025 the Claimant brought the following complaints;(a) Unfair dismissal;(b) Race discrimination.[3]Race Discrimination - In the ET1 the claimant has brought claims of unfair dismissal and race discrimination, although the accompanying particulars make no reference to race discrimination. However, as is set out specifically in the claimant’s document “Claimant’s Position on the List of Issues”, she sets out that she is explicitly not pursuing any claim of discrimination under the Equality Act 2010, and is not relying on any arguments as to “comparators, continuing acts, or just and equitable extensions of time”; and that the sole claim is for ”ordinary” unfair dismissal pursuant to s98 ERA 1996. In addition in her case management agenda she confirmed that she is withdrawing the clam for race discrimination; which she also confirmed orally in this hearing, and which has been dismissed on withdrawal.[4]Unfair Dismissal - It follows that the only claim remaining is that of unfair dismissal; and that the time points discussed below, are only relevant to that claim.[5]Preliminary Issues - The hearing today was listed to determine the following issues:(i) Whether the claimant’s claims were presented within the time limit for bringing the claims;(ii) (If relevant) discuss the issues in the claim; and(iii) (If relevant) make further case management orders. In particular, the Tribunal will determine: 1. Whether the claims were presented within 3 months of the act complained of or the last of those acts, if they formed conduct extending over a period; 2. If not, in relation to the claims under the Employment Rights Act 1996 i. whether it was reasonably practicable to present the claim(s) in time; and ---2--- ii. if not, whether the claim(s) were presented within a reasonable period after the time limits expired ….[6]Time Limits- Section 111 Employment Rights Act (“ERA”) 1996 provides: A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, 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[7]Factual Background – The factual background as set out below is taken from the respondents Skeleton Argument. For the avoidance of doubt I am making no findings of fact as to the accuracy of all the assertions (since the underlying merits of the claim are not before me today) and it is simply designed to set in context my conclusions as the time issues which are the primary focus of this PH: 2. The Claimant was employed as a Band 5 Research Nurse from 1 October 2006 until her dismissal on the grounds of capability on 17 October 2024. 3. The Claimant had longstanding performance concerns dating back to October 2022, which were managed under the Respondent’s Capability Policy. A Performance Improvement Plan (“PIP”) was implemented in February 2023, but a formal performance review in May 2024 concluded that there had been no significant improvement. Ongoing issues included workplace relationships, organisational skills, and a lack of insight into her ability to meet the requirements of her Research Nurse role. 4. As a result, a Formal Capability Hearing was held in June 2024, following which the Claimant was dismissed from her substantive role on grounds of capability. She was offered the opportunity to seek redeployment into a suitable alternative role, with the redeployment period extended from 12 to 16 weeks due to her recovery from knee surgery. 5. In October 2024, the Claimant commenced a redeployment trial as a Staff Nurse in the Oncology and Haematology Outpatient Clinic. She was explicitly instructed not to take bloods or access patient lines until she had been ---3--- deemed competent and the appropriate documentation was in place. Despite this, she undertook both actions within two days of starting the placement. These actions raised serious patient safety concerns, and during a meeting with senior management it was noted that the Claimant did not appear to appreciate the seriousness of her conduct. As a result, the redeployment trial was terminated with immediate effect, and her employment was confirmed to end following the expiry of her notice period. 6. The Claimant appealed against her dismissal in October 2024, arguing that the sanction was unfair and failed to take proper account of her health issues. Although the appeal was submitted outside the usual timeframe, the Respondent agreed to hear it. An Appeal Hearing took place in February 2025, at which it was concluded that the Claimant had received extensive support but continued to perform below the required level and had not made sufficient progress under the PIP or capability process. The appeal was dismissed, and the Claimant was informed in February 2025 that there was no further right of appeal.[8]Chronology – It is not in dispute that: i) The claimant’s employment came to an end on either 17th October 2024 (respondent) or 24th October 2024 (claimant). For my purposes nothing turns on this and I will assume that the claimant’s date is correct; ii) The claimant submitted an appeal on 14th November 2024, which was dismissed by a letter dated 10th February 2025 following a hearing on 7th February 2025. iii) The ACAS EC dates were 29th April 2025 (date A) and 1st May 2025 (date B). iv) The claim was submitted on 20th May 2025.[9]Directions - Directions were also given for the agreement of a bundle and for the claimant to provide a witness statement in relation to the time limit issues, with which the parties have complied.[10]Claimant’s Witness Statement / Supplementary Witness Statement - In her witness statement the claimant advances the following propositions : i) The immediate aftermath of her dismissal on 24th October 2024 was a period of extreme confusion. She suffers from high blood pressure migraine and headaches for which she had been hospitalised in July 2023 during the performance process; “The shock of losing my job and professional identity so suddenly made it extremely difficult for me to think clearly or to take immediate ---4--- action”. “These circumstances explain the delay in beginning ACAS Early Conciliation and demonstrate that it was caused by ill health and distress, not neglect.”[11]The rest of her witness statements address the dismissal and process leading to it and allegations of inappropriate comments during a management meeting. I note that the witnesses statements and the claimant’s submissions focus very largely on the process leading to, and the decision to dismiss her, which she clearly feels was profoundly unfair. However as stated orally, I am not in this hearing concerned with the merits of the underlying claims, only the time points.[12]Oral Evidence – In the course of her oral evidence the claimant accepted that: i) She was aware of the ET and the time limits for presenting a claim; and ACAS and the means of contacting ACAS; ii) That she in any event had access to the internet; iii) She had access to her trade union, and was represented by her trade union in respect of her appeal which was live during the whole of the primary limitation period and concluded in February 2025; iv) Indeed she was as I put it orally, transparently honest, in accepting in crossexamination that it would have been reasonably practicable to have presented the claim in time.[13]The central reasons advanced for the delay in submitting the claim were the combination of her medical conditions, and that she was receiving conflicting advice. Some of her colleagues were pressing her to challenge her dismissal and bring a tribunal claim; whilst her sister was advising her that she should leave England and return to South Africa. In addition she was brought up not to challenge authority which bringing a claim would involve. She relies on the medical evidence in support of the contention that there was at least a medical component which impaired her ability to considering presenting a claim earlier than she did.[14]Medical Evidence- In the bundle there are Occupational Health Reports dated 18th July 2023, 25th January 2024, and 2nd May 2024 relating to long term absence for hypertension and severe headaches/migraines; and a total knee replacement; and other unrelated medical conditions.[15]In addition there are supporting medical reports / records dated 17th February 2022, 5th July 2023, and a list of attendances between January 2014 to 15th September 2023; a fit note dated 10th July 2023; and a discharge letter dated 18th March 2023 for a hospital attendance for palpitations and headaches following surgery 10 days earlier, fit notes and records from August 2024; and a home blood pressure monitoring chart from 20th October 2025. The claimant invites the tribunal to conclude from the surrounding medical evidence as to stress / hypertension that she was suffering an episode of stress induced hypertension during both the initial primary limitation period and the period thereafter, and was not sufficiently well during that period to have presented the claim ---5---[16]It follows, however, that there is no specific evidence covering the period 17th/24th October to 16th/ 23rd January 2025; or the subsequent period between the end of the primary limitation period and the submission of the claim.[17]Respondent’s Position - The respondent contends firstly that the claim was necessarily out of time : i) The primary limitation period expired on 23rd January 2025 at the latest; ii) The claimant does not get the benefit of any ACS EC extension as the EC process did not commence until 29th April 2025; iii) It follows that the claim was presented a few days less than four months out of time.[18]In my judgement this is clearly correct. and so the questions for me are: i) Whether it was reasonably practicable for the claim to have been presented by 23rd January 2025; and if not ii) Whether it was presented within a reasonable time thereafter.[19]In its skeleton argument the response sets out the following propositions of law :a. Section 111(2)9b) ERA should be given a ‘liberal construction in favour of the employee’ - Dedman v British Building & Engineering Appliances [1974] ICR 53, CA.b. What is reasonably practicable is a question of fact and therefore a matter for the Tribunal to decide - Walls Meat Co Ltd v Khan [1979] ICR 52, CA.c. The burden is on the Claimant to prove that the presentation of the claim in time was not reasonably practicable – Porter v Bandridge Limited [1978] ICR 943, CA.[20]The respondent submits that it was clearly reasonably practicable for the claim to have be presented in time: i) The claimant herself accepted in cross-examination that it would have been reasonably practicable to have submitted the claim in time, which is in and of itself sufficient; ii) Whilst the medical evidence demonstrates the history of the claimant’s conditions, and whilst it does not dispute that she may have been shocked to have been dismissed; there is no specific medical evidence supporting any assertion that there was a medical reason preventing or impeding her capacity to submit a claim during either the primary limitation period, or at any stage thereafter; iii) In evidence she accepted that she was aware of ACAS, the ET and the time limits for submitting a claim; ---6--- iv) That during the primary limitation period the claimant pursued an internal appeal dated 14th November 2024 which was submitted on her behalf by the RCN and in which she was supported by the RCN. The appeal hearing took place on 7th February 2025 at which she again was represented by the RCN. Thus at all relevant times she was both capable of pursuing the internal appeal and had the assistance of the RCN to do so. On that basis there can have been no impediment to her also being able to present a claim to the tribunal.[21]In the alternative the respondent submits that the claim cannot have been submitted within a reasonable time thereafter as there is no explanation for the nearly four month delay, and more specifically the delay from the 1st to the 20th May 2025 after EC had concluded..[22]Conclusions -As set out above I accept that the claim was necessarily submitted out of time; and I cannot identify any impediment which rendered it not reasonably practicable for the claim to have been presented in time. Central to this conclusion are firstly the facts that the claimant did submit and pursue an internal appeal with trade union support; and throughout the whole period was represented by the RCN. There was clearly no impediment to obtaining legal advice via her trade union at any point; and nothing to suggest that she could not also have submitted a tribunal claim with trade union support Secondly, she accepts that she knew of the process and time limits for bring a claim. Thirdly, whilst I accept that as a general proposition that the claimant suffers from stress induced hypertension, there is not in my judgement any, or any sufficient evidence, of any medical condition preventing her from submitting the claim at any point in the whole period whether during the primary limitation period; or in the period thereafter.[23]For completeness sake, even had I accepted that it was not reasonably practicable to have presented the claim within the primary limitation period, there is no evidence as to the delay thereafter; and therefore no evidential basis on which I could have concluded that it had been presented within a reasonable time thereafter.[24]It follows that I am bound to dismiss the claim as having been presented out of time. ---7--- EMPLOYMENT TRIBUNALS Claimant: Ms S Tronk Respondent: Portsmouth Hospitals University NHS Trust Before: Employment Judge P Cadney Representation: Claimant: Written Submission Respondent: Reconsideration Judgment The judgment of the tribunal is that- i) The claimant’s application to revoke or vary the Judgment is dismissed.[1]On 26th January 2026 I heard the preliminary hearing at which I dismissed the claimant’s claim for race discrimination on withdrawal; and the claim for unfair dismissal as having been presented out of time. The claimant has sought a reconsideration of the decision in respect of the dismissal of the unfair discrimination claim.[2]General Power - Rule 70 of the ET Rules gives the tribunal a general power on reconsideration to confirm, vary or revoke the original decision where it is in the interests of justice to do so. However that does not give the tribunal a completely freestanding discretion to reconsider or vary/set aside any judgment In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC accepted that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party 1 of 3 seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. Application[3]As set out across a number of emails, as I understand it, the claimant relies on three central points: i) That the medical evidence, whilst not directly relevant to the period in question, demonstrated she suffers from stress induced hypertension, and that the tribunal should have concluded that her dismissal would necessarily have triggered an episode of stress induced hypertension from the background medical evidence, and did not need specific medical evidence relevant to that period to draw conclusions in the claimants favour that she was prevented from bringing the claim because of stress induced hypertension. In addition she has supplied further medical evidence relating to a hospital admission after the hearing in January which demonstrates and supports her contention as to her reaction to stressful events. ii) The tribunal misapplied the legal test in relation to reasonable practicability. iii) If the claim is not permitted to go forward because of a “technical delay”, that it will result in a significant miscarriage of justice.[4]Medical Evidence – In my judgement neither the claimant’s further submissions nor the new medical evidence (even assuming that it is admissible) fundamentally alter the position. It remains true that there is no medical evidence that supports the contention that the claimant suffered an episode of stress related hypertension at any point between 24th October 2024 and 23rd January 2025; or between 24th January 2025 and 20th May 2025. The tribunal’s decision must be based on evidence, and there is no medical evidence supporting the claimant’s contention for any part of the relevant period, and necessarily not the period as a whole.[5]In addition it is demonstrably true that the claimant was able, within three weeks of her dismissal and with the assistance of her trade union, to submit and then prepare for and pursue an internal appeal. There is no evidence, or explanation from the claimant, as to how this was possible but submitting a claim to the tribunal was not.[6]She has also submitted a third witness statement which she invites me to take into account. In my judgement this would be wrong in principle as it is not a statement that was seen by the respondent, and it necessarily had no opportunity to cross-examine the claimant about it. It is however, extremely brief and relies on the further medical evidence in relation to her hospital admission after the hearing. Thus, even were it admissible it dos not appear to me fundamentally to alter any of the points made above. 2 of 3[7]Misapplied Legal Test – It is not clear what the claimant means by this. However in an email of 28th January 2026 the claimant refers to the “just and equitable” extension of time test. If she is asserting that the error lay in using the reasonable practicability test, and not the just and equitable test, she is incorrect. The reasonable practicability test (as set out more fully in the original decision, and encompassing both reasonable practicability within the primary limitation period and a reasonable time thereafter) is the correct test in relation to the unfair dismissal claim.[8]Miscarriage of Justice – The essence of the claimant’s point appears to be that she was treated very unjustly, and that she should not be prevented from bringing the claim because of a technicality in the timing of the submission of the claim. Unfortunately, at this preliminary stage I am only concerned with the time issue and not the underlying merits of the claim; and even if I considered the claimant to have a strong claim that would have no bearing on the outcome.[9]In the circumstances there is no basis for varying or revoking my earlier decision.