Ms M Love v Vascutek Ltd T/a Terumo Aortic: 8001903/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001903/2024
Between
Ms M LoveClaimantVascutek Limited t/a Terumo AorticRespondent
Before
Employment Judge L WisemanMr W Rollinson (instructed by Solicitor) for respondentDate 30 October 2025
JUDGMENT
The judgment of the tribunal is:(i) to grant, in part, the respondent’s application for strike out of the claim. The allegations set out at 3(f), (g), (j) and (l) of the further and better particulars are struck out in respect of both the complaint of direct discrimination and harassment; and(ii) to refuse the respondent’s application for a deposit order.
REASONS
[1]The claimant presented a claim to the Employment Tribunal in which she complained of discrimination because of the protected characteristic of race: colour (black) and nationality (Brazilian). The claims set out in the claim form were not clear and accordingly, at a preliminary hearing on the 4 February 2025, the claimant (who did not attend that hearing) was ordered to provide specification of her claim.[2]The claimant obtained legal representation and on 3 April, the claimant’s representative provided a completed Agenda and further particulars of the claim. The Agenda confirmed the claimant was pursuing complaints of direct discrimination (section 13 Equality Act) and harassment (section 26 Equality Act). The further and better particulars set out, at paragraphs 3(a) to (l) the less favourable treatment said to have occurred. The same acts set out at paragraphs 3(a) to 3(l) were also said to be the acts of unwanted conduct in the harassment complaint.[3]The respondent’s representative by email of 23 May 2025, made an application for strike out of the claim, failing which a deposit order. The claimant’s representative, by email of the 17 June 2025, responded to the application and noted objections to it. An Employment Judge decided a preliminary hearing should be arranged to determine the respondent’s application for strike out, failing which a deposit order.[4]The preliminary hearing today was arranged to determine the respondent’s application for strike out of the claim, failing which a deposit order. I heard submissions from both parties. (The claimant is no longer represented).[5]The respondent endeavoured to agree a file of documents for use at today’s hearing, but that proved not to be possible. Accordingly, the respondent submitted their documents and the claimant submitted her documents: both sets of documents were sent to the tribunal late on the day prior to this hearing and were not before the Employment Judge. The respondent’s representative shared his documents on screen and these could be viewed by the claimant and the Employment Judge. The claimant did likewise but her documents were not easy to see on the screen. The Employment Judge did however receive emailed copies of the claimant’s documents during her submission and had all documents before her (from both parties) at the time of writing the Judgment.[6]The claimant had previously referred to the need for an Interpreter at hearings. The claimant confirmed, at the start of this hearing, that she did not require an Interpreter and was content to proceed with the hearing without an Interpreter.[7]The respondent’s submissions focussed on the points set out in the claimant’s further particulars of claim and it is helpful to set out those particulars. Claimant’s further and better particulars of claim[8]Direct discrimination – the acts of less favourable treatment were particularised as follows:a. On the 12 August 2024, the claimant was dismissed for travelling abroad in violation of the Company’s Hybrid Working. The claimant was not aware of the company’s hybrid working policy and was not aware that working remotely from a location abroad was a violation of this. The claimant had previously been allowed to work from abroad in December 2024 and on other occasions and was not told this was prohibited under the company’s hybrid working policy.b. In or around July 2024, the claimant’s manager reported her to HR for allegedly breaching the company’s policy on remote working. The claimant was then accused of being dishonest about her working location without any direct communication or enquiry with her.c. On 11 July 2024, the claimant’s manager said that a question the claimant had asked in a remote workshop was irrelevant and had embarrassed her. The claimant had struggled to fully understand what was being said at points due to the language and accent barrier. When the claimant explained to her manager that her difficulty arose from the language and accent barrier, that claimant’s manager said that if she was not intellectually capable of understanding the discussion, she should refrain from asking public questions. The claimant’s manager said she had spoken to the Regulatory Affairs Manager who had agreed that she had caused embarrassment in the meeting as a lead representing her department.d. On the 13 May 2024, the claimant asked a question on Teams followed by a “?”. The claimant’s manager said this was considered to be passive aggressive in British culture and suggested that this might be the norm in her home country, Brazil, but not in the UK.e. In or around April 2024, the claimant was told to “stop faffing” by her manager whilst she was undertaking an extensive review of a lengthy report. The claimant explained to her manager that English was not her first language so she needed time to meticulously review the report and would deliver it within the stipulated timeframe.f. From March 2024 to July 2024 the claimant was ignored, interrupted and publicly demeaned in various teams meetings. Despite raising these concerns by email on numerous occasions, no improvements were made.g. From March 2024 to July 2024, the claimant faced challenges in arriving to work by 9am due to ongoing roadworks and there being no space in the car park either at her place of work or in the surrounding areas. As a result she was asked by her manager to clock in at a separate facility, clock out, park her car and walk 10 – 15 minutes to her usual place of work. This was despite her being able to log on for 9am at a remote working location, or start her shift earlier than that remotely, at 8am.h. Since February 2024 to around May 2024, the claimant was subject to multiple records of discussion (RODs) even where the low performance or errors were not her responsibility:- On or around February/March 2024 an error in a Japan report occurred whilst the claimant was on annual leave and was not handled by her, yet this was recorded as her responsibility in a ROD; There was an issue with a technical investigation document assigned directly to a team member. Despite this not involving the claimant, her manager and HR recorded the issue as a performance failure.i. From February 2024, the claimant was not permitted to contribute to the minutes of the RODs, which were solely recorded by the manager. She made a formal complaint to HR about this, but this was met with no remedial action.j. The claimant has been publicly embarrassed and wrongly accused of making errors in her work by her manager on the following occasions: from May to July 2024, the claimant’s manager sent emails to various members of staff alleging the claimant had incorrectly performed tasks assigned to her; the claimant was approved to issue a non-conformance, only to later be accused by her manager of not providing sufficient information and wrongly issuing the non-conformance notice. Despite the claimant’s attempts to clarify the situation her manager refused to discuss it further; the claimant was instructed to update the roles and responsibilities of a Senior Quality Engineer, which she later did after receiving approval from her manager. However she was later accused of misunderstanding the task and was forced to redo the work.k. In or around December 2023, the claimant was persuaded by her manager to forego pre-booked annual leave to work on project CAPA357. The company does not normally allow carry over, but the claimant was told by her manager at that time that she would be allowed to carry this leave over to the next year and take it at a later date. However, in February 2024, this pre-booked annual leave as cancelled by her manager and she was not permitted to take this at a later date.l. In or around November 2023, the claimant requested training on the Recall Process Handling. However her line manager informed her that this was beyond her scope, as it was exclusively handled by Senior Compliance Engineers and Managers. In January 2024, the claimant was instructed to lead a Recall process by the QA Director and QA VP. The claimant was publicly ridiculed by her manager to senior leadership, and her lack of training was not acknowledged.[9]The claimant relied on a hypothetical comparator for the purposes of the complaint of direct discrimination.[10]The claimant relied on the same alleged acts (of unwanted conduct) in the harassment complaint. Respondent’s submissions[11]Mr Rollinson took allegations 3(a) and (b) together and referred the tribunal to messages exchanged between the claimant and her line manager on Teams. On the 30 July 2024, the claimant’s line manager wrote: “hi monica can you make sure you [sic] connection issues are fixed today. There was problems in meetings yesterday. Is there works going on in the area”[12]The claimant responded to that the same day by stating: “Yes unfortunately work in the Charing Cross area affecting the broadband. I am getting my 5g. hope better but cant assure connection issue is fixed sharon. Is something out of my control.”[13]There was no dispute regarding the fact the claimant was, at the time she sent her response to her line manager, in Greece and not in Charing Cross, and had misled her line manager regarding her whereabouts. Mr Rollinson submitted the claimant had been dismissed for lying to her line manager, and the dismissal and appeal outcomes were consistent with this. There was no discriminatory reason for dismissal and accordingly no prima facie case.[14]Mr Rollinson, with regard to allegation (c) submitted there was no averment in the further particulars that this was or could be connected to race. The claimant herself had provided a reason for the exchange which was not related to race: the claimant acknowledged that the comments she made had allegedly caused her line manager embarrassment. In the circumstances this complaint had no reasonable prospect of success.[15]Mr Rollinson referred the tribunal to the contemporaneous documents regarding allegation (d). The first document referred to was an email from the claimant’s line manager to the claimant on the 13 May 2024, in the following terms: “Hi Monica, You may not be aware but asking someone a question and following up with a ? is not the best form of communication as its almost demanding an answer, very passive aggressive as if you are waiting for an answer. Can you stop doing this please? Thanks Sharon”[16]The claimant replied later that day as follows: “Hi Sharon Thank you for your feedback. Apologies if you have interpreted my question in that way. It was not what I mean and was not my intention. It is also not interpreted like that in my culture. I will be more vigilant. I don’t remember any other instance that I used this before, but thank you for the feedback. For some guidance, I have been noticing that my questions, queries, requests etc are not replied and team members questions, queries and requests are addressed. Maybe due the busy chats channel. I started to send more in individual emails, but I understand you have several critical email as well. Even completion of tasks is not acknowledged by you, so I am not receiving the correct guidance on how to progress. I understand that you are busy but if you can just acknowledge of let me know you will catch my question in another moment, I then know that was addressed. Thank you…”[17]It was submitted that there was no mention of culture, or Brazilian culture in the email from the line manager: it was the claimant who introduced the issue of culture. In the further particulars the claimant states it was her line manager who raised it, but this is not only incorrect, it is also misleading. Mr Rollinson submitted that by fundamentally misrepresenting the position in the further particulars, the claimant has acted in a manner that is scandalous and vexatious, in addition to the complaint having no reasonable prospect of success.[18]The respondent submitted that it was unclear how a comment to “stop faffing” amounted to direct discrimination or harassment because of the protected characteristic of race. Mr Rollinson noted that it was not sufficient to make an allegation of less favourable treatment (or harassment) and refer to the protected characteristic without more. On the basis of the further particulars provided, this complaint had no reasonable prospect of success.[19]The respondent submitted that allegation (f) lacked specification and it was not sufficient, in further particulars of a claim, to make allegations of being “ignored, interrupted and publicly demeaned” without providing details of when this occurred, where and who was involved. The claimant had been given an opportunity to provide clarification of her complaints and she had had the benefit of legal advice when submitting the further particulars. There was nothing in the further particulars to link the alleged action to race, or to explain the basis upon which this was maintained. This complaint had no reasonable prospect of success.[20]The respondent submitted that allegation (g) was not connected to race and the claimant herself had explained why she had been asked to park elsewhere. Mr Rollinson referred to contemporaneous documents (page 78 and 79) regarding the issue of parking, and invited the tribunal to note that the documents had been sent to all employees. It was submitted that there was a clear reason why all employees, including the claimant, had been asked to park elsewhere and that reason related to not parking on double yellow lines. In the circumstances the complaint had no reasonable prospect of success.[21]The respondent acknowledged that in respect of allegation (h), the claimant had been the subject of a number of informal meetings regarding her performance, all of which had been noted in the Record of Performance Improvement form. These were legitimate performance concerns and at no point did the claimant complain about this or refer to race. The further particulars do not explain how the allegation is connected to race. The complaint has no reasonable prospect of success.[22]Mr Rollinson submitted that allegation (i) was wholly lacking in specification. The respondent acknowledged the claimant requested some matters be noted and she did send some documents to HR (see page 97). However, there was no grievance regarding this matter and no formal complaint to HR. The claimant, in suggesting otherwise in the further particulars was misrepresenting the position.[23]The respondent, with regards to allegation (j), submitted the further particulars lacked detail and even taken at their highest, did not disclose anything to suggest that if this happened it was connected to race.[24]The respondent submitted that with regards to allegation (k), the claimant had benefitted from more favourable treatment in being allowed to carry forward annual leave, which was not permitted by the respondent’s policy. The suggestion was that the claimant’s line manager had subsequently reneged on this, but there was nothing to suggest that this had been connected to race, or to explain why it was said it was connected to race. Mr Rollinson referred to the appeal outcome letter (page 51 – 63) and to the contemporaneous emails at pages 168/169 which demonstrated that the position was that it had become impossible for the line manager to track the leave.[25]Mr Rollinson reiterated the respondent’s position that it was not enough for the claimant to have a protected characteristic and argue that any treatment she perceived as unwanted or unfavourable must be because of that characteristic.[26]The final allegation (l) had no reasonable prospect of success because there was nothing to suggest it was connected to race, particularly in circumstances where the claimant had given a non-discriminatory reason for what had happened.[27]Mr Rollinson next addressed the tribunal regarding the relevant authorities to be considered. He acknowledged there was a high hurdle to overcome, particularly in discrimination cases, before a strike application would be granted; however, there was no absolute bar to striking out claims.[28]Mr Rollinson referred Croke v Leeds City Council 2008 5 WLUK 647; Bolch v Chipman 2004 IRLR 140; ABN Amro Management Services Ltd v Hodgen 2009 11 WLUK 516; Ahir v British Airways plc 2017 EWCA Civ 1392; Cox v Adecco 2021 ICR 1307; Garcia v British Airways plc 2022 EAT 14; Kaul v Ministry of Justice 2023 UKEAT 41 and Kostrova v McDermott 2025 EAT 35.[29]Mr Rollison submitted tribunals should not be deterred from striking out a claim if there is no reasonable prospect of success of liability being established on the facts. Further, the claimant’s case was conclusively disproved by the contemporaneous documents and in those circumstances the tribunal should strike out the claim.[30]Mr Rollinson invited the tribunal to strike out the claim in its entirety, or any individual allegation as set out in the further particulars. He submitted that should the tribunal decide not to strike out all or any part of the claim, then a deposit order should be made as a condition of the claim proceeding. The claimant was working and earning a comparable salary and the respondent sought a deposit of £1000 for each allegation, failing which £1000 for each head of claim. Claimant’s submissions[31]The claimant in her submissions reiterated the allegations and insisted that she had documentation recovered through a DSAR which supported her position and that whilst it might not have been stated or referred to in the further particulars, there was evidence that the reason for the less favourable treatment and unwanted conduct was race. For example, in relation to allegation (d) there was a witness who would support her claim that her manager had commented verbally to her that “it may not be a thing in your country”.[32]The claimant referred to the cases of Anyanwu v South Bank Student Union 2001 ICR 391; Igen v Wong 2005 ICR 931 and Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 UKHL 11.[33]The claimant invited the tribunal not to strike out her claim and submitted a claim should not be struck out unless it was obviously bound to fail.[34]The claimant confirmed she was in employment and earned £56,000 per annum. The claimant has outgoings per month of £632 for a mortgage; £241 for council tax; £120 for gas/electricity; £70 for phone; £60 for broadband; £230 after school and £900 for her daughter’s various activities.[35]I, in addition to the claimant’s oral submission, also had regard to the response to the respondent’s application for strike out which was submitted by the claimant’s legal representative at the time. Discussion and Decision[36]I referred firstly to the Employment Tribunal Rules of Procedure 2024 and Rules 38 (strike out) and 40 (deposit order). Rule 38 provides that the tribunal may strike out all or part of a claim on the following grounds: (a) that it is scandalous or vexatious or has no reasonable prospect of success ….[37]Rule 40 provides that where the tribunal considers that any specific allegation or argument in a claim has little reasonable prospect of success, it may make an order requiring a party to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument.[38]I noted the respondent’s application for strike out of all or part of the claim was made under rule 38(1)(a).[39]I next referred to the case of Kostrova v McDermott International Inc 2025 EAT 35 where it was said that the principle that discrimination cases should not be struck out except in the clearest of circumstances was well established (Anyanwu (above), Ezsias v North Glamorgan Trust 2007 ICR 1126, Chandok v Tirkey 2015 ICR 527 and Mechkarov v Citibank NA 2016 ICR 1121). The President of the EAT went on to say that each of these cases highlighted the limitations of the strike out procedure where there are disputes over material facts. He acknowledged there may be cases where central facts are undisputed or the claimant’s averments in the pleadings are untrue, but other than in such cases, it will usually be an error of law for a tribunal to preempt the determination of a full hearing by striking out a claim in which material disputed issues of fact arise.[40]I, having had regard to this case, also acknowledged Mr Rollinson’s submission that there was no absolute bar on the striking out of discrimination claims and that tribunals should not be deterred from striking out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established (Ahir v British Airways plc 2017 EWCA Civ 1392).[41]I noted, having had regard to the above cases and the case of Cox v Adecco 2021 ICR 1301 that I must consider whether there are core facts in dispute and, for this purpose must carefully read the pleadings. I must also, for the purposes of this hearing on strike out, take the claimant’s case at its highest (Mechkarov above). This means examining the pleaded facts and for the purposes of the strike out hearing assuming the claimant’s version of any key disputed facts is correct. However if the case is conclusively disproved by, or is totally and inexplicably inconsistent with, undisputed contemporaneous documents, then it might be appropriate to strike out.[42]I next turned to consider the parties’ respective submissions. The claimant’s first allegation of less favourable treatment related to her dismissal for travelling abroad in violation of the respondent’s Hybrid Working policy. The claimant asserted she had previously been permitted to work abroad on other occasions. The claimant further asserted she had not been aware of the Hybrid Working policy. The Employment Judge understood that the issue was not that the claimant had “travelled” abroad but that she had been working abroad without her line manager’s knowledge and consent and had been dishonest about her whereabouts when challenged by her line manager.[43]I accepted the respondent’s submission that the contemporaneous documents showed the claimant had been asked about connection issues and whether there was work going on in the area, and had replied that work in the Charing Cross area was affecting the broadband. The claimant did not dispute (at today’s hearing or in the response to the application or in correspondence) that at the time of these messages being exchanged, she was in fact in Greece.[44]I must take the claimant’s case at its highest and so for the purposes of this hearing it is assumed the claimant had no knowledge of the respondent’s Hybrid Working policy and that there had been previous occasions when she had been permitted to work abroad. I considered that notwithstanding these points, the contemporaneous documentation showed that the claimant was dishonest regarding her whereabouts and was dismissed for that reason.[45]The claimant, in pursuing this allegation, will require to demonstrate that a hypothetical comparator who acted as the claimant did, but who did not have the claimant’s protected characteristic, would not have been dismissed. There was nothing before the tribunal to indicate what the claimant may rely upon to demonstrate this. Mr Rollinson, in his submission, repeatedly made reference to the fact that it is not enough for the claimant to point to alleged less favourable treatment and a protected characteristic, without more. I accepted Mr Rollinson, in making this submission, was correct. However, I must have regard to the fact there are clearly facts in dispute (such as whether there had been previous instances when the claimant had worked abroad and, if so, whether these were with/without her manager’s consent). I also had regard to the fact the claimant had not been directed to provide information regarding the “something more” referred to by Mr Rollinson.[46]I concluded, having regard particularly to point that there are material facts in dispute, concluded that it could not be said there was no reasonable prospect of this allegation being successful.[47]I concluded with regards to allegation (b) that there was a material factual dispute whether the claimant’s line manager reported her to HR and accordingly this would have to be a matter of evidence for the tribunal.[48]I reached a similar conclusion regarding allegation (c): there is a factual dispute which can only be resolved by a tribunal hearing all of the evidence and making findings of fact.[49]I concluded, in relation to allegation (d) that whilst the contemporaneous documents showed the line manager did not make a reference to culture, the claimant, in her submission today, suggested the line manager had made the comment verbally and that she had a witness to support this. In the circumstances there is a material factual dispute and accordingly this matter should proceed to a hearing.[50]I noted with regards to allegation (e) that the comment to “stop faffing” was an allegation not admitted by the respondent. There is, accordingly, not only a dispute regarding whether this comment was made, but also a dispute whether this amounts to less favourable treatment and whether a hypothetical comparator, taking the time the claimant was taking to do the task, would have been treated in the same way. These are matters upon which evidence will require to be heard.[51]The allegation at (f) is wholly lacking in specification. I noted the claimant was ordered to provide further and better particulars of her claim, and that she did so with the benefit of legal advice. The difficulty with the further particulars provided is that they provide no details of the complaint being made beyond a general assertion of being ignored, interrupted and generally demeaned in meetings. There is no detail regarding when this allegedly happened, what was said/done and who was involved. Furthermore, there was also reference to the claimant raising these concerns and there being no improvement. It is not possible, based on the information provided, to understand whether this is also part of the complaint and, if it is, there are no details regarding to whom the claimant complained, when and what was said/done.[52]The whole purpose of providing further particulars is to provide the detailed information required to allow the respondent to understand the claim it must meet, and to allow the tribunal to understand the complaint. This, on the basis of the information provided, was not possible. There is, taking the claimant’s case at its highest, nothing more than a general assertion of less favourable treatment and on that basis I concluded this complaint had no reasonable prospect of succeeding.[53]The respondent, in relation to allegation (g), accepted the claimant had been told not to park on double yellow lines. The respondent’s position was that parking on double yellow lines was an issue with all staff and that the documents produced (pages 78 and 79) demonstrated that this issue and the direction to park elsewhere was raised not only with the claimant but with all associates.[54]The claimant did not, either in the response to the application or at today’s hearing, dispute that the respondent had written to all associates in those terms and accordingly it appeared to be a matter of agreement that the claimant received the same instruction regarding parking, and for the same reasons, as all other associates. I was therefore satisfied that the basis upon which the claimant asserts she was treated less favourably was completely unclear. I concluded that in circumstances where the claimant does not dispute she received the same instruction as other associates, her complaint of less favourable treatment had no reasonable prospect of success.[55]I considered, in relation to allegation (h) that there appeared to be no dispute regarding the fact the respondent had legitimate performance concerns which it raised with the claimant at various meetings and records of discussion (RODs) were made of those meetings. I further considered that the issue of whether errors were the responsibility of the claimant (directly or as team leader) would be a matter for the tribunal hearing the evidence.[56]I considered, in relation to allegation (i) that there is a factual dispute between the parties: for example, the claimant alleged she made a formal complaint to HR, whereas the respondent’s position was that any approach to HR was informal and that a resolution was proposed. There does appear to have been an issue regarding the recording of comments at RODs and, on that basis, I considered a tribunal would require to hear the evidence about this.[57]I considered, in relation to allegation (j) that the same comments as set out above in respect of allegation (f) apply here and, for those same reasons, I consider this allegation had no reasonable prospect of success.[58]I considered in relation to allegation (k), that there is a material factual dispute regarding this matter and it will be important for a tribunal to hear evidence to determine the reason why the annual leave carried forward was cancelled.[59]I considered, in relation to allegation (l), that it was completely unclear what was being advanced by the claimant. I say that because at this hearing the claimant put forward a different factual basis for the claim, which was that two members of staff who were junior to her were offered the training. I concluded, on this basis, that the claim as set out in the further particulars had no reasonable prospect of success and I say that because it appeared that what was in the further particulars did not reflect the claim the claimant wished to pursue.[60]I next turned to consider whether the allegations which had no reasonable prospect of success (allegations f, g, j and l) should be struck out and I concluded they should be struck out. I reached that decision because whilst strike out is a draconian measure, I considered it proportionate to strike out the elements of the claim which have not been particularised in circumstances where the claimant (who was legally represented at the time) has not been able to set out particulars of the claim beyond a general assertion. I also, in reaching my decision, had regard to the fact that the key issues in this case will proceed to be determined at a final hearing.[61]I decided to grant the respondent’s application to strike out part of the claim and, in respect of the complaints of direct discrimination and harassment, allegations (f), (g), (j) and (l) are struck out. The remaining allegations will now proceed to a final hearing.[62]I decided, for the reasons set out above, to refuse the respondent’s application for a deposit order.