C Echendu (as Personal Representative of the Estate of Dr O Iwuchukwu) v Lewisham and Greenwich NHS Trust and Ms G Leeks: 2300083/2023
| Jurisdiction | England & Wales |
| Judgment Date | 11 December 2023 |
| Date | 11 December 2023 |
| Citation | 2300083/2023 |
| Court | Employment Tribunal |
| Published date | 05 January 2024 |
| Subject Matter | Disability Discrimination |
Case Number: 2300083/2023
PHCM Order
1 of 40
September 2023
EMPLOYMENT TRIBUNALS
Claimant: Christian Echendu (as personal representative of the Estate of
Dr. Obiukwu Iwuchukwu)
Respondents: (1): Lewisham and Greenwich NHS Trust (2) Ms G. Leeks
Heard at: London South (by CVC) On: Friday 17 November 2023
Before: Employment Judge G Phillips
Appearances
For the claimant: In person
Respondent: Ms R Snocken, of Counsel
JUDGMENT
1. For the reasons given below, the ET1 is struck out in its entirety because, in regard
to the existing claims made therein, and the new claims that have subsequently been
identified, either (1) the Tribunal has no statutory jurisdiction to hear them; and/or (2)
they are out of time; and/or it is not just and equitable to extend time; and/or it was
reasonably practicable for them to have been submitted within time; and/or they were
not submitted within such further reasonable time.
REASONS
1. This was an open public preliminary hearing to consider the Respondent’s
applications as to whether
a. the Tribunal has jurisdiction to hear the claims under s 13 of Employment
Rights Act 1996; and/or under the WTR (“the Jurisdictional issue”)
b. as a matter of law, it was possible for the estate of a deceased person to
claim that it has been victimised within the meaning of Equality Act 2010,
s. 27 (“the Victimisation Issue”);
c. the claims were out of time, and whether time could be extended (“the
Timing issue”); and
d. the Claimant should be permitted to amend the Claim to add the new
claims identified at the October CMH (“the Amendment Issue”).
Case Number: 2300083/2023
PHCM Order
2 of 40
September 2023
Introduction
2. This is, I acknowledge, a lengthy decision, but this case encompasses some
novel issues and required some complex analysis of the relevant legal issues as well as
the procedural landscape behind, and the factual matrix to, the case. I was also referred
to very comprehensive lists of authorities from both sides. In order to do justice to the
arguments that were advanced by the parties, and the reasoning behind my decisions,
it was necessary to go into some matters in quite considerable detail.
Background
3. Mr Echendu is the estate administrator for Dr Obiukwu Chigozie Iwuchukwu,
who was employed from 17 June 2019 as a consultant breast surgeon at the
Respondent hospital trust, via a “Bank” contract, until his death on 24 August 2021. Prior
to starting his employment with the Respondent, Dr Iwuchukwu had restrictions placed
on his practice by the General Medical Council (GMC) to the extent that he must be
supervised by a fellow consultant surgeon in the same organisation.
4. Prior to commencing his employment with the Respondent, the Claimant
says that Dr Iwuchukwu had been diagnosed with hypertension, mixed anxiety
(depressive disorder), sleeping apnoea and had had epilepsy/seizures in 1997 and
2016. The Claimant alleges that Dr Iwuchukwu was subjected to excessive workloads
whilst working at the Respondent, which he says caused or contributed to his death.
5. Mr Echendu submits that, by virtue of section 1(1) of the Law Reform
(Miscellaneous Provisions) Act 1934 (‘the 1934 Act’), all causes of action vested in Dr
Iwuchukwu survived or, as the case may be, were for the benefit of his estate, and were
transferred to Mr Echendu, so that all the causes of actions could be continued by him
as the appointed personal representative of Dr Iwuchukwu. Some of the acts Mr
Echendu relies upon “started during [Dr Iwuchukwu’s] life time” and others, he submits,
continue as a “continuing state of affairs”.
6. Mr Echendu’s ET1 was dated 6 January 2023. At box 8.2 of the ET1, Mr
Echendu stated that the claims he was bringing were “race/disability discrimination,
victimization, common law negligence causing death, holiday pay and arrears of
payment”.
7. There are a number of “groups” of claims in this case, relating to disability
discrimination, race discrimination, various money claims (which appear to relate to both
prior to Dr Iwuchukwu’s death and arising upon his death), and victimisation claims in
relation to acts occurring after Dr Iwuchukwu’s death. It appears that only the latter group
of claims is made against the Second Respondent, whereas all of the claims are also
made against the First Respondent. For ease of reference, I will refer throughout this
judgment to the First Respondent as ‘the Respondent’.
8. ET3/Grounds of Resistance were submitted on behalf of both Respondents
on 8 March 2023. In its ET3/Grounds of Resistance, the Respondent did not admit that
Dr Iwuchukwu was disabled within the meaning of Section 6 of the Equality Act, nor that
he had been discriminated against or victimised (as alleged or at all). The Respondent
also stated that the Claimant had failed to identify any detriment to which Dr Iwuchukwu
could have been subjected and said that the Tribunal had no jurisdiction in relation to a
Case Number: 2300083/2023
PHCM Order
3 of 40
September 2023
complaint of victimisation committed against the Claimant himself. The Respondent also
did not admit that it made unauthorised deductions from Dr Iwuchukwu’s wages contrary
to Section 13 of the Employment Rights Act 1996, whether in respect of arrears of
salary, or in respect of the underpayment of holiday pay.
9. The Respondent also in its ET3/Grounds of Resistance made complaint that
a number of the Claimant’s claims were not properly or fully particularised (para 17). It
also raised issues relating to the need for an Open Preliminary Hearing to consider a
Strike Out and/or a Deposit Order of the claim (Rule 37(1)(a) and/or Rule 39 of the
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘the
Tribunal Rules’)) on the basis of the claim having, it said, no or little reasonable prospect
of success on the grounds that: (i) matters complained about were out of time; and/or
(ii) the Tribunal had no jurisdiction to consider a common law negligence claim in respect
of personal injury to Dr Iwuchukwu. The Respondent also sought the removal of the
Second Respondent as a named individual Respondent, on the grounds that (1) Ms
Leeks did not commence employment at the Trust until December 2021 (after Dr
Iwuchukwu’s death); (2) her involvement in the matter was limited to responding to a
complaint made by the Claimant that the Respondent had not updated the NHS England
Pension team with Dr Iwuchukwu’s payroll information and this was carried out in the
course of her employment; and (3) that the Respondent trust accepted vicarious liability.
10. After the ET3 had been served, a Notice of Listing was sent to the parties in
March 2023, listing the case for a 5 days hearing in October 2024, and setting out a
suggested set of Case Management Orders, which included that the Claimant must, by
17/11/2023, send to the Respondent a Schedule of Loss. A 2-hour preliminary hearing
was also listed for 27 October 2023.
11. On 18 October 2023, Mr Echendu indicated that he was withdrawing the
common law negligence claim.
12. On the same date, Mr Echendu also submitted his response to the
Respondent’s request for further better and particulars (para 17 of the Grounds of
Resistance). He also indicated that he was “tentatively apply[ing]” under Rule 30 of the
Tribunal Rules for amendments of claim “should there be any issue raised in the details
of claims document provided”. In this document, the Claimant said he was appointed by
the High Court in London as a personal representative on 16 August 2022. Most of the
particulars supplied related to Dr Iwuchukwu’s time working for the Respondent, (which
I do not need to go into in the details of here for the purposes of determining the
applications before me). In this document, Mr Echendu also set out further details ((a)
to (k)) of the claims he said he was making. These included that the victimisation claim
was based on a number of events that post-dated Dr Iwuchukwu’s death (including the
disregarding of a letter Mr Echendu had sent on 7 September 2022, and a refusal to
provide payroll information to the NHS pension team).
13. All of the Claimant’s claims - both as made in the ET1 and as made in the 18
October details of claims document - were clarified at a Case Management Hearing on
27 October 2023, (the ‘October CMH’) before EJ Jones. At paragraph 18 of the CMO,
13 claims were set out and identified (some of which included new claims, (highlighted
in bold below). Those 13 claims – which are set out in full as an Appendix at the end of
this decision - included claims being made under the following legal grounds:
To continue reading
Request your trial