Ms N Fofanah v NHS Professionals Ltd: 3306138/2020 and others
| Jurisdiction | England & Wales |
| Judgment Date | 22 June 2022 |
| Date | 22 June 2022 |
| Published date | 11 July 2022 |
| Court | Employment Tribunal |
| Citation | 3306138/2020 and others |
| Subject Matter | Breach of Contract |
Case Numbers: 3306138/2020, 3307401/2020 & 3311749/2020
1
EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms N Fofanah
v
NHS Professionals Limited
Heard at: Watford via CVP On: 31 May 2022
Before: Employment Judge Hyams, sitting alone
Representation:
For the claimant: Mr James Lewis-Bale, of counsel
For the respondent: Mr Declan O’Dempsey, of counsel
JUDGMENT
The claimant’s claims have no reasonable prospect of success and are therefore
struck out.
REASONS
Summary
1 Only exceptionally is it appropriate to strike out claims of (1) direct discrimination
within the meaning of section 13 of the Equality Act 2010 (“EqA 2010”), (2)
victimisation within the meaning of section 27 of that Act, and (3) harassment
within the meaning of section 26 of that Act, on the basis that they all,
individually, have no reasonable prospect of success. This is such an
exceptional case. The case as clarified in the manner described below was also
for sums claimed to be owed under a contract and/or unpaid wages and those
claims also, unusually, in my judgment had no reasonable prospect of success.
The hearing of 31 May 2022
2 On 14 June 2021, Employment Judge (“EJ”) Quill directed the holding of a
preliminary hearing “to determine the following issue:
Case Numbers: 3306128/2020, 3307401/2020 & 3311749/2020
2
To consider the respondents application to strike out on the ground that the
tribunal has no jurisdiction to hear [the claims] (or part of them) and/or on the
grounds that they have no reasonable prospect of success. Alternatively a
deposit may be considered.”
3 On 31 May 2022 I conducted an open preliminary hearing to determine the
respondent’s application to strike out the claims. In addition to arguing that the
claims had no reasonable prospect of success and therefore should be struck
out under rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013,
the respondent argued that (1) the conduct of the claimant in the course of
pressing her claim and (2) her failure to comply with an order of the tribunal
made on 15 May 2021 in themselves justified the striking out of the claim. The
latter arguments were based on rule 37(1)(b) and (c) respectively of the
Employment Tribunals Rules of Procedure 2013. The order made on 15 May
2021 was for the provision of further information by the claimant. The claimant
had failed to comply with it, having instead, in a letter dated 15 May 2021 which
was sent in response to the order of the tribunal of that day, demanded further
information from the respondent.
The claims, their legal background, and the manner in which they were refined
just before the hearing of 31 May 2022
4 There were three claims. The second and third ones were additions to the first
one, and concerned events which had followed those which were the subject of
the first claim. The first claim was presented on 26 June 2020 when the claimant
was in Sierra Leone, having been there for over three months previously.
5 The claimant is a registered mental health nurse. She has in recent years at
least worked for the respondent under a contract which was the subject of a
determination by an employment tribunal sitting at Birmingham in 2019. That
determination was in case numbers 1302529/2018 and 3307626/2018. Those
cases were the subject of a hearing conducted by EJ Flood sitting with Mr Virdee
and Mr Machon and held on 18, 20-22, and 25-29 November 2019. Judgment
was reserved and was sent to the parties on 17 December 2019. In the
judgment, that tribunal stated the applicable law relating to claims of direct
discrimination and victimisation and applied it in such a way that the claimant
could not have been in any reasonable doubt about what was required for the
success of a claim of those sorts. One of the claims of the claimant in those
cases was that she had been dismissed unfairly. The third of the three claims
which were the subject of the application to strike out which I heard on 31 May
2022 was a claim of unfair dismissal. In its response to that claim, the
respondent, in paragraph 64 of its grounds of resistance (which was at page 87
of the bundle created for the hearing of 31 May 2022; unless otherwise stated
below, any reference to a page is to a page of that bundle) stated this:
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