Dr E Sarkar v University Hospitals Plymouth, NHS Trust and 1 other — 2023

In this preliminary hearing, Employment Judge Smail considered whether parts of Dr E Sarkar’s 2022 disability and race discrimination claim were barred because they overlapped with the earlier 2018 protected disclosure litigation. The tribunal noted that the 2018 claim had been heard over six days, had been dismissed, and that the final Schedule of Chosen Detriments filed on 3 December 2018 marked the latest point by which substantial claims should have been advanced in that earlier case.

The tribunal held that the essence of the 2022 claim was different. It concerned decisions taken from October 2020 onwards about the handling of an investigation into the 10 August 2017 anaphylaxis incident, and those later allegations were not covered by issue estoppel, cause of action estoppel or Henderson v Henderson. They were therefore allowed to proceed to a further telephone case management hearing.

By contrast, the tribunal struck out the complaints that the first respondent did not support a reasonable workplace adjustment for the claimant’s impaired mobility in 2017 and that race-based allegations were made against her after she corrected a white laboratory manager who had misnamed her. The tribunal also struck out any other liability allegations relating to events on or before 3 December 2018. It refused, however, to strike out the claim against the Royal College of Physicians, holding that it was arguable at this stage that the College had acted as the first respondent’s agent for the invited review, so liability under ss.109 and 110 Equality Act 2010 could not be ruled out.