Mrs Mandy Mikhael v Hampshire Hospitals NHS Foundation Trust — 2021

This was a preliminary hearing in Mrs Mandy Mikhael's race discrimination case against Hampshire Hospitals NHS Foundation Trust. The claimant had worked for the respondent as an occupational therapist from December 2016, resigned on 4 December 2018, and left employment on 5 February 2019. The pleaded claims were direct discrimination on the grounds of race, harassment and victimisation. The tribunal also noted that some matters in the Scott Schedule went beyond the claim form and there was no application to amend to include them.

The issue was whether time should be extended under section 123 Equality Act 2010. Applying the approach in Robertson v Bexley Community Centre and Abertawe Bro Morgannwg University Local Health Board v Morgan, the tribunal held that the claimant had not shown that it was just and equitable to extend time. It found that the claimant had the material facts by the December 2018 stage 2 capability meeting, including the record-keeping concerns and the documents that formed the HCPC referral bundle, and that no new allegations were later made to the HCPC.

The tribunal rejected the claimant's arguments based on late discovery of the HCPC material, the fact that she had to deal with the regulatory proceedings, intermittent ill-health, lack of prejudice to the respondent, and overall fairness. It found the delay substantial, with the earliest matters dating from 2017 and most from 2018, and held that the passage of time would materially prejudice the respondent because witnesses would need to be traced and asked to recall events from several years earlier. The tribunal concluded that it had no jurisdiction to hear the claims and dismissed the direct race discrimination, harassment and victimisation claims as out of time.