Ms S Miller v Velindre University NHS Trust — 2019

This was a preliminary hearing on the respondent's applications to strike out the disability discrimination claim as out of time, and to strike out or require a deposit for the constructive unfair dismissal claim. The tribunal accepted that the claimant had agoraphobia and significant symptoms of depression and anxiety, and it proceeded on the basis that the pleaded discrimination complaints were out of time, but that did not end the matter. It extended time because the claimant's ill-health prevented her from progressing a claim sooner, she was trying to resolve matters at work, and she had made some attempt to obtain legal advice. The tribunal also noted that any prejudice from delay was reduced because several of the same factual issues would in any event have to be explored in the constructive dismissal claim.

The tribunal rejected the respondent's strike-out application on the constructive dismissal claim. It treated the alleged Occupational Health meeting on 26 October 2017 as the claimant's possible last straw, but did not decide at this stage whether that act was in fact attributable to the employer. It also rejected the argument that the claimant had affirmed earlier alleged breaches by staying in contact with the respondent and taking part in return-to-work or sickness absence processes. The tribunal found that she was continuing to engage in an effort to have matters put right, not because she had accepted the earlier conduct.

The tribunal therefore held that the constructive dismissal claim did not have no reasonable prospect of success, and it also refused a deposit order because the claim could not be characterised as having only little reasonable prospect of success. No substantive findings were made on the underlying merits of either claim at this stage, and directions were made separately for the main hearing.