Mrs E Nam v South West Yorkshire Partnership NHS Foundation Trust — 2022

Mrs E Nam brought a constructive unfair dismissal claim against South West Yorkshire Partnership NHS Foundation Trust. This was a preliminary hearing on the respondent's application to strike out the claim, following requests for further particulars. The tribunal clarified the claimant's case and issues, which focused mainly on alleged conduct by Dr Douglas and Dr Mostafa. It recorded the claimant's account that she had sought information about resigning on 17 December 2021 and later resigned on 5 May 2022 with about 12 weeks' notice.

The tribunal applied Rule 37 of the Employment Tribunal Rules of Procedure and referred to Tree v South East Coastal Ambulance Service NHS Foundation Trust when explaining that strike out is not a substitute for case management and that it should not conduct a mini-trial. It also noted that the context of communications between senior consultants may matter and that written material alone was not enough to decide whether the alleged conduct could amount to a breach of the implied term of mutual trust and confidence. The tribunal considered the claimant's reliance on events in July 2022, but observed that she had already decided to resign before those events, so they could not themselves have been part of the decision to resign.

The tribunal accepted that the claimant was likely to have some difficulty showing that she had not waived or affirmed the contract between the alleged final straw in November 2021 and her resignation in May 2022. It referred to Kaur v Leeds Teaching Hospitals NHS Trust, but said the issue of waiver or affirmation was not straightforward. The tribunal noted that the mere passage of time was not enough by itself to amount to affirmation, and that the claimant's explanation about ongoing patient duties and the need to find alternative employment meant the claim was not hopeless.

The respondent's application to strike out the claim as having no reasonable prospect of success was therefore refused and dismissed. The tribunal did not decide the underlying constructive unfair dismissal claim at this hearing.