Mr P Buthelezi v Royal Marsden NHS Foundation Trust — 2022

At a public preliminary hearing before Employment Judge Snelson sitting alone on 6 May 2022, Mr P Buthelezi's original race discrimination complaint was struck out as having no reasonable prospect of success. The tribunal also refused his earlier application to amend the claim form to add breach of contract.

The tribunal granted the later amendment dated 29 April 2022 to add unfair (constructive) dismissal, and it recorded that the proceedings would continue only on that basis. It refused the respondents' applications to strike out the unfair dismissal claim or to make it subject to a deposit order. The tribunal identified the later liability questions as whether there had been a repudiatory breach of the contract of employment, whether any repudiation had been accepted by resignation without affirming the contract, and whether the resulting constructive dismissal was fair under section 98(4) of the Employment Rights Act 1996.

The tribunal recorded that the alleged breach of the implied term of mutual confidence was said to arise from treatment over time, including matters relating to job evaluation and alleged broken promises, grievances, and Covid-19 rules and measures. Mr Buthelezi also reserved the right to refer in evidence to past disciplinary action, although not as part of the alleged breach. No merits finding or monetary award was made at this hearing, and directions were given for further particulars, loss, disclosure, witness statements, and a final hearing.