Case 2203755/2022 · Employment Tribunal
Ms N Fazilova v Moorfields Eye Hospital NHS Foundation Trust and 2 others — 2020
- Case reference
- 2203755/2022
- Decision date
- 8 December 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Heath Representation
Parties
4 namedClaimant
Ms N Fazilova
Key findings
Tribunal's reasoningThis was an Open Preliminary Hearing on time limits, strike out and deposits. The claimant had worked for Moorfields Eye Hospital NHS Foundation Trust from 1 February 2016 until 25 May 2022, when her resignation took effect. She had brought claims of constructive unfair dismissal, direct race discrimination and race-related harassment. The tribunal also noted that the claimant withdrew her claims against R2 and R3 at the start of the hearing and that those claims were dismissed in a separate judgment.
Applying s.123 Equality Act 2010 and the authorities on continuing acts and extension of time, the tribunal held that it was not appropriate to determine finally at this stage whether the discrimination and harassment allegations amounted to a continuing discriminatory state of affairs. It considered that the allegations against R2 and R3 from September 2020 to December 2021 were reasonably arguable as linked, but that the dismissal of the grievance appeals was less clearly linked and would require examination at the final hearing. It also held that, even if the claims were otherwise out of time, it was reasonably arguable that time should be extended on a just and equitable basis because the claimant said she was pursuing internal processes, was a litigant in person, and relied on ill-health.
The tribunal refused to strike out any of the remaining claims. It applied the Mechkarov line of authority and concluded that the disputes about why the managers and appeal panels acted as they did, and whether that conduct was because of race, could not properly be resolved without hearing the full evidence. It also refused a deposit order under Rule 39, saying there was no proper basis for doubting the claimant's ability to establish the facts essential to her case. The constructive unfair dismissal claim was treated as in time against R1 because the EDT was 25 May 2022 and R1 was added on 19 August 2022. No substantive liability or remedy findings were made at this stage.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | Preliminary hearing only. The tribunal treated the constructive unfair dismissal claim against R1 as in time because the EDT was 25 May 2022 and R1 was added on 19 August 2022. It refused to strike the claim out or order a deposit, leaving the merits and any repudiatory-breach issues for the final hearing. | Other | — | — |
| Race discrimination | Direct race discrimination under s.13 Equality Act 2010. The tribunal held it was reasonably arguable that the allegations from September 2020 to December 2021 formed a continuing course of conduct, and that it was reasonably arguable that time should be extended on a just and equitable basis. It declined strike out and declined a deposit order. | Other | Race | — |
| Harassment | Race-related harassment under s.26 Equality Act 2010 on the same factual matrix as the direct discrimination claim. The tribunal found it was reasonably arguable that the conduct was linked and could amount to a continuing discriminatory state of affairs, and it refused both strike out and a deposit order. | Other | Race | — |
Legal tests applied
8 references- s.123 Equality Act 2010 time limits
- Hendricks continuing act test
- Abertawe Bro Morgannwg University Local Health Board v Morgan just and equitable extension
- Adedeji v University Hospitals Birmingham NHS Foundation Trust delay factors
- Kumari v Greater Manchester Mental Health NHS Foundation Trust merits relevant to extension
- E v X and others preliminary-hearing time-point principles
- Mechkarov v Citibank NA strike-out guidance
- Hemdam v Ishmail deposit-order guidance
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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