Ms Bilikisu Oluwa v King’s College Hospital NHS Foundation Trust — 2021

At this preliminary hearing, Employment Judge P Britton found that Ms Oluwa was a disabled person for Equality Act purposes at the material time. The tribunal accepted that endometriosis and severe anxiety/depression were the relevant impairments, relied on medical notes and occupational health material, and held that the conditions had a substantial and long-term impact on normal day-to-day activities. The judge also found the mental health impairment was recurring, and said the claimant’s failure to pass the training examinations was linked in part to that impairment.

The race discrimination claim was dismissed. The tribunal found that the last alleged race-related act was in or about July/August 2018, that the ET1 was presented on 12 January 2020, and that the claim was therefore about 15 months out of time even after ACAS early conciliation. Applying the s.123 EqA 2010 just-and-equitable test and the factors discussed in Abertawe Bro Morgannwg University Local Health Board v Morgan and Abedeji v University Hospitals of Birmingham NHS Foundation Trust, the tribunal held it was not just and equitable to extend time. It noted that the claimant had raised and pursued a grievance, received a not-proven outcome, did not appeal, and provided no later race incident.

The disability discrimination and unfair dismissal claims were not finally determined at this stage and were allowed to proceed to the main hearing. The tribunal identified the relevant PCP as the requirement to pass the examination and complete qualification as a trainee dental nurse, and said there were arguable issues under s.15 EqA 2010 and ss.20-22 EqA 2010, including whether the respondent should have done more before the expiry of the fixed-term contract, possibly by extending employment so that a further exam attempt could be taken. The judge noted the claimant had failed the final exam four times despite support and mentoring, and that the employment ended on 13 October 2019 when the fixed term expired. No monetary award was made at the preliminary hearing, although the tribunal observed that any compensation would likely be limited if the claimant succeeded at the main hearing.