Mr Abdel Bari v Epsom and St Helier University Hospitals NHS Trust — 2022

This was a preliminary judgment on the respondent's applications to strike out the claimant's direct race discrimination claim under Rule 37(1)(a), (b) and (e), and alternatively for a deposit order under Rule 39. The Tribunal described the underlying dispute as arising from clinical concerns about the claimant's involvement in a delivery, including advice about Caesarean section, forceps delivery and syntocinon, followed by the claimant being told not to return to booked shifts while the concerns were reviewed. The Tribunal accepted that the claim form referred to matters extending beyond the 16 October 2019 incident, so it could not be satisfied that the case was simply out of time as a one-off act claim.

The Tribunal refused strike out. It held that any delay was minimal and that there was little or no prejudice to the respondent, and it found the claimant's correspondence, while inappropriate and repetitive, was not so scandalous, unreasonable or vexatious that strike out or a finding that a fair hearing was no longer possible was justified. On the no reasonable prospects ground, the Tribunal considered that the material before it pointed more to a clinical difference of opinion than to discrimination, but it considered strike out too draconian at that stage because some central facts were disputed and the case required fuller evidence. It referred to Anyanwu v South Bank Student Union and Eszias v North Glamorgan NHS Trust in explaining the caution required before striking out discrimination claims.

Although the claim was not struck out, the Tribunal did make a deposit order because, on the evidence then available, it considered the race discrimination allegation had little reasonable prospect of success. It said the main reason was that the matter appeared to be a professional or clinical disagreement, corroborated in part by the midwife's concerns and by the investigation report, with very limited other facts from which discrimination could be inferred. The Tribunal also postponed the issue of costs for the abandoned December 2020 hearing, noting the sum claimed was £992 and that the claimant's means might need to be updated before that issue was dealt with.