Mojibola Odusanya First v Pennine Care NHS Foundation Trust Second Respondent: Anne Marie Ashworth Third Respondent: Jennifer Mack Fourth Respondent: Sharon Whitworth — 2023

Mojibola Odusanya brought race discrimination allegations against Pennine Care NHS Foundation Trust and individual respondents Anne Marie Ashworth, Jennifer Mack and Sharon Whitworth. This judgment, heard on 15 May 2023 and sent on 31 May 2023, dealt only with her application to amend the claim after the RCN came on record. The tribunal identified the original ET1 as alleging race discrimination over the period 23 February 2022 to 7 June 2022, with further allegations sought to be added by amended particulars.

Applying Selkent Bus Co Ltd v Moore, the tribunal balanced the prejudice to each side and also referred to Abercrombie & Others v Age Rangemasters Ltd, Transport and General Workers Union v Safeway Stores Ltd, Galilee v Commissioner of Police for the Metropolis and Kumari v Greater Manchester Mental Health NHS Foundation Trust. It allowed the pre-23 February allegations and the further factual particulars within the pleaded period, finding that these were either additional factual allegations or closely connected to the existing race claim and would not unfairly prejudice the respondents beyond extra time and expense.

The tribunal also allowed the victimisation amendment. It accepted that the allegation based on the 8 April 2022 email was a new cause of action introduced after limitation had expired, but considered the delay relatively short, the evidence largely overlapping with the race allegations, and the prejudice to the claimant if she could not advance the claim to be greater than the prejudice to the respondents. It also allowed the grievance-outcome amendment.

The only refusal was for allegation 5(i) insofar as it was pleaded as direct race discrimination. The tribunal held that the claimant accepted the same treatment was imposed on everyone, including her colleagues, so there was no less favourable treatment for a direct discrimination claim. That allegation was, however, allowed to proceed as racial harassment. The judgment made no findings on liability or remedy and relisted the case for further case management and a final hearing.