Ms M Gan v County Durham and Darlington NHS Foundation Trust — 2022

At a private preliminary hearing, the tribunal clarified the respondent's name as County Durham and Darlington NHS Foundation Trust. The claimant agreed that claims against Ms Sue Jacques should be dismissed upon withdrawal. The claimant's position about whether her employment had ended changed during the hearing; the tribunal recorded her position as being that she resigned in November 2009.

The tribunal considered complaints of unlawful deductions from wages, unfair constructive dismissal, automatic unfair dismissal and detriment for protected disclosures, and race discrimination. It found the complaints were brought many years out of time. The claimant relied on mental health reasons for not presenting the claims earlier, but the tribunal noted that no medical evidence had been produced and that she had continued to correspond with the respondent, its data protection officer, the ICO, and solicitors during the relevant period.

On whistleblowing, the tribunal was not satisfied that the matters identified by the claimant contained factually specific information capable of amounting to qualifying disclosures under section 43B of the Employment Rights Act 1996. On race discrimination, the claimant relied principally on reference-checking matters and alleged comments including "Chinese is silly" and "Silly is not an issue". The tribunal concluded that the reference-checking complaints could not be linked to Chinese nationality and that it would not be proportionate or fair to allow the comment complaint to proceed after the passage of time.

The tribunal concluded that none of the complaints had any reasonable prospect of success and that this was an exceptional case in which the discrimination allegations should also be struck out.