Claimant v The Hillingdon Hospitals NHS Foundation Trust — 2021

Hannah Cullen's claim against The Hillingdon Hospitals NHS Foundation Trust came before Employment Judge N Shastri-Hurst on 29 March 2021 for a preliminary hearing on strike out, deposit order and amendment. The original ET1 presented on 23 March 2020 pleaded constructive unfair dismissal and unauthorised deduction of wages. The claimant later sought to add disability discrimination based on autism and mental health conditions, but the tribunal noted that disability status was not conceded and was not being determined for final merits at this stage.

The holiday pay element of the wages claim was struck out. The tribunal accepted the respondent's later calculation that the claimant was owed 13 hours of accrued but untaken leave rather than 25 hours, and that she had in fact been paid through 31 October 2019 even though her notice period ended on 28 October 2019. On the documents before it, the tribunal held that the claimant had no positive case to advance for 25 hours and that the claim had no real substance.

The constructive unfair dismissal claim was not struck out and no deposit order was made. The tribunal found there were factual disputes about the sickness absence process and the alleged breaches of the implied term of trust and confidence, and held that the cumulative effect of the alleged incidents, including any last-straw analysis, needed to be resolved at a final hearing. The amendment application was refused under Selkent: the original ET1 contained no discrimination claim, the proposed amendment was treated as a new claim made around eight months later, the tribunal held it would be out of time, and it was not satisfied that time should be extended on a just and equitable basis. The balance of hardship and injustice favoured refusal, so only the constructive unfair dismissal claim remained live.