Mr James Lewis-Bale, of counsel For the v Respondent — 2019

Ms N Fofanah was a flexible worker for NHS Professionals. In the 31 May 2022 preliminary hearing, Employment Judge Hyams considered the claimant's amended case, noted that she was no longer pressing unfair dismissal, and applied the earlier Flood tribunal judgment of 17 December 2019, which had already found that there was no overarching contract of employment between assignments. The judge treated that earlier judgment as preventing the claimant from re-litigating employee status while she was not carrying out an assignment.

The claimant's contract-based complaints concerned pay while she was in Sierra Leone during the first COVID-19 lockdown. She said that Ms Charlotte Pinner had confirmed eligibility for special leave and that the respondent should have paid her while she was stranded abroad. The tribunal held that there was no reasonable prospect of showing a contractual entitlement to paid special leave for the whole period abroad, no reasonable prospect of showing entitlement to payment for shifts she did not work, and no reasonable prospect that Ms Pinner had actual or apparent authority to agree such an arrangement on behalf of the respondent. The wrongful dismissal claim also failed because the claimant was not an employee when her registration was terminated on 28 July 2020, so the Employment Tribunals Extension of Jurisdiction Order 1994 did not assist her.

The race discrimination, victimisation, and harassment claims were based on the respondent's non-payment decision, Ms Oyinlade's letter of 10 June 2020, Ms Phiri's July 2020 correspondence, the restriction of the claimant's online profile, and the termination of her registration. The tribunal found no basis from which it could properly infer less favourable treatment because of race, no basis for inferring detriment because of a protected act, and no separate harassment case that added anything beyond the direct discrimination allegation. The holiday pay claim also failed because the contractual leave provision was tied to hours actually worked, and the claimant had not worked a shift for the respondent after 1 December 2019. All claims were struck out under rule 37(1)(a), and although the respondent sought costs of £6,622.50, the tribunal made no costs order after considering the claimant's means and the public interest in discrimination claims.