Ms J Burrell v Central and North West London NHS Foundation Trust — 2024

Ms Burrell brought claims against Central and North West London NHS Foundation Trust alleging disability discrimination, recorded as claims under sections 13, 15 and 21 of the Equality Act. The tribunal considered at a public preliminary hearing whether the claim should be struck out because a fair trial was no longer possible, alongside amendment, limitation and deposit order issues.

The tribunal accepted evidence that two significant witnesses, Ruth Davis and Jeanette Downer, no longer worked for the respondent and were not cooperating with the defence. It also recorded that Tina Saunders, against whom the claimant had made allegations about an incident said to have occurred on 12 August 2019, had left the respondent and had not returned calls. The tribunal found that a significant time had passed since the alleged incidents, most of which were said to have occurred in 2019 or 2020, and that memories would inevitably have faded.

The tribunal also accepted that Ruth Davis had deleted her emails before leaving the respondent and that those documents were no longer available despite efforts to retrieve them, including involving the respondent's Chief Executive and NHS Digital. The tribunal considered whether witness orders would be a lesser option, but found that they would not overcome the problems caused by the passage of time, faded recollections and missing emails.

Having considered Rule 37, the overriding objective, Article 6 ECHR and authorities on strike out, including the need for caution in discrimination claims, the tribunal concluded that there was no longer any prospect of a fair hearing. It struck out the claims under Rule 37(1)(e). No remedy award was made.