Dr Mary Dell v Dr McManus & Partners (t/a Weavers Medical) — 2021

This was a reserved judgment on the respondent's strike-out and deposit-order application, not a final merits decision. The claimant, Dr Mary Dell, said that after a University teaching incident involving use of the N-word on 18 February 2020 she told two people at the respondent on 20 February 2020 that she had used the word and was not racist; she was later suspended on 29 April 2020, further allegations of repetition at work were raised on 22 May 2020, and she was dismissed on 5 June 2020.

The tribunal struck out the s.103A ERA automatic unfair dismissal claim, the s.47B ERA detriment claim, the s.27 EqA victimisation claim, and the s.13 EqA race discrimination claim under r.37(1)(a). It was prepared to assume, for present purposes, that self-reporting could in a rare case amount to a protected disclosure or protected act, but held that the claimant had no realistic prospect of showing the requisite reasonable belief in public interest, or that the detriments or dismissal were caused by the disclosure rather than by the admitted use of the word itself. The judge applied the distinction in Bolton School v Evans between how the employer found out about misconduct and why it disciplined the employee.

On race discrimination, the tribunal held there was no realistic prima facie case that the claimant was treated differently because she was white British. The fact that she said the process was unfair or that the reasons for dismissal changed was not enough, and she had not identified material facts from which a tribunal could infer that a comparator who was not white British would have been treated differently.

The respondent's application to strike out the wrongful dismissal claim, or alternatively to obtain a deposit order, was refused. The tribunal accepted that context mattered and that use of the word at the University, or later at work, might not amount to a repudiatory breach in every case; it also accepted that the alleged additional matters would need evidence before any conclusion could be reached. The wrongful dismissal claim therefore remained to proceed to a final hearing.