Mr D March v East and North Hertfordshire NHS Trust — 2020

At the open preliminary hearing on 11 August 2020, Employment Judge Tynan considered Mr D March's various complaints against East and North Hertfordshire NHS Trust. Mr March had worked as an Assistant Housekeeper at Lister Hospital, started employment with the Trust on 25 June 2018, and resigned on 24 September 2019. The Judge applied the strike-out and deposit-order powers in Rules 37 and 39 of the Employment Tribunals Rules of Procedure 2013.

The Tribunal struck out the free-standing fraud complaint and the separate misrepresentation / false representation / fraud complaint because it had no jurisdiction to determine them as standalone claims. It also struck out the harassment complaint, finding that it was framed as general harassment under the Respondent's policy and was not alleged to be conduct of a sexual nature or conduct related to a protected characteristic, so it could not succeed under s.26 Equality Act 2010.

The breach of contract complaint was struck out because clause 13.1 of the contract dealt with the Claimant's obligation to report sickness absence and did not impose a corresponding contractual duty on the Respondent. The Judge also found that the policies relied on by Mr March were not shown to have been incorporated into his contractual terms, and he accepted Mr March's position that he had received the salary and sick pay due to him, so no identifiable financial loss was shown. The complaint about Health and Safety at Work Standards and COSHH was also struck out because the Tribunal held it had no free-standing jurisdiction over it and the Claimant did not say he had been dismissed for a reason within s.100 Employment Rights Act 1996.

The sex discrimination allegations were treated differently. Applying the principles referred to in Tayside Public Transport Co Ltd v Reilly, Tayside and North Glamorgan NHS Trust v Ezsias, Anyanwu v South Banks Student Union, and Ahir v British Airways Plc, the Judge said discrimination claims should generally be examined on their facts, but found these allegations had little reasonable prospect of success. The complaints were said to be poorly articulated, with little explanation of why the treatment was connected to sex, no comparator identified, and one allegation appearing to concern how colleagues were treated rather than how Mr March was treated. The Tribunal therefore ordered a deposit of £50, taking account of Mr March's limited means, including Universal Credit, accommodation costs of £200 per month, and about £35 per week left to live on.