Ms P Joyce v Forth Valley Health Board — 2023

This was a preliminary hearing on the respondent's strike-out application and a witness order application. The tribunal applied Rule 37, the overriding objective, and the authorities it cited on strike out, including the two-stage approach in HM Prison Service v Dolby and Hassan v Tesco. It also noted the general caution against striking out discrimination claims before evidence, and said the same caution was relevant where the automatic unfair dismissal claim turned on disputed facts about dismissal and employee status.

On the dismissal issue, the claimant said she had been suspended by Mr Michael Brown around December 2022, had previously worked about 50 hours a week with overtime, and after suspension was receiving about £330 a week. She said she had been told she was "inactive" and should not look for other work, and that the effect of the suspension was that her earlier contract had ended and a new arrangement was in place. The tribunal accepted that there was a crucial core of disputed fact and that it could not say the claim had no reasonable prospect of success. It therefore did not strike out the automatic unfair dismissal claim under s.103A ERA 1996, while making clear that this was not a finding on the merits.

The tribunal also dealt with employee status under s.230 ERA 1996 and the dismissal definition in s.95 ERA 1996. The claimant said she worked on a bank arrangement, had worked regularly and consistently, was paid hourly, had tax and national insurance deducted, and understood there was a minimum-shift requirement to remain on the bank. The respondent argued there was no mutuality of obligation. The tribunal held that the disputed factual issues, including the effect of the bank arrangement and the minimum-shift requirement, meant the claim should not be struck out at that stage. It noted that the respondent could seek an order for further information if needed, and also noted that a separate s.47B detriment claim was not affected by this hearing because that protection applies to workers.

On the witness order, the claimant sought an order for Ms Cathy Cowan, the respondent's Chief Executive. The tribunal applied Rule 32 and the discretion it cited in Christie v Paul, Weiss, Rifkind, Wharton & Garrison LLP. It found that Ms Cowan could give relevant evidence, that her attendance was reasonably necessary for a fair hearing, and that it was proportionate to grant the order given the claimant's concern that voluntary attendance might not occur. The order was granted for 31 August 2023 only.