Claimant v NHS Lothian
Outcome
Individual claims
Multiple complaints of direct race discrimination. Claim 7 (required to meet with Deputy CEO) struck out as having no reasonable prospects of success because there was incontrovertible documentary evidence that claimant was not required to meet and had the opportunity to postpone. Claims 2, 9, 10 have deposit orders as having little reasonable prospects.
Harassment complaints related to race. Tribunal found these claims were stateable and allowed them to proceed to final hearing, though noted difficulties in establishing basis of inference in some instances.
Victimisation claims based on protected act of lodging grievance alleging race discrimination on 27 July 2023. Claims 7 struck out, claims 9 and 10 subject to deposit orders as having little reasonable prospects of success due to incontrovertible documentary evidence contradicting claimant's version of events.
Constructive dismissal claim relies upon the assertions of discrimination and is affected by the same considerations as the discrimination claims. Claimant resigned on 4 August 2023, reconsidered pending investigation, then confirmed resignation on 1 September 2023 because perpetrator JusB was not removed from the team.
Facts
Claimant, a black Ghanaian Mental Health Nurse and the only BAME nurse in her Rapid Response Team, brought complaints of race discrimination, harassment, victimisation and constructive dismissal. She lodged a grievance on 27 July 2023 alleging bullying and race discrimination by colleagues including her supervisor JusB. She resigned on 4 August 2023, reconsidered pending investigation, then confirmed resignation on 1 September 2023 because JusB was not removed from the team during the investigation. Her grievance investigation found no evidence of race discrimination but upheld two allegations of bullying by JusB. This was a preliminary hearing on respondent's application to strike out or order deposits on the basis the claims had little or no reasonable prospects of success.
Decision
The tribunal struck out one claim (complaint 7 - required to meet with Deputy CEO) as having no reasonable prospects of success because there was incontrovertible documentary evidence that the claimant was not required to meet and had the opportunity to postpone. The tribunal ordered deposits of £30 each (total £150) in respect of five complaints (direct discrimination complaints 2, 9, 10 and victimisation complaints 9, 10) as having little reasonable prospects of success. The tribunal refused to strike out or order deposits in respect of the remaining complaints, finding them stateable albeit with difficulties in establishing basis of inference.
Practical note
At strike-out hearings in discrimination cases, tribunals must distinguish between claims that have no reasonable prospects (where facts are totally inconsistent with undisputed documentation) and those with little reasonable prospects (where claimant has articulated a stateable claim but faces evidential difficulties in proving the discriminatory basis).
Legal authorities cited
Statutes
Case details
- Case number
- 4102567/2024
- Decision date
- 12 May 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Name
- NHS Lothian
- Sector
- —
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Mental Health Nurse
- Service
- 7 years
Claimant representation
- Represented
- No