Claimant v Somerset NHS Foundation Trust
Outcome
Individual claims
Tribunal found the detriment for public interest disclosure claim was out of time (11 months for NMC complaint, 9 months for BABCP complaint). While it was not reasonably practicable to submit the claim before November 2023 due to advice from ACAS and RCN, the claimant did not submit within a reasonable time thereafter, waiting nearly 3 months after receiving information from respondent.
Breach of settlement agreement claim dismissed on same grounds as whistleblowing claim: out of time and not submitted within reasonable period after it became reasonably practicable. Claimant alleged breach of confidentiality/non-disparagement clauses in Settlement Agreement dated 8 December 2022 in relation to complaints made to NMC and BABCP.
Tribunal granted amendment to add victimisation claim under s27 Equality Act 2010 and extended time on just and equitable grounds. Tribunal found claimant acted within 3 months of obtaining information from respondent in November 2023. No evidential prejudice to respondent, and claimant had sought advice from multiple sources. Claim continues to full hearing. Alleged protected act was bringing previous tribunal claim in February 2022 which settled via agreement December 2022.
Facts
Claimant's employment terminated by Settlement Agreement dated 8 December 2022 settling a previous tribunal claim. Around 22 December 2022 claimant became aware of complaint made to NMC, and on 23 February 2023 of complaint to BABCP. Both complaints later closed with no action. Claimant alleged these complaints breached confidentiality/non-disparagement clauses in settlement agreement and/or were acts of detriment/victimisation for making protected disclosure/doing protected act. Claimant filed claim 21 February 2024, 11 months out of time for NMC complaint and 9 months for BABCP. Claimant said ACAS and RCN advised him to wait for complaints to be resolved and for evidence from respondent before bringing claim.
Decision
Tribunal dismissed whistleblowing and breach of contract claims as out of time. While claimant had reason not to file before November 2023 (when he received information from respondent), he did not file within reasonable time thereafter, waiting nearly 3 months. However, tribunal extended time on just and equitable grounds for victimisation claim (added by amendment), finding claimant had acted within 3 months of receiving information, sought advice from multiple sources, and respondent suffered no evidential prejudice. Victimisation claim continues.
Practical note
A claimant who follows professional advice to delay filing may establish it was not reasonably practicable to file in time, but must still file promptly once able to do so; the wider just and equitable discretion in discrimination cases may save claims that fall outside the narrower 'not reasonably practicable' test.
Legal authorities cited
Statutes
Case details
- Case number
- 6000595/2024
- Decision date
- 8 May 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Claimant representation
- Represented
- No