Claimant v Mersey and West Lancashire Teaching Hospitals NHS Trust
Outcome
Individual claims
The tribunal found no reasonable prospect of establishing that Dr Tomlinson's email of 2 March 2021 mentioning her Belarussian accent amounted to direct race discrimination. The reference to nationality was purely descriptive background; the negative feedback was a legitimate response to a request for feedback on communication issues. A hypothetical British comparator with the same communication difficulties would have received the same feedback. No vicarious liability could be established as Dr Tomlinson was not an employee or agent of the respondents.
This claim remains live and is listed for final hearing in February 2026. It relates to the negative ARCP outcome in October 2022 leading to termination in February 2023.
This claim survived earlier strike-out applications and remains listed for final hearing in February 2026.
This claim survived earlier strike-out applications and remains listed for final hearing in February 2026.
This claim survived earlier strike-out applications and remains listed for final hearing in February 2026.
Previously struck out by Employment Judge Johnson on 17 May 2024 following an earlier determination by Employment Judge Holmes on 10 October 2023 that the claimant was not a disabled person at the material time.
Facts
A Belarussian specialty trainee doctor in anaesthetics received negative feedback about her communication skills throughout her training. In March 2021, Dr Tomlinson, a consultant at her host trust (not employed by the respondents), sent an email to her College Tutor commenting on her performance and mentioning her strong Belarussian accent and English as a second language. The claimant only saw this specific reference to her nationality in February 2023 via a Subject Access Request, though she had been aware of concerns about communication and had taken 23 accent reduction lessons in 2021. Her training was terminated in February 2023 following a negative ARCP outcome.
Decision
The tribunal struck out the race discrimination claim relating to Dr Tomlinson's March 2021 email on three grounds: (1) no reasonable prospect of showing the email was discriminatory as the reference to nationality was descriptive background and a British comparator with equivalent communication issues would have received similar feedback; (2) no reasonable prospect of establishing vicarious liability as Dr Tomlinson was not an employee or agent of the respondents; and (3) the claim was very late even accounting for when she discovered the explicit nationality reference. Other discrimination and unfair dismissal claims remain live for final hearing.
Practical note
Feedback mentioning a trainee's nationality or accent in the context of genuine communication concerns will not amount to race discrimination if the same feedback would have been given to someone of different nationality with equivalent difficulties, and vicarious liability cannot be established without an employment or agency relationship with the respondent.
Legal authorities cited
Statutes
Case details
- Case number
- 2401163/2023
- Decision date
- 25 September 2025
- Hearing type
- strike out
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Specialty Trainee in Anaesthetics
Claimant representation
- Represented
- No