U Prasad v Epsom & St Helier Hospital NHS Trust & Anor

SUMMARY Whistleblowing, Protected Disclosures, Race and Sex Discrimination, Victimisation The Tribunal properly applied the burden of proof provisions in section 136 Equality Act 2010 to the claims of sex and race discrimination and gave adequate reasons for dismissing those claims. The criticism of the Tribunal in respect of its analysis and reasons for finding that there was no causal connection between her protected disclosure and protected acts and the treatment of which she complained. The other grounds of appeal were therefore academic. The complaint that the Tribunal was ‘perverse’ to base findings of fact on oral evidence which emerged in cross-examination which had not been contained in the witness’ written statements or was given as hearsay is misconceived. Whether taken together, or individually, the series of complaints that the Tribunal did not apply the correct test in respect of ‘detriment’. On a fair reading of the judgment as a whole, the Tribunal found that the Claimant was not reasonable in her criticisms of the Respondent, or that matters of which she complained were as a result of her reluctance to comply with the Respondent’s reasonable requests or decisions about how to conduct the investigation into her clinical practice and/or her grievances. The Tribunal did not err in its approach to these issues. SARAH CROWTHER KC, DEPUTY JUDGE OF THE HIGH COURT: Introduction

1. The Claimant appeals the decision of the Tribunal (EJ Morton) sent to the parties on 8 July 2024 in which she struck out a claim presented on 6 October 2021 under reference 2305076/2021 which was the sixth claim the Claimant had made arising out of allegations concerning her employment with Epsom and St Helier Hospitals NHS Trust (“the Trust”) between 2010 and 2020 (“Claim 6”). The sole respondent named on the ET1 was Jacqueline Totterdell, in her then capacity as the Chief Executive Officer of the Trust.

2. The central issue in the appeal is whether the Judge was wrong to find that Claim 6 was a claim against Ms Totterdell and not a claim against the Trust (or against them jointly). The specific grounds of appeal which have been permitted to advance to this hearing pursuant to a direction under rule 3(10) on 25 September 2025 are: - i. That the Judge erred in failing to find that the effect of the previous consolidation of Claim 6 with previous claims under references 2302397/2020 (“Claim 4”) and 2302411/2020 (“Claim 5”) was to make the Trust a respondent to Claim 6. ii.That the Judge erred in failing to construe the Particulars of Claim in Claim 6 as being a claim against the Trust as well as Ms Totterdell. iii. That the Judge ought to have made further enquiries of the Claimant as to whether she intended for the Trust to be a respondent to Claim 6 before proceeding to strike out. BACKGROUND

3. The Claimant was employed as a consultant cardiologist by the Trust, working at St Helier, Epsom and St George’s hospitals as well as providing community-based services. In 2012, she reported an incident of clinical concern involving a staff grade doctor, following which she was subject to allegations of clinical concern with respect to her own practice. Eventually, the Trust decided to instigate an “MHPS” process (Maintaining High Professional Standards) in respect of the Claimant’s clinical practice, which resulted in findings adverse to the Claimant which in turn led to disciplinary proceedings which culminated in her dismissal in June 2020. During the investigations her clinical practice was restricted for long periods.

4. Whilst still employed, the Claimant brought employment tribunal proceedings for sex discrimination against the Trust which were dismissed, and she was ordered to pay costs (“Claim 1”). She then brought further claims (“Claim 2” and “Claim 3”) which encompassed a wide range of allegations based on direct race and sex discrimination, victimisation due to a protected act, harassment, equal pay and protected disclosure detriment up to and including December 2019. These claims were all dismissed and she was ordered to pay costs. Her appeals against the liability judgment in Claims 2 and 3 (EA-2022-01445) and the costs judgment (EA-2024-000014) were heard by me together with this appeal and are subject of separate judgments.

5. Claims 4 and 5 related to post-termination allegations against the Trust. They were presented to the tribunal on 15 June 2020 and 16 June 2020. Claim 4 claimed interim relief based on alleged automatic and ‘ordinary’ unfair dismissal. Claim 5 was a second interim relief application, again alleging automatic and ordinary unfair dismissal, but also race discrimination and victimisation.

6. Claim 6, as I have said, was not presented until 6 October 2021. In the ET1, the Respondent’s details box is completed with, “Ms Jacqueline Totterdel (sic), CEO of Epsom & St Helier Hospital NHS Trust”. The address is given c/o the Trust. No other respondent is identified on the claim form. Box 8 which is headed “Type and Details of Claim” has ticks against unfair dismissal, race and sex discrimination. Under the heading, Box 9, “What do you want if your claim is successful” the Claimant has written, “Immediate re-instatement to the previous post as Consultant Cardiologist and Lead Clinician for Heart Failure. Including sessions at St George’s as previous. Financial compensation for damages caused by respondent. A declaration that whistleblowing detriment, victimisation, discrimination and harassment has taken place.”

7. In section 10, the box for whistleblowing claims is ticked. At box 15, “Additional Information” the Claimant has written, “This claim is linked to other claims of whistleblowing detriments, direct discrimination (sex, race), harassment (sex, race), automatic unfair dismissal and ordinary unfair dismissal claim. This claim is also linked to the on-going process of victimisation following whistleblowing.”

8. She then provided the claim numbers for Claims 2, 3, 4 and 5, and stated, “Please find the attached particulars of claim for the current ET1.” In fact, no particulars of claim were attached, and none were provided either to the Tribunal or to the Respondent or indeed to the Trust.

9. A response on behalf of Ms Totterdell was submitted on 17 December 2021 in which notes that, “The claim for unfair dismissal cannot be brought against the Respondent, who is not the employer or former employer of the Claimant.” It also records that the Respondent’s own employment with the Trust commenced 13 months after the Claimant’s employment terminated and that the Respondent had had no role in any of the facts or matters of which the Claimant made complaint in any of her previous claims.

10. By a letter of 17 December 2021, the solicitors acting for Ms Totterdell wrote to the tribunal inviting it to strike out Claim 6 on the basis that it disclosed no cause of action against her and had no reasonable prospect of success. It also pointed out that no particulars of claim had been provided and that the claims for whistleblowing detriment, discrimination or generally had no factual content and therefore were incapable of succeeding at trial.

11. On 24 May 2022, solicitors acting for Ms Totterdell wrote again to the tribunal, inviting it to list a preliminary hearing to, amongst other things, strike out Claim 6. On 1 December 2022, Regional Employment Judge Balogun consolidated Claims 4, 5 and 6 (at the request of the Trust and Ms Totterdell) and directed a preliminary hearing to be listed for the strike out application to be heard. The strike out application was listed to take place on 18 October 2023. In the skeleton argument on behalf of both the Trust and Ms Totterdell, the following was stated about Claim 6 (§40): “There is no basis upon which to bring a claim against the Second Respondent [Ms Totterdell], whose employment commenced several months after the Claimant’s dismissal and the dismissal of her appeal. The claim has not been particularised, cannot be sensibly responded to, and further, the lack of any particulars demonstrates that the Claimant is not actively pursuing those claims. Further, they are subject to the same principles of res judicata and abuse as the claims against the First Respondent [the Trust]. Claim 6 should be struck out entirely.”

12. In fact, the Claimant applied for and was granted a postponement of this hearing on grounds of ill-health and so the hearing did not take place ultimately until April 2024. On 4 April 2024, the Claimant served some particulars of claim in respect of Claim 6. The particulars of claim refer to the Trust as ‘the Respondent’ and states at the top of the fourth page (the paragraphs are not numbered and the page is numbered 3), “The CEO for the Respondent was not involved in the Claimant’s internal Appeal process. The Respondent had two CEO’s during the Claimant’s MHPS (Mr Elkeles) and Ms Totterdell during the appeal process. It is not clear to the Claimant at what stage did Mrs Totterdell took over (sic). However, the overall responsibility is that of the current CEO, Ms Totterdell and based on her interaction with the claimant, her name is included in the particulars of the current claim…”

13. At the top of the fifth page (marked 4), the particulars of claim continue, “Failure to reinstate even when a new CEO, Ms Jacqueline Totterdell arrived and was informed of the issue directly via email by the Claimant. She could have taken responsibility to properly assess the situation, but she failed to do so and suggested that she had been “ appropriately briefed about the case ” and chose not to get involved…the Claimant was left with no option but to bring the matters to the Employment Tribunal.” (original emphasis)

14. The particulars of claim then include a series of emails in which the Claimant is seeking to draw the circumstances of her case to Ms Totterdell’s direct attention, before stating, “It is the Claimant’s case that the CEO, Ms Totterdell failed to handle the situation which could have been resolved out of ET.”

15. On 9 April 2024, the Claimant submitted a skeleton argument running to some 43 pages. At paragraph 37 of that skeleton argument on page 30 she stated in respect of Claim 6, “The CEO for the Respondent [Ms Totterdell] was not involved in the Claimant’s internal Appeal process. However, the overall responsibility is that of the current CEO, Ms Totterdell and based on her interaction with the claimant, her name is included in the particulars of the current claim. On 13 th September, I wrote to ACAS, requesting that the ET1 form was sent to the new Chief Executive Officer, Ms Totterdell (she then quotes from the email) Dear …., Thank you for the update. Please could you forward the following email to CEO of ESTH (Mrs Totterdel) as I am not asking for any other employee or agent to make this decision. The ET1 form if submitted will have the CEO as the respondent so it only fair that I send the relevant question to her. Is Ms Totterdell of [as] the respondent aware of the gross damages the respondent’s discriminating action has caused?” THE LAW

16. In Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 , the Court of Appeal held that the issues raised by parties in employment tribunal proceedings were those that emerged clearly from an objective analysis of their statements of case (at paragraph 39), not by reference to other documents that did not have the status of pleadings; that while it might be appropriate to explore the scope of a party’s case by way of clarification, in particular in the case of an unrepresented party, the tribunal had no general duty to take proactive steps to prompt some expansion or modification of the case advanced by a party.

17. A failure to identify and determine a claim that does not emerge from an objective analysis will only therefore amount to an error of law by the tribunal in rare or exceptional circumstances, such as those identified in Drysdale v Department of Transport [2014] EWCA Civ 1083 ; [2014] IRLR 892 , where a tribunal had breached its fundamental duty of fairness to a litigant.

18. Tribunals therefore need to take care not to enter the adversarial arena, but to maintain an arbitral approach. The duty of impartiality requires the tribunal to refrain from prompting or inviting amendments to claims.

19. In line with this guidance, when considering whether to strike out a claim pleaded by a litigant in person, whilst a tribunal must be sensitive to the vulnerabilities of some litigants in person, it must resist the temptation to become their advocate. As the Court of Appeal stated in Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954 ; [1998] IRLR 531 , Gibson LJ at paragraphs 14 to 22, set out the law and relevant principles.

20. The correct approach can be summarised in this way: that each tribunal must base its decisions in a case on an objective reading of the statements of case. It must exercise its own judgement in the circumstances of the particular case whether of its own motion to investigate any pleaded complaint or response to ensure it is clear and properly understood. Tribunals are encouraged to be as helpful as possible to litigants, especially those acting in person, in refining and improving arguments which those litigants have already made but should take care not to extend this practice to introducing into the case issues which do not feature in its presentation on one side or the other. The obligation of deciding what case to put forward lies solely with the parties, not the tribunal. DISCUSSION

21. The Claimant’s suggestion that the case management decision to consolidate or case manage Claims 4, 5 and 6 together meant that the Trust became the First Respondent to the proceedings and Ms Totterdell the Second Respondent, is correct, insofar as it goes. However, as will be immediately apparent, that does not create a claim against the Trust. It does not change the facts and matters which were alleged in the statements of case and therefore does not and cannot take the Claimant any further as regards the central question which is whether it emerged clearly from her ET1 and particulars of claim that the Trust was the (or one of the) intended respondents to Claim 6.

22. What in my judgement emerged clearly from the ET1 and the particulars of claim in Claim 6 was the desire of the Claimant to add Ms Totterdell as a respondent to her other existing claims (many of which were at that stage subject of live appeal). The purpose of such joinder was apparent on the face of the particulars: the Claimant was aggrieved that Ms Totterdell had declined to deal with her requests for reinstatement personally but had delegated them to others within the Trust and felt that presentation of tribunal proceedings personally to Ms Totterdell would compel her to respond. That is precisely what she asserted on pages 4 and 5 of the particulars and was entirely consistent with her argument presented at the strike out by reference to the email correspondence with ACAS which she included in the skeleton argument.

23. In my judgment, what, in the words of HHJ Auerbach in McLeary v One Housing Group Ltd UKEAT/0124/18 , ‘shouted out’ from the particulars of claim was not that the Claimant wished to bring another claim against the Trust. Indeed, it was the opposite that ‘shouted out’: the Claimant wished to assert personal responsibility of Ms Totterdell for the acts and omissions of the Trust of which she had already complained. There was no ambiguity regarding the identity of the intended respondent to Claim 6 on the face of the Claimant’s assertions whatsoever. The references to the Trust as Respondent were a rehearsal of the previously made allegations in Claims 2-5, for which, by Claim 6, the Claimant was inviting the tribunal to treat Ms Totterdell as personally responsible.

24. I can discern no basis whatsoever in the facts and matters set out in the Particulars of Claim on which it could be said that there was any lack of clarity about the Claimant’s intended respondent. There is no mention of any facts and matters which would lead to the Trust being liable for the acts or omissions of Ms Totterdell: indeed, the particulars of claim suggested that it was the other way around and Ms Totterdell who should be made responsible for the acts and omissions of her predecessors in title and other employees of the Trust.

25. The Judge carried out a careful analysis of the pleaded case at paragraphs 29 to 33 of her reasons. In doing so, she was thorough and looked to construe the particulars of claim in a manner favourable to the Claimant. For example, at paragraph 33(e) she analysed the Claimant’s allegations as setting out two possible different cases against Ms Totterdell, demonstrating in my judgment exactly the approach which is required following the Moustache line of authority, to seek to help refine and advance arguments which have been laid out by a litigant, especially bearing in mind that they do not have the benefit of legal assistance.

26. It would have been beyond any reasonable stretch of judicial interpretation to seek to read the particulars of claim or ET1 as setting out a claim against the Trust. In this conclusion, I am supported by what the Claimant herself advanced at the reconsideration application in which she repeatedly referred to the ‘involvement of Ms Totterdell’ and the Claimant’s wish to hold her ‘responsible’ especially for what she by that stage perceived as an unreasonable refusal to reinstate her to her job. I am further supported by the fact that until her grounds of appeal were reformulated with the assistance of a representative from the ELAAS scheme at the rule 3(10) hearing, there was no suggestion even in her appeal notice that the Judge had failed to realise that Claim 6 was intended to be against the Trust.

27. Against that background, there was, in my judgment, no reason whatsoever for the Judge to have made enquiries of the Claimant as to whether she had made a mistake in naming Ms Totterdell as the (only) respondent to Claim 6. Indeed, I would go further and find that in my judgement such enquiries would have strayed beyond the permissible refinement and presentation assistance well into the territory of inviting new claims or facts and matters to be asserted. It would have been introducing new arguments different to the way in which the Claimant was clearly putting her case.

28. Even if I am wrong about this and the Judge ought to have explored the possibility that the Claimant was really looking to make a further claim against the Trust and not Ms Totterdell, in my judgment, all the contemporaneous material suggests that she would have roundly rejected that idea. She already had made 5 claims against the Trust. Her sense of frustration that she was not being given access to the CEO of the Trust is readily apparent from the emails, her skeleton argument and the contents of the particulars of claim. As far as the Claimant was concerned, she had made claims against the Trust, what she wished to do was bring a claim against Ms Totterdell in order to draw those claims to the Trust’s attention. CONCLUSION

29. It follows that I find that it was not an error of law for the Judge not to treat the case management decision to consolidate Claim 6 with Claims and 5 as having the effect of making Claim 6 a claim in substance against the Trust. Nor was there any error in the approach of the Judge to the strike out application: on an objective reading of the particulars of claim it was clear that the intended respondent was solely Ms Totterdell. In my judgment the Judge would have descended into the adversarial arena had she invited the Claimant to make the Trust a respondent to Claim 6, and she certainly cannot be criticised for failing to explore any ambiguity, because there was none.

30. For these reasons, the appeal is dismissed.