L Humby v Barts Health NHS Trust

An Employment Tribunal must assess a proposed amendment by reference to the practical reality of the pleaded case and evidence, rather than assumptions about distinct witnesses or issues. At a preliminary time-limit hearing, a claimant with an arguable case that allegations form conduct extending over a period under Equality Act 2010 section 123 should ordinarily proceed to a final hearing; the just and equitable discretion need not then be determined.

Victimisation claims require separate and complete analysis. The Tribunal must consider whether a reasonable worker might regard the treatment as disadvantageous, and must assess all relevant evidence in the round under section 136, including unconscious motivation. A unilateral demotion entailing reduced pay breaches express contractual terms unless authorised. Whether it is repudiatory, and whether any affirmation has occurred, are fact-sensitive questions.

The claimant, formerly employed in a Band 6 clinical coding role, was unsuccessful in a restructuring exercise and was unilaterally reassigned to a Band 5 post. The reassignment entailed permanent loss of managerial duties and, after pay protection, a substantial salary reduction. He resigned and brought claims for constructive unfair dismissal and victimisation.

At a preliminary hearing, the Employment Tribunal refused amendments concerning two restructuring roles and held earlier victimisation allegations out of time. At the final hearing, a differently constituted Tribunal dismissed all claims. The claimant appealed both decisions. The central issues were whether the earlier allegations arguably formed continuing conduct, whether the victimisation claim had been properly determined, and whether the demotion and the claimant’s response had been correctly analysed in contractual terms.

1. Appeal allowed. The preliminary and final decisions were set aside and all claims were remitted for a complete rehearing before a fresh Tribunal.
2. The preliminary Tribunal erred in refusing the proposed victimisation amendments. It proceeded perversely on the premise that different witnesses would be required and failed to recognise that the same factual material was likely to be examined in deciding the pleaded claim that protected acts had materially influenced the restructuring decisions. The allegations were potentially relevant evidence from which victimisation could be inferred.
3. The claimant had an arguable case that the restriction of management duties, performance-management process and later restructuring treatment formed conduct extending over a period under Equality Act 2010 section 123. The same manager was involved throughout and the allegations were sufficiently connected. It was therefore wrong at the preliminary stage to decide the just and equitable extension question; time remained for determination at the final hearing.
4. The final Tribunal erred by allowing its constructive-dismissal analysis to limit the victimisation claim. It failed to determine the principal allegation that the Band 5 demotion was victimisation. It also failed to evaluate the evidence in the round under section 136, including possible unconscious influence of protected acts. Its detriment analysis did not apply the reasonable-worker approach in Shamoon.
5. The interruptions to the unrepresented claimant’s cross-examination caused material unfairness on these facts. The restricted questioning concerned central evidence of motivation.
6. The unilateral reassignment from Band 6 to Band 5, with a consequential permanent pay reduction, was a breach of express contractual terms absent a contractual power to make that change. The Tribunal’s contrary conclusion made its finding on repudiatory breach unsafe. It should also have considered whether the facts potentially amounted to an actual dismissal of the Hogg v Dover College type.
7. Affirmation could not be inferred from the claimant’s willingness to remain employed only in a Band 6 role. Nor did his conditional offer to work marginally beyond his notice period establish affirmation without considering its context, including the Covid-19 lockdown, uncertainty over notice, the short proposed extension and the fact that he did not work beyond notice. The Tribunal’s alternative conclusion that any dismissal would have been fair did not cure the accumulated errors.

• Employment Appeal Tribunal: Allowed the claimant’s joined appeals and remitted all claims for rehearing: [2024] EAT 17.
• Employment Tribunal: Employment Judge O’Brien, sitting with members, dismissed the claimant’s constructive unfair dismissal and victimisation claims in reasons sent on 29 July 2022.
• Employment Tribunal: Employment Judge Russell refused amendments and held specified victimisation allegations out of time in reasons sent on 14 July 2021.