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Chambers & Partners
14/08/2008

Shestak v. Royal College of Nursing and others

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Employment Appeal Tribunal

An employment tribunal had correctly struck out claims brought under the Race Relations Act 1976 s.11 and s.33 as they had no reasonable prospect of success and the tribunal had adopted the correct approach.

The appellant (S) appealed against a decision of an employment tribunal to strike out her claims of racial discrimination against the three respondents. S had been studying at the respondent university for a nursing degree, which included work placements at hospitals. During her first placement there were disagreements between S and other hospital workers. The relevant NHS trust terminated S's placement and declined to have her work at any of its hospitals. S's claims against the NHS trust and some of its employees would be heard at a full hearing. S claimed against the respondent Royal College of Nursing and one of its employees under the Race Relations Act 1976 s.11, claiming that the respondent strategic health authority had aided and abetted the discrimination perpetrated by other respondents contrary to s.33(1), and that the university had aided the discrimination perpetrated by the NHS trust. All those claims were struck out on the basis that they had no reasonable prospect of success.

HELD: (1) The tribunal's decision to strike out S's claim against the Royal College of Nursing had been entirely correct: it had reminded itself of the correct approach and relevant guidance in relation to striking out, and had taken S's claim at its highest, Ezsias v North Glamorgan NHS Trust (2007) EWCA Civ 330, (2007) 4 All ER 940 considered. It had considered the extent to which the essential facts were in dispute and noted that not many were. In a case where the substantial allegations were not in dispute it was appropriate to consider striking out on the basis of the documents as amplified by brief evidence from the main parties involved. The tribunal had clearly been entitled to form the view that the claim had no prospect of success. (2) The claim had failed to establish the precise act that the health authority was alleged to have aided and what acts committed by the health authority would amount to aiding within the meaning of s.33. The tribunal had taken the correct approach. (3) In relation to the university the tribunal had adopted the correct course of considering S's case at its highest and had taken the view that the appropriate test was not satisfied, Hallam v Avery (2001) UKHL 15, (2001) 1 WLR 655 applied. The tribunal had considered the allegations and correctly concluded that nowhere was there to be found an allegation that the university was assisting the discrimination or victimisation by another party.

Appeal dismissed

Counsel For the East of England Strategic Health Authority: Jonathan Davies
 

(2008) 152(37) SJLB 30
shestak.pdf

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