Prasad v Epsom & St Helier Hospital NHS Trust: when consolidation does not create a new claim

The Employment Appeal Tribunal has dismissed an appeal concerning whether the consolidation of employment tribunal claims had the effect of making an NHS trust a respondent to a subsequent claim that named only its chief executive officer.

Miss U Prasad, a former consultant cardiologist employed by Epsom and St Helier Hospital NHS Trust, brought her sixth set of employment tribunal proceedings in October 2021. This claim (Claim 6) named only Jacqueline Totterdell, the Trust's chief executive officer, as respondent. Ms Totterdell had commenced employment with the Trust 13 months after the claimant's dismissal and had no involvement in any of the matters about which complaint was made.

The claim form stated the respondent as "Ms Jacqueline Totterdel (sic), CEO of Epsom & St Helier Hospital NHS Trust" and sought reinstatement to the claimant's previous post. No particulars of claim were initially attached. When particulars were eventually served in April 2024, they referred extensively to Ms Totterdell's failure to personally address the claimant's requests for reinstatement.

Regional Employment Judge Balogun had previously consolidated Claim 6 with two earlier claims (Claims 4 and 5) in which the Trust was the named respondent. The effect of this consolidation was that the Trust became designated as the First Respondent and Ms Totterdell the Second Respondent for case management purposes.

The strike out application

Solicitors acting for Ms Totterdell applied to strike out Claim 6 on the basis that it disclosed no cause of action against her and had no reasonable prospect of success. Employment Judge Morton granted that application, finding that the claim as pleaded was against Ms Totterdell personally and not against the Trust.

The claimant appealed, arguing that the consolidation order had the effect of making the Trust a respondent to Claim 6, that the particulars of claim should be construed as bringing claims against both the Trust and Ms Totterdell, and that the judge ought to have made further enquiries before striking out the claim.

The legal principles

Deputy High Court Judge Sarah Crowther KC emphasised the importance of recent Court of Appeal guidance in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185. Issues raised by parties in employment tribunal proceedings must emerge clearly from an objective analysis of their statements of case, not from other documents lacking the status of pleadings.

Whilst tribunals should be sensitive to the vulnerabilities of litigants in person and may appropriately explore the scope of a party's case by way of clarification, they have no general duty to take proactive steps to prompt expansion or modification of the case advanced. As established in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, tribunals must resist the temptation to become an advocate for unrepresented parties.

Analysis and decision

Judge Crowther KC held that whilst the consolidation order correctly designated the Trust as First Respondent for case management purposes, this did not create a claim against the Trust. The critical question remained whether it emerged clearly from the ET1 and particulars of claim that the Trust was an intended respondent.

On an objective reading of the claim form and particulars, what "shouted out" was not that the claimant wished to bring another claim against the Trust, but rather that she wished to assert personal responsibility of Ms Totterdell for acts and omissions of the Trust about which she had already complained in earlier proceedings. The particulars repeatedly emphasised the claimant's frustration that Ms Totterdell had declined to deal personally with her requests for reinstatement.

There was no ambiguity regarding the identity of the intended respondent. References to the Trust in the particulars were a rehearsal of previously made allegations in Claims 2 to 5, for which the claimant was inviting the tribunal to treat Ms Totterdell as personally responsible. The particulars suggested Ms Totterdell should be made responsible for the acts and omissions of her predecessors and other Trust employees, not that the Trust should be liable for Ms Totterdell's acts.

Employment Judge Morton had carried out a careful and thorough analysis of the pleaded case, construing the particulars in a manner favourable to the claimant. She had properly identified the different possible interpretations of the case against Ms Totterdell, demonstrating exactly the approach required to help refine and advance arguments laid out by unrepresented litigants.

It would have been beyond any reasonable stretch of judicial interpretation to read the particulars as setting out a claim against the Trust. Indeed, for the judge to have invited the claimant to name the Trust as a respondent would have descended into the adversarial arena and strayed beyond permissible assistance into inviting new claims or facts and matters to be asserted.

The contemporaneous material, including the claimant's correspondence with ACAS and her skeleton argument, supported this analysis. Even at the reconsideration application, the claimant had repeatedly referred to the "involvement of Ms Totterdell" and her wish to hold her "responsible" for refusing reinstatement. Only when her grounds of appeal were reformulated with assistance from the ELAAS scheme was it suggested that the judge had failed to realise Claim 6 was intended against the Trust.

The appeal was accordingly dismissed. The case management decision to consolidate claims did not have the effect of making Claim 6 a claim in substance against the Trust, and there was no error in the employment judge's approach to the strike out application.

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