Mr M Yaqub v The Commissioner of Police of the Metropolis: 2200809/2024
EMPLOYMENT TRIBUNALS
Case No 2200809/2024
Between
Mr Muhammad YaqubClaimantThe Commissioner of Police of the MetropolisRespondent
Before
Employment Judge Gidney,In person for claimantDate 3 March 2025
JUDGMENT
[1]The Claimant’s application to amend his Claim Form dated 12th August 2024 is refused.[2]The Respondent’s application to strike out allegation [3.2.3] of the List of Issues annexed to the Case Management Order of Employment Judge Peer dated 12th August 2024 is granted.[3]The Respondent’s application to strike out and/or seek a deposit order in respect of the 3 remaining factual allegations at [3.2.10], [3.2.11] and [3.2.12] (relied on as both direct race and direct sex discrimination) of the List of Issues annexed to the Case Management Order of Employment Judge Peer dated 12th August 2024 is refused.[4]There shall be a case management hearing at 2pm on 20th November 2024 limited to determine the necessary directions for the final hearing claim of the 3 remaining factual allegations at [3.2.10], [3.2.11] and [3.2.12] in the List of Issues prepared by Judge Peer [119]. The List of Issues is now settled.
REASONS
[1]On 11th November 2024 I heard an application by the Claimant to amend his Claim Form. That application was opposed by the Respondent. I also heard an application by the Respondent to strike out the Claimant’s claims and/or seek a Deposit Order in respect of them, on the grounds that the Claims were out of time and thus had no or little reasonable prospects of success. That application was opposed by the Claimant.[2]On that day I had time to hear submissions from both parties on both applications. I had enough time in deliberations to come to a decision on both applications, but not enough time to prepare and deliver oral reasons. With the consent of the parties, I delivered Judgment on the applications (dismissing the Claimant’s application to amend and upholding the strike out application in part) and informed them that written reasons would follow in due course.[3]My reasons are as follows:
Findings of Fact
[4]I have not recited every fact in this case or sought to resolve every dispute between the parties. I have limited my analysis to the facts that were relevant to the Issues that I was tasked to resolve. I made the following findings of fact on the basis of the material before me, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. I resolved such conflicts of evidence as arose on the balance of probabilities. Findings of fact related to a specific issue that I have been tasked to resolve are set out in my Conclusions section below.[5]The Claimant is male and describes his race as Asian. He commenced work with the Respondent on 1st May 2012 until his engagement ended by way of summary dismissal on 26th August 2023. The Claimant had obtained the rank of Detective Sergeant.[6]By his Particulars of Claim [16]1 the Claimant asserts that: 6.1. In 2010 he passed his Pt 1 and Pt 2 exams necessary for promotion to Detective Sergeant; 6.2. 2015 he received a complaint from a member of the public that he was too talkative, for which he was given advice; 6.3. In 2019 he secured promotion to the rank of Detective Sergeant and was assigned as Crime Manager for the response team officers in Lewisham. Later in 2019 he received complaints by two members of staff, PC Chloe Barton and PC Bailey Wilkinson which led to a written warning in November 2019 the claimant felt the complaints were unfair and fabricated. 6.4. The Claimant appealed against the warning but in June 2020 the Chief Inspector rejected the Claimant's appeal. This led the Claimant to raise a grievance with the discrimination grievance team regarding what he considered to be the mishandling of the 2019 complaints. 6.5. On 1st May 2020 the Claimant was transferred to Charring Cross. He asserts that he suffered microaggressions, gaslighting and hostility from his new colleagues. 6.6. On 16th October 2020 he was commended for his dedication. Commitment and professionalism following the Grenfell disaster; 1 Numbers refer to page numbers within an agreed bundle of documents 6.7. Between May 2020 and March 2021, the Claimant listed a number of incidents of casual racism that he suffered from colleagues. 6.8. On 6th March 2021 the Claimant challenged PC Cullen over her decision to halt an investigation, leading to a complaint being raised against the Claimant by PC Cullen and PC Thomas. 6.9. On 24th October 2021 the Appropriate Authority filed a Regulation 30 notice which alleged that the Claimant’s conduct towards four female Police Officers (PC Cullen, Officer X, DC Mustoe and PC Anderson was sexually harassing. The complaint also included allegations of homophobic and racist comments against the Claimant. 6.10. The panel upheld the complaints made by the 4 female officers and the complaint about the homophobic comment and summarily dismissed the Claimant on 26th August 2023. 6.11. The Claimant appealed against his dismissal on 6th November 2023, which was dismissed on 23rd December 2023.[7]In respect of his race discrimination claim, the Claimant relies on being ignored in 2019, and incidents on 24th October 2022, 25th August 2023 and 23rd December 2023. In respect of his sex discrimination claim, the Claimant relies on incidents on 24th October 2022, 25th August 2023 and 23rd December 2023.[8]The Claimant notified ACAS of a dispute with the Respondent on 16th November 2023 and obtained an ACAS Early Conciliation certificate on 28th December 2023. The Claimant presented claims of unfair dismissal, and discrimination on the grounds of race, religion or belief and sex, in box 8.1 of his Claim Form dated 26th January 2024 [9], however his Particulars of Claim only relied on allegations of sex and race discrimination [36-37]. Pursuant to s207B(4) Employment Rights Act 1996 (‘ERA’) all incidents that occurred prior to 17th August 2023 are out of time, unless they form part of a continuing act which ended after 17th August 2023 or unless the Tribunal exercises its discretion to extend time on the grounds that it would be just and equitable to do so.[9]By its defence the Respondent asserts that the Claimant was precluded by s200(1) ERA from bringing a claim for unfair dismissal. It also denied all of the Claimant’s claims of discrimination.[10]Employment Judge Stewart noted in a Case Management Order dated 9th May 2024 [56] that: 10.1. The Claimant clarified that he was not presenting a claim of unfair dismissal pursuant to s98(4) ERA; 10.2. The Respondent was not seeking to advance the argument that the disciplinary and appeal tribunal panels enjoy judicial immunity as provided in Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 advanced in paragraph 44 of its Grounds of Resistance.[11]Judge Stewart ordered Further and Better Particulars of the discrimination claims by 6th June 2024. On 25th June 2024 the Judge issued a strike out warning for failing to comply with her prior Order for further particulars [60].[12]On 12th August 2024 the Claimant went on to produce a 33-page set of Further and Better Particulars [79]. The original Particulars of Claim was a 21-page document [16]. Whilst the document itself is undated the Claimant told me and the Respondent agreed that it had been made on 12th August 2024.[13]The case was case managed for a second time by Employment Judge Peer on 12th August 2024 [113]. The Judge recorded the claims as sex and race discrimination only (there being no claim based on religion or belief). The Judge listed today’s preliminary hearing (11th November 2024) to determine: 13.1. Whether the Claimant can amend his discriminations allegations to include matters referred to in his Further and Better Particulars; 13.2. Whether the claims should be struck out or subject to a deposit order on the grounds that, due to limitation issues, they have no or little reasonable prospect of success.[14]It is clear that Judge Peer spent some time distilling the Claimant’s Further Particulars into 10 factual allegations. The Judge said that some time not without difficulty in identifying the actual claims from lengthy explanation about background employment history [114]. I am grateful to the Judge for the time invested in that exercise. The 10 allegations are (for ease of convenience I have included each paragraph number from the List of Issues prepared by Judge Peer [119] as follows: 14.1. [Issue 3.2.1] Because the Claimant criticised PC Barton in relation to an incident when an assailant was allowed to leave in March 2019, she bought a malicious and retaliatory complaint against him that he had engaged in inappropriate behaviour by touching her knee; 14.2. [Issue 3.2.2] in March 2019 appointed Mr Sheara to investigate officer Barton's complaint; 14.3. [Issue 3.2.3] Between the 30th March 2019 and 29th July 2019 the ignored; 14.4. [Issue 3.2.4] In July 2019 invited Officer Wilkinson to give evidence when investigating Officer Barton's complaint and Officer Wilkinson maliciously stated that the claimant had engaged in inappropriate behaviour by touching his shoulder; 14.5. [Issue 3.2.5] Failed to properly and fairly investigate the complaint (Mr Sheara); 14.6. [Issue 3.2.6] Gave the Claimant a written warning in 2019 (Mr Sheara); 14.7. [Issue 3.2.7] Dismiss the Claimant’s appeal against his written warning in June 2020 shortly after he had raised concerns about the racial abuse of him and others by the appeal officer, Chief Inspector Hawkins; 14.8. [Issue 3.2.8] Failed to give due consideration to his appeal (Chiefs Inspector Hawkins) by providing a 2-line outcome and not interviewing anyone; 14.9. [Issue 3.2.9] Fail to resolve the Claimant’s grievance about the written warning brought on 10th July 2020; and, 14.10. [Issue 3.2.10] Failed to update the Claimant about the progress of his grievance brought on 10th of July 2020.[15]The Judge recorded that all 10 points were relied on as direct race discrimination and 14.1 (touching the knee of PC Barton) and 14.4 (touching the shoulder of PC Wilkinson) were also relied on as sex discrimination. The Judge also noted that only allegation 14.3 (emails ignored by PC Wilkinson) were not readily discernible from the original Particulars of Claim. The Judge then recited the matters set out in paragraph 14 above, including the three factual allegations that were identified in the original Particulars of Claim, in a List of Issues [118]. Those three other factual allegations (that are not subject to any amendment application as they were contained in the original claim) were: 15.1. [Issue 3.2.11] Being subjected / referred to the Police Misconduct Hearing by the Appropriate Authority on or around the 24th of October 2022; 15.2. [Issue 3.2.12] by being dismissed by the panel on the 25th of August 2023; and, 15.3. [Issue 3.2.13] the chair of a police appeals tribunals provisional ruling that the claimants appeal should be dismissed dated 23rd of December 2023.[16]It is of note that the ‘judicial immunity’ point that the Respondent confirmed to Judge Stewart it was not pursuing, was not included in Judge Peer’s List of Issues. This indicates that it was not pursued before Judge Peer. On 4th September 2023 the Claimant submitted written submissions on his application to amend and in opposition to any strike out or deposit order [122]. The Respondent submitted its response to the amendment application and its strike out / deposit order on 30th September 2023 [134]. It did not take the ‘judicial immunity’ point in those written submissions and the point was not taken orally before me.[17]The parties attended before me on 11th November 2024. The purpose of the hearing was to determine the Claimant’s application to amend his Particulars of Claim and the Respondent’s application to strike out the Claimant’s claims on the grounds that by reason of limitation the claims are out of time and thus have no or little reasonable prospects of success. I was aware of a further case management hearing listed on 20th November 2024. With the agreement of the parties, I gave an oral judgment only (set out in paragraphs 1-4 of the Judgment, above) without reasons, and confirmed that written reasons would follow.[18]During the time required to prepare the full written reasons the case management hearing on 20th November 2024 proceeded before Employment Judge Emery. It appears that at that hearing the Respondent renewed its argument that the appeal panel enjoyed Judicial immunity. As stated, the Respondent had confirmed to Judge Steward at the case management hearing that it was not taking that point [56]. It is not clear whether this prior concession was brought to Judge Emery’s notice when he listed the judicial immunity point for determination at a further Preliminary Hearing on 27th February 2025. I refer to it here because whether the Respondent is estopped from taking the Judicial immunity point by reason of its earlier concession should be considered at the forthcoming Preliminary Hearing on 27th February 2025 before the merits of the point are considered.[19]I turn now to the relevant law in the applications before me: The Relevant Law on Amendment[20]When considering an application to amend a claim, the following legal principles are relevant: 20.1. Where an amendment is required, the leading case is Selkent Bus Company Ltd v Moore [1996] IRLR 661, in which it was held that when considering an amendment, the following are relevant factors:(i) the nature of amendment,(ii) the applicability of time limits, and(iii) the timing and manner of the application. 20.2. The EAT confirmed in Vaughan v Modality Partnership [2021] ICR 535 that having considered the relevant factors (which are not limited to those identified in Selkent) Tribunals must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it and make our decision accordingly. This requires consideration of ‘the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding’ (para 21). 20.3. HHJ Taylor went on (in para 22): ‘Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need.’ 20.4. Another factor that can be considered is the merits of a claim. However, where there is a factual dispute between the parties, a Tribunal taking the merits into account must guard itself against the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored. This can be achieved, for the purposes of considering the amendment application, by taking the applicant’s evidence at its highest. 20.5. What is required is a focus on the substance of the amendment and the extent to which it gives rise to, on the one hand, minor or technical amendments at the low end of the spectrum, or a wholly new allegation raising altogether new matters not previously raised at the other end of the spectrum: Abercrombie & Ors v AGA Rangemaster Ltd [2013] ICR 213, CA. 20.6. The Tribunal must have regard to the timing and manner of the application. The Tribunal must have regard to the relevant time limits and, if the new claim is out of time, to consider whether the time should be extended under the appropriate statutory provision. In Galilee v Commissioner of Police of the Metropolis [2018] ICR 634, it was confirmed that the Tribunal is able to allow an application to amend subject to the time limits issue being resolved at the final hearing, albeit it is not obliged to do this. 20.7. Galilee is also authority for the proposition that the date of the amendment is the date that it is granted by the Tribunal (ie if allowed by me 11th November 2024). In those circumstances it is often just and equitable to extend time to the point that the application was made (in this case 12th August 2024). 20.8. Different types of discrimination claim (for example direct or indirect discrimination) are different claims and amendments to plead new discrimination claims are likely to be refused on the grounds that they seek to introduce entirely new claims: Ali v Office of National Statistics [2005] IRLR 201 and Harvey v Port of Tilbury (London) Ltd [1999] IRLR 693, EAT. 20.9. A cause of action is a set of facts that give rise to a legal remedy. The focus needs to be upon the facts that are alleged. If an amendment is in effect no more than or little more than applying a different legal label to the same set of facts, it is not a fresh cause of action; it is identifying rather a different way of looking at precisely the same facts for the convenience of the court and to enable justice to be done: Redhead v London Borough of Hounslow [2011] UKEAT/0409/11. The Relevant Law on Strike Out and Deposit Orders[21]The relevant statutory provisions in determining the Respondent’s applications are as follows: Rule 37(1) ET Rules 2013 “… a Tribunal may strike out all or part of a claim… on any of the following grounds (a) that it … has no reasonable prospects of success …., and (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim … (or the part to be struck out).”[22]The following legal principles guide Tribunals in the correct approach to such applications, as follows: 22.1. The strike out power should only be exercised in rare circumstances [Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 775 at para 30]; 22.2. Cases should not, as a general principle, be struck out on this ground when the central facts are in dispute [North Glamorgan NHS Trust v Ezsias [2007] IRLR 603]; 22.3. The correct approach for a tribunal to adopt is to take the Claimant's case at its highest, as it is set out in the claim, unless contradicted by plainly inconsistent documents [Ukegheson v London Borough of Haringey [2015] ICR 1285, EAT at para 21]; 22.4. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances [Anyanwu v South Bank Students' Union [2001] IRLR 305, HL]; 22.5. The above guidance is not to be taken as amounting to a fetter on the tribunals' discretion [Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at para 41, EAT]; 22.6. Whilst striking out discrimination claims will be rare, where there is a time bar to jurisdiction, or where there is no more than an assertion of a difference of treatment and a difference of protected characteristic, strike out may well be appropriate [Chandhok v Tirkey [2015] IRLR 195, EAT, paras 19 & 20] and Ahir v British Airways [2017] EWCA Civ 1392. The Tribunal’s Conclusions[23]I shall turn to the Claimant’s application to amend his Claim Form first.[24]The Claimant confirmed to me that he accepted that Judge Peer was correct to record in his Order that only Issue 3.2.3 that ‘Between the 30th March 2019 and 29th July 2019 the Claimant sent officer Wilkinson 17 emails which officer Wilkinson ignored’ [119] was included in his original Particulars of Claim. All other matters were new. Broadly put, the Claimant relies on the fact that he was waiting for the Respondent’s internal processes to complete before issuing his claims, and that he had a lack of control over that timing. He believed he could not go to the Tribunal until all the internal avenues had been exhausted and that he engaged in that process in good faith. As to why the new matters were not included in his January 2024 Claim Form, the Claimant told me that it was an oversight caused by the stress he was under at the time.[25]Progressing internal grievances or appeals is not an accepted reason for delaying Tribunal proceedings beyond the date that they would otherwise become out of time. As recorded above, for application to amend was made on 12th August 2024. As at that date the new allegations were: 25.1. [Issue 3.2.1] ‘Because the Claimant criticised PC Barton in relation to an incident when an assailant was allowed to leave in March 2019, she bought a malicious and retaliatory complaint against him that he had engaged in inappropriate behaviour by touching her knee’. This allegation was made 5 years and 5 months after it occurred. The explanation provided by the Claimant for this delay is that he did not understand the bigger picture. In my judgment 5 years and 5 months is just too long a delay. To allow the allegation would present the Respondent with functional unfairness as its witnesses could not be expected to recall events with sufficient detail necessary to rebut any inference of discrimination that could otherwise be made. This application to amend is refused. 25.2. [Issue 3.2.2] ‘in March 2019 appointed Mr Sheara to investigate officer Barton's complaint’. This complaint was also made 5 years and 5 months after it occurred. The Claimant accepts that it was necessary to appoint an Investigating Officer but argued that Mr Sheara was bias and had issues. His rationale for seeking the amendment was set out in his submissions at paragraph 12, namely ‘the principles of fairness and natural justice still apply particularly the dismissal has had serious consequences for me and career prospects and reputation as the victim of discrimination unfairness at work and constant passive aggression’. In my judgment 5 years and 5 months is just too long a delay. There has been no attempt to explain why or how there was ‘bias and issues’ or how that relates to the Claimant’s race or sex. To allow the allegation would present the Respondent with functional unfairness on understanding the allegation or taking instructions on it. The rationale does not explain why there has been such a long delay. This application to amend is refused. 25.3. [Issue 3.2.3] Between the 30th March 2019 and 29th July 2019 the ignored. This allegation was contained in the original Claim Form and thus does not require an amendment application to proceed. 25.4. [Issue 3.2.4] In July 2019 invited Officer Wilkinson to give evidence when investigating Officer Barton's complaint and Officer Wilkinson maliciously stated that the claimant had engaged in inappropriate behaviour by touching his shoulder. This allegation was presented 5 years and 1 month after it happened. The claim is that the ‘shoulder touching’ incident was made up because the Claimant was Asian. After such a length of time it appears unlikely that the Claimant could prove facts from which the Court conclude that a contravention of the Equality Act had taken place. The allegation is close to being impossible to present or defend. This application to amend is refused. 25.5. [Issue 3.2.5] Failed to properly and fairly investigate the complaint (Mr Sheara). This complaint was presented 4 years and 9 months after it occurred. No explanation was given for why it was left so late to include this complaint. The specifics of how and why the investigation failed has not been provided and it is effectively impossible to defend by reason of the lack of detail and time passed. This application to amend is refused. 25.6. [Issue 3.2.6] Gave the Claimant a written warning in 2019 (Mr Sheara). This allegation was presented 4 years and 9 months after it occurred. The amendment contains no basis for asserting that the giving of the warning was because of the Claimant’s race, rather than a response to the investigated misconduct. Attempting to explore a racial motivation for issuing a warning after the time that has elapsed cannot be undertaken fairly. This application to amend is refused. 25.7. [Issue 3.2.7] Dismiss the Claimant’s appeal against his written warning in June 2020 shortly after he had raised concerns about the racial abuse of him and others by the appeal officer, Chief Inspector Hawkins. This allegation was presented 4 years and 2 months after it happened. It is attempting to explore a racist or victimising motivation many years after the event, when would have expected the concern to have been raised at the time. It is, simply put, too old to fairly pursue now. This application to amend is refused. 25.8. [Issue 3.2.8] Failed to give due consideration to his appeal (Chiefs Inspector Hawkins) by providing a 2-line outcome and not interviewing anyone. This incident (the appeal outcome) was delivered on 25th June 2020. As at the date that the complaint about it was made, it had been raised 4 years and two months after the event. The statutory time limit is 3 months because of the issues of memory when attempting to explore a possible racist motivation for acting. There is no explanation for why it was taken so long to raise or why it was not included in the Claim Form, when all of the facts upon which the allegation is based were known. This application to amend is refused. 25.9. [Issue 3.2.9] Fail to resolve the Claimant’s grievance about the written warning brought on 10th July 2020; and [Issue 3.2.10] Failed to update the Claimant about the progress of his grievance brought on 10th of July 2020 can be taken together. Both relate to a grievance process which the Claimant submitted on 10th July 2020 [77]. There was no reply to that grievance. However, the Claimant never chased it or enquired what had happened to it. On 23rd April 2021 the Claimant for details of the written warning he had been given [78] but made no mention of any outstanding grievance. Attempting now, after a delay of 4 years and 1 month to add complaints about the handling of a grievance that it appears may never have been started, and which the Claimant did not appear to know was progressing in April 2023 is not in accordance with the overriding objective. It is hard to see how either side could fairly progress or defend that claim. This application to amend is refused.[26]In light of the judgment set out above, only allegations that shall proceed to face the Respondent’s application for a strike out or deposit order from the list of issues set out by Judge Peer are: 26.1. [Issue 3.2.3] Between the 30th March 2019 and 29th July 2019 the ignored. 26.2. [Issue 3.2.11] Being subjected / referred to the Police Misconduct Hearing by the Appropriate Authority on or around the 24th of October 2022; 26.3. [Issue 3.2.12] by being dismissed by the panel on the 25th of August 2023; and, 26.4. [Issue 3.2.13] the chair of a police appeals tribunals provisional ruling that the claimants appeal should be dismissed dated 23rd of December 2023.[27]Accordingly, I now turn to the Respondent’s strike out / deposit order application.[28]The matters set out in paragraph 26 above were included in the original Claim Form. To be in time such incidents must have occurred on or after 17th August 2023: 28.1. Issue 3.2.3 above is, accordingly, 5 years and 1 month out of time. 28.2. Issue 3.2.11 above is 10 months out of time. 28.3. Issue 3.2.12 and issue 3.2.13 are in time.[29]The Respondent relies on Underhill LJ in paragraph 16 of Ahir v British Airways [2017] EWCA Civ 1392: ‘Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment. … Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success'."[30]When considering s136 Equality Act the burden is on the Claimant to provide some sort of explanation regarding the facts from which the Tribunal could conclude discrimination had occurred. The Respondent relies on the fact that the disciplinary and appeal panels had independent selection panels run by the Judicial Appointments Commission and that allegations that the panel decisions were tainted by race or sex can fairly be said to have no or little reasonable prospect of success.[31]In my judgment it would not be just and equitable to extend time to allow issue 3.2.3 (the 2019 emails) to proceed. Whilst it was in the original Claim Form (and thus did not rely on an amendment application) it is nonetheless far too old to fairly progress to trial. It would not be just and equitable to extend time to allow it to proceed. This allegation is struck out.[32]The position is different for the remaining allegations. Issue number [3.2.10] is out of time, but only by 10 months. In my judgment the decision on whether it would be just and equitable to extend time for this to proceed is one that should be left to the Final Hearing Tribunal, who will have the benefit of having heard all of the evidence before exercising its discretion.[33]Issues [3.2.11] and [3.2.12] were presented in time. The Respondent nonetheless seeks a strike out or deposit order on the grounds that, given the independent nature of the panels, the allegation that racism tainted their decision has no or little reasonable prospects of success. Whilst that has the initial appearance of a good point (and it may well prove to be so) taking Anyanwu v South Bank Students' Union [2001] IRLR 305, HL into account, I consider myself bound by the principle that discrimination cases should not be struck out without hearing evidence except in the very clearest circumstances and this point cannot fairly be said to be so clear that the point has no or even little reasonable prospect of success. In my judgment this should remain an issue for the Tribunal at the final hearing. Accordingly, it is the Judgment of the Tribunal that: 33.1. The Claimant’s application to amend his Claim Form dated 12th August 2024 is refused. 33.2. The Respondent’s application to strike out allegation [3.2.3] of the List of Issues annexed to the Case Management Order of Employment Judge Peer dated 12th August 2024 is granted. 33.3. The Respondent’s application to strike out and/or seek a deposit order in respect of the 3 remaining factual allegations at [3.2.10], [3.2.11], [3.2.12] (relied on as both direct race and direct sex discrimination) of the List of Issues annexed to the Case Management Order of Employment Judge Peer dated 12th August 2024 is refused. 33.4. There shall be a case management hearing at 2pm on 20th November 2024 limited to determine the necessary directions for the final hearing claim of the 3 remaining factual allegations. The List of Issues is now settled.[34]Mr Isaacs submitted that the further particulars provided by the Claimant on 20 December 2024, as a result of EJ Emery’s Order dated 20 November 2024 and the further clarifications that have been made during this hearing means that there has been a material change, such that it is appropriate to allow the Respondent to renew its deposit order application in respect of the allegation made against the PAT.[35]I accepted that the matters Mr Isaacs identified were a material change in respect of the allegations raised against the PAT and agreed that the Respondent could make a further deposit order application in respect of that specific allegation.[36]Mr Isaacs, Mr Clement and I discussed the best way to move forward, bearing in mind the overriding objective. I raised concerns about not having information about the Claimant’s ability to pay before me (should it become relevant). I offered the options of the application being addressed further by the parties in writing or at a further preliminary hearing. Mr Isaacs after taking instructions stated that the Respondent would agree to a deposit order for £10 were I to conclude such an order should be made. Mr Clement’s preference on that basis was for the deposit order application to be heard at today’s hearing, as opposed to at a later point. I agreed that was a sensible way forward in respect of avoiding delay and further costs.[37]The purpose of a deposit order is to identify at an early stage claims with little prospect of success. The purpose is not to make it difficult to access justice or to effect a strike out through the back door. The test for a deposit order is where a specific allegation or argument in a claim or response has little reasonable prospect of success rather than no reasonable prospect of success. The Tribunal should have regard to the likelihood of the party being able to establish the facts essential to their case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward.[38]In Hemdan v Ishmail UKEAT/0021/16/DM, the EAT made the following observations about a Tribunal’s discretionary power to make deposit orders: “The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise.” “If there is a core factual conflict it should properly be resolved at a Full Merits Hearing where evidence is heard and tested.”[39]In Amber v West Yorkshire Fire and Rescue Service [2024] EAT 146 the EAT held that the last seven of the nine principles set out in Cox v Adecco and others UKEAT/0339/19 in relation to strike-out, applied equally in relation to deposit orders. These include: If the prospects of success turns on disputed factual issues, it is highly unlikely that a deposit order will be appropriate - to do so would not be in keeping with the interlocutory nature of the procedure; and, that the party's case 19 of 21 must ordinarily be taken at its highest (although that should be examined through "the prism of reality").[40]Mr Isaacs submitted that the Claimant did not object to the appointment of the Chair of the PAT, nor suggest at the time that they unlawfully discriminating against the Claimant. Additionally the Chair who reached the relevant PAT decision in this case: was not employed or appointed by the Respondent; was not part of the police institution (therefore the Casey review cannot be relied upon); and, that the Chair was required to reach a decision based on set legal principles and by applying case law (which they did) - it must therefore be held that the complaint has little reasonable prospects of success and the Claimant should not be allowed to advance a collateral attack on the decision reached under the guise of a discrimination claim. Whilst the Claimant may consider that the decision reached was wrong, that simply is not enough to establish discrimination.[41]Mr Clement clarified that the Claimant in pursing this specific allegation of discrimination is not relying on anything that the Chair of the PAT said or did beyond the provisional decision they reached, there are no relevant statistics to be considered. Mr Clement accepts that the Claimant is relying upon a hypothetical comparator in relation to his discriminatory allegation concerning that provisional decision by the PAT.[42]Mr Clement explained that the Claimant’s case is that: given all of the matters the Claimant had identified as set out in 8(a) – (o) and 11(b) – (m) in the further particulars dated 20 December 2024; the fact the Claimant had submitted substantive grounds of appeal but nevertheless was precluded from having his appeal heard; and, that evidence of white female officers (including those named as evidential comparators) was consistently preferred to the Claimant’s evidence, despite the extensive flaws the Claimant identified, discrimination because of race and/or sex must be concluded, as it should have been apparent from the Claimant’s appeal that he should neither have been referred to the Police Misconduct Panel nor been dismissed.[43]It may well be that the points raised by Mr Isaac on the Respondent’s behalf above, will mean that the Claimant’s complaint of direct race and/or sex discrimination against the Chair of the PAT can be resolutely dismissed at a final hearing. However, at this stage, there is a significant level of factual dispute. To take a provisional view on that factual dispute would (even if it were possible without hearing further evidence) require the analysis of a significant amount of documentary evidence and require more than a mini trial.[44]In relation to the separate argument put forward by the Respondent that: 44.1. the complaint against the PAT has little prospects of success because the Claimant is only seeking to rely on the provisional decision, not the decision reached in January 2024 (when the Tribunal’s jurisdiction changed); and 44.2. the provisional decision cannot be viewed by itself as less favourable treatment, since the less favourable treatment (if any) occurs in January 2024, when the final decision is reached, that the Claimant’s appeal cannot proceed, 20 of 21 Mr Clement explained: at the time the ET1 was submitted the final PAT decision had not been reached; the Claimant’s case is that in any event, the provisional decision, is, itself, an act of less favourable treatment, freestanding from the final decision, as that provisional decision was based on direct race and/or sex discrimination; and, that separately, the basis for the final rejection of the appeal did not change and had therefore been reached prior to the end of 2023.[45]I can see merits in the arguments on both sides of this separate specific point about when any less favourable treatment took place. Accordingly, I cannot say at this stage the Claimant’s position has little reasonable prospects of success.[46]For the reasons set out above, the Respondent’s deposit order application is not granted.[47]The fact that I have not made a deposit order, should not be taken as me saying that I think that the complaint against the PAT is likely to succeed. The only conclusion that should be reached is that I have found that the requirements for a deposit order have not been met.