Mr Y Shaheen v Commissioner of Police for the Metropolis: 2305089/2023

EMPLOYMENT TRIBUNALS

Case No 2305089/2023

Between

Mr Yousef ShaheenClaimant

Commissioner of Police for the MetropolisRespondent

Before

Employment Judge Fowell

Date 10 September 2024

JUDGMENT

[1]The claim is struck out in its entirety, on the basis that it has no reasonable prospect of success.

REASONS

[1]These written reasons are provided at the request of the respondent, despite being successful at the hearing. As usual, some editing has taken place to avoid duplication or unnecessary detail, and these written reasons stand as the final version.

[2]The respondent has made this application to strike out the claim on the basis that the alleged acts of discrimination were too long ago and because the respondent did not employ the person responsible.

[3]Mr Shaheen is a Coroner Officer. He works for the Metropolitan Police Service and he described to me the nature of his work. It typically involves receiving reports from a hospital about the death of an individual. There might be four such referrals a day coming in to the team. His job would then be to investigate the circumstances of the death. That would involve contacting the person’s GP and obtaining the relevant medical records. He would then prepare and send a report to the duty Coroner to see if the necessary form could be issued or whether it needed further investigation. His immediate manager is Mr David Leese. 1 of 9

[4]There are several coroners, but the Senior Coroner is, or was, Mr Andrew Harris, who retired in October 2023. As a coroner, Mr Harris was an independent judicial office holder, and so he was not employed by the Metropolitan Police. Section 24 of the Coroners and Justice Act 2009 provides that the relevant local authority must provide whatever staff and accommodation are needed by the coroners in their area, and in this case, those officers (including Mr Shaheen) are drawn from the Metropolitan Police Service.

[5]The complaints were set out in a claim form on 14 September 2023 and include claims of discrimination on grounds of race and disability. In summary, they are as follows: a) on 12 December 2016 a case involving the murder of a police officer in Southwark was taken off Mr Shaheen without explanation; b) on 3 June 2017 he was the on-call officer during the Borough Market stabbings, and those cases were also taken off him, this time at the direction of Mr Harris; c) from 2014 onwards Mr Harris made comments about his accent and background, criticised his English and was generally disparaging; d) on 19 April 2022, Mr Leese commented that he worked on his own and was not part of a team - essentially that he was not fitting into the team; e) on 5 April 2023 Mr Harris reported Mr Shaheen to a Police Commander with a view to his investigation for misconduct and asked that he be suspended.

[6]This last issue arose following a report from St Thomas’s Hospital that Mr Shaheen had been ringing from ward to ward trying to find a doctor who would sign an MCCD (Medical Certificate of Cause of Death) and that this was inappropriate conduct and beyond the scope of his authority.

[7]I should make clear that I am making no conclusions about any of these allegations, and in describing the events in question I am setting out Mr Shaheen’s claim, no more.

[8]ACAS were contacted about early conciliation on 5 July 2023, three months to the day after this report by Mr Harris, the last act complained of. As is well established, it needed to be within three months, i.e. three months less one day, so this was a day late.

[9]ACAS issued a certificate on 16 August 2023 and the claim form was submitted within a further month, on 14 September. The Metropolitan Police issued a holding response to say that internal misconduct proceedings were ongoing against Mr Shaheen and then made this application, on 21 May 2024. 2 of 9 Procedure and evidence

[10]In support of the application, they have provided a bundle of 89 pages, explaining the contractual arrangements and including the tribunal paperwork. It became apparent at the start of this morning’s hearing that Mr Shaheen had also provided a bundle of 198 pages. This had been emailed to the tribunal but not to the respondent, and it took nearly two hours to assemble that material by instalments and to read through it. I will set out the important aspects in a moment. Unless otherwise stated, page references are to this bundle. Applicable Test

[11]Rule 37 of the Employment Tribunal Rules of Procedure provides that: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;

[12]Summarising the main cases in this area, in Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases, because of the public importance of such cases being heard.

[13]In Balls v Downham Market High School and College

2011 IRLR 217

, EAT, Lady Smith said that the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. That includes, for example, material on the employment tribunal file. There may be correspondence or other documentation which contains material that is relevant to the issue or which assists in determining whether it is fair to strike out the claim.

[14]In Cox v Adecco

[2021] ICR 1307

, the Employment Appeal Tribunal (HHJ Tayler) reviewed the authorities in this area and distilled the principles governing the approach to strike-out applications as follows:(1) No one gains by truly hopeless cases being pursued to a hearing.

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.

(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.

(4) The claimant’s case must ordinarily be taken at its highest.

(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.

(6) This does not necessarily require the agreement of a formal list of issues, 3 of 9 although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer.

(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

[15]So, with that guidance in mind I have looked carefully at the material available to me in those two bundles. Mr Shaheen explained in the course of his submissions why he was making these complaints. He remains very aggrieved about the fact that the high-profile cases were removed from him in 2016 and 2017. The first was, he said, done at the request of a DI Muir, who has now retired, and he says it was given to a white member of staff who had only been with the police for a month or two. The second time, in 2017, it was done at the request of Mr Harris, and the cases were also given to a white member of staff.

[16]He also expanded on the incident with Mr Leese in 2022. That is well documented. He wrote an email to Mr Leese about it on the morning in question, 19 April [at page 4] to record the fact that Mr Leese had referred to him as not working as a team member. He then raised a grievance about this on 23 May 2022 [5]. In that document he added earlier examples of bullying or harassment over many years. Mr Shaheen’s employment with the Metropolitan Police began in 2001 and he referred to unfair treatment since he joined. In particular, he referred to his time working at Paddington Police Station, when he was made to feel unwelcome, was often shouted at or ignored and during Ramadan in 2008 or 2009 a group of officers were eating in front of him, taunting him because he was fasting, and waving a banana skin in his face.

[17]These points were not of course mentioned in the claim form but Mr Shaheen said that he would now like to include them.

[18]He also told me about the effect that the disciplinary investigation had had on him, that it had taken about nine months to complete, that he had had to chase repeatedly for an outcome and then inform his line manager of that outcome, and 4 of 9 that in the meantime, although he was not formally suspended, most of his duties were removed. He was not, for example, allowed to talk to the families of the deceased, and many of his cases were taken away from him. He was unable to obtain overtime by being in the on-call rota so it had had a financial impact as well.

[19]When the outcome of that internal investigation was known, he wrote to the tribunal to ask to add some more information to his claim [166]. That email included as an attachment the investigation report, which exonerated him. In the body of the email he added some more details about the way in which he says he was treated by Mr Harris over the years, such as that Mr Harris was rude or sarcastic, that his tone of voice showed no respect or patience, that he would look at Mr Shaheen’s written work and correct spelling mistakes and then shake his head and smile to himself.

[20]It is not necessary to go into the detail of the investigation report but the allegations investigated were that: a) Mr Shaheen had been ringing around the wards trying to find a doctor to sign a Medical Certificate of Cause of Death; b) the families of the patient had formed the opinion that Mr Shaheen was a coroner and he did not correct them, and, more generally; c) that this was part of a trend in which Mr Shaheen exercised his own autonomy inappropriately.

[21]The conclusion was that there was no evidence of any misconduct and no further action would be taken.

[22]Looking at the claims or potential claims as broadly as possible therefore, Mr Shaheen has longstanding concerns about the behaviour towards him of Mr Harris; he believes there has been a long history of racist treatment going back to his time in police stations; he feels has been unfairly treated in his role as a Coroner Officer, in particular in having those high-profile cases taken off him; and he also has a potential complaint about the way the disciplinary process was handled, involving as it did a long delay, the removal of many duties and a lack of information.

[23]There is some further relevant information in the bundle provided by Mr Shaheen, particularly with regard to the time limit issue. From page 63 onwards there is a form he completed for his union (PCS) setting out details of his potential claim. On page 65 there are words on the form in bold to say that it is his responsibility at all times to ensure that employment tribunal deadlines are not missed, that this is usually three months less one day from the day of dismissal or the act complained. However, it goes on, before a tribunal claim can be filed, the ACAS early conciliation process needs to be triggered and this too has to be done within this ‘three months less one day’ limitation period. 5 of 9

[24]In the form below that warning there was a table for Mr Shaheen to complete, setting out a chronology of events. The details given are brief. He simply stated that the most recent incident was on 5 April 2023. Below that he stated that there were other events ‘between 2007 and 2023’ and he added ‘Please see details attached.’ The attachment was the grievance from May 2022.

[25]He chased for a response on a number of occasions and on 4 July he emailed to say that he was concerned ‘as the last day for making this complaint is today.’ So, he knew the deadline was 4 July. Following further exchanges, Mr Shaheen contacted ACAS the next day.

[26]Mr Shaheen has also disclosed some legal advice that he received from the union at that time [78]. It referred to the age of the allegations and concludes, “I believe it will be very difficult to succeed in a harassment claim because the unwanted conduct appears not to be linked to a protected characteristic of yourself. An employment tribunal is highly unlikely to find that an employer has committed an act of harassment by investigating an external complaint.”

[27]After that he made a separate complaint about Mr Harris [43] to the Chief Executive of the council. She then referred him to the Judicial Conduct Investigation Office (JCIO) on 3 May 2023. He duly raised a complaint with them [57]. They investigated it and found, broadly, that Mr Harris was entitled to raise concerns with Mr Shaheen’s employer. Mr Shaheen subsequently made a complaint on 8 May 2024 (a year later) to the Judicial Appointments and Conduct Ombudsman about the way in which the JCIO had carried out their investigation. All that is outside the scope of these proceedings, but they show that Mr Shaheen was made aware of the legal position of judicial office holders. Conclusions Coroner Status

Conclusions

[28]I have set all that out at some length to explain the full potential extent of the claim here. However, there is no dispute that Mr Harris is not employed by the Metropolitan Police. The claims presented here are all under the Equality Act 2010. Section 109(1) provides that “… anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.”

[29]Similarly, at sub-paragraph (2): “ … anything done by an agent for a principal with the authority of the principal must be treated as also done by the principal.”

[30]The test for an employee for the purposes of the Equality act is a broad one. The definition is at section 83(2) and “… includes employment under a contract of employment but also a contract of apprenticeship or a contract personally to do work.” 6 of 9

[31]A contract to do work personally can cover a much wider range of individuals than employees, but even on that broader definition Mr Harris was not contracted to provide any services to the Metropolitan Police Service. He had no contract with them at all. Equally, he was not their agent and was not acting on their behalf. The essence of his role was that he was independent, and so they had no control over the way he exercised his duties.

[32]I cannot therefore find any legal basis in the Equality Act for the Metropolitan Police to be liable anything which Mr Harris did. That is essentially a legal question, and one which admits of only one answer, so it follows that there is no reasonable prospect of success for any of the allegations against Mr Harris. Time limits

[33]Looking at the complaints set out in the claim form, that in fact only leaves one, the comment made by Mr Leese on 19 April 2022. (It has also now emerged that the decision in 2016 to remove a case from him was at the direction of DI Muir, so that might potentially be added by amendment.) The comment by Mr Leese was about 18 months before the claim was submitted and so well outside the normal three-month time period and the 2016 incident was obviously much earlier. Then there is the earlier behaviour at Paddington Police Station and the more recent conduct of the investigation, which might also be added by amendment.

[34]There is an exception to the three-month time limit where there is a continuing act, i.e. a series of related events, which ends in time.Looking at these complaints on the most favourable basis however, they are all very different. They involve different people, different types of treatment and, with the possible exception of the last one, they are also well out of time. The fact that they are so different, and so widely separated in time, means that I have to conclude that they are not part of a series of such acts.

[35]The only other basis to extend time is where it is “just and equitable” to do so. Again, the most recent allegation in the claim form which does not concern Mr Harris is the comment by Mr Leese, but that was 18 months before the claim was lodged. There is no real explanation for why it was not pursued in an employment tribunal at the time, especially as Mr Shaheen raised a formal internal grievance about it. The same applies with even more force to the even earlier complaints from 2008 and 2016/17.

[36]So, the only basis on which the claim could proceed is if I were to conclude that it could or should be amended to include some later allegations. There is some potential for that because, as noted, Mr Shaheen contacted the tribunal once the outcome of the disciplinary process was known and asked to add that further information to his claim. But on examination, the covering email contained only further criticisms of Mr Harris. A copy of the investigation report was attached, but he said nothing to the effect that the outcome of the disciplinary process was an act of discrimination. Indeed, the tenor of the email is that he was simply 7 of 9 adding some detail and it was not treated by the tribunal staff as an application to amend.

[37]Even if this was a satisfactory way forward for Mr Shamoon, such amendments are not made lightly. The key test, applying the principles in the case of Selkent Bus Company v Moore

1996 ICR 836

, is the balance of prejudice between the parties. The tribunal has to carry out a careful balancing exercise of all the relevant factors, in particular: a) the nature of the proposed amendment; b) the applicability of time limits; and c) the timing and manner of the application.

[38]The Court of Appeal stressed in Abercrombie and ors v Aga Rangemaster Ltd

2013 IRLR 953

CA that tribunals should, when considering applications to amend that arguably raise new causes of action, focus “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”.

[39]Taking these various factors in turn, this would involve a major change. Indeed it would involve the substitution of all the complaints in the claim form with a new batch of complaints about the investigation. It would involve entirely different witnesses on the respondent’s part. The respondent would essentially be at square one in responding to the claim and the scope of the factual inquiry would be entirely different to that first advanced.

[40]It is not in fact clear to me why Mr Shaheen is suggesting that he the delay etc in that investigation were acts of discrimination on grounds of race or disability. Arguably, if the email in May 2024 is treated as an application to amend, it was made in time, but in fact it was not made known to the respondent, or presented as a potential application for amendment until today.

[41]The final point is about the timing and manner of the application, which has not yet even been put in writing, Weighing those considerations, and looking back at the guidance in Cox, I remind myself that what is expected – at point (9) - is that if the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

[42]I bear in mind the legal advice that Mr Shaheen received from his union that it would not have reasonable prospects of success, essentially because he is complaining that his employer carried out an investigation and exonerated him. There is obvious sense in that. And more generally, as stated in that advice, there is no reason to conclude that any shortcomings were connected with race or disability. 8 of 9

[43]Hence, I do not believe that allowing such an amendment would be in the interests of justice. Overall, the claims which have been advanced are well out of time, the claims against Mr Harris cannot be brought for jurisdictional reasons, and there is no real basis for an amendment now to include more recent events which would have reasonable prospects of success.

[44]For all of the above reasons the claim is struck out.