Mr M A Kesen v London Fire Commissioner: 2305090/2023

EMPLOYMENT TRIBUNALS

Case No 2305090/2023

Between

Mr. M. A. KesenClaimant

London Fire Commissioner PUBLIC PRELIMINARY HEARINGRespondent

Before

Employment Judge Sudra

In person for claimant

Ms. S. Tharoor (instructed by Counsel) for respondent

Ms Zielinska (instructed by Counsel) for respondent

Date 15 October 2025

JUDGMENT

Upon the claimant withdrawing his whistleblowing claim, it is dismissed. _____________________________ Employment Judge Liz Ord Date 10 July 2024 JUDGMENT SENT TO THE PARTIES ON 24 July 2024 ..................................................................................... ...................................................................................... FOR THE TRIBUNAL OFFICE Case Number: 2305090/2023 1 of 2 EMPLOYMENT TRIBUNALS Claimants: Mr. M. A. Kesen Respondent: London Fire Commissioner PUBLIC PRELIMINARY HEARING Heard at: London South (via CVP video conference) On: 29th November 2024 Before: Employment Judge Sudra Appearances For the Claimant: In Person (unrepresented) For the Respondent: Ms. S. Tharoor of Counsel STRIKE OUT JUDGMENT The Claimant’s allegations1, 5.1 to 5.8 (direct race discrimination) and 12.1 to 12.7 (victimisation) are struck out. The Claimant’s remaining claims are unaffected and will proceed to a Final Hearing.

[1]As per the List of Issues annexed of EJ Ord’s Case Management Order of 10th July 2024. Case Number: 2305090/2023 2 of 2 __________________________ Employment Judge Sudra Date: 9th December 2024 Judgment sent to the parties on Date: 10th December 2024 Case No: 2305090/2023 EMPLOYMENT TRIBUNALS Claimant: Mr. M. A. Kesen Respondent: London Fire Commissioner CERTIFICATE OF CORRECTION Employment Tribunal Procedure Rules 2024 Under Rule 67, the judgment sent to the parties on 10th December 2024, is corrected as set out in block type at paragraphs 12, 23, 26, and 34 of the corrected judgment. __________________________ Employment Judge Sudra Date: 7th January 2025 Judgment sent to the parties on Date: 7th January 2025 Important note to parties: Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that sent the original judgment. Case Number: 2305090/2023 1 of 10 EMPLOYMENT TRIBUNALS Claimants: Mr. M. A. Kesen Respondent: London Fire Commissioner PUBLIC PRELIMINARY HEARING Heard at: London South (via CVP video conference) On: 29th November 2024 Before: Employment Judge Sudra Appearances For the Claimant: In Person (unrepresented) For the Respondent: Ms. S. Tharoor of Counsel

[1]The Final Hearing will take place at, Montague Court, 101 London Road, West Croydon, London, CR0 2RF on 13th October 2025, 14th October 2025, and 15th October 2025. The case will be heard by an Employment Judge sitting alone. The Hearing will start at 10.00 am. You must arrive by 9.30 am. 1 As per the List of Issues annexed of EJ Ord’s Case Management Order of 10th July 2024. Case Number: 2305090/2023 2 of 10

[2]Sometimes hearings start late, are moved to a different address or are cancelled at short notice. You will be told if this happens.

[3]If you think that more or less time will be needed for the hearing, you must tell the Tribunal as soon as possible.

[4]No postponement of the hearing will be granted unless there are exceptional circumstances. Claims and Issues

[5]The extant claims and issues, as discussed at this Preliminary Hearing, will be edited by the Respondent and further directions in this regard are made below. Final Hearing Timetable

[6]The Final hearing is listed for three days (liability and remedy). The Hearing timetable is likely to be: Day 1 am Tribunal reading and preliminary matters pm Claimant’s evidence Day 2 am Respondent’s evidence pm Closing submissions Tribunal deliberations in chambers Day 3 Oral Judgment Dealing with remedies if appropriate

[7]If you think that more or less time will be needed for the Hearing, you must tell the Tribunal as soon as possible. Any alternative time estimates must make a realistic allowance for each of these steps. Judicial Mediation

[8]Any party may write to the Tribunal at any time if it becomes interested in judicial mediation. Case Number: 2305090/2023 3 of 10 Schedule of Loss

[9]The Claimant already provided to the Respondent a Schedule of Loss. This is a document setting out how much compensation for lost earnings, injury to feelings, or other losses he is claiming and how the amount has been calculated. List of Issues

[10]By no later than 13th December 2024, the Respondent must edit the List of Issues as discussed today send a copy to the tribunal and Claimant. Documents

[11]By no later than, 31st January 2025 the Claimant and the Respondent must send each other a list and copies of all documents they have relevant to the issues listed in the Case Summary below.

[12]By no later than, 31st January 2025 21ST FEBRUARY 2025 the Claimant and the Respondent must agree the contents of a file of documents to be used at the Final Hearing.

[13]Documents includes recordings, emails, text messages, social media and other electronic information. You must list all relevant documents you have in your possession or control even if they do not support your case. Page and Word Limits for the File of Documents and Witness Statements

[14]The overriding objective requires Employment Tribunals to deal with cases in a proportionate way (Rule 2, Schedule 1). Case Number: 2305090/2023 4 of 10

[15]Under Rule 29, of Schedule 1, an Employment Tribunal is empowered to make Case Management Orders. This is a general power with a wide margin of discretion.

[16]Under rule 45, of Schedule 1, a Tribunal may impose limits on the time that a party may take in presenting evidence, questioning witnesses or making submissions and may prevent the party from proceeding beyond any time so allotted.

[17]Following discussion with the parties at the Case Management Hearing, in pursuance of the foregoing rules and having regard to the issues in the case, the length of the Hearing and the nature of the claim(s), the Tribunal Orders as follows: i. The Claimant’s witness statement shall be limited to 5000 words. ii. Any witness statement of a person called to give evidence for/by the Claimant, shall be limited to 2500 words. iii. The Respondent’s witness statements shall be limited to 15,000 words in total, having regard to its stated in intention to call two to three witnesses. iv. The word count must be stated on the witness statements. (As a general guide, 1 page of A4, font 12, line spacing 1.5 is usually around 500 words). v. The agreed bundle shall not exceed 800 pages in total. If the parties are unable to agree a bundle, a core bundle must be agreed (which shall not exceed 800 pages) and the parties can produce a supplementary Bundle not exceeding 100 pages which can only be referred to/admissible at the direction of the Tribunal (see below). The parties are reminded of their duty to cooperate, under Rule 2, Schedule 1.

[18]A party has a margin of 5% ONLY in relation to the above limits.

[19]Subject to a 5% margin, only in exceptional circumstances will a party be able to exceed the foregoing limits.

[20]The parties should avoid writing to the Tribunal applying to exceed these limits, unless there is a material change of circumstances. Instead: Case Number: 2305090/2023 5 of 10  In the case of witness statements, a supplementary witness statement might be admitted by the Tribunal Hearing the case, but only if it is necessary and proportionate to do so. This will be exceptional.  In the case of the Bundle, the parties should agree a Core Bundle and any supplementary documents/Bundle will only be admitted by the Tribunal Hearing the case if it is necessary and proportionate to do so. This will be exceptional.

[21]In addition, where a party exceeds the foregoing limits, this may also be considered unreasonable conduct in the proceedings which could lead to:  Costs being awarded against the party in default and/or:  a postponement of the Final Hearing, with or without costs consequences  striking out of a claim or a response, in whole or in part File of Documents

[22]The parties must agree the contents of a file of documents (see paragraph 17(v) (supra.)) for use at the Final hearing by no later than, 21st February 2025.

[23]The Claimant RESPONDENT must prepare a file of those documents with an index and page numbers. He must send a electronic copy to the Respondent by no later than, 14th March 2025.

[24]The file should contain:a. The claim and response forms, any changes or additions to them, and any relevant Tribunal orders. Put these at the front of the file.

b. Other documents or parts of documents that are going to be used at the hearing. Put these in date order.

[25]The Claimant and the Respondent must both bring a copy of the file to the Final Hearing for their own use. Case Number: 2305090/2023 6 of 10

[26]The Respondent must bring four TWO more copies of the file to the Final Hearing for the Tribunal to use by 9.30 am on the first morning.

[27]No later than two working days before the start of the Final Hearing, the First Respondent must send an electronic pdf version of the file of documents to the Tribunal office for the Tribunal to use. The pdf page numbers must match the pagination on the bundle index. Note About the Bundle The bundle of documents contains all of the documentary evidence to be placed before the employment tribunal in evidence. This should not necessarily contain every document disclosed to each other. Only the documents that are going to be referred to in evidence need to be in the bundle. The parties are reminded of the overriding objective and the need for proportionality when compiling the bundle of documents. The bundle should be in chronological order. When preparing an electronic bundle, the party responsible for producing it should ensure the following: The Tribunal currently uses software called PDF-XChange Editor so, if possible, bundles should be compatible with this software. The paper bundle and digital version shall be identical in order to avoid any confusion when page searches are made. Therefore page numbering in the electronic bundle should precisely match the page numbering in the paper one. If the page numbering in the paper version does not include the index, the index in the electronic bundle shall be moved to the back of that bundle. So, for example, when the tribunal searches page 10 in the pdf bundle, it corresponds with the same page in the paper version. If any additional documents are added after the completion of the bundle, these shall be added to the back with continuing page numbers. They shall not be added into the bundle with alpha-numeric numbering (e.g. 32a, 32b, 32c etc.) as this makes those documents difficult to find electronically with a page number search. The bundle shall be converted to optical character recognition (‘OCR’), where available, so that any scanned documents can be annotated by the tribunal and the parties; All sections and significant documents shall be bookmarked to enable quick location; All documents shall be in portrait mode. The electronic documents must be uploaded to the Tribunal’s Document Upload Centre. The Tribunal will email the relevant party with instructions and a link to access the Document Upload Centre in advance of the hearing. This link will allow parties to upload PDF documents and bundles directly to the Tribunal. Case Number: 2305090/2023 7 of 10 Witness Statements

[28]The Claimant and the Respondents must prepare witness statements (see paragraphs 17(i)-(iii) (supra.)) for use at the hearing. Everybody who is going to be a witness at the hearing, including the Claimant, needs a witness statement.

[29]A witness statement is a document containing everything relevant the witness can tell the Tribunal. Witnesses will not be allowed to add to their statements unless the Tribunal agrees.

[30]Witness statements should be typed if possible (Arial font if possible and no less than size 12 text). They must have paragraph numbers and page numbers. They must set out events, usually in the order they happened. If the witness statement refers to a document in the file it should cite the page number.

[31]At the Hearing, the Tribunal will read the witness statements. Witnesses may be asked questions about their statements by the other side and the Tribunal.

[32]The Claimant and the Respondents must simultaneously send each other copies of all their witness statements by no later than 4.00pm on, 30th May 2025.

[33]The Claimant and the Respondent must both bring copies of all the witness statements to the Hearing for their own use.

[34]The First Respondent must bring four TWO more copies of the witness statements to the Hearing for the Tribunal to use by 9.30 am on the first morning.

[35]At least two days before the Hearing date the First Respondent must send an electronic copy of all the witness statements to the Tribunal for the Tribunal to use. Case Number: 2305090/2023 8 of 10 Checklist Date Order ✓ 31.01.2025 Claimant and Respondents to exchange documents by list and copy 21.02.2025 Parties to agree contents of the final bundle 14.03.2025 Production of the final bundle (Claimant) 30.05.2025 Witness statements (both parties) Hearing Preparation

[36]By no later than, 15th September 2025 the Claimant and the Respondent must both write to the Tribunal to confirm that they are ready for the Hearing or, if not, to explain why not. Variation of Dates

[37]The parties may agree to vary a date in any order by up to 14 days without the Tribunal’s permission, but not if this would affect the Final Hearing date. About these Orders

[38]These Orders were made and explained to the parties at this Preliminary Hearing. They must be complied with even if this written record of the Hearing arrives after the date given in an order for doing something.

[39]If any of these Orders is not complied with, the Tribunal may:(a) waive or vary the requirement;

(b) strike out the claim or the response;

(d) award costs in accordance with the Employment Tribunal Rules.

[40]Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Case Number: 2305090/2023 9 of 10 Writing to the Tribunal

[41]Whenever they write to the Tribunal, the Claimant and the Respondent must copy their correspondence to each other. Useful Information

[42]All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the Claimants and Respondents.

[43]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislationpractice-directions/

[44]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunalprocedure-rules

[45]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal CASE SUMMARY

[46]This matter came before me today at a Preliminary Hearing held in public to determine:(i) The Claimant’s application to amend.

(ii) Should the claim or any part of it be struck out because the Claimant has no reasonable prospect of establishing that: (a) there was discriminatory conduct over a period. The Respondent says that there is was no course of conduct, no continuing act; or (b) it would be just and equitable to extend the time limit for bringing the claim. Case Number: 2305090/2023 10 of 10

(iii) If not, should the Claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with the claim or any part of it, because they have little reasonable prospect of establishing those things?

(iv) Case management

[47]For reasons given ex tempore at the Hearing, the Claimant’s allegations2 5.1 to 5.8 (direct race discrimination) and 12.1 to 12.7 (victimisation) were struck. The Claimant’s remaining claims will proceed to a Final Hearing.

[48]The Claimant’s allegations 12.8 and 12.9 were made the subject of a deposit Order which will be sent to the parties in a separate Order. The Complaints

[49]The Claimant is making the following complaints:a. Direct race discrimination (s.13 Equality Act 2010 (‘EqA 2010’)); and

b. victimisation (s.27 EqA 2010). The Issues

[50]See paragraph 10 (supra.). __________________________ Employment Judge Sudra Date: 29th November 2024 7 th JANUARY 2025 Judgment sent to the parties on Date: 7th January 2025 2 See footnote 1 (supra.). Case Number: 2305090/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mr. M. A. Kesen Respondents: London Fire Commissioner

[1]The Claimant’s application for reconsideration of the judgment given in this matter on 29th November 2024 is refused, and the decision in that judgment is confirmed. APPLICATION

[2]The Claimant applied, under Rule 71 of the Employment Tribunals Rules of Procedure 2013 (now Rule 69 of the Employment Tribunal Procedure Rules 2024), for reconsideration of my decisions, made on 29th November 2024, in respect of a Strike Out Order, Deposit Order, and the Claimant’s application to amend his claim.

[3]The Claimant has applied for a reconsideration of my judgment as he believes that, ‘It is necessary in the interests of justice to reconsider the judgments...’ Case Number: 2305090/2023 2 Strike Out

[4]I found that there was no continuing act which would allow a Tribunal to exercise its discretion to extend time where a claim or an allegation has been brought outside of the primary time limit. The alleged discriminatory acts were said by the Claimant to have been done by various different unconnected managers over several years with significant gaps in between the alleged acts.

[5]The Claimant’s argument that as his claim is against the employer - and not individual managers - a continuous act is made out, is erroneous. Deposit Order

[6]The Claimant has requested for a reconsideration of the Deposit Order made as: ‘The acts complained of by the Claimant which were struck out, show a string of behaviour, amounting to discrimination/victimization, which the Tribunal should have considered before reaching their decision for the Deposit Order.’

[7]The Claimant has not made out a cogent argument as to why a Deposit Order should not have been made or why the allegations for which the Deposit Order was made have more than little reasonable prospects of success. Application to Amend the Claim

[8]Written reasons as to why the Claimant’s application to amend his claim was refused were sent to the parties on 31st January 2025. The Claimant’s reason for his application for reconsideration of this decision i.e. that written reasons had not been received, is now defunct. Case Number: 2305090/2023 3

[9]Upon reconsideration, there is no prospect of my decision being revoked or varied.

[10]Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.

[11]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’

[12]Similarly, in Liddington v. 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a Case Number: 2305090/2023 4 limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’

[13]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.

[14]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.

[15]For all of the above reasons, the Claimant’s application is refused. _____________________________ Employment Judge Sudra Date: 15th APRIL 2025 Case Number: 2305090/2023 1 of 9 EMPLOYMENT TRIBUNALS Claimants: Mr. M. A. Kesen Respondent: London Fire Commissioner PUBLIC PRELIMINARY HEARING Heard at: London South (via CVP video conference) On: 29th November 2024 Before: Employment Judge Sudra Appearances For the Claimant: In Person (unrepresented) For the Respondent: Ms. S. Tharoor of Counsel References in the form ‘[xx]’ denote pages in the Preliminary Hearing bundle used on 29th November 2024.

REASONS

[1]Following a public Preliminary Hearing on 29th November 2024, these written reasons (in respect of the refusal of the Claimant’s application to amend his claim and the decision to strike out parts of the Claimant’s claim) are being provided following a request from the Claimant made on, 11th December 2024. Application to Amend Claim

[2]The Claimant submitted his ET1 on 15th September 2023 with a Particulars of Claim document which was six pages long. The only labelled claim was for direct race discrimination. I accepted that the Claimant was a Litigant-in- Person and may have had no legal advice when submitting his claim. The matters he complained about span the period, July 2014 to 24th March 2023.

[3]This is a significant period of time. At a Preliminary Hearing on 10th July 2024 before Employment Judge Ord, the claims were further discussed and distilled into a LoI which [128]. At the Preliminary Hearing harassment was discussed in detail and the Claimant agreed that there was no harassment complaint. The Claimant had sent the Tribunal and Respondent a witness statement in advance of the PH [98] but it had not made its way into the bundle as the Preliminary Hearing was for case management. I read that witness statement. The Claimant could have referred to the matters contained within his witness statement but did not.

[4]On 7th August 2024, Claimant sent to the Tribunal and Respondent a List of Issues which was an amended version of the document drafted by Employment Judge Ord.

[5]On 23rd August 2024 I directed that the Claimant could not add to the List of Issues but must make an application to amend; which he did on, 7th October 2024 [164].

[6]The Claimant’s proposed amendments were added to the document at [166], in red line format for ease of reference. Case Number: 2305090/2023 3 of 9

Law

[7]The Employment Appeal Tribunal held in Selkent Bus Company Ltd v. Moore

[1996] ICR 836

EAT: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J (as he then was) explained that relevant factors would include: ‘The nature of the proposed amendment; the applicability of time limits to the new claim or cause of action; the timing and manner of the application to amend; and prejudice to the parties.’

[8]These factors are not exhaustive and there may be additional factors to consider, (for example, the merits of the claim).

[9]In respect of the balance of prejudice, HHJ Tayler in Vaughan v. Modality Partnership

UKEAT/0147/20/BA

(V) stated: “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice. [27] Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it. [28] An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional costs; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.” Case Number: 2305090/2023 4 of 9

[10]In Galilee v. Commissioners of Police of the Metropolis

[2018] ICR 634

, EAT HHJ Hand QC held (at para 109(a)) that, ‘amendments to pleadings in the ET which introduce new claims or causes of action take effect for the purposes of limitation at the time permission is given to amend’

Conclusions

[11]As has been said by the appellate courts, an ET1 or Particulars of Claim are not documents which merely get the ball rolling and which can be added to and expanded as the claim progresses. An ET1 is the Claimant’s pleaded

claim.

[12]A Respondent is entitled to know at the earliest possible stage what allegations it must defend.

[13]The Claimant’s claim for indirect race discrimination does not make sense as the PCP relied upon (to favour non-BAME employees for training over those of BAME background, as well as treating non-BAME employees more favourably than BAME employee) is not a PCP that has a reasonable prospect of success.

[14]I took the view that the Claimant had raised new claims and made previously unpleaded factual allegations. The prejudice to the Respondent, in allowing the amendment sought, outweighed any prejudice to the Claimant by not allowing it.

[15]The Claimant’s amendment application related to events alleged to have occurred from as far back in time as 2014. It would, as a matter of common sense, be difficult for individuals to remember, with any degree of accuracy if at all, the nature and content of oral conversations. The Respondent’s submission was accepted that if any documentary evidence existed relevant to the Claimant’s instant allegations it would be extremely difficult to retrieve, if it even still existed. Case Number: 2305090/2023 5 of 9

[16]Allowing the amendment would not have been dealing with the case, in a way which was proportionate to the complexity and importance of the issues, avoided delay or saved expense.

[17]There was also the timing and manner of the application. It was not made at the first possible opportunity and could have been included in the Claimant’s ET1 and an application to amend could have been included in the Further and Better Particulars document produced on 30th May 2023. It was not made within a reasonable period thereafter. Allowing the Claimant’s amendment would have caused significant hardship to the Respondent as they would have to search for dated evidence, incur additional expense and tender witness evidence from individuals in respect of matters which are said to have occurred over at least two years ago and of which, they may have little, if any, memory of.

[18]The Respondent would haver been unduly prejudiced, and the balance of hardship was in favour of it. My decision did not affect the Claimant’s extant claim which will procced to a Full Hearing.

[19]For these reasons, the Claimant’s application to amend his claim was refused. Strike out of Claims

[20]The ET1, which was presented on 15th September 2023, was preceded by Acas early conciliation; ‘Day A’ being 8th June 2023 and ‘Day B’ being 20th July 2023.

[21]Therefore, any acts which were alleged to have occurred prior to 9th March 2023 were prima facie outside of the primary time limit unless an extension of time was allowed.

[22]The basis of the Respondent’s application for a strike out [69] was that save for the allegations at paragraphs. 5.9, 5.10, 12.8, and 2.9 of the List of Issues, all other allegations were out of time. Whilst the allegations at 12.8-12.9 of the List of Issues were accepted as in time by the Respondent, it was said Case Number: 2305090/2023 6 of 9 that they are weak claims and are alleged to have taken place a very long time ago.

[23]In coming to me decision I read the Respondent’s strike out application and the Claimant’s response [160], which addressed each of the Respondent’s points in turn, and considered the parties oral submissions.

[24]In summary, the Respondent said that the Claimant’s out of time allegations were not continuing acts and three was no just and equitable reason to extend time. The Claimant said that his allegations did form part of a continuing act and if not, it would be just and equitable to extend time. I took into account that the Claimant was a Litigant-Iin-Person with little or no legal knowledge in this area, although he has been a trade union member from the inception of his employment.

[25]I made no findings of fact for the purposes of my decision, and proceeded only on the basis of the documents available. I have been mindful to take the Claimant’s claim at its absolute highest.

[26]The Claimant was employed by the Respondent on 17th September 2002, as a firefighter, and remains in his employment.

[27]It is the Claimant’s case that from 2014 to date, he experienced direct race discrimination and victimisation. The Claimant is of Turkish/Kurdish/Asian heritage.

[28]The Claimant’s direct race discrimination allegations were at [129-130] paragraph’s 5.1 – 5.10. His victimisation allegations were at [131] paragraphs 10 – 13. Case Number: 2305090/2023 7 of 9

Law

[29]The law in respect of strike out is complex but, the principles are clear.

[30]Rule 37 of the ET Rules provides (so far as material): ‘(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; ….

[31]The effect of a strike out is to terminate the claim or the part of the claim. It is a draconian jurisdiction, and the relevant case authorities underlie its exceptional nature. This is particularly so where the substantive case features allegations of unlawful discrimination, as it is ‘a matter of high public interest’ that such cases are heard (as per Lord Steyn in Anyanwu v. South Bank Students’ Union

[2001] IRLR 305

[32]The Respondent accepted in their written application that strike out of a claim, particularly a discrimination claim is an exceptional step to take and one that must not be taken lightly. The Respondent fairly and accurately set out the relevant law in its application.

[33]S.123 of the Equality Act 2010 (‘EqA’) provides (so far as material): ‘123 Time limits proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. Case Number: 2305090/2023 8 of 9 conduct extending over a period is to be treated as done at the end of the period.’

[34]As was pointed out by the Respondent, a one-off act which has continuing consequences is not a continuing act but a succession of isolated incidents that are linked to one another may amount to continuing acts.

[35]When a claim is brought out of time, the Tribunal may extend time if it is ‘just and equitable’ to do so, and in Robertson v. Bexley Community Centre (t/a Leisure Link) [2003] an extension on this basis was said to be the exception and not the rule. The burden is on a Claimant to show why it would just and equitable to extend time or why the allegations form part of a continuing act. The Allegations

[36]The Claimant’s most historic allegation related to July 2014 (5.1) and the next allegation (5.2) is said to have taken place nearly four years later in 2018 involving different individuals.

[37]There is then a gap of over one year to the next allegation (5.3) again involving a different character.

[38]Allegations (5.6-5.7): Both related to Ms. Carr, but are two years outside of the primary time limit. Ms. Carr does not feature in any allegations before May 2021 or after January 2022.

[39]Allegation (5.8): This involved a third party (CMP solutions Limited) who are not a Respondent and this allegation was out of time.

[40]Therefore, it was apparent to me that there was no continuing act and allegations (5.1 – 5.8) were struck out for want of jurisdiction. Allegations (5.9 and 5.10) remained intact. Case Number: 2305090/2023 9 of 9

[41]The Claimant himself said that managers frequently ‘came and went’ which was further evidence making a continuing act unlikely. Victimisation

[42]The Claimant’s victimisation complaint was in time albeit that the protected act was said to have occurred in July 2014. I did not know if the Claimant made allegations of breach of the EqA but he said that he believed he did and I accepted that as the issue will readily be tested in evidence at the FH.

[43]For the same reasons I have provided in respect of the struck out allegations, allegations (12.1-12.6) are not part of a continuing act, and were also struck out.

[44]Allegation (2.7): This was struck out on the same basis as allegation (5.8).

[45]I did not strike out allegations (12.8-12.9) but found that they did not have no reasonable prospect of success. However, I found that they had little reasonable prospect of success and therefore, made a deposit order in the sum of £100.00 per allegation for those claims to proceed; making a total deposit to be paid of £200.00. I reminded myself the purpose of a Deposit Order was not to deter a Claimant from litigation bit to focus their mind.

[46]My reasons for making a Deposit Order were set out in that Order. __________________________ Employment Judge Sudra Date: 17th December 2024 Judgment sent to the parties on Date: 31st January 2025 Case No: 2305090/2023 10.5 judgment with reasons – r EMPLOYMENT TRIBUNALS Claimant: Mr M Kesen Respondent: London Fire Commissioner Heard at: London South in person. On: 13/14/15 October 2025 Before: Employment Judge Mclaren Representation Claimant: In Person Respondent: Ms S Tharoo, Counsel