Mr S Catchpole v King’s College London: 2306248/2024

EMPLOYMENT TRIBUNALS
Case No 2306248/2024, 2305973/2024
Between
Mr S CatchpoleClaimantKing’s College LondonRespondent
Before
Employment Judge T PerryIn person for claimantMs E Margetts (instructed by Counsel) for respondentDate 2 April 2025

JUDGMENT

The Claimant’s claim of harassment related to disability is struck out under rule 38(1)(a) as having no reasonable prospects of success.

REASONS

[1]The application to strike out was considered at a public preliminary hearing listed in relation to both this claim and the Claimant’s first claim under case number 2305973/2024.[2]The Claimant gave brief evidence under affirmation in relation to the question of why his claim was not issued sooner and the steps he took to research or gain advice on his rights. He answered a single clarification question from Ms Margetts by way of cross examination.[3]I was provided with a preliminary hearing bundle running to 150 pages as well as a draft agenda and list of issues from the Respondent covering both claims. I heard oral submissions from both parties.[5]At the start of the hearing, I clarified with the parties what adjustments were required. The Claimant said he may need additional breaks and it was made clear these could be provided as required. In the end, the Claimant did not ask for additional breaks. The issue[6]The sole issue before me in respect of this claim was whether to strike out the Claimant’s harassment related to disability claims due to having no reasonable prospects of success in relation to both a) time limits and b) the substantive merits of the claim.

The Law

[7]The power to strike out is contained in rule 38 of the Employment Tribunal Rules of Procedure 2024. This includes at (1)(a) claims that have no reasonable prospects of success.[8]The power to strike out is discretionary. If a ground justifying strike out is made out, the Tribunal must then consider whether to exercise its discretion to strike out. This is a two stage process.[9]HHJ Tayler’s decision in Wangtian Xie v E'Quipe Japan Ltd [2024] EAT 176 is a recent reminder that: striking out a claim is a draconian step only to be taken in clear cut cases; there is public interest in discrimination cases being heard on the merits albeit there is no absolute prohibition on strike out; a party’s case should generally be taken at its highest when considering strike out; strike out is rarely appropriate when there are core disputed facts; and care should be taken when striking out a claim brought by a litigant in person.[10]The Claimant’s case needs to be clearly understood before it can be struck out.[11]The test for time limits in discrimination claims under section 123 Equality Act 2010 has been held to be one where 'Parliament has chosen to give the employment tribunal the widest possible discretion' (per Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050 at 17).[12]According to Sedley LJ in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 (at [31]) 'there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised'. The burden is on the Claimant to persuade that an extension should be granted.[13]In Adedeji v University Hospitals Birmingham NHS Foundation [2021] ICR D5, the Court of Appeal repeated a caution against tribunals relying on the checklist of factors found in s 33 of the Limitation Act 1980 saying that 'The best approach for a tribunal in considering the exercise of the discretion under s 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) “the length of, and the reasons for, the delay”'.[14]However, certain issues will commonly be relevant to the decision, including:(1) the length of and reasons for the delay;(2) the prejudice which each party would suffer as a result of granting, or refusing to grant, an extension; and(3) the potential merits of the claim.[15]The test of conduct being related to the protected characteristic is a broad one. That said, the Court of Appeal in UNITE the Union v Nailard [2018] IRLR 730 said it was insufficient that the protected characteristic be just 'the background of harassment'. The Tribunal in that case had not made any findings as to the mental processes of the (employed) officials of the union and whether they had been motivated by sex discrimination.[16]That said there is no total requirement for a mental element in the alleged harasser. Some acts are related to protected characteristics by their very nature (eg a joke related to race). The focus should be on the conduct and to what degree it relates to the protected characteristic Carozzi v University of Hertfordshire 2024 EAT 169.

Conclusions

[17]The Respondent sought strike out both on the merits and on time limits.[18]In relation to the merits, it was first necessary to clarify the Claimant’s claims. The Claimant’s claim is one of harassment related to disability. The alleged instances of unwanted treatment were clarified before me as follows:a. In an email in December 2023, Dr Sanderson questioned whether the Claimant’s department could share a freezer and inappropriately copied in the entire department;b. In an email in December 2023, Dr Sanderson took an individual named Sarah out of the email chain about signage and instead copied in Bethan Jones;c. In an email on 18 January 2024 Dr Sanderson attached the compassionate leave policy and asked to discuss it, which the Claimant took as a threat for taking the afternoon off the day before;d. At a meeting on 19 January 2024 Dr Sanderson criticised the Claimant for a freezer repair failure that was not his fault and was dismissive of the Claimant’s explanation that his father had just died; ande. In emails on 25-26 January 2024 regarding a lift, Dr Sanderson said sarcastically “I’m not sure what you would expect [Fernanda] to do about this” and said sarcastically “I certainly wouldn’t expect [Fernanda] to return from Brazil to deal with it” and copied in three heads of department (Professors Simpson, McGrath, and Ali).[19]The Claimant’s case is that these matters were related to disability in that they made the Claimant’s health worse.[20]That appears to me to be an argument that has no reasonable prospects of success even taking the Claimant’s case at its highest. The Claimant is not alleging a mental link to a protected characteristic. He confirmed to me that he was not suggesting these things were done because of his disability. There is also no objective link between the conduct and the protected characteristic (for example this is not a case where a comment was said to be derogatory about disability in any way). The simple fact that the effect of conduct is to exacerbate a disability due to non-discriminatory bullying cannot be said to make the conduct related to disability.[21]On that basis, I consider the Claimant has no reasonable prospects of success in relation to his claim of harassment related to disability.[22]Because the claim appears legally misconceived, I exercise my discretion to strike out the Claimant’s claim.[23]It follows that the Claimant’s claim for harassment related to disability is struck out.[24]In relation to time limits, limited evidence was taken from the Claimant to understand his case on why the claim was not issued sooner than it was and what steps he took to inform himself of his rights. I would not have struck out the Claimant’s claim on the time point due to the broad nature of the discretion available to the Tribunal in relation to discrimination claims. Approved by: Employment Judge T Perry 2 April 2025 Judgment sent to the parties on 14 April 2025 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) 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. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case Number: 2306248/2024 © Crown Copyright 2025 1 of 7 EMPLOYMENT TRIBUNALS Claimant: Mr Steven Catchpole Respondent:(1) King’s College London(2) Lisa Sanderson Heard at: London South by CVP On: 17 September 2025 Before: Employment Judge D Wright Appearances For the claimant: In person with the support of his partner Ms A Mouzakiti For the respondent: Ms E Margetts (Counsel)[1]The claimant has requested “the written reasons for the judge's decision at the preliminary hearing on 17 September 2025”.[2]He has not set out explicitly which decision I made at the case management hearing he is referring to, but I note that I made three main decisions:2.1 I refused the claimant’s application to amend the claim to add a whistleblowing claim, a victimisation claim and a claim of failure to make reasonable adjustments.2.2 I refused the respondent’s application to remove the second respondent.2.3 I made a deposit order against the claimant.[3]The reasons for the deposit order were set out in the order, so I propose to provide reasons for the other two decisions below. The Claimant’s application to amend the claim.[4]The first application that I dealt with was the application to amend the claim to include a claim of failure to make reasonable adjustments. This amendment was ostensibly first made on 25 March 2025, the day after the preliminary hearing, although at that point, the application to amend did not actually set out any failure to make reasonable adjustments. Case Number: 2306248/2024 © Crown Copyright 2025 2 of 7[5]It set out criticism of the respondent’s conduct in relation to accessing the occupational health report and whether or not they had been honest with the claimant about receiving it, it also raised questions about whether the claimant had consented or not to the occupational health report being shared.[6]However, on 12 September, so five days before the hearing, the claimant amended the amendment application and actually set out within that a list of failures. He set out reasonable adjustments that he said should have been made.[7]The respondent essentially raises a two-pronged attack. Firstly, that this is a wholly new claim and not simply a relabelling exercise. Secondly, that the timing is wrong. The claimant, the response says should have raised this at or before the preliminary hearing back in March 2025 and not on the day after which would also that it is out of time.[8]In any event, on the question of time limits, there is a disagreement over when the time limits should run, the claimant says that there is an ongoing failure to make reasonable adjustments, and therefore they are still in time to make the claim. They say that they weren't actually aware that the respondent had accessed the Occupational Health Report, which was completed in June or July of 2024 until the claimant received the DSAR information in January 2025, and then further information February 2025 which made it clear that the respondents had actually accessed the report in July of 2024. As such there is an argument, potentially, that time limits should run from January or February 2025.[9]It is also in in dispute whether reasonable adjustments have been made or not. When looking at the question of time limits, for reasonable adjustments claim I'm guided by HHJ Beard in Fernandez v DWP [2023] EAT114. In that HHJ Beard, sitting as a judge of the Employment Appeals Tribunal deals with this particular question, and says that the date from which time limits run varies quite drastically within these claims. He says that if the employer has made a decision not to apply the adjustments, that the notional date would arise at that point. But if there is not any evidence of a deliberate decision not to make the adjustments then there will come a time when it would be reasonable for the employee, on the facts known to them, to conclude that the employer is not going to comply with the duty.[10]If the OH report was received by the claimant in July 2024, whether or not the respondent had it, there obviously came a point when the claimant knew the respondent was not going to be making these reasonable adjustments on his evidence.[11]I would assess that time limits would probably run from September or October 2024 by which point it would have been clear that adjustments weren't being made.[12]But even if I were to give the claimant the benefit of the doubt and say that it was February 2025 when he finally got all the information through, no substantial application was actually made until September 2025. I find that that is significantly out of time, even with a February start date for the time limits. Case Number: 2306248/2024 © Crown Copyright 2025 3 of 7[13]So that is a factor that I take into consideration. Now, obviously, if I allow the application to amend, it would remain open to the tribunal to consider whether to extend time limits, but being out of time is a factor that I take into account.[14]I also have to look at the nature and timing of the application. There was a preliminary hearing on 24 March 2025 and on 20 March 2025 the claimant made an application for various other amendments.[15]He did not include the question of disability or any failure to make reasonable adjustments in that. I heard from the claimant’s representative that it was briefly raised at the hearing, but there was not time to deal with it, and that's why the letter was sent the next day requesting the amendment. But I find that that letter did not contain any specific allegations of failure to make reasonable adjustments within it,[16]I find that it would and should have been in the claimant's mind that there was a claim for failure to make reasonable adjustments prior to them making their 20 March application to amend and on any reasonable reading of the claim, they should have included it there. So that is another factor that I take into account, that the timing of the action not a particularly appropriate one,[17]In terms of prospects of success, the respondent has highlighted that in the ET1 for both of the claimant’s claims, he has ticked the box saying no disability. And this is an argument that I regularly hear from respondents when looking at disability cases. And as I always have to remind respondents, the question in the ET1 is not “Do you have a disability”, it is “do you have a disability which means you would require assistance at the hearing”. So, it is a slightly different question from the one that respondents like to frame it as. So, I place little weight on the claimant saying no there.[18]But I do take into account, when looking at prospects that we will have to have another hearing to determine whether the claimant's mental ill health meets the threshold of disability, and if we don't have a separate hearing, it would then take up time in the at the final hearing.[19]I am not convinced on the evidence before me at the moment that the claimant has a particularly strong case on the failure to make reasonable adjustments point. His evidence has been slightly inconsistent as to whether the respondent should have read the reports, even though it is his case that they did read the report. And it does appear to me, certainly on the surface, that these two points run contrary to each other. If the respondent should not have read the report, then there would have been no obligation to make any reasonable adjustments recommended within it.[20]When I weigh up the prejudices here, if I refuse to allow the amendment, the claimant will be deprived of a potential claim, but, subject to any strikeout applications which may be made, they will still have claims proceeding. The respondent, however, over a year down the line from the claim being issued would then be put to the additional burden and cost of investigating an additional claim, dealing with the question of disability, analysing medical records, and Case Number: 2306248/2024 © Crown Copyright 2025 4 of 7 considering additional witnesses potentially who need to be interviewed and statements taken from.[21]When I consider all the Selkent principles I am of the view that the balance here rests in favour of refusing the application to amend the claim to include a failure to make reasonable adjustments.[22]I then move on to the claimant's application to include a claim for victimisation, which was also made on 12 September 2025, five days before the hearing.[23]At the previous preliminary hearing in March of this year, Judge Perry partially allowed an application to amend the claim to include whistleblowing. There was discussion set out quite clearly in the case management order as to whether a victimisation claim might be more appropriate. According to the CMO the judge explored this with the parties, and there was no explicit request to change this application to be one for claim of victimisation rather than whistleblowing.[24]The Claimant's Representative today says that she informed the judge, “if you think it's better, you can change it”. But Judge Perry was entirely right that that is not an explicit application to amend the amendment application, and it would not have been appropriate for Judge Perry to make that decision of his own accord.[25]The whistle blowing amendment application was only partially allowed. A number of elements were refused and it does appear to me that the bulk of this new victimisation claim, is simply seeking to relitigate an application that has already been refused.[26]It was not just at that previous hearing that it was refused. The claimant then made a subsequent application to try and amend the elements of the whistle blowing claim on 28 April 2025. That was refused by Judge Perry on the papers subject to one point which I will come on to shortly.[27]This is, strictly speaking, a new claim. Although in many ways, going from a whistle blowing claim to a victimisation claim has a lot of similarities with being a relabelling exercise. It is a slightly different legal test, but the factual matrix here does appear to largely be the same. There are a couple more protected acts relied upon and more than some more detriments.[28]But again, I have to look at the timing and nature of the application. There was an application in March 2025, and the claimant was given the opportunity to make the victimisation claim at that point. They then wrote to try and alter judge Perry's order in April 2025, but they did not raise the victimization amendment at that point.[29]It was only in September, some six months after that previous hearing that the victimization claim has been put forward. The Claimant's Representative explained this delay, saying that she thought this hearing today was going to also going to be before Judge Perry, and as she had discussed victimisation at the previous hearing with Judge Perry, they did not need to share all the information again. Case Number: 2306248/2024 © Crown Copyright 2025 5 of 7[30]That is simply not an acceptable argument. In my view, the respondent should at the very least be on notice as soon as possible that the application is being made, and to leave it this late is not a reasonable way of conducting litigation.[31]I take into account again, similar questions on time limits, which are still live on the allowed whistle blowing claims. Whilst the Tribunal will have to still determine whether those claims are in time at the final hearing, it's not simply a case of swapping this all over to a victimisation claim, because there are still significant questions to be raised.[32]In relation to the new elements which are sought to be added, most of these have already been dealt with by Judge Perry and refused, and the rest, I find, are subject to the same time limits points. So, for similar reasons as the failure to make reasonable adjustments, when I weigh up all the prejudice here on both sides, the claimant does have a whistle blowing claim before the tribunal on a number of these facts. Allowing this to change to a victimisation claim, which does have a different legal test, I find that there may well be slightly different evidential requirements and burdens on the respondent.[33]I find that the prejudice and balance lies in favour of refusing the application on this point.[34]I am then left with one further application to amend, and this stems from Judge Perry's case management order which the claimant then sought to amend on 8 April 2025.[35]Judge Perry dealt with most of that application, but there was one part which was left to this hearing. This is at page 128 paragraph two and titled ‘clarification and expansion of issues relating to the second respondent’s behaviour as detriments”. Judge Perry said “this is in substance, an attempt to revive as detriments due to whistle blowing. Those allegations previously said to be harassment related to disability, and which was struck out after the hearing on 24 March 2025 in substance, that is a further application to amend which I did not feel able to consider solely on the papers. I would note that the claimant, if he thought these matters to be detriment due to whistleblowing, might have been expected to include them as such in the lengthy application to amend made in advance of the last preliminary hearing”.[36]I adopt that assessment from Judge Perry. I find that the claimant is attempting to crowbar in detriments which have already been struck out having been labelled as harassment related to disability.[37]I find that this is a cynical attempt to keep elements of the claim alive, because if, as Judge Perry said, the claimant had genuinely thought these to be detriments due to whistle blowing, then they would have been included in the application to amend the claim to include one for whistleblowing, and therefore I refused that element of the application as well.[38]We were therefore left in a situation where the claimants claim remained the same as it was at the conclusion of the previous preliminary hearing. Case Number: 2306248/2024 © Crown Copyright 2025 6 of 7 Respondent’s application to remove the second respondent[39]The respondents accept that the claimant has the right to bring a claim against named individuals but say that it is not in the interests of justice and the overriding objective to continue with the second respondent as a named party.[40]They highlight that all of the alleged actions of the second respondent were done in the course of her employment, and that the first respondent is accepting vicarious liability for any breach of employment law, which may be found by the tribunal.[41]They do not accept they have acted in an inappropriate manner, but if the tribunal finds otherwise, the first respondent accepts vicarious liability. They suggest that in order to avoid unnecessary formality and ensure the parties are on an equal footing, removing the second respondent would not prejudice the claimant, because they would still have a claim against the first respondent.[42]There is some merit in that, from a practical position. From a legal position, the power in rule 35 is to remove a party who has been wrongly included in the proceedings, and I find that the second respondent has rightly been included in the proceedings. She is a potential respondent to these allegations. I do not make any comment at this point about the merits of the allegations against her, but the allegations that are made are ones which can properly be brought against her.[43]I also consider that removing her would have a degree of prejudice against the claimant, in that he would no longer be able to get a judgment against her personally if the tribunal finds that she has caused harassment against the claimant.[44]Whilst I take on board the respondent’s argument that the first respondent is unlikely to have any pecuniosity worries, considering that the size of an organisation as a university, I do also take judicial notice that the higher education sector at the moment does within certain institutions have real financial struggles.[45]Whilst financial problems are unlikely to appear here. I find that it would be imprudent to remove the second respondent on the basis of the first one will be able to satisfy any judgment.[46]When I then flip that over, if I did remove the second respondent, it will make very little, if any, difference to how the first respondent prepares the claim. There Case Number: 2306248/2024 © Crown Copyright 2025 7 of 7 was no suggestion of any conflict or cutting the second respondent loose. They were represented by the same set of lawyers. There will be no additional work required other than the odd second letter being printed off with a different address on when giving advice.[47]The balance, I find, is clearly in favour of leaving the second respondent as a party to these proceedings, and so I dismiss that element of the application DJWright 20 October 2025 Sent to the parties on: 4 December 2025 For the Tribunal Office: P Wing P Wing