Mr D Firth v The Commissioner of the Police of the Metropolis: 2306290/2024
EMPLOYMENT TRIBUNALS
Case No 2306290/2024
Between
Mr D FirthClaimantThe Commissioner of the Police of the MetropolisRespondent
Before
Employment Judge M Da Costa sitting aloneDate 28 May 2026
JUDGMENT
The judgment of the Tribunal is as follows: Disability status under section 6 of and Part 1 of Schedule 1 to the Equality Act 2010, and applications for amendments to the claimant’s Particulars of Claim[1]The claimant was disabled for the purposes of section 6 of and Part 1 of Schedule 1 to the Equality Act 2010, from 06 January 2023.[2]The claimant’s application to amend his Particulars of Claim as outlined below, is refused.
REASONS
[3]Reasons for the decision mentioned at paragraph 1 above were given orally at the open preliminary hearing of 12 May 2026 and so are not repeated here.[4]The reasons for the decision mentioned at paragraph 2 above are as follows.
Background
[5]Under cover of an email dated 24 February 2026 the claimant made an application to amend his case by adding further particulars. These were substantially the same in content as in another document attached to an email from the claimant dated 01 October 2025. By a Position Statement dated 11 March 2026 the respondent agreed all of those apart from five of them subject to the rule in Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 that a Tribunal may allow an amendment subject to determining at a final hearing whether or not the amendment is in time.[6]In respect of the five amendments that were resisted by the respondent, both written and oral submissions were made at an open preliminary case management hearing on 12 May 2026, and I reserved my decision on those.[7]References to individuals that are not the claimant are anonymised below. This is because those individuals did not give sworn evidence on 12 May 2026 and did not provide witness statements. The claimant did provide sworn evidence at the open, public hearing of 12 May 2006 therefore his name is mentioned in full.[8]The five amendments sought by the claimant that were not agreed by the respondent were as follows:(a) Amendment 1: The claimant was made aware that between 11 November 2023 and 19 November 2023 Sgt O was talking about the reason that the claimant was off sick in the open office and said that he was going to send a police unit to the claimant’s house before the 28 day period or contact the claimant first to check if the claimant was OK, and that this was part of the Metropolitan Police sickness policy.(b) Amendment 2: The claimant’s integrity was called into question by officers and management (PC W, PC S and Sgt O) in that they said he had gone to members of the public and told those members of the public not to speak with officers about whom the claimant had complained.(c) Amendment 3: The claimant had not been offered overtime when he asked for it and at times that he really needed it, but overtime was given to other PCSOs.(d) Amendment 4: The claimant found out from his grievance result that the officers about whom he had complained (PCs W and S and PCSO D) and some witnesses in relation to his grievance complaint (PCSO MK and PC K) had claimed to have made lots of complaints about him to Sgt O but the claimant had never been made aware of those complaints, never been pulled up on them, nor faced any disciplinary actions (as his HR record would attest). Further, that he had been told that PCSO MK had been pressurised to lie in his statement about the claimant’s grievance and not to get involved. The claimant alleges that PCSO MK, who had been involved in disciplinary matters, was told that he would not be supported to continue working full duties if he got involved in relation to the claimant’s grievance, and that as a result of not getting involved PCSO MK was permitted to continue on full duties. Finally, the claimant alleged that it seemed from the grievance meeting notes that the 3 officers about whom he had complained were coached with what to say, as their statements were so similar.(e) Amendment 5: The claimant put in a SARS request on 19 June 2024 and, despite the policy being that the return date is one month or 3 months for a complex case, his SARS was not returned until July 2025 which was 11 months after he had put in the request. The SARS then did not contain everything he had requested and what was disclosed was so heavily redacted that it was useless. He says that if he had got the SARS back within the correct time frame under the policy, it would have assisted his internal complaint and by extension his tribunal complaint.
The relevant law
[9]The respondent in their written submissions set out the relevant law in the form of the core tests in Vaughan v Modality Partnership [2021] ICR 535 (particularly at paragraphs [12] and [25] thereof) and Selkent Bus Company Limited t/a Stagecoach v Moore [1996] IRLR 661, now set out in Guidance Note 1 to the Employment Tribunals (England and Wales) Presidential Guidance – General Case Management (2018).[10]The respondent’s written submissions set out the three limbs of the relevant test: the nature of the amendment to be made, time limits and the timing and manner of the application. It pointed out also that:(a) in the case of substantial amendments as opposed to minor amendments, regard must be had in particular to any injustice or hardship which would result from the amendment or a refusal to make it, and(b) in deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and relevant hardship that will be caused to the parties by granting or refusing the amendment.[11]The written submissions also pointed out that the Selkent factors are not a checklist (see paragraphs [16] to [18] of Vaughan) but instead must be considered in the context of the balance of justice (see paragraph [24] of Vaughan).[12]The claimant in written submissions cited with approval the above law. The respondent’s submissions[13]In flagging the part of the Presidential Guidance that says “claimants must set out the specific acts complained of, as Tribunals are only able to adjudicate on specific complaints…Further, an employer is entitled to know the claim it has to meet”, the respondent said that the principle is that where the nature of the amendment applied for is and remains wholly unclear, the respondent is prejudiced in its ability to make substantive submission in opposition to the application.[14]In relation to amendment 1, the written submission was that this is a new factual allegation that was not pleaded in the Particulars of Claim, is not closely related to anything already pleaded and that it was significantly out of time because it related to actions from 11 to 19 November 2023. The respondent did not consent to admitting it because of the potential prejudice that would be caused to the respondent by having to answer it, with additional witness evidence having to be called. The respondent said that no explanation had been offered by the claimant as to why the amendment was being introduced only now, as a historical allegation some 3 years after it is said to have occurred. In oral submissions the respondent added that this point was not raised in the claimant’s internal grievances.[15]In relation to amendment 2, the written submission was that even if this amendment had a nexus to existing complaints relating to timekeeping criticisms, this was too vague to be responded to fairly in that the claimant had not explained in what way his integrity was called into question and on what dates. In oral submissions the respondent added that the claimant had not stated what was said to members of the public, and that the prejudice to the respondent would be to add witness evidence and trial time for what was a historic matter that occurred probably in 2023 some 3 years ago.[16]In relation to amendment 3, the written submission was that it was a new factual allegation that was not mentioned in the Particulars of Claim. The oral submission elaborated that the documents provided by the claimant are a list of work schedules from which the overtime complaint was not identifiable. The written submission was that the respondent would be prejudiced in responding because of the vague nature of the amendment which did not set out the individual occasions on which the overtime should have been offered, nor the other PCSOs who had been offered it. The oral submission said “it is not open to the claimant to add new detriments piecemeal and unparticularised”. The written submission also criticised the amendment as now being substantially out of time, with no explanation as to why it had taken the claimant so long to seek it.[17]In relation to amendment 4, the written submission was that the amendment is wide ranging and vague, and not pleaded at all so far, that no particulars had been provided of what the complaints were or when they were made, that assuming they were in 2024 they would be significantly out of time and brought some 2 years later, and that the respondent would be significantly prejudiced in having to respond to such old and poorly particularised allegations at this late stage in proceedings. The oral submissions did not add to that.[18]In relation to amendment 5, the written submission was that there was no mention of this in the Particulars of Claim, that it has not been particularised in a manner that the respondent is able to fairly respond to (for example the individual said to be responsible is not specified), that the alleged omission ended in June 2025 and no steps had been taken by the claimant to explain why he had not sought to add this earlier. In oral submissions the responded added that as at 28 August 2024 which is the date that the ET1 was presented, the claimant could have stated that his SARS request was ongoing and late and was not being dealt with satisfactorily, but that failing that the claimant should have raised the matter in July 2025. In oral submission the respondent explained that the prejudice would be that the SARS officer would have to be called as an additional witness. Orally, the point was made that this is a new fact pleaded and clearly out of time, with the manner and timing of the amendment being unsatisfactory.[19]In oral submission this overarching point was made. Generally speaking as amendments relate to the claimant’s grievances, those grievances (being closed first on 21 September 2023 and 4 February 2024) both having been dealt with by 25 November 2024 and appeals of which were concluded by 16 June 2025, there is no good reason why core facts even if they were connected to and potentially evolving in the course of the internal grievances, could not have been pleaded at the outset in the ET1 (presented on 28 August 2024) even if the result of the grievances had not come through; and failing that, they could have been pleaded in December 2024 before the internal appeal, or in June 2025 after the conclusion of the internal appeals. The claimant’s submissions[20]In general, the claimant’s position in written submissions was that the respondent’s objections were(a) factually incomplete and(b) legally unsustainable.[21]The claimant’s further written submissions, in terms of overarching objections, were:(a) The respondent took in excess of a year and a half to properly investigate and deal with his grievance, whereas at all times he followed the proper procedure and engaged with it in good faith.(b) The good faith engagement of the claimant included not bringing proceedings prematurely, in an effort to allow matters to be resolved internally.(c) Therefore delay was not caused by inaction by the claimant, but instead by the respondent’s own processes and the control of the respondent.(d) All of this meant that the claimant’s approach was entirely reasonable, including him assuming at the outset that Tribunal proceedings would not be necessary.(e) It would be unjust for the reasons above to penalise the claimant by denying his amendments.(f) The claimant criticised the respondent for, in effect, suggesting that he should have instituted proceedings earlier.(g) Since time limits are not determinative at this stage, amendments can be permitted even if out of time, because questions of limitation are best dealt with at a final hearing.(h) The Tribunal retains the discretion to allow amendments if it is just and equitable to do so, which is a fact-sensitive, and also broad evaluative judgment. The reason for delay (see the points immediately above) and the claimant’s good conduct (also see immediately above) are part of that broad, evaluative judgment.(i) In terms of whether it is “just and equitable” the respondent has long known about the substance of the amendments from the claimant’s grievance processes, and there is no suggestion that relevant evidence has been lost or compromised. This means that there is no identifiable prejudice to the respondent but clear injustice to the claimant in refusing the amendments.(j) The respondent’s reliance on limitation is in truth opportunistic because it seeks to (a) benefit from delay arising out of its own procedures, (b) exclude claims that it has been long aware of, and (c) narrow the case artificially on technical grounds.(k) Generally speaking, the amendments are not discrete edits but instead are interlinked developments of the case.(l) Also generally speaking, in terms of detriment to the respondent, there is little detriment because the respondent already knows the factual matters, since those were raised in the claimant’s internal grievances. Any further work is therefore incremental and manageable.(m) In summary, the Tribunal is invited to find that (a) the delay is fully explained and reasonable, (b) the respondent has suffered no real prejudice, (c) it is just and equitable to allow the amendments and (d) any residual issues can be properly determined at the final hearing.[22]Specifically in relation to amendments 1 to 5, the claimant’s written submissions were as follows.[23]Amendment 1: This is not a new or unrelated allegation. It arises from the same factual matrix which is the claimant’s treatment by management and colleagues following his raising of the grievances. It forms part of a continuing course of conduct and continuing pattern of behaviour by the respondent. Therefore, it is not strictly “out of time” when viewed in the context of that course of conduct extending beyond November 2023. The reason why the claimant is providing it now is that he is responding to the respondent’s request for clarification. The detriment to the respondent is minimal because the respondent is in a position to investigate and respond to it and this would not change the scope of the claim. To fail to consider it would not be in the interests of justice because that would risk an incomplete understanding of his treatment at the hands of the respondent.[24]Amendment 2: By way of particularisation the claimant provides 4 headings of potential examples whereby he says his honesty, professionalism and reliability were questioned, between January 2023 and November 2023.[25]Amendment 3: This is part of a wider pattern of detrimental treatment that the claimant experienced following the raising of his grievances. Therefore, it is not a wholly separate and unrelated allegation. As to particularisation, the claimant pointed to pages 208 to 246 of the preliminary hearing bundle and named two PCSOs who were given overtime. The claimant asserted that this was part of a continuing act rather than a series of isolated, time-barred incidents. As to explanation why this amendment was not pleaded earlier, he said that he was now providing detail and clarification in response to the respondent’s requests for disclosure, that the information had become clearer upon review of the PH bundle, and that the amendment does not fundamentally alter the nature of the claim. As to prejudice, the claimant said that the respondent is in possession of the relevant records, the individuals identified are its own employees and the allegation is supported by existing documents in the bundle. As to interests of justice, he said this is all evidence of a pattern of less favourable treatment.[26]Amendment 4: The claimant did not accept that this allegation was new, vague or incapable of response. He said that since it formed part of a wider pattern of detriment and treatment, and of a continuing course of conduct (again not an isolated, timebarred incident), therefore it is not a standalone allegation. As to particularisation, he pointed to page 196 of the PH bundle where it is mentioned, with details of who was involved and what occurred. As to explanation for “why now”, the claimant said that he was now responding to requests by the respondent for clarification, that the detail has been clarified through review of the PH bundle, and that the allegation did not fundamentally alter the nature of the claim but instead adds factual context. As to prejudice to the respondent, he said the individuals are all employees or agents of the respondent, the evidence is contained in the PH bundle, and the respondent is in the position to investigate and respond. As to interests of justice, he said it is in the interests of justice to consider all the relevant evidence which incudes evidence of witness interference.[27]Amendment 5: The claimant says that this is again part of a wider pattern of treatment following the grievances he made, therefore is not unrelated or free standing. In relation to particularisation, he points to page 197 of the PH bundle and says he holds email correspondence demonstrating the making of the request, delays and/or failures in response, and the respondent’s ongoing lack of engagement. In relation to timing, he says the conduct did not end in July 2025 but was an ongoing course of conduct. As to explanation for “why now”, the claimant said that he was now responding to requests by the respondent for clarification, that the detail has been clarified through review of the PH bundle, and that the allegation did not fundamentally alter the nature of the claim but instead adds factual context. As to prejudice, he does not accept that there is any, because the SAR was made directly to the respondent who holds all relevant records and correspondence. As to interests of justice, he said it is in the interests of justice to consider all the relevant evidence which includes how the respondent dealt with formal requests made by the claimant.[28]The claimant made several oral submissions. They were to the effect that:(a) He was waiting for his grievances to be completed before he brought forward amendments;(b) These amendments are evidence to show a continuing pattern of conduct of victimisation that continued even after he had put his Tribunal claim in.[29]To that extent, his oral submissions did not add anything material to his written submissions. Discussion and decision[30]I make the following findings:(a) It is incontestable that all of the amendments are founded on facts that were not pleaded in the initial Particulars of Claim. The claimant relies in relation to all the amendments on an assertion that the new matters are not new because they all form part of a pattern of continuing conduct or acts, and a wider pattern of detriment, therefore they are part of the same factual matrix. I cannot accept that argument. A fact that is part of a wider pattern or is an element of a continuing act is nevertheless a specific fact that is capable of being pleaded. To argue otherwise would be a licence to insert any new fact at any time, which would entirely defeat the basis of the statutory requirement to plead facts within time limits. In my judgment, this means that these amendments that the claimant seeks to introduce are “substantial” in terms of the “Selkent” test.(b) The claimant argues that the wider pattern of detriment was one that in relation to amendments 1, 3 and 5 arose as a result of his having raised grievances. In my judgment, this argument cannot obviate the respondent’s counterpoint that there was nothing preventing the claimant from pleading these facts in December 2024 and failing that in July 2025. Allied to this is the claimant’s argument that delay was caused by the respondent in terms of their inaction and lack of responsiveness. In my judgment that argument cannot stand when the delay and inaction that the claimant alleges in respect of the grievances was in any event to some extent in the past by the time he presented the ET1 form on 28 August 2024, and even if under internal appeal could still have been properly pleaded at that time, or alternatively some 8 months later. In relation to the SARS point, I accept the respondent’s submission that the claimant could either have stated that his SARS request was ongoing and late and was not being dealt with satisfactorily, but that failing that the claimant should have raised the matter in July 2025 in any event.(c) It is incontestable that amendments 2 and 4 are of an inherently generic description. The headings that the claimant set out in his written submissions in relation to amendment 2 remain of a wide ranging and general nature, still lacking specificity of time and content. As to amendment 2, those headings are wholly different from the further particular that the claimant first cited. As to amendment 4 and 5, the further particularisation at pages 196 and 197 of the PH bundle on which the claimant relies was not given by him until 01 October 2025, which was still some 13 months after the date of the form ET1 and the initial particulars. As to amendment 3, the pages in the PH bundle that the claimant points to do not appear to reveal names. They reveal colour codes and block times but would require significant further explanation in the form of witness evidence from the respondent.(d) In relation to all of the amendments bar amendment 3, the claimant argues that the reason for his late inclusion of the amendments is that he was responding to requests of the respondent to clarify particulars. In my judgment, that argument is misconceived. It does not rebut the respondent’s point that the new matters are in themselves hitherto un-pleaded, as a matter of fact. The fact that they do not alter the fundamental premise of the claims does not mean that they are not new facts. Nothing that the claimant has argued as to late inclusion goes to the point that he was aware of these facts and could have pleaded them from either the end of 2023, or by December 2024, or July 2025 at the latest. Nothing he has argued can dislodge the point that they are historic. In my judgment, this also defeats the claimant’s generic point that delay in terms of late pleading of facts was caused by the respondent and not by him.(e) Repeatedly in relation to all the amendments, the claimant’s argument as to lack of detriment and/or prejudice to the respondent is that, essentially, the respondent is in possession of the relevant records or information and has long known about the substance of the amendments. This in my judgment is a misunderstanding of what “detriment” means in the context of the “Vaughan” balance of detriment test. Detriment to the respondent is detriment in terms of the time and expense of preparing witness and documentary evidence in answer to a fact or set of facts. The fact of possession or access to that material does not reduce the time and expense of locating, collating and assessing it for the purposes of trial.(f) In relation to the “interests of justice” and “just and equitable” test, the claimant’s argument in relation to each amendment is that it must be just and equitable and in the interests of justice for all possible evidence to be before the Tribunal at trial. Again, in my judgment this argument is misconceived. If that were the sole basis for the test, it would mean that any new fact could be introduced without barrier at any time. This is not correct. The test focuses instead on the relative value of the new information to a claimant’s claim as a whole versus the counterbalancing detriment to a respondent. Crucial importance to a claimant of a fact pleaded and hitherto unknown to the claimant versus a low burden to a respondent would engage the test. However, in this claimant’s case where there are already a series of heads of claim and detailed facts pleaded under each, the loss of further pleaded facts in relation to existing heads of claim is not a threat to the viability of the rest of his claim, whereas the further work for the respondent is disproportionately burdensome.(g) As to the claimant’s generic points across all amendments, and in light of the above findings, I cannot accept the claimant’s arguments that: (ga) His conduct in bringing late amendments was reasonable. (gb) As a general rule, time limits are not determinative in the sense that they should not be the starting point. To argue otherwise is to argue that, fundamentally, statutory time limits are of no effect which cannot be right as a matter of principle. (gc) The respondent’s knowledge of facts pleaded, in and of itself, makes them “just and equitable” as late amendments. (gd) Time limits are inherently matters that are residual such that they are suitable for determination at a final hearing. This may be so in relation to facts that are already substantially pleaded or minor additions, as are those that the respondent has already accepted in this case. But the remaining five that are resisted by the respondent are not of that nature and therefore should be the subject of scrutiny at this preliminary stage. To leave all time limitation points as a matter of principle to the final hearing would be to risk derailing that hearing.[31]Application of the “Selkent” and “Vaughan” tests:(a) The nature of the amendments: Based on the above findings, the above amendments 1 to 5 are not minor amendments. They are substantial because they are new facts that would require the respondent to address in terms and specifically. They would require substantial further enquiry by the respondent.(b) Time limits: Amendments 1 to 5 are all prima facie substantially out of time.(c) The timing and manner of the amendments: Amendments 1 to 5 have all been raised many months after they could have been. Notwithstanding the claimant’s points about the conduct of the respondent and the timings of the internal grievance and appeal procedures, there remains no good reason why the claimant could not have brought these amendments either at the time of the ET1 claim form or some 8 months later. There remains no reason why the claimant had to wait until October 2025 or January 2026 to raise them. The fact of correspondence between the parties as to clarification of the particulars of claim did not mean that the claimant was not previously aware of the new particulars and cognisant of their importance. Addressing amendments 1 to 5 would require the respondent to make substantial further enquiries, and to obtain witness evidence that they would not have otherwise had to obtain. That amounts to substantial detriment to the respondent.(d) Taking the “Selkent” factors not as a check list, but in accordance with “Vaughan” weighing the balance of hardship and injustice for each party, the hardship and detriment to the respondent in defending the amendments outweighs the hardship and injustice to the claimant in disallowing him to bring them. This is because the claimant’s claims can already stand and succeed without them, whereas on the other side the respondent would be put to substantial time, work and cost in addressing them.(e) For the reason in (d) directly above, it is not “just and equitable” in the meaning of section 123 of the Equality Act 2010 for amendments 1 to 5 to be permitted at the current time, just three months before the trial date.[32]For all the above reasons, the claimant’s application to introduce amendments 1 to 5 above is refused.