Mr D Speller v Commissioner of Police of the Metropolis: 3200394/2024

EMPLOYMENT TRIBUNALS

Case No 3200394/2024

Between

Mr D SpellerClaimant

Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Massarella

Date 10 April 2025

REASONS

Respondent’s application for strike out and / or deposit order

[1]On 9 January 2025, at a preliminary hearing held in public, I heard and determined the Respondent’s application to: a) strike out the Claimant’s claims for direct disability discrimination and disability harassment; and b) for a deposit order in relation to the Claimant’s claims for disability harassment.

[2]Judgment and oral reasons were delivered on 9 January 2025. A written judgment was sent to the parties on 16 January 2025. The Respondent requested written reasons on 17 January 2025.

[3]I set out the case summary contained in the Case Management Order dated 23 September 2024 by EJ Massarella which helpfully sets out the background to this matter and the purpose of the preliminary hearing below:21. The Claimant has been employed by the Respondent since 22 March 2004. His current role is as a Band D executive officer.

22. The claim form was presented on 17 February 2024, after an ACAS early conciliation period between 30 January and 16 February 2024. The claims were of direct disability discrimination, harassment related to disability and direct sexual orientation discrimination.

23. The Claimant relies on an incident in mid-July 2023, when he informed a sergeant at work that her emails had affected his mental health; he alleges that she replied, calling him childish. He reported the incident; he states that it was not investigated. At a case conference November 2023, the Claimant states that his line manager spoke down to him and told him that he had handled the situation poorly.

24. Meanwhile, on 8 August 2023, the Claimant was arrested as a result of allegations of domestic abuse by the Claimant’s partner’s mother, which he states were false. He also complains about his treatment by his line manager on 2 November 2023.

25. There is a reference in the claim form to events which occurred in 2014, when he was excluded from a nightclub because he was gay. The Claimant expands on these in further particulars which he has provided voluntarily to the Respondent and which have been incorporated into a draft list of issues. … 35. The Claimant’s claims in the ET1 were somewhat lacking in detail. At the Respondent’s request, the Claimant provided further information to the Respondent’s solicitor; it appears that this was done by way of an informal discussion, which led to a draft list of issues. Mr Chegwidden was not instructed to require the Claimant to apply to amend in relation to any of this further information. 36. The Claimant appears to be seeking to pursue claims which relate to events in 2014. There are strict time limits in Tribunal proceedings and claims should be presented within three months of the act/omission complained of, subject to any extension of time gained by the ACAS early conciliation period. It may be argued that matters which are ostensibly out of time amount to conduct extending over a period to in-time complaints; the Tribunal also has a discretion to extend time on a just and equitable basis; however, a delay of nine years is very long indeed. … 38. I considered that these matters should be considered at a further preliminary hearing. At that hearing the Tribunal will hear arguments (but not evidence) from both parties. It may decide that the some or all of the claims have no reasonable prospects of success and should be struck out. It may decide that some or all of the claims have little reasonable prospects of success and that the Claimant should be required to pay a deposit as a condition of being allowed to pursue them. It may decide that all the claims should be permitted to proceed to a final hearing and that time limits and other jurisdictional issues should be decided then. … Legal principles

[4]Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024, sets out the Tribunal’s power to strike out all or any part of a claim. The Respondent’s application was on the basis that the claims had no reasonable prospect of success (Rule 38 (1)(a)).

[5]A tribunal must first consider whether any of the grounds set out in rule 38(1) have been established; and then, if any ground is established, exercise discretion as to whether to order strike-out. The requirement for a two-stage approach was confirmed in Hasan v Tesco Stores Ltd EAT 0098/16.

[6]Rule 40 of the Employment Tribunal Procedure Rules 2024 provides the Tribunal the power to order a deposit order if a claim has little reasonable prospects of success. Again, it is a discretionary power and so a two stage approach applies.

[7]I had regard to overriding objective of dealing with cases ‘fairly and justly’, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay.

[8]Having reviewed the authorities, these confirm that striking out requires a high bar to be met.

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

2011 IRLR 217

, Lady Smith stating that “the test is not whether the claim is likely to fail; nor whether it is possible that the claim will fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test”.

[10]In Abertawe Bro Morgannwg University Health Board v Ferguson

2013 ICR 1108

, EAT, the EAT remarked that, in suitable cases, applications for strikeout may save time, expense and anxiety. However, in cases that are likely to be heavily fact-sensitive (such as those involving discrimination or public interest disclosures (‘whistleblowing’)), the circumstances in which a claim will be struck out are likely to be rare. As highlighted by the House of Lords in Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, discrimination claims are generally fact-sensitive, so it will be rare to strike out at a preliminary stage.

[11]In Caterham School Ltd v Rose EAT 0149/19 the Appeal Tribunal commented that at a preliminary hearing where the tribunal is considering an application to strike out a claim on the ground that it has no reasonable prospect of success because it is out of time — as distinct from a preliminary hearing at which the tribunal is making a definitive determination on the time point — the facts are taken to be those pleaded by the claimant and there is no requirement for the tribunal to hear evidence or make factual findings. If the strike-out application succeeds on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success, that will bring the complaint to an end. But if the strike-out application fails, the time point proceeds for determination at a full hearing. Furthermore, the normal process for strike out and deposit order applications is that no witness evidence was taken (KweleSiakam v Co-Operative Group Ltd EAT 0039/17).

[12]In the absence of a material change of circumstances, I was limited to determining the issues as detailed in the Case Management Order dated 23 September 2024 as opposed to determining any time issues (Kolev v Middlesex University

2023 EAT 173

). Furthermore, the Claimant had expressly been informed he would not be required to give evidence at the preliminary hearing. Decision and reasons

[13]I now turn to deal with the application, dealing with the claims in groups as detailed below. Claimant’s arrest on 8 August 2023

[14]The complaints arising out of the Claimant’s arrest on 8 August 2023, including the fact of the arrest, the bail conditions not to allow the Claimant to contact his partner, the resident bail conditions and the complaint about the work restrictions following arrest, are struck out under Employment Tribunal Rule 38 because they have no reasonable prospects of success (4.1.3, 4.1.4, 4.2.2 – 4.2.4 inclusive on the list of issues).

[15]The Respondent’s application was on the basis that these claims have no reasonable prospects of success because they are out of time and outside of the jurisdiction of the Employment Tribunal.

[16]Section 39(2) of the Equality Act sets out that employers cannot discriminate against their employees as to their terms of employment, access to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, dismissal or subjecting an employee to any other detriment. Section 40(1)(a) of the Equality Act details that employers cannot harass their employees.

[17]Whilst the Claimant was an employee of the Respondent at the time of the relevant incidents, including the arrest on 8 August 2023, being prevented from contacting his partner for a period after the arrest and being bailed to his parents address, were relating to events arising wholly outside of the Claimant and Respondent’s employee and employer relationship. The Claimant had been arrested on suspicion of domestic violence. The arrest was not related to his employment or status as the Respondent’s employee. The Respondent’s actions were in relation to their status as the relevant law enforcement agency with wide ranging powers and duties to enforce the criminal law, not as the Claimant’s employer.

[18]The Claimant complains that, as an employee of the Respondent he does not have access to the same complaints processes as non-employees. This does not mean that he is entitled to bring a claim under the Equality Act 2010 against the Respondent.

[19]These matters are on the face of it out of time. I did not need to consider whether there is no reasonable prospect of success in establishing that they are conduct extending over a period or the Claimant’s prospects of establishing it is just and equitable to extend time limits in light of my above conclusions. However, I note that they are wholly distinct from the other incidents during 2023.

[20]Having decided that there is no reasonable prospect of success, I considered whether to exercise my discretion to strike out and decided to exercise my discretion to strike out the claims. The Employment Tribunal does not have jurisdiction to determine these claims. The Respondent was acting in their role as a law enforcement agency, and not the employer in the arrest and imposition of bail conditions. The imposition of work restrictions is standard practice and there was no detriment to the claimant given they reflected the bail conditions. Discrimination claims arising out of incidents in 2014

[21]The Respondent’s application was that these claims should be struck out as there was no reasonable prospect of success in extending the time limit.

[22]The complaints arising out of an alleged act of discrimination on 27 July 2014 (list of issues 4.2.5 – 4.2.8 inclusive) are struck out under Employment Tribunal Rule 38 as the Claimant has no reasonable prospect of establishing that: a) The alleged discriminatory acts dating back to 2014 were part conduct extending over a period that concluded on or after 31 October 2023; or b) That it would be just and equitable to extend the time limit for bringing complaints of discrimination in relation to those acts.

[23]The Claimant asserted these incidents formed part of conduct extending over a period in accordance with section 123 (3) of the Equality Act 2010 because the Respondent’s response to these events were discriminatory in that they failed to respond to them appropriately, which is similar to the Respondent’s response to the events in 2023.

[24]There is no reasonable prospect of success for the following reasons: a) There has been seven years between the 2014 and 2023 incidents. Whilst this is not determinative, this is a significant period in particular when considering the statutory time limit for bringing a claim is three months (section 123 Equality Act 2010). b) There is no suggestion the same individuals were involved in the 2014 and 2023 incidents; c) The 2014 incidents arise out of events at a nightclub, outside of the Claimant and Respondent’s employment relationship, and the 2023 claim (excluding the claims relating to the 2023 arrest which have been struck out) arises out of how the Claimant has been managed in the workplace. The complaints are significantly different. Where the 2014 complaints do relate to the Claimant’s experiences as an employee of the Respondent then the factors at a) and b) above mean that there is no reasonable prospects of succeeding in establishing that they are a course of conduct.

[25]There is no reasonable prospect of success in an application for an extension of time on the basis it is just and equitable, in accordance with section 123 of the Equality Act 2010, for the following reasons: a) The claimant clearly felt that he had been discriminated at the time of the events. He had publicly raised concerns. b) The claimant gave no explanation as to why a claim in relation to the incidents in 2014 had been brought so far out of time.

[26]Having decided that there is no reasonable prospect of succeeding in an application for an extension of time, I considered whether to exercise my discretion and did for the same reasons detailed above. The claim is simply too far out of time. Incidents relating to events within the employment relationship during 2023

[27]The incidents subject to the remaining claims are as follows: a) That on 6 July 2023, the Claimant received an email from PS Tanya Layton calling him ‘childish’ when he said her emails were affecting his mental health; b) The Respondent failed to investigate the Claimant’s complaint in relation to PS Tanya Layton calling him “childish” when he said that her emails were affecting his mental health. The Claimant says this complaint was made on 21 July 2023 to A/Inspector Liam Thomas via WhatsApp and was also reported to Duty Officer Rob Wallace and Alex Elkomaty Second Line Manager. c) On 26 September 2023 the Claimant’s line manager A/Insp Rob Wallace emailed the Claimant threatening him with being absent without authority if he did not attend a health and safety assessment. d) In his case conference on 2 November 2023, the Claimant’s line manager A/Inspector Rob Wallace spoke down to him by:(a) saying that what had happened was not enough to justify the Claimant going off sick

(b) failing to investigate the Claimant’s complaint about the sergeant’s actions; and

[28]The list of issues, as drafted at the time of the hearing, details that the incidents at b) and c) above form the basis for a claim of direct disability discrimination. The incidents detailed at a) and d) above form the basis for the Claimant’s claim of harassment related to disability.

[29]The Respondent’s strike out application was in relation to the three incidents that pre-date the 31 October 2024 ((a), b) and c) above) cut off point for the purposes of limitation. These incidents, if not part of a continuing course of conduct, are on the face of it, out of time.

[30]The Respondent’s application was that there is no reasonable prospect of succeeding in an application by the Claimant to extend time.

[31]The following paragraphs of my Case Management Order dated 17 January 2025 are relevant and set out below:10. During the hearing the Claimant made it clear in his oral submissions that he considers the failure to investigate his allegation that PS Tanya Layton called him ‘childish’ to be an ongoing failure. The current draft of the list of issues in relation to this matter details that the Claimant complained about this on 21 July 2023 (4.1.1). This on the face of it is out of time. The list of issues was agreed by the Claimant by email and prior to the Case Management Hearing on 23 September 2024 (which the Claimant did not attend). However, it became apparent during the Preliminary Hearing on 9 January 2025 that the Claimant’s case is that this was an ongoing failure, until as recently as a few weeks before the Preliminary Hearing.

11. I am concerned that the current list of issues does not fully reflect the Claimant’s claim. The ET1 states ‘no-one has investigated this against the equality act 2010 public body employer has a legal obligation to investigate and correct such discrimination as soon as possible it is not 9 months later and not been dealt with’.

12. The Claimant’s submissions in relation to the strike out application also indicated that the Claimant case is that these incidents to be part of conduct extending over a period. The time limit rules in relation to this scenario are detailed in section 123 (3)(a) of the Equality Act 2010. If the Tribunal were to determine that the incidents were discriminatory conduct extending over a period then the claim would be in time.

[32]The application to strike out the claims relating to the events on 6 July 2023 (list of issues 5.1.1), 21 July 2023 (list of issue4.1.1 ), 26 September 2023 (list of issue

4.1.2 ) is refused, for the following reasons: a) The incidents are all within a four-month period. They all stem from PS Layton’s comment, including the comment itself, the impact of the comment on the Claimant and Respondent’s management of the Claimant in the months after the comment. Taken at it’s reasonable highest, it cannot be said that there is no reasonable prospects of success of the Claimant establishing this is conduct extending over a period. b) In his oral submissions, the Claimant asserted that the failure to investigate is ongoing and he had only been informed a few weeks prior to the hearing that the matter had in fact been investigated but he did not have the details. The Claimant’s claim is that he has had ongoing communications with the Respondent about this matter. This is how he sets the matter out in his ET1. The Respondent asserts that 21 July 2023 must be the date on which the Respondent decided not to investigate, or the Respondent must be taken to have made that decision before the 31 October 2023 time limit deadline (if the acts and omissions are not conduct extending over a period) and so section 123(3)(b) and section 123(4)(b) of the Equality Act 2010 means this is out of time. However, on the Claimant’s case he had ongoing communications post-dating 21 July 2023. To prepare for the final hearing, the Claimant will need to disclose all relevant evidence, including records of communications about this matter. The Respondent will also need to disclose relevant evidence in relation to the steps they took. At this stage, taking the Claimant’s claim at it’s reasonable highest, it cannot be said that there is no reasonable prospects of success. c) The Claimant in his oral submissions explained that he had been told by ACAS to try to resolve the matter internally first. As detailed above, the Claimant’s claim is that he has been trying to do this. Furthermore, the Claimant asserted that his mental health did impact on his ability to start his claim. If the Claimant is not successful in establishing this is conduct extending over a period, he will have to apply for an extension of time and provide evidence for the Tribunal to consider. However, at this stage, it cannot be said there is no reasonable prospect of success. Application for a deposit order – harassment claim

[33]The respondent’s application for a deposit order in relation to the Harassment claim arising out of the incident on 6 July 2023 when PS Layton called the Claimant ‘childish’ is refused for the reasons set out above at paragraph 32. Taking the Claimant’s claim at it’s reasonable highest, it cannot be said that there is little prospects of the Claimant establishing that this is part of discriminatory conduct extending over a period of time or it is just and equitable to allow an extension of time.

[34]The application for a deposit order in relation to the Harassment claim arising out of the incident on 2 November 2023 is refused as there is more than a little reasonable prospect of deciding the complaint in the Claimant’s favour, for the following reasons.

[35]The Respondent submits that in relation to the conversation on 2 November 2023, there is no link apparent between A/Insp Wallace’s comments and C’s alleged disability and so they cannot be considered to be ‘related to C’s disability. However, the allegation is that A/Insp Wallace suggested that what happened in July 2023 (being called ‘childish’ by PS Layton) was insufficient to justify taking sick leave and this is directly relevant to the Claimant’s alleged disability. Telling him he had handled the whole situation poorly is also directly relevant to the Claimant’s alleged disability.

[36]There was a factual dispute over what was said in the hearing, with the Respondent denying that A/Insp Wallace suggested what had happened in July 2023 was insufficient to justify the Claimant taking sick leave and that he had handled the whole situation poorly.

[37]The Respondent made the point that the meeting was an attendance management conference, to discuss the Claimant’s absence on the grounds of sickness, not to discuss grievances or disciplinary matters. The Respondent disclosed a note of the meeting which was not verbatim but did not include reference to any of the Claimant’s allegations. The Claimant strongly disputed that was an accurate reflection of the meeting and informed me he had made a subject access request to seek disclosure of a transcript of the meeting. The respondent alleged that looking back with the aide of the note, there is little prospects of succeeding in establishing that the comments had happened. However, it is too premature to determine that. The Claimant had only just received disclosure of the note. The Claimant is disputing it. The Tribunal has not heard any witness evidence on these points.

[38]The Respondent also asserted that it won’t meet threshold of anything which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading or offensive environment for the Claimant, nor does the Claimant have little reasonable prospects of showing it was reasonable for him to have considered it as such.

[39]I do not accept that there are little prospects of showing for the following reasons. Firstly, if the Claimant establishes he has a disability, namely anxiety, depression and borderline personality disorder, and if the Claimant is successful in establishing that the incidents that form the basis of his claim are conduct extending over a period, then it is arguable that the incidents, particularly when taken together, have the purpose of effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading or offensive environment for the Claimant.

[40]In view of the foregoing, I was not satisfied that the Claimant has little reasonable prospect of establishing his complaint of harassment. The ‘test’ at rule 40(1) not having been met, I did not need to consider exercising discretion to impose a deposit order.