Mr M Greatorex v Ministry of Defence: 3204690/2021

EMPLOYMENT TRIBUNALS

Case No 3204690/2021

Between

Mr M GreatorexClaimant

Ministry of DefenceRespondent

Before

Employment Judge Housego

In person for claimant

Date 5 September 2023

JUDGMENT

The claim is struck out for want of jurisdiction.

REASONS

[1]The Claimant was a reservist with the Royal Navy between 11 July 2015 and 08 May 2021. He lodged this claim on 09 June 2021. The claim asserts that the Claimant was subjected to harassment by reason of gender reassignment. It also claims arrears of pay and other payments, but does not set out what these claims are.

[2]Members of the Armed Forces may bring discrimination claims to the Employment Tribunal. However, S121 of the Equality Act 2010 first requires the complainant to bring a Service Complaint: “121 Armed forces cases (1) Section 120(1)1 does not apply to a complaint relating to an act done when the complainant was serving as a member of the armed forces unless – (a) the complainant has made a service complaint about the matter, and (b) the complaint has not been withdrawn.”

[3]The effect of this is that a claim must be struck out if there is no unwithdrawn service complaint.

[4]The Respondent says that this “gateway” provision is not met by the Claimant and so the claim must be struck out for want of jurisdiction.

[5]To this the Claimant responds that he made multiple service complaints about harassment, and this is too simplistic. He says that: “The above premise is based on the assumption that: - The Respondent has handled the complaint lawfully, and that - It has been possible for a lawful admissibility decision to be made in relation to the complaint. - It can only be deemed a valid service complaint by the Respondent I must respectfully assert that these three conditions were either not met or else do not apply to the handling of what the Respondent refers to as “SCv2”. As such, the reason why it has still not been considered for admissibility or else not accepted as being already considered for admissibility is the responsibility of the Respondent rather that my own.” The Claimant asserts that the way his Service Complaints were handled was unlawful (in a variety of ways).

[6]The Respondent replies that none of the grievances raised mentioned gender reassignment, and that S121 is simply phrased, and that the Claimant is not able to meet it, for that reason. It says that the one which did raise transgender issues was not sent to the correct commanding officer, and so is not a Service Complaint either. Accordingly, the Claimant cannot meet the requirements of S121 and the claim must be dismissed.

[7]The Claimant says that the reason he was treated as he claims was his gender reassignment, and “the matter” of harassment was raised by him in a Service Complaint on 02 September 2019 (SC1).

[8]The Respondent replies that any claim has to say what it is about, and “the matter” must be gender reassignment discrimination, and SC1 does not raise this. 1 This is the subsection giving the Employment Tribunal jurisdiction to determine discrimination claims.

[9]The Respondent’s case is that the earlier complaints were not of transgender discrimination, so are not within S121, and that the document said to be the service complaint that did raise this as an issue is not a valid service complaint, because, they say, it was made to the wrong person – Regulation 3 sets out who is the “nominated officer”. This is the complainant’s current, or after leaving service the most recent, commanding officer. As the Claimant was based at HMS King Alfred when that Service Complaint was raised, it should have been brought to that commanding officer, Cdr Andrew Robinson RN and it was not, being sent to Cdr Young.

[10]The Claimant re-joins that he did not chose Cdr Young to handle the complaint – it was the Navy which decided that. If he wanted to amend his complaint, as he did, he said that he had no alternative but to send that to Cdr Young.

[11]The Respondent drew attention to Molaudi v. Ministry of Defence (Jurisdictional Points)

[2011] UKEAT 0463_10_1504

, (on similar legislation) the headnote of which reads: “The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously made a complaint about the same matters to the military authorities, which was not brought in time and which was rejected. The Employment Tribunal held that(a) pursuant to section 75(9) of the Race Relations Act 1976 as amended, a "service complaint" had to be brought to the military authorities before a claim could be brought in the Employment Tribunal; and

(b) a complaint to the military authorities which was brought out of time and was rejected by the military authorities was not a valid "service complaint" and so the precondition for bringing a claim in front of the Employment Tribunal was not satisfied. There were adequate judicial procedures in this country "available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them" as specified in article 7 of the Directive. The Claimant appealed on (b). Held: Dismissing the appeal (1) The term "service complaint" meant a complaint which could be considered substantively and that meant a complaint rejected by the military authorities brought out of time did not fall within that definition; and (2) The Racial Discrimination Directive 2000/43/EC did not require a different meaning to be given to the words "service complaint" so that it covered a complaint to the military authorities which was brought out of time.”

[12]At §26: “The second reason I consider that a "service complaint" must mean a complaint which has been accepted by the appropriate prescribed officer as being valid is that this meaning is consistent with the purpose of the provisions in requiring a complaint to the prescribed officer as a pre-requisite to making a complaint to the Tribunal. There is much authority to the effect that "a certain amount of common sense [must be applied] in construing statutes" (per Lord Goddard CJ in Barnes v. Jarvis

[1953] 1WLR 649

, 652).”

[13]The making of Service Complaints is governed by Regulations 3-8 of the Armed Forces (Service Complaint) Regulations 2015. It is necessary to set them out in full: “Procedure for making a service complaint 4.—(1) A service complaint is made by a complainant making a statement of complaint in writing to the specified officer. (2) The statement of complaint must state—(a) how the complainant thinks himself or herself wronged;

(b) any allegation which the complainant wishes to make that the complainant’s commanding officer or his or her immediate superior in the chain of command is the subject of the complaint or is implicated in any way in the matter, or matters, complained about;

(c) whether any matter stated in accordance with sub-paragraph (a) involved discrimination [emphasis added], harassment, bullying, dishonest or biased behaviour, a failure by the Ministry of Defence to provide medical, dental or nursing care for which the Ministry of Defence was responsible or the improper exercise by a service policeman of statutory powers as a service policeman;

(d) if the complaint is not made within the period which applies under regulation 6(1), (4) or (5), the reason why the complaint was not made within that period;

(e) the redress sought; and

(f) the date on which the statement of complaint is made. (3) The statement of complaint must also state one of the following – (a) the date on which, to the best of the complainant’s recollection, the matter complained about occurred or probably occurred; (b) that the matter complained about occurred over a period, and the date on which, to the best of his or her recollection, that period ended or probably ended; (c) that the matter complained about is continuing to occur; (d) that the complainant is unable to recollect the date referred to in subparagraph (a) or (b). (4) A service complaint may only be made by one person, but other persons may make service complaints about the same or similar matters. (5) In this regulation, “discrimination” means discrimination or victimisation on the grounds of colour, race, ethnic or national origin, nationality, sex, gender reassignment, status as a married person or civil partner, religion, belief or sexual orientation, and less favourable treatment of the complainant as a part-time employee. Action on receipt of a service complaint and admissibility 5.—(1) After receipt of a statement of complaint, the specified officer must decide whether the complaint is admissible in accordance with section 340B(5). (2) For the purposes of section 340B(5)(c), a service complaint is not admissible if— (a) the complaint does not meet the requirements of whichever of section 340A(1) and (2) applies to the complainant; or (b) the complaint is substantially the same as a complaint brought by the same person which has either been decided previously under the service complaints process or is currently being considered under the service complaints process. (3) If the specified officer decides that any part or all of the service complaint is admissible, he must notify the complainant in writing of the decision and refer that part or all of the service complaint to the Defence Council. (4) If the specified officer decides that any part or all of the service complaint is not admissible, he must notify the complainant in writing of the decision, giving the reasons for the decision and informing the complainant of his or her right to apply for a review of the decision by the Ombudsman. Period for making a service complaint and power to stay 6.—(1) Subject to paragraphs (4) and (5), a person may not make a service complaint after three months beginning with the relevant day. (2) Except in a case within paragraph (3), the “relevant day” means the day on which the matter the person wishes to complain about occurred or (if it occurred over a period of time) the last day on which it occurred. (3) Where it appears to the specified officer that, before a service complaint about a matter is or would be considered, the person is or was expected or required to comply with another formal system for the consideration of that matter, the “relevant day” means the day on which it appears to the specified officer that the person exhausts or exhausted the process provided for under that other formal system. (4) If a matter is or has been capable of being pursued as a claim under Chapter 3 of Part 9 of the Equality Act 2010(1), a service complaint may not be made about the matter after six months beginning with the day on which the matter complained about occurred or, where the matter occurred over a period of time, the final day of that period. (5) If a matter is or has been capable of being pursued as a claim under Chapter 4 of Part 9 of the Equality Act 2010, a service complaint may not be made about the matter after the end of the qualifying period for a claim as determined in accordance with section 129 of that Act. (6) A person may make a service complaint after the end of the period in whichever of paragraphs (1) and (4) applies to the complaint if, in all the circumstances, the specified officer considers it is just and equitable to allow this. (7) Where a person makes a service complaint about a matter, and it appears to the specified officer that the person is expected or required to comply with another formal system for consideration of that matter, the specified officer may stay consideration of part or all of the complaint until the person has exhausted the process provided for under that other formal system. Ombudsman’s review of admissibility 7.—(1) After receiving an application by the complainant for a review of the specified officer’s decision that a service complaint is not admissible, the Ombudsman must decide whether the service complaint is admissible and notify both the specified officer and the complainant in writing of his or her decision and the reasons for it. (2) The Ombudsman must not consider an application under paragraph (1) made after four weeks beginning with the day the complainant received notification of the specified officer’s decision, unless the Ombudsman considers it is just and equitable to allow the complainant to apply after that period. (3) A decision by the Ombudsman in relation to admissibility is binding on the complainant and the specified officer. (4) Where under paragraph (1) the Ombudsman decides that the service complaint is admissible, the specified officer must refer the complaint to the Defence Council as soon as reasonably practicable. Application of these regulations where further matters raised by way of complaint 8. If the complainant raises an additional matter by way of complaint at any time after the specified officer has made a decision on the admissibility of a service complaint, that matter must be made the subject of, and dealt with as, a fresh service complaint.”

[14]It can be seen from these Regulations that there is a system of complaints for those in the Armed Forces and oversight of it by an independent Ombudsman2. If the complaint is about discrimination that system is, plainly, modelled on the statutory framework for everyone where complaints are brought to Employment Tribunals.

[15]Apart from these jurisdictional points the Respondent says that the claim was filed out of time and that it would not be just and equitable to extend time. They say there is no jurisdiction to hear the other claims brought by the Claimant, Service Complaint or no.

The hearing

[16]The Claimant provided a witness statement as did Trefor Martin, recently retired as Navy Service Complaints Secretary. There is no dispute of fact. It is a matter of what I decide upon hearing the submissions of each. There was a substantial bundle of documents and position papers from both Claimant and Respondent. The Claimant had some technical difficulty during the hearing, but I am satisfied that this did not place him at a disadvantage.

The facts

[17]There were three Service Complaints filed: a) SC1 – statement of complaint dated 02 September 2019 – relating to the Officers' Joint Appraisal Report (“OJAR”); b) SC2 – statement of complaint dated 19 January 2020 – relating to the result of an Admiralty Interview Board (“AIB”) result; and c) SC3 – statement of complaint dated 24 April 2020 – relating to alleged bullying and prevention of career progression. While all of them refer to bullying or harassment, none of them refer to gender reassignment discrimination. Therefore, they do not meet the requirements necessary to be a gateway to Employment Tribunal proceedings.

[18]On 13 October 2020 Capt A Cowan sent the Claimant an outcome letter to a Service Complaint of 24 April 2020 ref JPA 6208590. It refers to an evolution of the matters complained of, and set them out in 17 different heads of claim. He decided that matters 1-15 were not admissible, but that 16 and 17 were admissible. Those related to an assertion that the 2 Service Complaints Ombudsman Armed Forces Commanding Officer had not taken adequate, or any, action on receipt of an allegation of bullying made by the Claimant on 22 April 2020, and that it was wrong that he had not been promoted to Lieutenant RNR. Most of the other matters were said to be out of time. Number 14 was a matter that Capt Cowan said should have been sent to the Ombudsman (because it was about the administration of a Service Complaint). This does not bear on the issue of transgender discrimination.

[19]On 31 March 2021 the Ombudsman decided that there had been maladministration (undue delay) in the handling of SC1, and directed that Cdr Young, currently commanding officer of HMS President, deal with SC1, which had correctly been submitted to Cdr Richmal Hardinge, then commanding officer of HMS President, where the Claimant had been based when it was submitted.

[20]On 06 April 2021 the Claimant sent to Cdr Young another document, entitled “Annex F”, which the Claimant said was a clarification and revision of SC1.

[21]On 26 April 2021 Cdr Young wrote to the Claimant and said that this was a new complaint, of transgender discrimination, and should be sent to Cdr Robinson at HMS King Alfred, because the Claimant had since moved units and that was the commanding officer to whom the new complaint should be made. He decided the complaints based on SC1.

[22]The Claimant did not want to do this. This was because it might well be said that this was now out of time and so not considered admissible. The Claimant felt that while SC1 was about what happened, the later document was about why, as time had led to understanding of the motivation of those about whom complaint was made. The Claimant felt this was further manoeuvring by Navy Legal to stop the complaint from being adjudicated upon.

[23]The outcome letter dated 26 April 2021 from Cdr Young (which dealt with SC1) was appealed by the Claimant. He did not think it fair that Cdr Young had used a complaint that was now not the complaint he was bringing.

[24]On 13 December 2021 the Admiralty Board made its decision on SC1 of 02 September 2019. It ordered that Annex F be sent to HMS King Alfred for an admissibility decision: “42. As we have stated above, in our capacity as the Admiralty Board of the Defence Council we consider it to be highly undesirable that Mr Greatorex has made allegations which are yet to be considered for admissibility. Until those matters are considered by a SO in accordance with the relevant statutory provisions, the RN cannot provide a proper response to them within the SC process. Consequently, we make the following directions:a. Following publication of this decision, a member of the RN SC Casework team is to make contact with Mr Greatorex and seek his consent to pass his 6 Apr 21 Annex F to CO HMS KING ALFRED for an admissibility decision.

b. On receipt of the 6 Apr 21 Annex F, CO HMS KING ALFRED is to make suitable arrangements to discuss its contents with Mr Greatorex in order to understand fully the background of the complaint in advance of making an admissibility decision.” If that results in a decision that the complaint is admissible then (subject to time points) the Claimant will be able to make a further claim based on Annex F. This is a procedural decision not a substantive one.

[25]On 17 January 2022 the Claimant again complained to the Ombudsman, saying that he wanted the document sent on 06 April 2021 to be the admitted service complaint. He said that it was the Navy which had decided to send SC1 to Cdr Young, who had never been his commanding officer. He said they should have chosen either Cdr Hardinge, who was his commanding officer at the time, or Cdr Robertson, at HMS King Alfred. He said that the decision was wrong because it was based on SC1 of 02 September 2019 and not “the later draft dated 06 April 2021”. He said that revising something did not make it a new complaint. He said that the DB should have dealt with the 06 April 2021 document. If Annex F had been sent to the wrong person (and if it was a new complaint he accepted that it should have gone to the commanding officer at HMS King Alfred) that was only because the Ombudsman had directed Cdr Young to deal with it.

[26]The Ombudsman responded on 25 January 2022 to say that there would be an investigation into the substance – the merits – of the Service Complaint. It did not identify which complaint. It is a standard letter.

[27]The Claimant says that as there was a very great deal in his application to them about the document of 06 April 2021 – in fact the whole point of the complaint was that Cdr Young and the DB had not considered that document – he says that the Ombudsman must impliedly have accepted that the document of 06 April 2021 was an admissible complaint. That is because the Ombudsman had said that the merits of the complaint would he addressed, and the Ombudsman only does that when the Service Complaint has been found to be admissible. The Respondent accepts that last premise is correct.

Conclusions

[28]No service complaint about discrimination was put in before 06 April 2021. Therefore, none of the other documents can meet the gateway provision of S121.

[29]As a matter of fact, Cdr Young decided that the document of 06 April 2021 was a new Service Complaint and so should have been sent to the commanding officer of HMS King Alfred. For that reason, although it clearly refers to transgender discrimination it still did not count as an admissible Service Complaint by the Claimant, and so the gateway provision of S121 is not met by that complaint either. The DB also did not consider it to be under consideration: they felt the present situation was unsatisfactory and directed the commanding officer of HMS King Alfred consider it.

[30]The Ombudsman did not see Annex F before sending out the letter of 31 March 2021, as it was sent to Cdr Young on 06 April 2021. It follows that the Ombudsman could not have decided that Annex F was a Service Complaint.

[31]If the Ombudsman later said Annex F was an admissible decision it would not matter what Cdr Young decided, because the Ombudsman hears complaints, and decides them, about officers carrying out the role being undertaken by Cdr Young.

[32]However, the letter from the Ombudsman acknowledging the Claimant’s January 2022 complaint is a standard acknowledgment and notification that the matter complained of will be investigated as there is a public interest in so doing. There are other aspects of the letter from Cdr Young of 26 April 2021 and the DB decision where the Ombudsman might investigate the merits. It is not that the letter from the Ombudsman states that the merits of Annex F are to be evaluated. That only occurs after a Service Complaint has been decided. The Claimant’s complaint it that it has not. (I record that the Claimant was not dissatisfied by what the DB said, rather that they had not taken on the allegations set out in Annex F.) It is the merits of the claim that the DB should have looked at what he put in Annex F that the Ombudsman is, it appears, going to be investigating. If the Ombudsman finds that they should have done, then someone will doubtless be tasked with doing so. Of course, that is exactly what the DB has already done. That would not convert Annex F into a Service Complaint, but more importantly, even of it did that would only be if and when the Ombudsman decided that Annex F should have been dealt with by Cdr Young or by the DB. For Mr Greatorex to succeed it must be shown that Annex F is already a Service Complaint, not that the Ombudsman is investigating whether it should have been.

[33]In specific terms, when the text of SC1 and of Annex F are compared3 they are very different documents. It is not a case of taking SC1 and adding an extra sentence or two to each allegation to set out that the motivation is alleged to be transgender discrimination. If SC1 had been a statement of claim, and Annex F an application to amend, it is hard to see how such an application would have succeeded4. This does not lend support to the Claimant’s assertion that this was to attribute motive to already pleaded detriments. It reads as a wholly different claim.

[34]I was not addresses on the out of time issue. The time limit in service cases is six months, not three (to give time for a Service Complaint to be determined). The test for extending time is whether it is just and equitable to do so. Given that there have been, on any reading, considerable difficulties with the handling of these matters by the Respondent, it is likely that I would have found it just and equitable to extend time. 3 Pages 48 and 115 mark the start of each document 4 Applying the principles in Selkent Bus Co Ltd (t/a Stagecoach Selkent) v Moore

[1996] UKEAT 151_96_0205

, Galilee v The Commissioner of Police of The Metropolis

[2017] UKEAT 0207_16

_221 and Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

[35]The Claimant is claiming “arrears of pay” and “other payments”. No further detail or information was provided in respect of this claim. The Respondent’s written submission sets the matter out accurately: “20. Section 191 of the ERA states that the provisions contained within parts I to III and part X of the ERA have effect in relation to persons in Crown employment, subject to sections 192 and 193 ERA. As section 31 of the Trade Union Reform and Employment Rights Act 1993 has still to come into force, the version of section 192 ERA currently in force is that contained in schedule 2 part 1 paragraph 16. Accordingly, section 191 does not apply to members of the Armed Forces. The Employment Tribunal does not therefore have jurisdiction to consider any complaints of unfair dismissal or unlawful deductions from wages. 21. The jurisdiction of the Employment Tribunal to consider claims for breach of contract is limited to claims by employees for damages for breach of a contract of employment or other contract connected with employment that arises out of or is outstanding on the termination of the employee’s employment. The Claimant was not an employee but a reservist, subject to Terms and Conditions of Service rather than an employment contract, and accordingly the Tribunal has no jurisdiction to consider his complaint.”

[36]The secondary argument is also reason why these two claims must be dismissed: “22. Further, or in the alternative, the jurisdiction of the Tribunal to consider breach of contract claims was formally extended by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”), at the time pursuant to section 131 of the Employment Protection (Consolidation) Act 1978 (“EPCA”). The EPCA was consolidated and re-enacted by the Employment Rights Act 1996 and the Employment Tribunals Act 1996 (“ETA”). The relevant enabling provisions are now to be found in section 3 ETA. As a result of Schedule 2 Pt 1 ETA, any subordinate legislation, including the Order, has effect as if made under the ETA. 23. By virtue of section 38(4) ETA (see schedule 2 part II para 9 for the provisions currently in force), the ETA does not apply to members of HM Armed Forces. Consequently the Order cannot apply to members of HM Armed Forces. As a result the Tribunal has no jurisdiction to hear a complaint by the Claimant of breach of contract. The Claimant’s apparent claims for breach of contract should therefore be struck out for want of jurisdiction.”

[37]When this was explained to the Claimant, he graciously accepted that there was no jurisdiction to hear such claims and asked that they be dismissed on withdrawal.

[38]It follows that I am obliged to dismiss all the claims for want of jurisdiction. The judgment of 12 April 2022 be set aside.

[2]The claim be stayed pending the outcome of the investigation and report of SCOAF.

[3]The claim then be relisted to consider:(i) striking out the claim for the jurisdictional reason that no service complaint was raised;

(ii) and if not whether it is just and equitable for the claim to be allowed to proceed, it being filed out of time, and if so;

(iii) for case management orders to be made.

Conclusions

[1]In my judgment of 12 April 2022 (§20) I found that on 06 April 2021 the Claimant submitted to the Navy a document entitled Annex F, said to be a revision of his earlier complaint, SC1.

[2]I found (§24) that if that complaint is found to be a new complaint, then the Claimant will be able to bring a new case to the Employment Tribunal, because then he will have brought a service complaint.

[3]At §29 I noted that it was accepted that the document of 06 April 2021 was a service complaint, but that it was not an admissible service complaint because it was not submitted to the correct officer.

[4]At §24 I noted that if the submission of Annex F to HMS King Alfred resulted in it being considered an admissible complaint, then a new claim could (subject to out of time points) be submitted.

[5]At §33 I noted that Annex F is was a wholly new document, not an amendment of, or elaboration upon, a previous complaint, but that if an issue been raised that it was out of time it was likely that I would have considered it just and equitable to extend time (because much of the time was because of issues with the way the Respondent dealt with matters).

[6]The Claimant wrote to ask for a reconsideration of the judgment, and the Respondent has set out its objection to that request: “On 30 Apr 2022, at 22:55, Michael Greatorex wrote: Good morning ET, Please find attached my letter to EJ Housego requesting reconsideration of his judgement. Please also find attached further new evidence in support of my case that I think is very relevant. The respondent is copied in to this email. Kind regards Michael” His letter stated: “3204690/2021 30 April 2022 To Employment Judge Housego, Thank you for hearing my claim brought to the employment tribunal in relation to the discriminatory harassment I experienced during my time employed within the Royal Navy. I understand that on completion of the hearing you struck out my claim due to concerns you did not have jurisdiction to hear it in full. This was despite you agreeing that if the Ombudsman had agreed to investigate the substance of my revised complaint dated 6th April 2021, which clearly alleged discrimination in relation to gender reassignment, this demonstrated her acceptance of it as the valid Service Complaint. The respondent alleged that this could not be proven from the Ombudsman’s letter in isolation and you agreed that it was possible that the letter was a standard text that may not have necessarily referred to the complaint dated 6th April 2021, which alleged discrimination in relation to gender reassignment. I disagreed with this premise and argued that should the Ombudsman have viewed the complaint dated 6th April 2021 as distinct from the text dated 2 Sep 2019, she would have rejected my request to investigate the substance of the complaint I sent to her (which was the Service complaint dated 6th April 2021, not it’s earlier draft dated 2 Sep 2019). She would have rejected it on the grounds that it was not a valid Service complaint and therefore she had no powers to investigate its substance. As such, I find there is no ambiguity in her response in which she received my complaint dated 6th April 2021 and accepted it for investigation into its substance. During the hearing, your position was that should I be able to provide further confirmation from the Ombudsman that it is specifically the complaint dated 6th April 2021 that she will investigate, that you would overturn your decision to strike out my claim. I am now able to provide this confirmation. Please find email chain attached. I wrote to Athikur Chowdhury, Investigator Support, Service Complaints Ombudsman for the Armed Forces (SCOAF), on 12 April 2022, requesting: “Could you write me a short note confirming that the SCOAF intends to investigate the substance of my Service Complaint dated 6 April 21 and the maladministration I also allege? This is the Annex F that I sent her to investigate. “I understand from her letter accepting my application into both that this is her intention however I would be grateful if you could confirm.” On 21st April 2022 I received response from Michelle Yore, Investigator, SCOAF, reading: “Yes, I can confirm that after an initial triage we have decided to investigate your complaint.” [emphasis added] As such, with respect I am confident that the Ombudsman has confirmed with certainty that by deciding to investigate my complaint dated 6th April, she has demonstrated that she considers it a valid Service Complaint whereby I am hoping you may now also accept jurisdiction to hear my claim in full. I would like you to reconsider the facts as laid out in para 17 of your judgement, if you feel able: SC1 was revised in April 2021 and does include details of intent behind the matters raised. These details describe in depth why I believe the writing of the OJAR and surrounding related negative behaviours during the same period were actions that were committed out of prejudice to me in relation to gender reassignment. The revisions were presented to the SO who then made an admissibility decision. Irrespective of his intentions and his lack of jurisdiction to consider any part of my complaint due to his appointment (which I allege was unlawful as per the Armed Forces Service Complaints Legislation 2015 as he was not my CO at the time), his decision was that my complaint was admissible in its entirety. Given that the only complaint that was presented to him was the one dated 6th April 2021, this decision can only be interpreted to apply to this Service Complaint. This is why the Ombudsman has been able to accept it for investigation into its substance. Therefore I do believe that the requirements necessary have been met to be a gateway to Employment Tribunal proceedings. The Ombudsman has also decided to investigate maladministration in relation to the handling of the complaint. This investigation will be separate from the investigation into substance. She does not accept all applications to investigate maladministration. Rather, she accepts those applications where it would seem most likely that maladministration has occurred. To me this further demonstrates a high probability that the Navy mishandled the complaint, and in doing so also attempted to convince you to decline jurisdiction. The Navy have not denied the fact that the appointment of Cdr Young as SO was unlawful, neither have they conceded that their interpretation of Cdr Youngs admissibility letter causes them to admit unlawful handling of the complaint on many counts: 1. An SO must be the complainants CO 2. The SO must consider the complaint actually submitted to them for admissibility 3. It is the complainant who writes the complaint and the SO must not replace it with their own words that they know do not reflect the scope of the complaint raised in the knowledge also that the complainant has rejected them I have concerns that there is a misunderstanding of the information I provided in my application to the Ombudsman to investigate substance and maladministration that is referenced in para 25 of your judgement: On 17 January 2022 the claimant again complained to the Ombudsman, saying that he wanted the document sent on 06 April 2021 to be the admitted Service Complaint. I wrote words to this effect as a request for redress should maladministration be found to have occurred. This was part of my application to investigate maladministration rather than a further complaint. One is not able to complain to the Ombudsman. In this section of the form, I could have instead requested further compensation and not said anything about the complaint itself. But all I did instead was request that the complaint of 6 April 2021 be recognised as the Service complaint. I see now this was a foolish thing to request as redress as it is essentially asking for no redress in relation to the maladministration in isolation. (But as I have said before, I am not a solicitor and I am not well versed in legal understanding, hence writing such nonsense. I was also greatly distressed writing that application as I was having to relive my experiences in detail). Either way, this redress has been granted already by the Ombudsman because she has decided to investigate my complaint dated 6th April 2021 which she has since confirmed. This section has been taken out of context and may have distorted the meaning of the Ombudsman’s decision letter on 25th January 2022, which can only refer to the complaint dated 6th April 2021. The Ombudsman has further confirmed that she will investigate the substance of my complaint dated 6th April 2021. Therefore, I would be grateful if you could also reconsider your conclusion in that a Service complaint about discrimination was put in on 6 April 2021 and was presented to the nominated SO to consider for admissibility and it is this complaint that I believe meets the gateway provision of S121 on the basis that the Ombudsman deems it a valid Service Complaint, thus allowing her to investigate its merits. The Ombudsman did see the earlier draft of the complaint dated 2 Sep 2019 before sending out her letter of 31 March 2021. It is a requirement for investigating undue delay that the complaint that is delayed be sent to the ombudsman for reference. The Ombudsman was since sent the revised version of this complaint by me in my application to investigate its substance and maladministration in its handling. I did not send her the original because it was no longer current and it was not what I ultimately presented to the SO to decide on admissibility. She has accepted the April 2021 submission as a version of SC1 that was deemed an admissible Service Complaint. In investigating the substance of my complaint, the Ombudsman will not examine the letter from Cdr Young as this is not part of the complaint. It is the merits if the complaint she will be investigating. If she examines Cdr Youngs letter, then this will be within the scope of identifying maladministration, an entirely separate part of her investigation which will look only at the Navy’s handling of the complaint. I was very dissatisfied with the DBs decision which was why I applied to the Ombudsman to investigate the substance of the complaint and such alleged maladministration. Something she has agreed to do on both counts. If the Ombudsman finds that the Navy should have referenced the later draft of my complaint dated 6th April 2021 as a form of proven maladministration, she will not then task the Navy with investigating its substance. Instead this investigation into substance will be carried out by the Ombudsman and this is what she has agreed to do from the onset. Annex F 6th April 2021 is already a Service Complaint. It was a revision to SC1, dated 6th April 2021. It was presented to the nominated SO for admissibility upon his invitation to do such. The Ombudsman has interpreted the subsequent admissibility decision to refer to the complaint dated 6th April 2021 because otherwise the admissibility decision is unlawful. The SC process within the Navy has completed, I have since asked the Ombudsman to investigate the substance of my complaint dated 6th April 2021 and she has agreed to do this. She is acting within her powers to agree to such an investigation which proves that the complaint dated 6th April 2021 is admissible, completed and in the public interest for the ombudsman to investigate. Thank you for reading. I hope this further evidence and enhanced clarification is enough to enable you to review your initial decision and hopefully now accept your jurisdiction to hear my claim in full. Michael Greatorex” And “From: V. Michael Greatorex Sent: 11 May 2022 17:07 To: Nicholls, Andrea (TS, East London) Cc: Sarah Bains Subject: Re: 3204690/2021 M M Greatorex v Ministry of Defence Good afternoon ET, I would now also like to submit further evidence in support of my case. Please find letter attached below. As I would like to invite the judge to consider, he may see conclusively that I have submitted a valid service complaint in relation to discriminatory harrassment (obviously in relation to gender reassignment) and the SCOAF will be investigating its substance. This confirms that the criteria has been met in order for him to accept his jurisdiction. I have copied in the respondent. Many thanks Michael

[7]On 23 May 2022 the Respondent’s solicitor wrote to the Tribunal and to the Claimant: “From: Sarah Bains Sent: 23 May 2022 12:34 To: EastLondonET Cc: Greatorex, Michael Subject: RE: 3204690/2021 -Greatorex v Ministry of Defence Dear Employment Tribunal I write on behalf of the Respondent and further to the Claimant’s recent email below regarding his application for reconsideration. On 30 April 2022, the Claimant sought reconsideration of EJ Housego’s judgment dated 12 April 2022. In the 30 April 2022 letter from the Claimant he refers to being confident that the Ombudsman has confirmed with certainty that by deciding to investigate his complaint dated 6 April 2022, it considers it to be a valid Service Complaint. The Claimant goes on to state that the Ombudsman has also decided to investigate maladministration in relation to the handling of the complaint. The Respondent’s position is that the email chain dated 21 April 2022, which the Claimant seeks to rely on, is not a definitive confirmation of the same. In fact, the email dated 21 April 2022 from Michelle Yore, states that an investigator will be allocated and the Claimant contacted about the scope of the investigation, as the terms of reference for the investigation have not yet been determined. [emphasis added] As part of the Claimant’s further evidence provided to the Tribunal on 11 May 2022, the 11 May 2022 Ombudsman’s letter which the Claimant also seeks to rely on, does not set out the terms of reference for any investigation and quite clearly also states that the investigator will commence a thorough review of the available information and send the Claimant the terms of reference outlining the scope of the investigation within 10 days. The Respondent therefore submits that the evidence thus far provided by the Claimant preempts a decision by the Ombudsman. The Respondent opposes the Claimant’s application for reconsideration on this basis. Kind regards Sarah Bains Lawyer, Employment Team E3 Employment Group, Government Legal Department

[8]On 24 May 2022 the Claimant wrote to the Tribunal and to the Respondent: “From: Greatorex, Michael Sent: 24 May 2022 11:43 To: Sarah Bains; EastLondonET Subject: RE: 3204690/2021 -Greatorex v Ministry of Defence Dear Employment Tribunal, I acknowledge the respondents points as articulated below and am able to provide further update: I now agree with the Respondent that the two pieces of evidence I have submitted so far should not be taken as confirmation of the SCOAFs position, whatever it may be. I have since received the Terms of Reference and (very frustratingly to all involved) they are worded extremely ambiguously. From the ToRs alone, it is not clear whether the SCOAF considers the Annex F dated 6 Apr 21 which clearly alleges discrimination to be the admitted service complaint and I believe this has been done purposefully in order to avoid prejudging the SCOAFs investigation into maladministration. I have sought further clarification from Ms Esther Martins, Senior Investigator to the SCOAF, who is my assigned investigator. She has confirmed that: “I confirm my singular use of the word “complaint” is to explain that we are looking into the substance of the Service Complaint which has had a final determination. Your concerns relating to the way in which the Annex F of 6 April 2021 will be considered as explained in the terms of reference. Please note, the Ombudsman has not taken a view as to whether or not it forms one complaint. “ As such, I will concede that the SCOAF has not yet have committed herself to considering the Annex F dated 6 Apr 21 as the admissible service complaint (as I previously believed). HOWEVER, she has also not yet committed herself to excluding content within the Annex F dated 6 Apr 21 from what she considers the admissible service complaint. So currently, it’s a maybe rather than a yes or a no. My understanding currently is that the SCOAF needs to now conduct her investigation into maladministration so that she can either support or not support my argument that I did in fact raise a service complaint relating to discriminatory harassment that was subsequently admitted. Therefore, could I make a specific request to the judge that he allows me time for the SCOAFs investigation to be completed before reconsidering his decision? I feel this is the only way that is fair to both sides for the decision to ultimately be based off certainty rather than interpretation of ambiguous letters and emails. I hope the respondent would agree. Michael

[9]On 08 June 2022 the Respondent’s solicitor wrote: “From: Sarah Bains <Sarah.Bains@governmentlegal.gov.uk> Sent: 08 June 2022 17:15 To: Greatorex, Michael C2 (People-DS Sec-Current Med Pol) <Michael.Greatorex101@mod.gov.uk>; EastLondonET <eastlondon@Justice.gov.uk> Subject: RE: 3204690/2021 -Greatorex v Ministry of Defence - FAO: Employment Judge Housego FAO: Employment Judge Housego I write on behalf of the Respondent and further to the Claimant’s 24 May 2022 email below. The Respondent wishes to formally object to the Claimant’s requests that SCOAF investigation be completed before a decision is made on the Claimant’s 30 April 2022 application for a review of the judgment dated 12 April 2022. The Claimant has no new evidence to show that the 6 April 2021 Annex F is already considered a Service Complaint but rather that the Ombudsman is investigating whether it should have been, which for the avoidance of doubt is not consistent with wording of the Ombudsman’s Terms of Reference. (copy attached) Paragraph 5 states ‘As your Annex F of 6 April 2021 has not been finally determined, my investigation can’t take into account any of the additional issues which were raised in your Annex F of 6 April 2021. However, as part of my investigation into maladministration, I will look at the way in which the Service handled the Annex F of 6 April 2021.’ The Respondent submits the above paragraph confirms that the Ombudsman is not seeking to investigate the substance of the Claimant’s 6 April 2021 Annex F, instead they are investigation the way in which it was handled by the Service. Any decision made by the Ombudsman in relation to an investigation of a service complaint, must take into account section 340H (1) (a – d) of the Armed Forces Act 2006, which precludes the Ombudsman from investigating a service complaint that has not been finally determined in the first instance, meaning an admissibility decision made on the relevant Annex F.” A letter was attached to that email, dated 20 May 2022, to the Claimant, from SCOAF. It stated that the matters raised in the document of 06 April 2021 had not been finally determined. SCOAF would look into how that was handled. The letter makes clear that SCOAF will make recommendations in respect of any failings it finds, but that they are not binding. The letter does not give any indication as to how the matters raised in the 06 April 2021 document are to be addressed.

[10]The Claimant, also on 08 June 2022 at 17:26 Greatorex, Michael To:• Sarah Bains;

• EastLondonET <eastlondon@Justice.gov.uk> Wed 08/06/2022 17:26 Thanks Sarah, I appreciate what you’re saying but on completion of the SCOAFs investigation, should she find that maladministration has occurred in relation to the handling of my later draft dated 6 Apr 21, she could very well deem it an admissible service complaint at that point and may then either instruct the RN to progress it or potentially instead investigate the substance of it herself, seeing as the RN considers the internal process complete and therefore ‘finally determined’ already. As such, I maintain that it is reasonable for me to request that ET Judge Housego awaits the outcome of the SCOAF’s investigation before reconsidering his decision. My hope is that he is in agreement that my request to postpone his decision on these grounds is well founded. Michael”

[11]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application

71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. Reconsideration by the Tribunal on its own initiative 73. Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).

[12]From this it can be seen that: 12.1. The document of 06 April 2021 is the document said by the Claimant to be the service complaint necessary for him to be able to bring this claim. 12.2. There has been no final determination of the issues raised in that document. 12.3. For that reason SCOAF will not investigate it. 12.4. Neither SCOAF nor any part of the Respondent indicate how a final determination is to be reached on that document, but the necessary implication is that SCOAF consider that to be necessary. 12.5. SCOAF do not say that it is not a service complaint and so will not be investigated. 12.6. SCOAF will investigate whether the Respondent handled the Claimant’s complaints appropriately, or not. 12.7. That will necessarily involve saying whether or not the 06 April 2021 document was, or was not, a valid Service Complaint.

[13]While I have the authority to make the decision as to what is, or what is not, a valid service complaint, it seems to me much better for the Ombudsman overseeing service complaints to decide that. The Claimant wants it so, and the Respondent cannot credibly oppose a decision to await a decision from the Ombudsman whose entire raison d’étre is to oversee such matters.

[14]This may appear to lengthen proceedings, because at present the claim is struck out, but I consider the Claimant to have an arguable case that the decision I made that it was not a Service Complaint is legally unsound as (he says) I should have waited until the Ombudsman gives judgment on that issue. It would not be just for the claim to be struck out on the basis that it was not a Service Complaint, and then for SCOAF to conclude that it was, and the decision of the Respondent that it was not to be maladministration (which is part of the remit of their role, as I understand it). This is a possible outcome of the referral to SCOAF. The Claimant may decide to appeal the decision to the EAT, and so there may not be any saving in time or cost in any event.

[15]There has been extensive correspondence between the parties, copied to the Tribunal. Neither has requested an oral hearing. I have not concluded that there is no reasonable prospect of the judgment being varied or set aside, and so Rule 72(1) sets out a requirement for the Tribunal to set a time limit for final observations.

[16]I conclude that a hearing is not necessary in the interests of justice, and that both parties have now said all they wish to say, and (understandably) I am pressed to make my decision on the application. There is, therefore no need for a time limit for further submissions.

[17]I set aside the judgment I gave, and substitute for it a judgment that the claim be stayed until SCOAF have reported on the Claimant’s grievances and then be relisted for a further preliminary hearing to consider(i) striking out the claim for the jurisdictional reason that no service complaint was raised,

(ii) and if not whether it is just and equitable for the claim to be allowed to proceed, it being filed out of time, and if so

(iii) for case management orders to be made.

[18]If the Respondent has further points it wished to raise they may, of course, apply for this judgment to be reconsidered, setting out any additional reasons why they say the matter should be regarded as concluded in the way set out in the original judgment.

[19]I see the force of the Claimant’s objection to submitting a new claim, particularly when SCOAF say that the way the 2019 Annex F was handled by not considering the 2021 Annex F was maladministration. I agree with the Claimant’s point that if the 2021 Annex F was to be treated as a new complaint it could have been forwarded by the Respondent to the correct specified officer. (I observe that the SCOAF report does not address the possibility that the maladministration could (belatedly) be corrected by it now being sent to the CO of King Alfred.)

[20]Looking at Regulation 4 of Armed Forces (Service Complaint) Regulations 2015, it is clear that the 2021 Annex F was a service complaint as defined in that Regulation.

[21]Regulation 5 then says the specified officer must (this is mandatory) decide whether the complaint is admissible. It cannot be admissible if it is substantially the same as a previous complaint. The Claimant’s 2021 Annex F is (in essence) to repeat the claims of detrimental treatment and to ascribe a discriminatory motivation to them. This has two consequences – it is possible for this to be an amendment to the 2019 Annex F, or a new complaint. SCOAF says so.

[22]It must be one or the other. Accordingly, and as SCOAF pointed out, it was maladministration for it to be considered as neither: or more accurately not considered at all.

[23]Regulation 7 gives the Ombudsman power to review (and overturn) a decision by a specified officer that a service complaint is not admissible. In the Claimant’s case there was no such decision, and so SCOAF did not consider admissibility, but whether the handling of the 2019 service complaint was maladministration. SCOAF at paragraph 116 does not address maladministration of the 2021 Annex F other than in the context of the 2019 Annex F.

[24]This leaves the Claimant in a void. His 2021 Annex F was ignored by the specified officer, who did not treat the 2021 Annex F as an amendment and refuse it (which SCOAF could have looked at and reversed) or send it to the Claimant’s then CO, as SCOAF said he could have done.

[25]His 2021 Annex F was then also not dealt with by SCOAF, on the basis that the specified officer had ignored it and made no decision that it was not admissible. It is scant consolation that SCOAF says this was maladministration and as a result the Claimant received an apology, because it does not address the issue (that his complaint of discrimination was sidelined).

[26]Nowhere in the Regulations does it state that there can be no complaint to an Employment Tribunal unless there has been a service complaint that has been decided to be admissible. S121 requires only that “the complainant has made a service complaint about the matter” and that “the complaint has not been withdrawn”. This is the case for the 2021 Annex F.

[27]The requirement that the service complaint must be one that has been accepted by the Respondent comes from Molaudi. (§11 of the judgment of 12 April 2022 citing §26 of Molaudi.)

[28]The headnote of that case states that “service complaint” means “a complaint that could be considered substantively” and that “a complaint rejected by the military authorities brought out of time did not fall within that definition”. The 2021 Annex F could have been considered substantively. SCOAF says so, by necessary implication because the failure to make a decision was maladministration. This was not a complaint that was rejected.

[29]The Respondent does not say that the substance of the 2021 Annex F is not worthy of acceptance. It says that it was not an amendment and was not sent to the right person. This is covered above: it is possible that the 2021 service complaint might have been considered inadmissible as being out of time but that is not what happened.

[30]Molaudi was a case on very different facts. The issue with that complaint was that it was rejected as a duplication of a complaint already rejected as out of time. That second complaint was held not to be a service complaint. That was a common-sense decision – for otherwise any service person who wanted to bring a claim in the Employment Tribunal could just file an identical second service complaint and meet the criterion in S121.

[31]In this case the Claimant had not made a discrimination complaint before (that was why the Respondent would not regard it as an amendment).

[32]In a claim to amend an Employment Tribunal claim, perhaps for unfair dismissal to add discrimination, based on the same facts but seeking to add the motivation of discrimination, the Judge deciding would want to assess the Selkent1 principles and come to a decision on amendment, not just refuse the request out of hand, as was done in this case. The service complaint of the Claimant made in the 2021 Annex F could have been determined. The Respondent chose not to do so.

[33]Accordingly, I find that the 2021 Annex F was a service complaint within the definition of the Regulations, and that the ratio of Molaudi does not apply to these circumstances. The Claimant has met the requirements of S121 of the Equality Act 2010.

[34]The whole point of S121 of the Equality Act 2010 is that those in the Armed Forces must, before coming to an Employment Tribunal, give the Respondent an opportunity to address the subject matter of the service person’s grievance. That is exactly what the Claimant did.

[35]It is wholly the reverse of that rationale to deprive the Claimant of the opportunity to bring his case to an Employment Tribunal when he did what was required of him but the Respondent in effect ignored him, with no right of appeal (SCOAF did not resolve this by saying that the Respondent was guilty of maladministration).

[36]I noted in my earlier judgment dismissing the claim that had I found the 2021 Annex F to be a service complaint I would have been minded to extend time for this claim to be continued though filed out of time, on the basis that it would be just and equitable to do so. The Respondent did not address me on that indication. In these circumstances of maladministration by the Respondent I see no reason to depart from that preliminary view, and I extend time.

Conclusions

[1]At a video hearing on 25 July 2023 I dismissed the Respondent’s application to strike out the claims, and permitted the claims to proceed, deciding that it was just and equitable to do so, though filed out of time.

[2]The judgment was promulgated on 25 July 2023 and sent to the parties on 10 August 2023. On 24 August 2023 (and so just in time) the Respondent applied for a reconsideration of that judgment.

[3]The application is lengthy, but in short: 3.1. the judgment was a procedural irregularity because I should have restricted myself to considering whether the Ombudsman had accepted that there had been a service complaint; 3.2. that a conclusion that the Respondent had “ignored” and “sidelined” the complaint was not open to me; 3.3. that I was bound by the reasoning in my previous decision, or at least given the Respondent notice that this was in prospect; 3.4. and that I was on a “frolic of my own" in rewriting my decision.

[4]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those relevant Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application

[5]The application was made promptly. It appears that the Claimant has not made any observations on it (perhaps not having received it), but I do not need any response to determine this application.

[6]I refuse the request for a reconsideration because, in essence, the application is to disagree with the decision.

[7]I do not agree that I should have restricted myself as indicated. While the Claimant made application for me to reconsider my earlier decision to strike out the claim, it is open to a Judge to reconsider a judgment of that Judge’s own volition. When I made my earlier decision I considered that the Ombudsman would determine whether or not there had been a service complaint. The Ombudsman decided that the Claimant was due an apology because the Respondent had not taken an opportunity to decide whether there was such a complaint.

[8]My reason for awaiting the Ombudsman’s decision was that it seemed to me preferable that the Ombudsman made the decision on this point, as this is (it seemed) a central part of the role of the Ombudsman. As the Ombudsman did not make that decision, I had to do so. In doing so, I used all the information supplied by the Ombudsman.

[9]The findings of the Ombudsman are not disputed by the Respondent. It is open to me to draw inferences, or to make deductions or draw conclusions based in part on those findings. Nothing in the Ombudsman’s report is a surprise to thee Respondent, which accepted the report.

[10]The whole point of a reconsideration is that the Judge is not bound by a previous decision. To change a decision based on new information is the exercise of an open mind. I do not see how the Respondent could have been taken by surprise (or if they were it was because they did not appreciate the situation). The whole issue was whether there was a service complaint, or not, and that was what I had to decide.

[11]This was not a “frolic of my own” but to address the central issue of the Respondent’s jurisdictional objection to the claim.

[12]The Respondent asserts that it has been deprived of the opportunity of dealing with the Claimant’s case internally, which is what the service complaint gives it. That is because they did not take the opportunity to deal with the complaint that was submitted, as the Ombudsman says.

[13]The Respondent says that the Claimant could and should have done this another way. It is not for the Respondent to tell the Claimant what to do – it is the Claimant’s service complaint. The Claimant had reasons for not doing what the Respondent wanted (set out in the earlier judgment).

[14]The fact is that the Claimant put in a service complaint. The Respondent did not deal with it. They could have done – the Ombudsman said so (make a decision on admissibility at the least) – but did not.

[15]The legislation does not say a service complaint adjudged by the Respondent to be a valid service complaint. It just requires there to have been a service complaint. There was, I decided, and so the jurisdictional hurdle was overcome.

[16]Were it otherwise the Respondent could prevent someone lodging a claim by refusing to accept a service complaint, requiring that person to lodge a judicial review application or perhaps be shut out of the Employment Tribunal without recourse.

[17]The just and equitable point was, to my mind, simple. The delay is entirely explicable because of the actions of the Respondent. It would not be just and equitable to allow the Respondent to benefit from the passage of time set out in the earlier judgment and in the Ombudsman’s report when this was the cause of the delay in lodging the claim.

[18]I conclude that my judgment was correct and that reconsideration of it at a hearing will not lead to it being altered.

[19]If I have made a mistake of law, as opposed to exercising a discretion, the place for that to be addressed is the Employment Appeal Tribunal.