Mr B Field v Commissioner of the Police of the Metropolis: 3301683/2024
JUDGMENT
[1]The respondent’s application for strike out under rule 38 is refused.[2]The claimant’s application to amend his claim dated 1 September 2024 is refused.[3]The claimant’s application to amend his claim dated 14 November 2024 is granted.REASONS
[1]This Open Preliminary Hearing was scheduled to consider two issues: 1.1. Should the entirety of the claimant’s claims be struck out pursuant to the respondent’s strike out application; 1.2. Should the claimant’s applications (1 September 2024 and 15 November 2024) to amend the claim be granted?[2]A preliminary hearing took place on 19 August 2024 at which the issues were discussed and a list of the issues was prepared. It was noted by Judge Quill that the claimant relied on two protected acts one concerning a report he made about an online blog and the second, a grievance or complaint about matters which had arisen during a promotion interview. It was noted at that hearing that the latter was not encompassed by the ET1 and that the claimant may make an application to amend. The claimant did make an application to amend on 1 September 2024 and has since made a further application on 15 November 2024. The latter is in respect of matters which postdate the ET1.[3]The claimant is employed by the respondent and remains employed by him.[4]The claimant submitted his ET1 on 9 February 2024.[5]Mr Sheehan submitted that his application for strike out should be heard first and the application to amend considered as the decision on the first would impact the latter. Normally I would have taken the applications the other way round, however in the circumstances of this case and given what the amendments were, I considered that it was appropriate to deal with the strike out application first.[6]I heard oral submissions on both the strike out and amendment applications from both parties. Mr Sheehan also relied on a detailed and helpful written skeleton argument. I found both parties submissions helpful but I do not intend to repeat these here except where necessary. The strike out application[7]Rule 38 of the Employment Tribunal Procedure Rules 2024 sets out what I must consider in relation to a strikeout application: “38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success;…”[8]The respondent relies on rule 38(1)(a) only. The only grounds for the application for strikeout is that the claimant’s claims in their entirety have no reasonable prospects of success because they are all out of time.The law
[9]There is considerable guidance and case law about the relevant legal principles in deciding strikeout applications and strikeout applications in the context of the arguments that the claims are out of time. I will not repeat large sections of the case law here because it is well known and well established.[10]However, a useful summary of the key points is found in paragraph 50 of the judgment of Ellenbogen J in E v X UKEAT/0079/20: “1) In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin; 2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson; 3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar; 4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked:(1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or(2) substantively to determine the limitation issue: Caterham ; 5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar; 6) An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz; Sridhar; 7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz; 8) In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required – the matter will be decided on the claimant’s pleading: Caterham (as qualified at paragraph 47 above); 9) A tribunal hearing a strike-out application should view the claimant’s case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson and paragraph 47 above; 10) If a 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 (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham;[11]Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham;[12]Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham;[13]If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham.” 11. I consider that the guidance at paragraph 10 is particularly helpful which states “if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out” and paragraph 13 above. 12. The list of issues identified three protected acts and five detriments. The detriments are as follows: 12.1. That on 8 December 2021. DSU Bidewell introduced her successor to everyone other than the Claimant and said “oh yes Dave, what is it you do” to him (para33.4.1 ), 12.2. On or around 18 February 2022, DSU Bidewell said that she was disappointed by an application for inspector that she had seen, but could not remember whose it was and told the Claimant he should spend more time on his application (para33.4.2 ), 12.3. On or around 21 September 2022, Jo Hudson emailed the Claimant referring to “inappropriate language used in this report” (para33.4.3 ), 12.4. On or around 22 September 2022, Jo Hudson emailed the Claimant saying “the issue here was not that you made a report but the language you used when reporting” (para33.4.4 ), and 12.5. On or around 23 October 2022, the Claimant submitted a grievance that was never dealt with (para33.4.5 ). 13. The respondent’s submissions included the following: 13.1. at best the claimant’s claims were 16 months out of time which was an enormous delay; 13.2. the claimant’s allegations fell within three categories and they are severable. The first category concerns allegations of mistreatment by DSU Bidewell, the second is allegations relating to Jo Hudson and the final allegation is that his grievance was not dealt with. These are distinct and do not form a continuing course of conduct; 13.3. the claimant’s delay is enormous and will cause prejudice to the respondent because of the very considerable delay and the fact that DSU Bidewell left the service some years ago. The delay will mean that memories have faded and it will be harder to obtain documents.[14]The claimant’s submissions included the following: 14.1. that it was incorrect to view his complaints as a series of discrete acts because he was claiming a course of conduct operated by the respondent and he accepted that different individuals were involved in that course of conduct; 14.2. the respondent consistently ignored the claimant’s complaints delaying and ignoring which was a tactic operated by the respondent. This in itself was a detriment and it was a continuing course of conduct that persists to this day. It was not reasonable to consider that the respondent should have dealt with his grievance within a month because the claimant’s experience is that it takes the respondent a very long time to deal with matters such as grievances and the claimant considered that the respondent was dealing his complaint for a considerable period of time and then it became apparent to him that the respondent was ignoring it and that that ignoring and delaying was a continuing course of conduct; 14.3. this situation had a severe negative impact on his mental health and he has been diagnosed with PTSD.[15]I consider that it is important to remember that the test is that there are no reasonable prospects of success. I accept the claimant’s submissions that the general theme of his claim is that he raised with the respondent and the respondent, as an entity acting through various people, persisted in treating him detrimentally.[16]I consider that it is not appropriate to sever the different parts of the claimant’s claim as this would deny him the opportunity of arguing that they form a continuing course of conduct at a substantive hearing. It is a substantive issue as to whether or not the acts form part of a continuing course of conduct. I note Mr Sheehan submissions that there was a considerable elapse of time between the various events complained of. However, that is a matter to be argued and considered that a substantive hearing.[17]The claimant submitted that he suffered from mental ill-health and he had been diagnosed with PTSD. The background to his claim relates to matters he has raised about disability discrimination among other things. I am prepared to accept the claimant’s mental health has played some role in his actions and delays in this claim. I recognise Mr Sheehan’s criticisms that this has not been tested at the hearing. I, therefore, only give them limited weight.[18]Overall, I have concluded that the claimant’s claims do not face no reasonable prospects of success. The continuing act argument is arguable and needs to be decided at a substantive hearing.[19]I have therefore decided to reject the strike out application. The Application to amend 1 September 2024[20]I will first deal with the first strike out application dated 1 September 2024. The claimant raised some issues about amendment at the preliminary hearing which took place on 19 August 2024. At that hearing it was discussed that the claimant was to consider whether or not to make an application to amend and if he should do so, dates were given by which he should do that.[21]In this hearing, I asked the claimant to confirm that in this application to amend the section related to the blog did not include an application to amend and that in fact all of his claims were captured in the list of issues that had already been drafted. The claimant confirmed that this was the case and therefore the amendments related only to the issue about the treatment of the claimant in relation to promotion.[22]I considered what was set out in that application and spoke to the claimant about what was required to establish a protected act and what a detriment was. The claimant clarified that the protected acts were occasions when the claimant was telling the respondent that they were not recognising disability as a protected characteristic and then he suffered detriments as a result. Mr Sheehan submitted that the claimant’s claim was not pleaded correctly however I reject this. The claimant is a litigant in person and he cannot be expected to draft his claim as a legal representative would. I found that his claims could be understood in terms of the legal framework as I have set out above. The law[23]The law is well established in this area. Selkent Bus Company Ltd v Moore [1996] ICR 836 identifies factors to consider in determining the balance of prejudice between the parties arising from the application. Those factors are not a checklist but they are useful.[24]The Case Management orders ofJudge Quill set out:
[25]I agree that the blog related claims are not encompassed by the ET1 and therefore the claims are entirely new claims.[26]The matters encompassed by the blog related claims are substantially out of time. There is only one issue that would be within time and that was the final one on December 2023. I consider that the late nature of the claims is something I should attach significant weight to. They were matters that the claimant was aware of at the time on which he submitted his ET1. No good reason except for the appellant’s mental ill-health has been provided for why they were not included in his ET1.[27]I note that the claimant is a litigant in person and I have given this some consideration. In addition, I recognised that to the claimant’s mind the issue about the amendments only came to his attention around 19 August 2024 at the preliminary hearing and that he made his first application to amend promptly after that.[28]Balancing all of these factors together including the prejudice to the claimant that he would not be able to bring these claims in front of the Employment Tribunal and the prejudice to the respondent and having to address some old allegations that were of quite a different nature to those submitted in the ET1 which would inevitably mean that there would have to be further drafting of the list of issues and at least one if not more further hearings, I have decided to refuse the application to amend dated 1 September 2024 . The second application to amend 14 November 2024[29]The application is to include further claims under section 27 of the Equality Act 2010 that the claimant has suffered victimization. This involves events which occurred after the ET1 was submitted.[30]The protected act is the commencement of these employment tribunal proceedings.[31]The alleged detrimental acts are the following three: 31.1. In November 2024 Chief Supt Mark Gallacher, Detective Supt Matt East, Danny May and Alexandra Walsh have been informed of the Claimant’s ET proceedings, 31.2. in November 2024 Matt East informed the Claimant’s line manager that he must be kept under close governance, and 31.3. in November 2024 Mark Gallacher inquired whether Alexandra Walsh was aware of the Claimant’s recent activities.[32]I clarified that these were the issues involved in the amendment application with the claimant and he confirmed they were. Mr Sheehan raised these were not adequately particularized. However, I reject that submission. I considered that the issues are clear and do not need any further particularisation.[33]Considering the factors I have identified above, I find that these are new allegations which relate to a very different factual basis to those set out in the ET1. All of the allegations post dated the ET1.[34]It is not disputed that the claimant has not brought a new Employment Tribunal claim including those allegations. It is open for him to do so and the claimant indicated that he would if I refuse the application. Mr Sheehan submitted that it would be an abuse of process for the claimant to do so if I refuse this application. I consider that submission is incorrect. If I refuse the application on the basis that the appropriate course of conduct is to submit a new ET1 so that all of those procedural safeguards and legal requirements are complied with, it would clearly not be an abuse of process to do that.[35]I have given very careful consideration whether to grant these amendments or not. It would not be appropriate to allow the claimant to circumvent the regime that is in place under which claims must be brought in the Employment Tribunals. However, I have also given consideration to the overriding objective and the interest of justice which require cases to be dealt with proportionately in relation to all matters including costs. I can see that there is merit in granting this application rather than requiring the claimant to go through a more cumbersome process of submitted a new ET1.[36]These claims relate to November 2024 and as it is now 24 January 2025, with the application itself being made in November 2024 those claims were made promptly. The respondent would be given the opportunity to amend its response to address those issues. I recognize that these allegations involve new individuals at the respondent as compared with the other issues which would cause it prejudice. However, I consider that it is inaccordance with the overriding objective to grant permission to the application to amend.[37]Taking into account the overriding objective I have decided to grant the application to amend dated 15 November 2024 to include the issues set out above.[38]As a result, I have made the following order: 38.1. The respondent is to file and serve an amended response within 28 days of receipt of this judgement and orders. This response is to address the amended issues only.[39]At this stage I do not consider that a further hearing or directions are required. If the parties consider otherwise, they may write to the tribunal with their request.