Ms A Uddin v Commissioner of Police of the Metropolis: 3307928/2023

EMPLOYMENT TRIBUNALS

Case No 3307928/2023

Between

Ms A UddinClaimant

Commissioner of Police of the MetropolisRespondent

Before

: Employment Judge Hyams, sitting alone

Date 20 December 2024

JUDGMENT

[1]The conduct of the colleague of the claimant of 18 March 2020 at the claimant’s house about which complaint is made in these proceedings (I refer to that colleague in this judgment and the reasons below as “AA”) was not in the course of that colleague’s employment within the meaning of section 109(1) of the Equality Act 2010.

[2]If it had been within the colleague’s course of employment, then it would not have been just and equitable to extend time for the making of a claim about that conduct pursuant to section 123(1)(b) of that Act.

REASONS

[1]On 5 August 2024 I conducted a second preliminary hearing in relation to the claimant’s claims. The first was conducted by Employment Judge Matthews on 15 April 2024. At the end of the hearing of 5 August 2024, I adjourned the hearing so that at the resumed hearing I could decide the following two preliminary points:1.1 whether that which AA did at the claimant’s home on 18 March 2020 was within the course of AA’s employment within the meaning of section 109(1) of the Equality Act 2010 (“EqA 2010”); and

1.2 if it was and that which he did then was not part of conduct extending over a period within the meaning of section 123(3)(a) of the EqA 2010, whether it was just and equitable to extend time under section 123(1)(b) of that Act for the making of a claim about what he did then.

[2]The hearing was listed to resume on 6 December 2024 for a day. That day was insufficient for its intended purpose: all that was possible was to hear evidence from the two witnesses who attended. I had to adjourn the hearing again, to the afternoon of 11 December 2024, for the making of oral submissions by both parties’ counsel and, if possible, for me to give judgment on the above two preliminary points. In the event, there was time only for me to hear oral submissions. I therefore had to reserve my judgment on those two points. My judgment on those two points is stated above. My reasons for it are as follows. The background to the two preliminary points in issue

[3]On 18 March 2020, the claimant was employed (using that term in a broad sense; the claimant was then, and remains, a police constable) by the respondent to work at Wembley police station. So was AA. They worked in different teams. AA was senior to the claimant in that he was a sergeant (in fact, a Detective Sergeant), while the claimant was a police constable. AA had no managerial responsibilities for the claimant and the claimant was in no way answerable to him. The claimant’s line manager was Ms Christine Topping.

[4]The ET1 claim form was presented on 11 July 2023. It was therefore presented more than three years out of time for the making of a claim about what occurred on 18 March 2020.

[5]AA did not give evidence to me at any time, and is no longer a police officer: he resigned in 2021 after being found to have been driving under the influence of alcohol: at page 287 (i.e. page 287 of the bundle for the hearing of 6 December 2024), Mr Louis Smith wrote to the claimant in an email dated 1 October 2021: “AA resigned to avoid being fired. It is now a matter of public record that he was found guilty of drink driving.”

[6]The claimant did give evidence: she did so on 6 December 2024. So did Detective Inspector (“DI”) Chris Price. He had, on 18 March 2020, been a Detective Sergeant (“DS”). He had at that time had no managerial responsibility for the claimant. For the sake of simplicity, I refer to DI Price below as “Mr Price”. His evidence was based largely on a statement that he had made on 4 September 2020 of which there was a copy at pages 232-233, which was made under section 9 of the Criminal Justice Act 1967. That was nearly six months after 18 March 2020, so it was not contemporaneous. I therefore viewed it with considerable caution. I return to it in paragraph 18 below.

[7]Some of the things which the claimant said in her witness statement were contradicted by some very much more contemporaneous documents. The claimant was cross-examined vigorously (but courteously) by Mr Isaacs, and I had to decide(1) in what circumstances what AA did on 18 March 2020 came about (not what he did, I emphasise, but the manner in which he came to be in the claimant’s home on that day) and

(2) what the claimant knew about the right to make a claim to an employment tribunal, including the time limit for doing so. I therefore now set out my findings of fact in those regards. In the course of doing so, I examine the evidence before me before stating my factual conclusions. My findings of fact about what happened on 18 March 2020

[8]The claimant’s witness statement contained the following paragraphs, which I accepted. “25. On the 18/03/2020 I arrived into the office early. We were allowed to go home to work from home if we wanted but I chose to the stay on in the office as I was already there but it was during the early part of COVID. From my recollection AA was given a lift home by PC De Mornay. 26. Later on in the morning AA contacted me via email and requested that I call him and he provided me with his personal number. Prior to this email I did not have any personal contact details pertaining to AA. I called him using the landline and when I spoke to him he asked that I bring his work mobile phone to him in Dunstable. I agreed to do so after work but he told me that he had spoken to DS Price who had agreed I could take it to him now.”

[9]The next two paragraphs of the claimant’s witness statement were as follows. ‘27. DS Price came and spoke to me and confirmed that I he [sic] had spoken to AA and that I was to take him his work mobile phone. My CARMS showed me working from home for that day from 8am to 4pm and it was agreed I would continue my work day at home [Page 146]. 28. The incident that occurred is detailed in my criminal witness statement [page 155 – 159] and I do not wish to repeat the factual circumstances however I strongly aver that it occurred in the course of my employment whilst working from home. The instruction to provide a mobile phone was me being a loyal employee and following instructions of the respondent. I had to contact my sister in law to help and these WhatsApp messages evidence that I was not comfortable and worried about the situation that I was in [147 -151]. There was also an audio recording of AA singing “you are so beautiful” which has been disclosed to the Respondent and evidences his ongoing provocative approaches towards me.’

[10]I did not accept either sentence of paragraph 27 of the claimant’s witness statement, or paragraph 28 of that statement in so far as it asserted that the claimant was given an instruction to give AA his work mobile telephone. That was for the following reasons.

[11]On 19 March 2020, under cover of an email sent at 09:46, the claimant wrote to Ms Topping in the following terms. ‘This is a summary of the conversation that I had with you on the telephone, today, 19/ 03/ 2020 at 0820 hours. I would like to make it very clear that I am not willing to make any kind of allegations and I am not willing to make a statement or report this in anyway. I am raising the matter with you out of concern. Yesterday, 18/ 03/ 2020 I was asked by [AA] and DS Chris Price to take a work mobile phone up to [AA]. I said I could take it after work, but was asked if I could take it up as soon as possible. As I was being asked by two sergeants to do this task I didn’t see a problem with doing it. When I arrived in Dunstable, [AA] called me to say that he was still not home. I said to him it was fine and that he could collect the phone from my house as I did not know his home address. [AA] arrived at my house at 15:40 hours. When he came in it was clear he had been drinking. By this time I was off duty. I asked [AA] if he would like to come in. I offered him food as I thought it might help. He leant to kiss me on the lips and I turned my head to the side. He said, “oh not on the lips?” and I said no. Never on the lips. He tried a few times to kiss me on the lips but I firmly told him no and moved away and made it very clear it would not be acceptable. I told him to eat some food and then we could get him a cab to take him home. We were talking and during the conversation he made several sexual comments in reference to my body and my appearance. I was cooking and there as [sic; probably meant to be “was”] some distance between us so I wasn’t concerned about the comments and I told him he shouldn’t make such comments. He spoke to me about having a lot of respect for me, and that he had never heard a bad word about me. I thanked him for that. He told me about his issues at home and told me he was staying at my house tonight, in my bed. I told him that he would not be and that I would call him a cab. As I could see that there may be difficulty in getting [AA] to go I messaged my sister-in-law at 16:12 hours and asked her to come to my house once she had picked up my nephew from nursery. During these messages [AA] was talking to me. He said to me “I could rape you” and I replied, “No you couldn’t” He said again, “No, I could rape you” and I said again no that he couldn’t and he leant in closer and said it for a third time. He said to me, “You’re mental, like me, I’m mental” I replied yes, I suffer with depression, that’s why I’m saying that you should seek help. He told me about the therapy he had had and then he started talking about his brother. He started getting emotional and crying. At this point my sister in law arrived at my house, it was 16:30 hours. I said to [AA] let’s call you a cab. He started talking to my sister in law and playing with the kids. Again he made some inappropriate comments and I called him a cab at 16:56 hours. When it arrived he left. Apart from the one comment to my sister in law he was not threatening in any way. He was playing with my nephew and was very friendly and amicable with the kids, but on the whole I was not comfortable. I do not draw your attention to any of this because I wish to make any sort of complaint or allege a crime and I will not support any such action. I am very concerned for the mental health and wellbeing of [AA]. I have known [AA] for nearly 13 years. And my concern is that if I do not raise this then he won’t see anything wrong with his behaviour and he will continue to deteriorate. I also have to disclose this for my own mental health and wellbeing. You are fully aware of my current situation and history and it is recorded under OH and do not want to hold on to this and as a consequence worry and stress about it and add to my own problems. Certain things that were said and actions behaved are triggers for me. I would need this information to be confidential, I have no intention of speaking about this with anyone else in the office, nor do I intend to raise this with [AA]. I really would not cope well if this information was disclosed to anyone in the office.’

[12]The claimant plainly quite quickly changed her mind (possibly as a result of a discussion with Ms Topping: see the email set out in paragraph 33 below), as there was at pages 155-159 a statement in her name dated 31 March 2020 which had been made under section 9 of the Criminal Justice Act 1967. It started in this way. “I make this statement in relation to the sexual assault I was the victim of on WEDNESDAY 18th MARCH 2020. The assault occurred at my home address in LUTON at approximately 15:45 hours by a man I have known through work for the last 13 years. I have recalled these events to DC WALLIS of [word(s) blanked out; it was probably a reference to Bedfordshire Police] over the telephone as we were unable to meet in person due to the isolation conditions attached to COVID-19. I have recalled the events of that day to DC WALLIS approximately 13 days after I reported the incident to the Metropolitan Police where I work. The report was then transferred to [name blanked out but probably a reference to Bedfordshire] Police to investigate so there has been a delay in providing this statement.”

[13]The statement had on the next two pages, pages 156-157, the following description of the manner in which AA came to be present at the claimant’s home on 18 March 2020 and most of what happened when he was so present. A number of parts were blanked out, such as references to places. That was in my view inappropriate, as the places were plainly Dunstable and Luton and there could in my view be no good reason for them not being referred to in the hearing in public. I have in any event inferred, or guessed, what was blanked out there and in other places in the statement, and included in the words set out below the result of my inference or (as the case may be) guess. I have not used capital letters for names or places where I have done that, although in the original the words were probably in capital letters. “On the day of the assault I had been at work in Wembley Police station when I received an email from [AA] asking me to call him on his personal mobile number which he included in the email. I called him using the office telephone and he asked if DS CHRIS PRICE another sergeant in the office had spoken to me. I said no. He said that he would appreciate me doing him a favour and drop his work mobile phone off to him. I had seen him in the office earlier that day and he had now gone home. I replied and told him I could drop it off after work but he responded and told me he would rather I dropped it off sooner rather than later and that it would be fine for me to do so. After the conversation CHRIS came to my desk and asked if I had spoken to [AA]. I said yes and that he had asked if I could take his work phone to him. After it was ratified that I should take [AA] his phone to him right away, I made my way from WEMBLEY to Dunstable in my car via the M1 motorway. When I arrived in Dunstable I had not heard from [AA] so I parked in LIDL car park and went to get some lunch from the store. Whilst I was shopping [AA] called me and said he was not home yet and was in the pub. I suggested he collect the phone from my house later and gave him my address, he said this was fine but would I mind if he got a cab to my house to collect the phone. I had no issues with this so told him it was fine. I then made my way home and unpacked my shopping and started cooking. When [AA] arrived at my house I was surprised as I had told him on the phone that when he got to mine if he could come around that back of the house it would be easier because it leads into the kitchen where I was cooking and I would be able to hear him knock. He did not do this and knocked at the front door. I heard the noise of [AA] knocking and went to the door. To my surprise when I opened the front door [AA] was stood there but there was no taxi waiting for him. I fully expected him to knock at the door, get the phone and leave in the taxi be [sic] he had other ideas. I invited [AA] in because I felt like it was the polite thing to do. He came in and we walked through the lounge and into the kitchen where I was cooking. It was clear to me that [AA] had been drinking. He was not really drunk but by his mannerisms and general speech it was noticeable that he was not sober. I offered [AA] some food as I thought it may help him sober up and feel better. He then lent in to kiss me. I quickly moved my head to the side and he kissed me on the cheek. He said, “oh not on the lips, is that because of corona virus?” and I said no, never on the lips. He tried a few times to kiss me on the lips but I firmly told him no and moved away and made it very clear it would not be acceptable. I am not really close or have any sort of contact with people from work and I would never dream of kissing anyone that I directly work with, let alone a married man who I do not know other than to have casual conversation in the office. I plated [AA] some Massaman Curry and rice and told him to eat and then we would call him a cab so he could go home. He started joking that he would assess the food the way I did when I reviewed a restaurant As he was eating we were making general conversation and [AA] went to get up, he started to tell me that he thought I had ‘Great tits and arse’. I told him very quickly to sit down. I was still cooking and tried to ignore the comments because I didn’t want him to keep talking like this because it made me feel uncomfortable and I found it offensive.”

[14]At pages 147-148 there was a copy of the text exchange between the claimant and her sister-in-law (Ms Garlitos). It started in this way (with a message sent by the claimant at 16:12): “Please come and save me.” “One of my bosses is here and he’s drunk.”

[15]A minute later, Ms Garlitos replied: “Haha” “At your house”.

[16]The claimant replied: “Yes!!”. After several short messages, there was this exchange. “[Claimant] He came here to pick up his work phone [Ms Garlitos] And he doesn’t want to leave? [Claimant] Doesn’t seem that way [Ms Garlitos] Did he go there drunk? [Claimant] Yes”.

[17]During the hearing on 6 December 2024, the respondent produced a document showing that the claimant had logged off work at 14:53 on 18 March 2020. The claimant accepted that it was accurate and that she had done that. The document showed that she had logged on at 06:28 that day.

[18]Mr Price’s statement at pages 232-233 contained this passage (at the bottom of page 232) about the conversation which he had had with the claimant on 18 March 2020. “She had already agreed that she would take the phone to [AA] during the telephone conversation and I double checked that she was happy to do so. I explained that she did not have to take the handset if it was out of her way and that she did not have to feel compelled to do it. Ms Uddin assured me that [AA] lived close to her and that it would not be out of her way. She further assured me that she was entirely comfortable with completing the task.”

[19]I was not satisfied that that statement was a wholly accurate recollection of the manner in which the claimant and Mr Price had conversed on 18 March 2020. That was because it seemed to me to be likely that Mr Price spoke in the statement with the benefit of hindsight, and I concluded that while the gist of what he recalled on 4 September 2020 was accurate, the details were not. As a result, I concluded that the claimant’s statements of 19 and 31 March 2020 from which I have set out the relevant parts in paragraphs 11-13 above and the text messages which I have set out in paragraphs 14-16 above were more reliable evidence of what occurred on 18 March 2020.

[20]During the hearing, I was sent some text messages between the claimant and AA. They showed that at 11:32 on 18 March 2020, the claimant said to him by text: “Hey. It’s Aleya. Send me your address.” and then: “I’ll be leaving here in about 10 minutes”. AA replied (in the next message in the sequence, which was sent at 13:33) “Tried calling back but no joy. Send me your address and ill come and see you. X when you get back. X”. He then wrote, immediately afterwards: “Sorry. Sent message to wrong number. Lol. Ill call you soon. X”. The claimant had replied: “Ok no probs. [And then she set out her address.]” AA responded: “Shall i get a cab there. X”, and the claimant wrote this: “Yep. I’ll see you in a while.” “Cab will probably bring you to the back of the house which is fine. I have a gate. Don’t really use the front door.”

[21]AA had then replied: “Ordered a cab, is it ok.” The claimant had replied: “Yeh of course. I’m at home now.”

[22]I found as a fact that what actually happened was this.22.1 The claimant was asked by AA as “a favour” (her words at page 156; all words to which I refer in this paragraph as being on that page are set out in paragraph 13 above) to “drop off his work mobile phone” to him.

22.2 She said (as recorded by her at page 156) that she could drop it off after work. She did not know his home address, and he did not know hers. She asked him at 11:32 for his home address, but he did not give it, as shown by the text messages to which I refer in paragraph 20 above. Instead, at 13:33 he asked her for her home address, which she then gave to him.

22.3 The claimant and AA had a telephone conversation during the period after the claimant had arrived in the Luton and Dunstable area (which I concluded was at about 12:45, given that she was going to leave the office in about 10 minutes after 11:32 and that it will have taken about an hour to get from Wembley police station to Dunstable), and during it, as she recorded on page 156, she suggested that he collected the telephone from her home and that was why she gave him her home address.

22.4 AA arrived having paid off the cab driver. The claimant invited him because (as she said at page 156) she “felt like it was the polite thing to do.”

22.5 She knew that he was drunk.

[23]I found as a fact also that Mr Price supported AA’s request for the claimant to take AA’s mobile telephone to him by leaving the Wembley police station and going up to Dunstable before going home and continuing to work from home. Having heard and seen Mr Price and the claimant give evidence, I concluded that Mr Price put no pressure on the claimant to take AA’s mobile telephone to him, and that the claimant was happy to take it with her and leave the office earlier than she had planned to.

[24]At pages 160-162, there was a copy of an undated interview with AA, to which the date of 25 June 2020 was attributed in the index. It did not accord with the claimant’s account of what occurred on 18 March 2020.

[25]The parties agreed that a police officer is not permitted to be under the influence of alcohol when on duty. In part for that reason but also from all of the evidence before me, I concluded that it was clear to the claimant (i.e. she knew) that AA was not on duty at the latest when he telephoned her from the public house at lunchtime on 18 March 2020 and therefore that he was off duty at all material times. What did the claimant do about the acts of AA on 18 March 2020 and what did she know at all material times about the possibility of making a claim to an employment tribunal and the time limit for making such a claim?

[26]The first thing that the claimant did by way of complaint about the acts of AA on 18 March 2020 after initially deciding not to make a complaint and only to make her line manager aware of those acts out of altruism, was, as stated in paragraph 12 above, to make a complaint to the police (using that term broadly) of criminal conduct on the part of AA. She plainly did that to the Metropolitan police service within a day or so of 18 March 2020. The “Crime Report Print” at pages 184-193 was plainly created by the Bedfordshire police service. It showed that it was reported to the latter on 25 March 2020 that there had been an “attempted sexual assault” at the claimant’s home.

[27]On 18 June 2020, the claimant wrote to Mr Wallis, the Bedfordshire police officer who was investigating the circumstances (page 164): “As you can imagine my anxiety is extremely high, I have been unable to sleep and it is impacting my working day as I am unable to focus. I am even considering taking time off from work due to the physical impact anxiety is having on me. I appreciate the explanation that you have given to me for the delays, however, I feel if the victim had been an ordinary member of the public then this investigation would have been carried out differently. I feel like [AA] has dictated the pace at which this investigation is carried out. For me, [AA] is in a position of power, being a sergeant, and he grossly abused that trust when he came to my home and violated my personal space. When he kissed me, tried to force kisses on me, suggested he could rape me, he took away all my control and now I constantly feel vulnerable. This is not an overreaction by me, I feel that I am justified in my anxiety over the incident and the manner in which this case has been dealt with. This incident has brought up negative feelings and past trauma and is having a huge impact on my mental health and wellbeing. I have included my welfare officer and line manager in to this email to make them aware of how I am currently feeling.”

[28]On 26 June 2020 Mr Wallis emailed the claimant (page 169), saying that his line manager (“DS Balic my sergeant”) had “deemed that there is insufficient evidence to meet the threshold to approach the crown prosecution service”. Mr Wallis continued: “I will be making the DPS [i.e. the Metropolitan Police’s Department of Professional Standards] aware of the outcome of the criminal investigation as I am sure they will be carrying out their own enquiries into conduct. That is a separate investigation and I am sure that they would be in touch should they need information from you.”

[29]The claimant then, I could see from her email of 27 June 2020 at pages 171- 176, complained to the DPS about AA’s conduct on 18 March 2020. However, the DPS had already been involved, to the knowledge of the claimant, as was shown by what she wrote on page 174, where she said that on 28 May 2020 she had received an email from Mr Wallis, and that she had then spoken to him on the telephone and he had told her that he was waiting for the DPS to get back to him. The relevant passage was in these terms. “I then spoke to Mike on the phone because I felt that the investigation was moving very slowly. He told me that [t]he the delay was because he was waiting for DPS to get back to him and that DPS had now said to him to carry out his investigation. I said to him, surely the allegation of a crime take[s] precedence and that he should be dealing with that. He said to me normally when he deals with officers from the MET he found that DPS liked to come in on the same day to interview the suspect too. This did not make sense to me. He also said he had to wait for [AA] to organise his fed rep and his legal representation because that was his right. He said that he’d had trouble arranging a date and that he was emailed across several options. He later told me that an interview had been arranged for the 15th of June 2020. He told me he would call me after the interview to update me with the progress. He did not.”

[30]There was a history of the claimant’s absences from work at page 144. It showed that she was absent through sickness, the reason being recorded as “Mental Health – Other”, from 25 June 2020 until 1 October 2020.

[31]On 29 June 2020, Mr Phil Brewster (a Police Sergeant) wrote an email (pages 177-178) at 12:22 to Ms Stephanie Powles, of the DPS that he had “just taken on the case representing [the claimant]” who was “very concerned that nothing is being done about the allegation and ha[d] turned to the Federation for support”. Ms Powles replied at 12:31 on the same day (page 177) that she was the investigating officer “for a conduct matter in regard to this incident”, but that her role was to conduct a “misconduct review following the completion of the criminal investigation”, so she had not before then had any input into that investigation “thus far”.

[32]At 12:28 on the same day, 29 June 2020, Mr Mike James of the DPS wrote to the claimant (page 180): “I have just tried to give you a call to discuss this but your phone went to voicemail. Let me know when you are free and I shall try again.”

[33]At 12:43 the claimant replied (page 179): “Sorry I was speaking to my fed rep, can he be dialled in to the conversation?” At 13:07 Mr James responded (page 179): ‘I’m afraid not. I am working from home today Don’t worry about the phone call. Just tried again and still goes to voicemail. So with regards to the criminal investigation. This was reported in the MPS [i.e. the Metropolitan Police Service] after Christine made the report. This was passed to [name blanked out] and they gave it a reference number which I am sure you have. The DPS do not ordinarily get involved in criminal investigations unless of course the matter happened “on duty” which this clearly did not. The DPS IO is awaiting the outcome of the criminal investigation in order that she can conduct a misconduct review. With regards to your dissatisfaction around the criminal investigation please contact [name inexplicably blanked out but I inferred that it was Bedfordshire] Professional Standards and they will be happy to assess your complaint. They can be emailed on PSD.AntiCorruptionUnit@Bedfordshire.pnn.Police.uk’

[34]On 29 June 2020, in the email at pages 196-197, the claimant sought the reinvestigation by the Bedfordshire police service of her complaint of criminal conduct by AA and on 13 July 2020, Mr Philip Raikes wrote the email to the claimant at pages 213-216, informing her that he had been assigned to “reinvestigate” and that he had that day sent emails to all the people whom she had listed in her email seeking the reinvestigation.

[35]On 21 August 2020, the claimant wrote to Mr Raikes (page 208): “Good afternoon Phil, It has been 11 days since I last asked you for an update. Please can you let me know where you are with the investigation. I have been speaking my my fed rep [sic] and my solicitor and they cannot progress anything until the criminal matter is concluded so they have requested an update too.”

[36]On 2 September 2020, the claimant wrote to Mr Raikes again (page 207): “Good morning, Please can you let me know if this matter has progressed at all? I have a meeting with HR on Friday and a discussion with my solicitor then as well and it would be good to have a positive response to give them. Also, my solicitor has asked if we can have the account that [AA] gave in interview. At this time I have no idea what was said. Are you able to provide any of that?”

[37]On 1 October 2020, the claimant was informed that the matter had been “NFA”, i.e. a decision had been taken to take no further action on the claimant’s complaint of criminal conduct by AA against the claimant. That was on the basis that there was no realistic prospect of a conviction being obtained. That was clear from the email from DS Ryan Barnes of Bedfordshire police to Ms Powles at pages 235-236, in which that was recorded and in which DS Barnes wrote: “The victim has also been informed and is not happy”.

[38]On 18 October 2020, the claimant submitted a formal grievance “in relation to a sexual assault that took place by [AA] and the manner in which this has been handled by Wembley police and [name blanked out but plainly Bedfordshire] police.” That was at page 250. She stated the “Detailed outcomes sought” on that page, in the following terms. “I would like the perpetrator punished for his actions. I would like for the matter to be treated seriously and not brushed under the carpet. I would like to feel safe in my work environment and not harassed by senior officers who think they can speak and act in any manner they wish. I would like the MET to take sexual assault allegations seriously and implement a process that makes the victim feel safer and not ostracised for telling the truth.”

[39]On “30/11/2020” (the date given on page 257) Ms Powles (who was stated on page 251 to be “DC Stephanie Powles”) issued a “Conduct Matter Investigation Report”, about an allegation summarised as an “Allegation of sexual assault off duty”. The report was at pages 251-258. It was stated on page 251 to have been “created” on “22.10.20”, but that was plainly the date when the report was started, not when it was completed. On page 257 it was said that the report had been “submitted to AA”, which meant “submitted to the Appropriate Authority”, on 4 December 2020.

[40]On 28 January 2021, the claimant sent the “Grievance Submission” at page 267. As part of that submission she wrote that “The matter has been investigated by [name blanked out but plainly it was Bedfordshire] police and DPS and both have NFA’d the matter.” The outcome which she sought was stated by her to be that40.1 AA was “brought to justice and ... held accountable for what he did”;

40.2 she was given “an explanation of how the matter was closed without even speaking to [her]”;

40.3 she was enabled to “understand how a sexual assault was ignored and closed”, and “[h]ow it was acceptable for a [a small blanking out; it was probably a reference to a DS] to be drunk on police premises.”

[41]I pause to point out that I should have been given a copy of the bundle without redactions, even though it was justifiable for the hearing bundle to be redacted since that bundle was in the public domain once it was used at the hearing. I would then not have needed to guess the numerous words which were redacted in the hearing bundle.

[42]Returning to the sequence of relevant events, on 21 April 2021, Ms Sonia Gaddu, a solicitor employed by the firm of solicitors by the name of Pennington Manches Cooper, sent the “Letter of Claim” at pages 278-282. The proposed claim was “under the Protection from Harassment Act 1997”. At page 281, this was said. “On the facts of this case, we are confident that the Court will accept that matters that would have constituted harassment under the Equality Act (but for the fact that they are now out of time), are sufficient to amount to harassment, and therefore sufficient for a civil claim of harassment.”

[43]The claimant was cross-examined on the extent to which she was able to give instructions to Ms Gaddu and on Ms Gaddu’s expertise. The claimant accepted that Ms Gaddu was a specialist in the law of employment. When she was first asked about her involvement in the process which led to the sending of the letter of claim at pages 278-282, the claimant said that she saw and approved that letter. The sequence of questions and answers, as noted by me and tidied up for present purposes, was this. “Q: Page 278; you discussed how justice might be achieved with them [i.e. the solicitors]? A: Yes Q: And we can see that you were able to give instructions to the solicitors about your case? A: Yes Q: And you were able to proof read and thereafter confirm the contents of the letter? A: Yes. Q: And you were able to confirm to your solicitors that if you did not get the right response then you wished to instigate proceedings? A: Yes. Q: And you did that with the support and assistance of solicitors and the Federation [i.e. the Police Federation]? A: Yes.”

[44]In re-examination, Mr Lester asked the claimant how her mental ill-health had affected her. She responded: “For a period of time I could not get out of bed and thinking this through has been a really difficult thing for me.”

[45]When asked when that was so, she said that it was from June to September 2020 and “later in 2022” when she was “not able to function”.

[46]Mr Lester then said to the claimant: “You were asked whether you would have known there were time limits in respect of bringing a claim [to the employment tribunal]. You said there might be; that was not a response to the question. Did you know that there might be time limits regarding employment tribunal claims?”

[47]The claimant then said “No, I did not know”. I then asked the claimant whether she had seen the statement at page 281 which I have set out in paragraph 42 above. My notes of the exchange between us (tidied up) were as follows. “A: No. I did not read and approve the email; I only clarified the allegation. I only approved the actual allegations. The rest of it regarding time limits and the case law: I have never seen that. That is not what I spoke to Sonia about. These pages were never sent to me to approve. Me: Did you ever receive a copy of this letter? A: I do not recall. Q: Did you see the letter in response? A: I am not sure; to be honest. Q: Sonia Gaddu advised you? A: Yes Q: You were never told about this letter? A: I do not recall; it was never sent to me; I do not know whether I saw it at the time or if I have seen it [for the first time] in the bundle.”

[48]I found that hard to believe. I considered whether the claimant might have approved the letter at pages 278-282 without reading it properly, but at this point (i.e. without having considered the matters to which I refer in paragraph 54 below) I concluded on the balance of probabilities (taking into account not only my perception of the claimant’s character but also the number of detailed and well-written communications in the bundle before me which the claimant had plainly written herself, passages from some of which I have set out above) that the claimant would not have permitted the letter to be sent without approving it, and therefore that she had in fact approved it. That conclusion was reinforced by the fact that the claimant had initially, when she did not realise that the letter at pages 278-282 contained the key passage from the point of view of knowledge of time limits and that the time limit had expired long before the letter was sent which I have set out in paragraph 42 above, agreed that she had seen and approved the content of the letter.

[49]On 5 October 2021, the claimant had a meeting with Mr Tony Wadham, whose role was “Inspector – NW Professional Standards Unit” of the Metropolitan Police, via Teams. He wrote the email at pages 289-291 to her on that day, and she replied in the email following it at page 289, in the following terms. “Sir, I’m glad we had our conversation and I feel re-assured that my grievances were taken seriously. Obviously I feel very strongly with the outcome into the [AA] investigation and I will always want the highest sanctions against him. His resignation from the MET did not satisfy that. But I do agree that it is unlikely that DPS will re-open this, having said that it doesn’t stop me from wanting them to do so. I agree with the comments made below and I look forward to seeing change and positive outcome from this. For your information I have cc’d in line manager so that she is aware of what is going on and of course be aware of any stressors. Kind regards, Aleya”

[50]On 24 January 2022, in the letter at pages 292-293, Weightmans LLP on behalf of the respondent denied liability under the Protection from Harassment Act 1997 including on the basis that it was “denied the Commissioner would be vicariously liable for the actions of her officers for incidents which occur away from the workplace, whilst both officers were off duty”, but also on the basis that the claimant would not be able to satisfy the court on the balance of probabilities that the events which she claimed had occurred had occurred.

[51]On 15 September 2022, the claimant submitted the grievance at pages 294- 301. It was about the conduct of her line manager, Police Sergeant (“PS”) Jameson and the latter’s line manager, DI Coad. On 16 November 2022, the respondent’s HR Grievance Management Team sent the claimant the letter at page 302, saying that the claimant had not engaged with the grievance process. The letter contained these paragraphs. “In view of this, I kindly ask that you please engage with this process and contact the Grievance Management Team with your preferred contact details so that IRC [Adam Kennard] may contact you to discuss the matter further. In consideration of this, we would ask that this is done by (7 working days). Please note that lack of engagement in the grievance process may result in your grievance being closed due to non-engagement that we were unable to progress this grievance further.”

[52]On 5 December 2022, in the letter at page 303, that team wrote that since the claimant had not responded further, the team was closing that grievance.

[53]In paragraph 77 of her witness statement, the claimant said this. “In December 2022 I received an email from the grievance team that I they had closed their report because I had not engaged with them. This was sent to my work email and the contact from the inspector assigned to the case was also to my work email. This was despite having access to my personal mobile and personal email address. During this period I was signed off sick and did not have access to my work emails. The grievance being closed is within the correspondence at pages 294 – 311.”

[54]The record at page 144 showed the claimant as having been absent from 16 September to 2022 to 14 November 2022, the stated reason for which was “Mental Health - Other”, and that her next absence from work was from 13-15 March 2023, the stated reason for which was “Musculo-Skeletal – Other”. As a result of that and what I say in paragraphs 51 and 52 above, paragraph 77 of the claimant’s witness statement was inaccurate in so far as it implied that the respondent’s grievance team had closed its investigation into a grievance about the acts of AA, and that when it had warned the claimant that it would do so if she did not respond, the claimant was absent from work. Having come to that conclusion I revisited the question whether the claimant might have just approved the letter of claim at pages 278-282 without reading it properly, to which I refer in paragraph 48 above. I did so because, I concluded, it was at least possible that the claimant had approved and signed her witness statement for the hearing of 6 December 2024 without checking the documents on which it was based and otherwise without checking it for accuracy. In fact, if that was what she had done, then that was problematic from the point of view of credibility, but at least the cause of the denting of her credibility would have been negligence rather than any kind of knowing misleading. As far as I could see, I did not need, for the purposes of my decision on the question whether it was just and equitable to extend time for the claimant to make a claim in respect of the events of 18 March 2020 (assuming that they did not form part of conduct extending over a period), to decide whether the claimant had acted in a deliberately misleading way or simply without checking the accuracy of what was written in her name. However, I did need to decide whether or not she in fact did know during the period from at the latest 21 August 2020 onwards (and the significance of that date is that she was by then at the latest being advised by a solicitor: see paragraph 35 above) that she could have made a claim to an employment tribunal about the events of 18 March 2020. Having thought very carefully about it, I came to the clear conclusion on the balance of probabilities that the claimant was aware at the latest either on, or shortly after, 21 August 2020 that a claim to an employment tribunal could have been made but that by then it would have been made out of time. If that knowledge passed from the claimant’s memory somehow at that time, then she was reminded of it by reading the letter of 21 April 2021 at pages 278-282 (which contained the passage which I have set out in paragraph 42 above). I had to infer as a result that she had decided (and as Mr Isaacs pointed out, it was not possible for me to see on what basis, given that the claimant had not waived privilege and put anything before me recording what legal advice she had been given) not to make a claim to an employment tribunal, if nothing else at the latest by 21 April 2021. In fact, I concluded that the claimant had at some point before then decided that she was not going to make a claim to an employment tribunal and that she was instead going to propose a claim via her solicitors in the manner stated in the letter of 21 April 2021 at pages 278-282.

[55]On 26 January 2023, the claimant raised a further grievance (pages 304-311), about something else done by PS Jameson and related acts of DI Coad.

[56]The claimant’s witness statement contained the following passage, immediately below paragraph 77 (which I have set out in paragraph 53 above). “78. On 03/02/2023 my solicitor contacted me to let me know that the federation had withdrawn funding for my case abruptly in relation to a civil harassment claim which also remains unresolved.79. After experiencing more discrimination at work and another period of depression I decided that I needed to regain some control and try and seek justice for what I was experiencing so I logged my complaint with ACAS detailing what had happened. At this point I was not represented and had no legal adviser. I was not sure what I was doing or what needed to written into the claim [sic]. Nor was I clear on time limits.

80. In March 2023 I finally received a response from DPS. Detective Superintendent Gail Granville apologised for the way that my case was dealt with by the DPS. The matter was reviewed by DI Riddell which again apologised stating that I did not receive the support nor service I should have expected. This response came 3 years after my initial allegation and four months after my letter of complaint to the Commissioner. This is reflected in Pages 320-324 and I was informed [Page 321] that: I have reviewed the investigation and want to apologise. I can see that you did not get the support nor service you would have rightly expected.

81. I felt that the incident had been brushed under the carpet. The incident had caused me immense further medical issues and impacted on my ability to work. Notwithstanding the delays and frustrations caused by the Respondent and the failures to accept my earlier grievances. I felt that these issues were ongoing and after experiencing further issues I submitted a grievance and although this is documented in pages 325 - 362 in relation the current issues at work I believe that they are connected to the initial incident and the fact that I have for a number of years been seeking justice for what has been done to me and as a result I have been subject to ongoing victimisation.

82. On 11/07/2023 I submitted an employment tribunal claim myself on gov.uk. Again I did not have any legal representation and was not sure how to proceed but I knew that I needed to take positive steps to regain some control over my depression and take some action in relation to bringing my case to light and have my case heard appropriately.

83. I was delayed in filing my claim for a number of reasons. Firstly this was because of the number of investigations and procedures which were initially ongoing. I was led to believe by the Respondent that appropriate recourse would be achieved however this was subject to a number of delays and being told that I was unable to submit a grievance earlier.”

[57]Pages 320-324 contained a sequence of emails, which had been started by the claimant’s email at pages 321-324. That email at pages 321-324 was sent on 14 November 2022 to the Commissioner of the Metropolitan Police himself. That email started as follows. “Sir, I write this email after having listened to and reading your statements about making changes in the MET and also as a result of the Casey review. Below I will detail an incident that happened to me and which I am still trying to get accountability for. I write it out of frustration and disappointment at the lack of action to protect me and my colleagues and treat us like the victims that we are.”

[58]The full response to that grievance was in the email at pages 320-321, dated 17 March 2023, which had to be read as a whole. It was written by Granville Gail but it forwarded the following text from Laura Riddell at the latter’s request. “Dear PC Uddin, My name is Laura Riddell and I am the DI in charge of the discrimination unit and the line manager of DS Steph Powles, who was the investigating officer in the DPS for you case. I have reviewed the investigation and want to apologise. I can see that you did not get the support nor service you would have rightly expected. The DPS have been making great efforts to raise the standard of how we investigate all allegations of misconduct, with particular focus to allegations of sexual assault or violence against women. The improvement made have been shaped by hearing the experiences of officers such as yourself who have felt let down. I would really like to meet with you and discuss your experiences and provide what explanation I can for the actions that were taken as well as those that were not. Your suggestions can and will help to change our working practices and improve future investigations. Please do let me know you would be happy to do this and we can find a convenient time and place. Kind regards Laura Riddell”

[59]I found the reference to the claimant not getting “the support or service you would have rightly expected” from a complaint to the DPS to be slightly surprising, given that the DPS’ remit is the conduct of officers of the Metropolitan police force, not to afford the complainant about that conduct any particular satisfaction. I saw the apology for the claimant not getting the support or service that she “would rightly have expected” to be in the nature of a recognition that the DPS had in the past not taken complaints of sexual misconduct by officers as seriously as it should have done and that that might have been so in this case (and I say only “might” because of the reference in the next paragraph of the email to the claimant having “felt let down”, not “been let down”).

[60]In paragraph 85 of her witness statement, the claimant said this. “In addition to the delays and me believing that there was an ongoing investigation, I was and am suffering from a number of mental health conditions and continue to do so. There is medical evidence in the bundle from page 392 – 477 which provides a snapshot of the vast mental health issues I suffer from. I have been on restricted duties now for several years and I have been taking medication that causes side effects. The incident had caused a severe relapse and trigger into a further depressive episode which has continued to date. I have been taking strong anti-depressant medication for a number of years including Sertraline.”

[61]However, page 144 (which the claimant accepted was accurate) showed that the claimant’s absences from work during the period between 18 March 2020 and the date when the claim form was presented, which was 11 July 2023, were (for present purposes) sporadic. They were (in full; I have for the sake of clarity repeated references to the absences of June 2020 and November 2022 to which I refer above) as follows (with the detailed reason given for the absence stated in brackets in each case after the dates; all absences apart from the short period of compassionate leave referred to in paragraph 61.3 were recorded to have been for sickness).61.1 30th March to 7th April 2020 (“Corona virus type symptoms (not confirmed as Covid-19)”);

61.2 25th June to 1st October 2020 (“Mental Health – Other”);

61.3 23rd to 27th November 2020 (“Compassionate Leave”);

61.4 2nd to 9th March 2021 (“Corona virus type symptoms (not confirmed as Covid-19)”);

61.5 16th to 28th July 2021 (“Covid-19 (confirmed diagnosis)”);

61.6 23rd to 27th September 2021 (“Minor – Other”);

61.7 11th February to 14th April 2022 (“Psychological Disorders - Nerves / Depression / Anxiety”);

61.8 8th August to 31st August 2022 (“Respiratory – Other”);

61.9 16th September to 14th November 2022 (“Mental Health – Other”);

61.10 13th to 15th March 2023 (“Musculo-Skeletal – Other”);

61.11 9th to 11th May 2023 (“Musculo-Skeletal – Other”); and

61.12 5th June to 9th June 2023 (“Mental Health – Other”). The relevant law Vicarious liability for events occurring outside of the workplace

The relevant law

[62]A police officer’s workplace could be said to be anywhere within the area of the police force for which the officer works. The question whether a police officer did something in the course of his or her employment will therefore be determined otherwise than by reference to the place where the conduct about which complaint is made occurred unless, that is, the place where it occurred sheds light on the question whether or not the conduct was done in the course of employment for the purposes of section 109(1) of the EqA 2010. The applicable case law

[63]There was a helpful and informative summary of the case law concerning the application of what is now section 109(1) in Forbes v LHR Airport Ltd

[2019] ICR 1558

. There, the then President of the Employment Appeal Tribunal (“EAT”), Choudhury J, referred to the case law and summarised it in paragraphs 16-27 of the EAT’s judgment. One of the cases to which he referred there (Chief Constable of Lincolnshire Police v Stubbs

[1999] ICR 547

) was relied on heavily by Mr Lester in his skeleton argument for the hearing of 6 December 2024, but the next authority to which Choudhury P referred (Prison Service v Davis (unreported) 29 March 2000; it was a decision of another former President of the EAT, Lindsay J) pointed in a different direction from Stubbs. Stubbs concerned what occurred at two separate social events which were connected with the claimant’s employment. At

[1999] ICR 547

, 557H558D, the EAT in Stubbs said this. ‘We concur with the findings of the industrial tribunal, that the two incidents referred to, although “social events” away from the police station, were extensions of the work place. Both incidents were social gatherings involving officers from work either immediately after work or for an organised leaving party They come within the definition of course of employment, as recently interpreted by the Court of Appeal in Jones v. Tower Boot Co. Ltd.

[1997] ICR 254

and the case of Waters v. The Commissioner of Police of the Metropolis

[1997] ICR 1073

. It would have been different as it seems to us had the discriminatory acts occurred during a chance meeting between Detective Sergeant Walker and the applicant at a supermarket, for example, but when there is a social gathering of work colleagues such as there was in this case, it is entirely appropriate for the tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. It seems to us that each case will depend upon its own facts. The borderline may be difficult to find. It is a question of the good exercise of judgment by an industrial jury. Whether a person is or is not on duty, and whether or not the conduct occurred on the employer’s premises, are but two of the factors which will need to be considered. On the facts of this case, the industrial tribunal well understood that the applicant was not and could not be thought to have been socialising with Detective Sergeant Walker on either of those two occasions. Indeed, it would appear from their decision, that this was the last thing that she would have been wishing to do.’

[64]The EAT in Davis (and I note that the transcript of the judgment in that case anonymised the claimant, but since her name was given in Forbes, I use it here) overturned the decision of the employment tribunal that the acts about which complaint was made were done in the course of the fellow employee’s employment. That was stated in paragraphs 21 and 22 of the EAT’s judgment. Ms Davis was at the time of the events a probationary prison officer. The acts about which she complained were committed by a fully-fledged prison officer and took place in Ms Davis’ home, and that was one reason why the EAT overturned that aspect of the employment tribunal’s judgment, as can be seen from those two paragraphs, which I now set out. “21 The Tribunal in our case purported to distinguish the Waters case. We are far from sure how valuable it is to try and compare the facts of one case with the facts of another. What one should really be seeking to extract are principles but, so far as it is relevant, in our judgment there is no real ground for distinguishing between this case and the Waters case. The Waters case was a case where the incident was at the section house, as that citation shows, in other words on the premises of the common employer and that, of course, is a feature which is absent from our case so that in a sense the Prison Service here is a fortiori the position of the Commissioner of the Police of the Metropolis in the Waters case. 22 The five reasons given by the Tribunal for its conclusion carry no conviction for the reasons we have given and the decision therefore becomes one for which five reasons were given, but none of which stands up and hence it becomes, in effect, a decision which is bereft of any reason, which is an error of law. On this first part of the case we must set aside the decision of 9 July 1998; in other words, we set aside the single finding that ‘the unanimous decision of the Tribunal is that the act of Mr Y of which Miss X complained on 26 June 1996 took place in the course of his employment’.”

[65]While what the EAT said in paragraph 19 of its judgment in that case showed that, like Stubbs, it could not be taken to require any particular conclusion on my part, it was helpful in that it indicated factors which might be relevant. There, the EAT said this. “All in all, it seems to us that not one of the five factors listed as the matters to which the Tribunal gave consideration could carry weight on the question of whether the incident was in or out of the course of employment. Not one of them is a factor of any real and material gravity. Mr Hoskins’ Notice of Appeal [on behalf of the Prison Service] draws attention to a number of other points: Mr Randall [the officer whose acts were in question] was not found to have been on duty during his visit; the pointers, such as that he was apparently visiting socially, that he had been out for a drink himself and that he invited Miss D out for a drink all point to him having been off duty. There is certainly no finding that he was on duty. He was not on the employer’s premises but at a pub and at Miss D premises and the occasion began socially. They drink together in the pub and they return socially to her flat. Apart from the possibility (and it is only a possibility) that he had obtained her address from a colleague at work (and that was unproven) his visit seems to have taken advantage of no particular connection with work, save only that it seems they must originally have met at work. It is not as if he was held to have, so to speak, pulled rank on her or given orders to her or threatened that he would cause difficulties for her at work unless she let him have his way or anything of that nature. It is not proven to be that sort of case and there seems to be, therefore, the very most slender of connections with work.”

[66]The EAT in Forbes gave the following very helpful guidance (which incidentally showed that the factual circumstances of that case were rather different from those in this case: there the act complained of was posting an image on a Facebook page). ‘25. From these authorities, it can be seen that the main principle to be gleaned is that the question of whether conduct is or is not in the course of employment within the meaning of Section 109 of the EqA is very much one of fact to be determined by the Tribunal having regard to all the relevant circumstances. It can also be said that the words “in the course of employment” are to be construed in the sense in which the lay person would understand them and that there is no clear dividing line between conduct that is in the course of employment and that which is not. Each case will depend on its own particular facts.26. It is also apparent from these authorities that the relevant factors to be taken into account might include whether the impugned act was done at work or outside of work, and if done outside of work, whether there is nevertheless a sufficient nexus or connection with work such as to render it in the course of employment. Those kinds of factors are readily understood when one is dealing with the physical environment of the workplace. It is much more difficult to apply them to the virtual landscape in which many people these days spend their time. Thus, it may not be very easy to say whether a person is doing something whilst at work where some of that person’s work activity is conducted online at home. Equally, it may be very difficult to ascertain whether there is a sufficient nexus between an activity carried out on a personal social media account and their employment. If that account is used for purposes relating to work then it might well be open to the Tribunal to consider that there is a sufficient connection with work to render an act done on that social media account as being done in the course of employment; whereas if the link with work is tangential or more tenuous then it might well be open to the Tribunal to conclude otherwise.

27. We do not consider that it is possible or even desirable to lay down any hard and fast guidance in respect of these matters, especially as the extent to which social media platforms are used continues to increase. Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the Tribunal in each case having regard to all the circumstances. No clear boundary as to when such conduct will be in the course of employment can be defined.” The question whether it is just and equitable within the meaning of section 123(1)(b) of the EqA 2010 to extend time

[67]Mr Lester relied to a considerable extent, in support of the submission that it was just and equitable to extend time, on the facts that(1) the claimant had sought a resolution of her complaints about the conduct of AA internally and

(2) in March 2023 she had received a recognition from the respondent of failures in that regard (as I describe in paragraphs 57-59 above).

[68]The factors to be taken into account in determining whether it is “just and equitable” within the meaning of section 123(1)(b) of the EqA 2010 to extend time for the making of a claim are the subject of much case law. However, Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

contains, in the headnote, a helpful reminder by Sedley LJ that the question is one of “fact and judgment”: “There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing employment tribunal proceedings, and Auld LJ is not to be read as having said in Robertson [i.e. Robertson v Bexley Community Centre

[2003] IRLR 434

] that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it.”

[69]British Coal Corporation v Keeble

[1997] IRLR 336

has in the past been understood as being to the effect that the factors relevant when applying section 33 of the Limitation Act 1980 are to be applied in determining whether it is just and equitable to permit a claim to be made outside the primary time limit of three months (extended, if it is commenced before that period of three months ends, by any period of what is now called “early conciliation”, i.e. by reason of section 140B of the EqA 2010).

[70]However, in paragraph 37 of his judgment in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 27

, [2021] ICR D5, with which Moylan and Newey LJJ agreed, Underhill LJ said this: ‘The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes [in ([1995] UKEAT 413/94]) “the length of, and the reasons for, the delay”. If it checks those factors against the list in [British Coal Corporation v Keeble

[1997] UKEAT 496/98

[1997] IRLR 336

], well and good; but I would not recommend taking it as the framework for its thinking.’

[71]In paragraph G[279.03] of Harvey, this is said: “When considering whether to grant an extension of time under the ‘just and equitable’ principles, the fault of the claimant is a relevant factor to be taken into account, as it is under s 33 of the Limitation Act 1980 (Virdi v Comr of Police of the Metropolis

[2007] IRLR 24

, EAT).”

[72]I referred the parties to the judgment of His Honour Judge (“HHJ”) Auerbach in Wells Cathedral School Ltd v Souter (20 July 2021, unreported; EA- 2020- 000801-JOJ). I found the following summary in the judgment of HHJ Auerbach of the competing considerations where an employee utilises an internal grievance procedure to be of some assistance. ‘37. Mr Leach relies in particular on what was said in Robinson [i.e. Robinson v The Post Office

[2000] IRLR 804

] at paragraph 29. He also referred me to Hunwicks v Royal Mail Group plc

UKEAT/0003/07/ZT

at paragraph 5: “It is clear that the advice that the Appellant says, without contradiction, that she was given by her Union was wrong. It is plain that the Union, perhaps venially, failed to appreciate that because the act complained of was so far in the past the case was not one which fell within the regime of the new regulations, so that the relevant time limit was six months and not three. Nor, even if the new regulations had applied, would it have been entirely safe advice to defer bringing proceedings until the outcome of the grievance procedure (though that would depend on what the date of the act complained of was and how long the procedure took): it remains the law that the non-exhaustion of domestic internal procedures will not necessarily be treated as a sufficient reason for extending time in cases where the Tribunal has jurisdiction to do so on the basis of what is just and equitable, and it is indeed arguable that normally it will not be – see Robinson v Post Office

[2000] IRLR 804

and the observations of Peter Gibson LJ, which arguably go somewhat further, in Apelogun-Gabriels v London Borough of Lambeth & another

[2002] ICR 713

, particularly at page 719.”38. This latter passage says, I note, no more than that the fact that there are ongoing internal procedures will “not necessarily” be a sufficient reason and will “normally” not be sufficient. Similarly, the use, in paragraph 29 of Robinson, of the phrase “of itself and without more” must be read in the context of the passage as a whole, the sense of which is that the mere fact that an internal grievance process is still ongoing at the time when the tribunal claim is presented, is not, in and of itself, necessarily enough to guarantee that an extension will be granted. But this dictum does not impose any other strictures on what features of the overall picture in the given case may lead the tribunal to conclude that an extension of time should just and equitably be made.

39. This approach surely reflects the reality that employment tribunals are not in practical reality presented merely with the bare fact of someone having initiated an internal process, or of that process being ongoing at a given point in time, as unadorned facts on their own. The reality is that there will always be some wider factual context, chronology or narrative that will be peculiar to that particular case, whether relating to the nature of the process available to the employee, how it was invoked, what the complaints were, how they were set out, how the process has unfolded so far, with what outcomes, if any, and so forth. The tribunal therefore needs to consider what aspects of the overall factual features of the process, and its context, it finds to be relevant in the given case.

40. As the authorities discuss, the tribunal also needs to have regard to the competing policy considerations. It is, in principle, desirable that parties be encouraged to resolve their disputes, so far as reasonably possible, by mechanisms short of litigation. But there is also a public policy in those who may be on the receiving end of litigation benefitting, so far as possible, from the certainty and finality which the enforcement of time limits potentially gives them.

41. Other factors that may be considered relevant, when reliance is placed on the pursuit of an internal process, cannot be exhaustively listed or identified. But, I do not see why the tribunal should be precluded from considering, if it thinks it relevant, whatever view it may form about the way the internal process has been approached by either party. That the tribunal may properly, from one case to another, form a very different general view of this, can be seen from reading the factual background to the decisions in Aniagwu and Robinson, for example.

42. In any event, it would be undesirable to require tribunals to draw a distinction between features of the case that are wholly distinct from the pursuit of the grievance process, as such, and features that were facets of, or related to, it. There may be some cases where that distinction can readily be applied, but there will be others where it cannot. Tribunals should not need to get bogged down in seeking to determine whether some feature is or is not connected to, or associated with, the grievance process, in order to determine whether it can carry weight in the scales. Nor do I accept that this approach wrongly places an evidential burden on the respondent. It is still for a claimant to advance their case for an extension, and to put forward the factual basis on which they say it is founded.

43. There is, in conclusion, no legal rule that, in order for time to be extended, there must be some additional feature identified as present, and weighing in the claimant’s favour, that is identified as being distinct from some facet of the internal grievance process. The authorities say no more than that the mere, bare, fact that a grievance process has been initiated and pursued first, and/or may still be being pursued, is not automatically, in and of itself, enough. ... 46. I add that absence of forensic prejudice is also not something that will be presented to the tribunal as a sterile, bald proposition, or feature, devoid of any context. There will be a context in any given case, including factors such as the particular nature of the complaints or allegations, the sort of evidence that might be needed to make them good or to defend them, to what extent that might consist of documentary or witness evidence, and so on. The tribunal needs to consider in a given case how the picture looks in overall substance, as to whether, or in what way, the respondent may or may not suffer forensic prejudice if a claim that would otherwise be out of time is allowed to proceed.” My conclusions Was what occurred at the claimant’s home on 18 March 2020 done by AA in the course of his employment? A discussion

[73]The most that could be said in favour of a finding that AA acted in the course of his employment when he did whatever he did at the claimant’s home on 18 March 2020 was this.73.1 AA asked the claimant to bring him his work (not his personal) mobile telephone.

73.2 DS Price supported that request.

73.3 While neither AA nor DS Price was the claimant’s line manager, they were in hierarchical terms above the claimant in a disciplined service, and she regarded AA as “one of [her] bosses” (see paragraph 14 above, which was written on the day in question and was in my view a wholly accurate reflection of how the claimant perceived AA to be).

73.4 There is at least a possibility that AA deliberately did not give the claimant his address (see paragraphs 20 and 22.2 above) with a view to her giving him her home address.

[74]However, the following factors pointed away from a conclusion that what AA did on 18 March 2020 was in the course of his employment.74.1 The claimant’s own evidence at the time was that she was asked by AA to bring him his mobile telephone as “a favour”: see paragraphs 13 and 22.1 above.

74.2 The claimant herself suggested that AA came to her home and she volunteered her home address for that purpose (see paragraphs 13 and 22.3 above).

74.3 The claimant on her own contemporaneous account invited AA in because she “felt like it was the polite thing to do” (see paragraphs 13 and 22.4 above).

74.4 She knew that he was off duty: see paragraph 25 above. My conclusion on the question whether what was done by AA in the claimant’s home on 18 March 2020 was done by him in the course of his employment

[75]In those circumstances, I could not see enough of a nexus to justify a conclusion that what AA did on 18 March 2020 at the claimant’s home was within the course of his employment. I also concluded that a lay person would have said that what occurred there was not within the course of AA’s employment. What happened there would not have happened if the claimant and AA had not worked together, but the question whether or not what occurred was done in the course of AA’s employment was not answered by applying the “but for” test. In any event, I concluded that what occurred was not done by AA in the course of his employment. If what AA did on 18 March 2020 at the claimant’s home(1) had been done by AA in the course of his employment and

(2) was not part of conduct extending over a period, would it have been just and equitable to extend time under section 123(1)(b) of the EqA 2010? A discussion

[76]The factors on which the claimant could reasonably rely here in support of the proposition that it was just and equitable to extend time for making a claim about the things done by AA in the claimant’s home on 18 March 2020, assuming that(1) those things were done in the course of AA’s employment and

(2) they were not part of conduct extending over a period, were as follows.

76.1 The claimant was throughout the period from 18 March 2020 to 11 July 2023 taking medication for depression.

76.2 At times during that period the claimant was absent from work because of her mental ill-health.

76.3 The respondent accepted on 17 March 2023 as described in paragraphs 57-59 above that there had been flaws in the course of its investigation into what happened on 18 March 2020.

76.4 There were many contemporaneous documents showing what was the claimant’s recollection of the events of that day (see paragraphs 11-17 and 20-21 above), and there was one document recording what AA said in interview on (see paragraph 24 above) 25 June 2020.

[77]However, the following factors pointed in the opposite direction.77.1 AA was no longer a police officer and he had left his position with the Metropolitan police service in 2021 (see paragraph 5 above). That, while not being at all determinative of his likely willingness to give evidence, or the ability of the respondent to seek to compel him to attend, was a factor which made it at least marginally more difficult to defend the claims of the claimant in relation to what occurred on 18 March 2020.

77.2 The claim was made more than three years out of time.

77.3 During the first part of the period after the expiry of the primary time limit, which was 18 June 2020 (and if ACAS had been approached on, say, 17 June 2020, then the time limit would have expired a month after the end of the period of conciliation, which might have been at most six weeks, so the time limit might have expired after 21 August 2020) the claimant was advised from 29 June 2020 by her union (see paragraphs 31 and 33 above) and by solicitors and her union from at the latest 21 August 2020 onwards: see paragraphs 35 and 36 above. Even if the first time that the claimant was advised by a solicitor was 21 August 2020, the claimant could at that time have made a claim to the employment tribunal with a much greater chance of being permitted to make it out of time. However, she did not then make such a claim. Even though it was true that at that time, the claimant was absent from work because of her mental health (see paragraph 61.2 above), she was clearly able during that period to engage with Bedfordshire Police and the respondent (see paragraphs 29 and 31-36 above) meaningfully and with the clear purpose of seeking what she saw as justice from them in respect of what occurred on 18 March 2020.

77.4 On the day that the claimant returned to work, 1 October 2020, she was informed of Bedfordshire police’s decision not to charge AA: see paragraph 37 above.

77.5 Less than three weeks later, the claimant was able to state a coherent grievance about what had occurred on 18 March 2020: see paragraph 38 above and page 250.

77.6 On 28 January 2021, the claimant was able (see paragraph 40 above) to advance that grievance in the document at page 267, which (see also paragraph 40 above) incidentally showed that the claimant was aware at the latest by 28 January 2021 of the outcome of the respondent’s investigations into the conduct of AA.

77.7 In April 2021, the claimant was aware that she could have made a claim to an employment tribunal of harassment within the meaning of section 26 of the EqA 2010 but that such a claim would have been out of time: see paragraphs 42-48 and 54 above. If the claimant had not been so aware, then she had ample opportunity to be made so aware, if only because of the next factor to which I refer.

77.8 The claimant was advised by her trade union from 29 June 2020 onwards (see paragraphs 31 and 33 above) and by solicitors and her trade union from (see paragraphs 35 and 56 above) 21 August 2020 to 3 February 2023.

77.9 During the majority of the period from 18 March 2020 to 11 July 2023, the claimant was at work, doing her job as a police constable, albeit on restricted duties, and was able to, and did, press her complaints to the respondent about the conduct of AA.

[78]Mr Lester’s written skeleton argument for the hearing of 6 December 2024 contained the following paragraph (numbered 22). “The Claimant continues to highlight, as set out herein above, that the allegation of sexual assault is part of a much wider course of conduct alleged against the Respondent. Particularly of note is that the final response that the Claimant received from the Respondent’s Directorate of Professional Standards (‘DPS’) on their investigations into the assault, was only received in March 2023 (see Claimant’s statement at [80]). The Claimant understands that regardless of the outcome of the decision on the instant issue, i.e. whether an extension of time should be granted for that specific allegation, the Claimant will still be able to pursue the claim at final hearing in any case on the basis that it formed part of a continuing act. The Claimant however, whilst acknowledging that she cannot as such go behind the decision of the ET at the last PH, does seek to submit that the present exercise is unfortunately artificial given that the whole context of the claims is relevant to the consideration of whether it would be just and equitable to extend time on this allegation.”

[79]I did not understand how it could reasonably be said that “the whole context of the claims is relevant to the consideration of whether it would be just and equitable to extend time on this allegation”. It is not the allegations of wrongdoing which determine whether it is just and equitable to extend time under section 123(1)(b) of the EqA 2010 for making a claim of a breach or breaches of that Act. Rather, it is(1) the events which occurred between the date when the conduct about which complaint is made occurred and the date when the claim form was presented, and

(2) the state during that period of the claimant’s health (both mental and physical, although in the case of a delay of years before the making of the claim, the claimant’s mental health will often be more relevant). The events which occurred during that period will include any acts of the respondent which might reasonably be taken to have misled the claimant.

[80]So far as relevant, Mr Lester’s skeleton argument otherwise argued as follows about the extension of time. “24. As a general matter the Claimant submits that there is no prejudice to the Respondent in allowing an extension of time. The Respondent to the Claimant’s understanding does not deny the assault but has merely put her to proof (para 8 of the amended GoR). There is substantial contemporary evidence. It appears likely that the only evidence as to the facts of the assault itself would be the Claimant’s in any case (though the contemporary documentary evidence, and evidence from her sister-in-law, will corroborate a variety of aspects of the Claimant’s account).25. In deciding whether it is just and equitable to extend time to permit a discrimination claim to proceed, the tribunal is entitled to take into account anything that it deems to be relevant (Hutchinson v Westward Television Ltd

[1977] IRLR 69

26. The emphasis should be on whether the delay has affected the ability of the tribunal to conduct a fair hearing (DPP v Marshall

[1998] IRLR 494

), in line with the test under s.33 Limitation Act 1980.

27. The factors that are relevant to the exercise of the Tribunal’s (very broad) discretion are case-sensitive and the Tribunal must not take a mechanistic approach to e.g. the list of factors relevant under s.33 LA 1980.

28. The Claimant has presented detailed and cogent evidence in her statement as to why at various times from March 2020 on, she did not present a claim. Those reasons include a reasonable ignorance as to the prospect of bringing a claim (para 51), reliance on the Respondent’s ongoing internal investigation into the assault the outcome of which was only finalised in March 2023 (effectively the limitation point here), and very considerable mental health difficulties along with the other obstacles she faced at work throughout that period. Extensive medical evidence and a significant number of occupational health reports are provided to evidence those difficulties.

29. In all the circumstances it is submitted that it is just and equitable to extend time.”

[81]Paragraph 51 of the claimant’s witness statement was in these terms. “In August 2020 I approached the Federation Union for support and a Solicitor Sonia Gaddu of Pennington Maches [sic] Cooper was assigned to my case. At this time my understanding was that this was a case to look at why the sexual assault case had not been dealt with by the Met and to help with the investigation. There was no mention of an employment tribunal or time limits and due to my vulnerability I continued as best as I could to seek justice.”

[82]Given(1) what I record in paragraphs 31 and 33 above (which show that the claimant approached the Federation Union for support on 29 June 2020) and

(2) my conclusions stated in paragraph 54 above (where I record my conclusion that the claimant was aware on or shortly after 21 August 2020 that a claim to an employment tribunal could have been made), I did not accept that evidence. My conclusion on the question whether it would have been just and equitable to extend time for making a claim about what was done by AA in the claimant’s home on 18 March 2020, assuming that (1) it was done in the course of AA’s employment and (2) it was not part of a course of conduct extending over a period within the meaning of section 123(3)(a) of the EqA 2010

[83]I concluded, having considered carefully all of the facts and matters to which I refer above, that it would not have been just and equitable to extend time under section 123(1)(b) of the EqA 2010 for the making of a claim about the conduct of AA on 18 March 2020, assuming(1) (contrary to my above conclusion) that it was done by him in the course of his employment and

(2) that it stood alone in the sense that it was not part of conduct extending over a period within the meaning of section 123(3)(a) of that Act. That was for the following reasons.

[84]The main reason was that the claimant was aware from (as I concluded: see paragraph 54 above) 21 August 2020 onwards, or shortly after then but at the very latest by April 2021, that she could make a claim, and she decided not to make one at that time and for the period following 21 August 2020 of nearly three years (two years and three months from April 2021) despite having the support of her trade union and solicitors from then onwards until (see paragraph 77.8 above) 3 February 2023. It was also because, despite the claimant’s absences through illness (as recorded by me in paragraph 61 above) the claimant was (I concluded) able in practice for most of the period from 18 March 2020 to 11 July 2023 to obtain advice and take appropriate steps for the purpose of pressing such a claim.

[85]In addition, the claimant’s attempts to obtain some sort of redress internally during that period in respect of the acts of AA on 18 March 2020 were made on the basis that she wanted him to be prosecuted or disciplined. That was clear from what I have recorded in paragraphs 29-40 and 49 above; paragraph 40 contains the most clear indication of that. As a result, the apology of 17 March 2023 which I have set out in paragraph 58 above was of at best peripheral relevance only to the question whether it was just and equitable to make a claim to the employment tribunal more than three years out of time.

[86]Even if that apology had been relevant, the claimant nevertheless waited for a further period of nearly four months before making a claim, in circumstances in which approaching ACAS was not going to extend time.

[87]For the avoidance of doubt, I took into account fully the fact that the respondent’s evidence about what occurred at the claimant’s home on 18 March 2020 might not have been significantly less cogent now than it would have been if the claim had been made in time. That was because of the possibility that AA’s evidence would not have been more cogent if the claim had been made in time rather than nearly three years and four months after the event.