Mr A Are v The Commissioner Of Police Of The Metropolis: 6006924/2024 and 6002020/2025
EMPLOYMENT TRIBUNALS
Case No 6006924/2024, 6002020/2025
Between
Mr A AreClaimantThe Commissioner Of Police Of The MetropolisRespondent
Before
Employment Judge Mr J S BurnsIn person for claimantMr G Thomas KC for respondentDate 20 June 2025
JUDGMENT
[1]The Claimants application/s to amend his claims are refused[2]The Equality Act 2010 claims are struck out as having no reasonable prospect of success[3]The Respondent’s costs application is refused.
REASONS
Relevant law
[1]The test to be applied in relation to applications to amend involves the assessment of the balance of injustice and hardship of allowing or refusing the amendment. The EAT in Selkent Bus Company Ltd v Moore [1996] ICR 836 noted a non-exhaustive list of relevant circumstances which have subsequently been encapsulated within the Employment Tribunals (England & Wales) Presidential Guidance on General Case Management (2018), Guidance Note 1.[2]Relevant factors to take into account when conducting the balancing exercise include: the nature of the amendment; the relationship between the new and old claims; the timing of the application; whether the new cause of action is out of time and whether it is just and equitable to extend time; the explanation for any delay and the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action; the availability of any relevant witness; and the overriding objective.[3]Vaughan v Modality Partnership [2021] ICR 535 confirmed that when considering applications to amend, the core test is the balance of injustice and hardship in allowing or refusing the application but noted that the focus should be on the real practical consequences of allowing or refusing the amendment, considering whether the Claimant has a need for the amendment to be granted as opposed to a desire that it be granted. 6006924 2024 and 6002020 2025 2 Re striking out[4]The mere facts of(i) a difference in treatment and(ii) a difference in protected characteristics, without more, will not discharge a claimant’s burden under section 136(2) EqA: Royal Mail Group Ltd v Efobi [2021] UKSC 33.[5]A claim may be struck out where it has no reasonable prospects of success: rule 38(1)(a) of the Employment Tribunal Rules 2024[6]Orders striking out a claim on the basis that it lacks reasonable prospects of success are not routinely made in discrimination cases where there are major disputes of fact. However: such an order nonetheless may – and should – be made in the appropriate case: Ahir v British Airways [2017] EWCA Civ 1392; and the test is not whether a claim has no prospects of success, but whether it has no reasonable prospects of success.[7]Chandock v Tirkey [2015] ICR 527: “There may still be occasions when a claim can properly be struck out – where, …, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura [2007] ICR 867): “... only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Discussion and conclusion[8]I considered a PH bundle of 261 pages and an authorities bundle of 309 pages. I was also sent a 2-page screen shot of material which the Claimant uploaded onto the Employment portal yesterday (19/6/25).[9]There was no direction previously issued as to when any bundle of documents for today’s hearing should be finalized. The Respondent compiled the 251 page bundle and sent a copy to the Claimant at about 7.40 pm yesterday. The bundle contained documents which the Claimant had produced or should have been familiar with already, and all the documents which were referred to in submissions fell into this category.[10]The Claimant complained that he had not been sent the CMO and judgment dated 28/3/25 but these were first made orally in the Claimant’s and Ms Mills’s presence on that day and then promulgated to the parties including the Claimant at his current correct email address by the Tribunal staff at 16.25 on 10/4/25. I am satisfied that the Claimant and his supporter Ms Mills were well aware of the existence and effect of these documents and had been since March.[11]Ms Hampshire’s skeleton argument (which contains the Respondent’s submissions possible up to the date of their production, as well as references to the case law which has now been produced in the authorities bundle) was served on the Claimant about 2 weeks ago.[12]I asked the Claimant to explain the basis of his application to me, then received oral 6006924 2024 and 6002020 2025 3 submissions from Mr Thomas KC and then adjourned for 15 minutes to allow the Claimant to confer with Ms Mills, and then received final oral submissions from him.[13]On 27/7/24 (prior to his dismissal on 25/10/24) the Claimant had presented two claim forms which were accepted under one case number 6006924 2024. In those forms the Claimant “ticked the boxes” to indicate that he was claiming unfair dismissal and race and disability discrimination. No details of the discrimination claims were provided. The particulars of claim took the form of the Claimant simply attaching the text of his internal appeal against a decision of a Mr C Glyde on 31/3/24 which had been to withdraw the Claimant’s Recruitment Vetting which he had required to remain employed as a police constable (the vetting decision).[14]The Claimant’s internal appeal criticises the vetting decision, for example stating: “The grounds of appeal are that the decision was disproportionate, considering the circumstances, and perverse and unreasonable. Additionally, further material is available which was not available at the time of the vetting review, particularly in relation to the financial matters raised, and discussed….”[15]Despite the fact that it is a lengthy and detailed document, the grounds of appeal made no reference whatsoever to race or disability discrimination.[16]The reasons for the vetting decision are apparent from the terms of the decision dated 6/9/25 in which his internal appeal against it was dismissed, namely the cumulative effect of the facts that over an extended period prior to the vetting decision, the Claimant had been the subject of about 15 allegations of misconduct some of which had resulted in written warnings and others in words of advice or no further action at the time.[17]The reason for the subsequent dismissal decision is stated simply as being that without recruitment vetting it was impractical for the Claimant to work as a police constable.[18]After being dismissed the Claimant presented a further ET1 claim form 6002020 2025 in which he had “ticked the box” indicating a claim for race discrimination but not disability discrimination. In box 8.2 the Claimant referred to his dismissal and made two points by way of his particulars of race discrimination. Firstly, he compared his dismissal with the case of “two white MPS Trainee Detectives engaged in a drunken sex act (who) were allowed to keep their jobs”. Secondly he referred to “the McPherson report and the Casey report” ..in effect making a claim that the Respondent suffers from institutional racism as a result of which “officers of ethnic backgrounds were more likely to be discriminated against on the grounds of conduct unbecoming”[19]In the CMPH hearing on 28/3/25 I had a discussion with the Claimant and his representative and produced a schedule containing the claims which they told me then that the Claimant wished to proceed with. I then explained to them that the Claimant would have to make a successful application to amend his claim if he wished to proceed with the proposed race and discrimination claims because they were not referred to adequately or at all in the ET1s and their attachment. I listed the hearing today 20/6/25 in order to consider any such application which the Claimant may make and also to consider the Respondent’s cross application to strike-out on the merits. I also issued a direction that in the meantime the Claimant should serve an impact statement for purposes of his proposed 6006924 2024 and 6002020 2025 4 disability discrimination claim.[20]On 1/6/25 the Claimant served an unsigned and undated impact statement which did not cover all the points which I had directed it should cover, and which also did not state that it was an application to amend, but certain extracts from which the Claimant today has relied on as an amendment application.[21]The passages in the impact statement referring to disability state for example as follows: “However, my journey was fraught with challenges stemming from my learning disabilities, dyslexia and dyspraxia, and compounded by the disproportionate treatment I faced as a Black man. Throughout my career, there was little support provided to accommodate my learning disabilities. … The lack of accommodations for my disabilities took a severe toll on my morale. I found myself excluded from opportunities for promotion and advancement ….However, the lack of practical adaptations, such as structured workflows, assistive tools, or empathetic support, limited my ability to reach my full potential.”[22]The passages in the impact statement referring race state for example as follows “Implicit biases and systemic inequalities added layers of difficulty to an already challenging situation. I often felt that the barriers I encountered because of my disabilities were compounded by racial prejudice, making it harder to obtain the support and recognition I deserved. The intersection of being both disabled and Black created a unique set of difficulties that required greater sensitivity and understanding qualities that were often lacking in my workplace”[23]Even if they are true, these generalised assertions about claimed institutional problems over the 22 year period of the Claimant’s career with the Respondent are not justiciable by the Employment Tribunal, for many reasons including the fact that they are out of time, a fair trial would be impossible and they lack specific details and particulars for the Tribunal to engage with reasonably.[24]The impact statement contents are not appropriate or reasonable as a proposed amendment to the claims.[25]Yesterday (19/6/25) the Claimant uploaded to the ET portal and served on the Respondent two pages of material, the first of which reads “Consider a decision afresh: I wish (to) have my unlawful dismissal claim reintroduced as it was deemed unlawful by the High Court” and the second of which reads “Amend my claim: I initially put in a claim of unfair dismissal which was dismissed by Judge J Burns at the first preliminary hearing. I am now aware of co claimant June Durant who had raised a case 6004392 2024 to an ET and the MPS have 6006924 2024 and 6002020 2025 5 conceded that her dismissal was unlawful. It is my understanding that she will be reinstated due to the above and others in the same situation will follow. I am one of the others. This has just come to light I was not aware beforehand hence the late amendment. To clarify I am making an unlawful dismissal claim. The above case sets a precedent”.[26]I was told by Mr Thomas KC, and I accept, that various ex-police officers (including Ms Durant, but not however including the Claimant) who were dismissed following the withdrawal of their vetting status, recently submitted applications for Judicial Review to the High Court and that one of them, which was treated as a test case, succeeded and that although that decision is subject to appeal, the aspect of the High Court decision which declared that the withdrawal of vetting process was unlawful is not included in that appeal.[27]This High Court declaration is irrelevant in the ET because it does not amount to a finding of discrimination or unfair dismissal and even if Ms Durant has the benefit (possibly a benefit by inference from the test case) of a declaration that the withdrawal of vetting was unlawful, as a police constable she will still face the obstacle in the ET that police constables (who are not employees) have no right to claim ordinary unfair dismissal.[28]I have subsequently looked up Ms Durant’s ET claim and note that it is already listed for an OPH in August 2025 at which the Respondent intends to apply to strike out her unfair dismissal claim for that reason.[29]The Claimant’s unfair dismissal claim was dismissed on withdrawal by him in March 2025 and cannot be re-instated because(i) I decline to reconsider that decision out of time and(ii) the Employment Tribunal has no jurisdiction over such a claim in his case.[30]Insofar as the Claimant is applying to amend to add an “unlawful dismissal” (as opposed to an unfair dismissal claim) that is impossible because there is no such claim in the ET.[31]Hence the Claimant’s applications to amend must be refused.[32]I set out in the Schedule to the 28/3/25 CMO what I understood then to be the claims which the Claimant wanted to make regarding race and disability discrimination, but he did not make any subsequent application to amend to include that material, despite my telling him and Ms Mills that he would have to do so. 6006924 2024 and 6002020 2025 6[33]Nevertheless, I have considered whether it would be appropriate to amend the claim “of my own volition” to include that material. I have decided it would not be. It is not for the Tribunal to make up claims for claimants. The material would include in its scope a far wider range of subjects than simply the vetting decision in March 2024. If I included the material it would not alter the basis of an existing claim but instead introduce new claims, raising substantially different areas of enquiry going back many years and also with regard to disability. Treated as an amendment it would be significantly out of time. The 2024 claims were issued in July 2024. Furthermore and importantly, the claims which the Claimant stated in March 2025 that he wished to make in the Tribunal proceedings fly in the face of the position he adopted as expressed in his grounds of appeal in 2024. It would be prejudicial for the Respondent to have to face late new claims.[34]For the above reasons I refuse to grant permission to amend.[35]We are left with the unamended ET1s. The first pair of ET1s presented in July 2024 in case 6006924 2024 refers to the withdrawal of vetting decision only but do not disclose a valid cause of action. Simply “ticking the boxes” referring to various types of discrimination and attaching grounds of appeal which do not refer to discrimination or any protected characteristic was and is wholly insufficient.[36]Furthermore the grounds of appeal show clearly that although the Claimant had many criticisms to make about the withdrawal of his vetting, discrimination was not included in those. If he had really thought that the reason for the withdrawal of vetting was his race and/or claimed disability, or amounted to some other kind of disability discrimination, he would have stated this in the document.[37]For these reasons I strike out the first set of ET1s under case number 6006924 2024 on the grounds that they do not disclose a valid cause of action and have no relevant particulars, and therefore have no reasonable prospect of success.[38]Turning to the 2025 ET1 claim form 6002020 2025 in which the Claimant “ticked the box” indicating a claim for race discrimination but not disability discrimination. As stated above, in box 8.2 the Claimant referred to his dismissal only and made two points by way of his particulars of race discrimination. First, he compared his dismissal with the case of “two white MPS Trainee Detectives engaged in a drunken sex act (who) were allowed to keep their jobs”. 6006924 2024 and 6002020 2025 7[39]I was taken to the “Notice of Outcome of Police Misconduct Hearing” which sets out in detail the facts, reasons and outcome involving these claimed comparators. They had engaged in consensual sex while drunk on duty. They largely admitted the formal allegations made against them and it was an isolated incident. They received a three-year final written warning.[40]Not in his 2025 ET1 but during the CMPH hearing in March 2025 the Claimant mentioned another comparator who, at a party, poked with his finger a female work colleague’s breast through clothing, and was immediately remorseful. It was again an isolated incident and he received a five-year final written warning.[41]While these three potential comparators are all white, it is not reasonably disputable that the material facts relating to them are different to the Claimant’s situation. The Claimant was dismissed because his vetting had been withdrawn, and his vetting was withdrawn because of the cumulative effect of 15 complaints and allegations against him, most of which have nothing to do with sex. He was not dismissed because of a single incident of sexual activity at work. The comparators were not being considered for dismissal because of withdrawal of vetting. I therefore conclude that the reference to these comparators would not assist the Tribunal in the least.[42]Secondly in his 2025 ET1 the Claimant has referred to “the McPherson report and the Casey report” ..and that “officers of ethnic backgrounds were more likely to be discriminated against on the grounds of conduct unbecoming”. This is just a generalized assertion of institutional racism which is not justiciable in the ET and even if proved would not show that the Claimant himself had been dismissed because of his race.[43]It is not in serious dispute and indeed it is admitted by the Claimant that he was dismissed because his vetting was withdrawn and his vetting was withdrawn because of the multiple complaints and allegations against him, none of which the Claimant suggested at the time of his internal appeal in 2024 had anything to do with his race or disability.[44]The Claimant in his 2025 ET1 has not pleaded facts or shown or referred to any other potential evidence which would make out a prima facie case of direct race discrimination. Hence the claim has no reasonable prospect of success and must also be struck out. 6006924 2024 and 6002020 2025 8 Costs[45]The Respondent claimed the costs of the hearing today in the sum of £3100. Mr Thomas KC submitted that the Claimant had conducted the proceedings unreasonably by issuing proceedings with no proper particulars and then not making any viable amendment application, thus causing another unnecessary hearing today. In large part I accept these submissions. However, the Claimant is a litigant-in-person who probably suffers from dyslexia, which may well explain part if not all of the procedural problems which have affected this matter. He also has very little money and is living on state benefits. He also has children to support. I decline to order costs against him as it would cause undue hardship if any such order was enforced.