Mr R Otley v The Advocate General for Scotland as representing the Ministry of Defence: 8001973/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001973/2025

Venue Chambers

Hearing 24 March and 12 June 2026

Between

Mr R OtleyClaimant

The Advocate General for ScotlandRespondent

Before

Employment Judge Hendry

Date 8 July 2026

JUDGMENT

The Judgment of the Tribunal is as follows: (One) the claims for age discrimination having been withdrawn are dismissed. (Two) the claim for unfair dismissal having been withdrawn is dismissed. (Three) the Tribunal having no jurisdiction to entertain the claim for victimisation under section 27 of the Equality Act 2010 it is dismissed (Four) the claimant’s amendment to add claims in relation to discrimination on the grounds of Part Time Worker status is refused. ETZ4(WR)

REASONS

[1]The claimant is an Officer in the Army Reserve based in Kirkwall. He has raised claims against the Ministry of Defence. The claimant in his ET1 sought findings that he had been discriminated against on the grounds his age. He also made reference to bullying and harassment and to unfair dismissal. The issues seemed to revolve around a court action he had raised and its aftermath culminating in an internal complaint or grievance that he had raised.

[2]The ET1 was not detailed simply stating that since he had raised an internal complaint he had been ‘‘marginalised’’ and harassed. The principal catalyst for the raising of proceedings appeared to be the claimant’s suspension on the 9 July 2024 and the long delay in concluding those internal proceedings.

[3]The respondent defended the claims and in their grounds of resistance raised preliminary issues of jurisdiction in relation both to the claim for unfair dismissal and age discrimination. They noted that the claimant had not ticked the box for unfair dismissal but that he had at box 9 of the form made reference to compensation for unfair dismissal. They pointed out that as a serving member of UK Armed Forces Reserves the claimant was not entitled to bring a claim for unfair dismissal as he does not fall within the definition of employee under section 230 of the Employment Rights Act 1996.

[4]The respondent also opposed the claim for age discrimination indicating that the rights claimed under the Equality Act 2010 (hereinafter ‘EqA’) were excluded by part 5 of the Act and that such claims could not be taken against the Army. They went on to state that in terms of section 121 EqA before taking a claim the employee must raise what is known as a Service Complaint. This is an internal complaint about subject matter of the complaint to the Tribunal. They said that the claimant had submitted a number of these but not one complaining about directly about discrimination.

[5]Finally, they raised the question of time bar indicating that the claimant approached ACAS on the 29th of July 2025.An early conciliation certificate was issued on 30th August 2025 and the claim was lodged on the 14th of August 2025. (These dates were uncontroversial). The claims were, they submitted, out of time. The respondent’s agents asked the tribunal to fix an Open Preliminary Hearing to deal with the question of jurisdiction and time bar. They also made an application for strike out and deposit. There was no case management hearing as the case proceeded to an Open Preliminary Hearing as they had requested. Open Preliminary

Hearing

[6]An Open Preliminary Hearing took place on the 23rd March 2026. Prior to the hearing written submissions were lodged by the respondent. The claimant lodged his own submissions. The respondent’s solicitors had also lodged a Bundle of Documents for the hearing. It contained the various Service Complaints made by the claimant. The respondent’s solicitor also lodged a list of authorities which included references to the appropriate legislation. Prior to the hearing the claimant also lodged documents in support of his position. Hearing 26 March

[7]Prior to the hearing the claimant lodged a document setting out the factual history of his difficulties with the respondent. The Tribunal heard parties competing positions. The respondent’s submissions were detailed and I have summarised them considerably. Respondent’s Submissions

[8]Ms Macara identified three preliminary issues for determination at the Hearing. First, whether the Tribunal lacks jurisdiction to hear some or all of the claims. Second, whether the claims should be struck out under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 on the basis that they have no reasonable prospect of success. Third, in the alternative, whether a deposit order should be imposed under rule 40 as a condition of them proceeding.

[9]She submitted that, despite multiple opportunities, the claimant has failed to particularise his claims or engage with the preliminary points raised in the ET3 and subsequent application. Further submissions by the claimant (October 2025, November 2025, and March 2026) are said either to introduce new matters not pleaded or to leave the fundamental deficiencies unaddressed. The respondent submits that none of the pleaded claims fall within the Tribunal’s jurisdiction. In relation to unfair dismissal, the respondent argues that the claimant is a reservist and not an employee within section 230 of the Employment Rights Act 1996. As a member of the Armed Forces, he is excluded from statutory protection against unfair dismissal. In any event, the claimant has not been dismissed and continues in service, as confirmed by his ET1.

[10]Turning to age discrimination, the respondent relies on Schedule 9 to the Equality Act 2010, which excludes jurisdiction over such claims by serving members of the Armed Forces. Alternatively, the claimant has not satisfied the statutory requirement to bring a prior “service complaint about the matter”.

[11]The victimisation claim was, she argued, inadequately pleaded and jurisdictionally defective. The respondent says that the claimant has failed to identify both a qualifying protected act and a relevant service complaint under section 121 of the Equality Act. A service complaint dated 5 April 2022 is mentioned belatedly but does not constitute a protected act nor to does it satisfy the necessary procedural requirements. Further, if relied upon, it would render the claim out of time.

[12]A potential complaint of less favourable treatment as a part-time worker was unsupported. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”) govern any such claims. Any amendment to add such a claim was opposed. The claimant's ET1 Claim form makes no reference to any basis for such a claim. Absent any successful application to amend, the claimant has no such claim. The claimant has a number of hurdles. In order to bring a claim under PTWR, in terms of Regulation 13(3)(a) of PTWR, the claimant must make a service complaint "in respect of the same matter". The claimant has not referenced in these proceedings any service complaint on which he seeks to rely in relation to a potential PTWR claim. In the case of Patti MerneEdwards v Ministry of Defence

[2024] EAT 18

, para 90, the EAT held that: "Given the requirements of the Service Complaint Regs, the service complaint should state how a person thinks that they have been wronged in relation to their service; and whether the contents contain the “matter” that forms the subsequent complaint to the ET about “an act done” is to be judged in that light." The respondent's position is that the requirements of Regulation 13(3)(a) PTWR have not been met and the Tribunal has no jurisdiction to hear such a claim. The respondent asks the Tribunal to dismiss all claims for want of jurisdiction.

[13]In the alternative, the respondent submits that the claims should be struck out as having no reasonable prospect of success. While acknowledging that strike-out is a high threshold, particularly in discrimination cases, the respondent contends that this is an exceptional case. The only potentially viable claim which is victimisation which has not been properly articulated. The claimant has not specified the protected act, the causal link to any detriment, or the factual basis of his allegations. References to earlier service complaints and unrelated litigation do not assist him and are vague, inconsistent, and incapable of founding a claim.

[14]Any putative part-time worker claim was, she asserted, bound to fail. The claimant has not established that any alleged detriment arose because of parttime status itself, whether as the sole or predominant cause. The respondent’s position is that the claimant’s later submissions introduce irrelevant material, including documents and events unconnected to the ET1. This obscures rather than clarifies the issues and prevents a fair hearing by depriving the respondent of fair notice of the case it must meet. The respondent therefore invites the Tribunal to strike out all claims. If strike-out is refused, the respondent applies for a deposit order of up to £1,000. It submits that the claims plainly meet the lower threshold of having “little reasonable prospect of success”. The claimant’s failure to articulate essential elements of his case is said to provide a proper basis for doubting his ability to establish the necessary facts. Claimant’s Submissions

[15]The claimant’s submissions focussed on events surrounding his suspension, its removal on 3 February 2026, and the alleged ongoing consequences of that suspension. He contended that, notwithstanding the formal lifting of suspension and termination of disciplinary action, the respondent has failed to remedy multiple inaccuracies and that there were continuing detriments.

[16]The claimant challenged the content of a letter issued at the 3 February 2026 meeting. He asserts that it contains factual inaccuracies, including implications about his medical status and alleged obstruction of communication. He maintains that he remains medically deployable and has been consistently responsive. He further asserts that no misconduct allegations were ever put to him, and that the suspension arose from security clearance issues. He refers to correspondence suggesting that suspension was imposed before any evidence was identified.

[17]The claimant raises concerns about his removal from post and the absence of clarity regarding any proposed reassignment. He relies on statutory provisions requiring his consent to transfer between units and notes that no mechanism has been articulated.

[18]His position is that financial loss is a central complaint. He asserts that he has not been paid sums withheld during suspension, including annual training bounty and missed service days. He relies on applicable regulations allowing such payments where no misconduct is established and states that no payment or clarification has been provided some two months after suspension ended. The claimant also alleges procedural failings in relation to his civilian employer. He contends that the respondent failed to issue mandatory employer correspondence, resulting in unequal treatment compared to colleagues. He says that despite completing all required steps following the February meeting, including training requirements and a security clearance application, the claimant asserts that his return to active duties has been obstructed. He states that he has been prevented from resuming normal service, limited to administrative tasks at home, and excluded from training and workplace interaction.

[19]The claimant alleges that his career progression has been materially harmed. He claims that the two-year suspension prevented training, deployment, appraisal, and promotion opportunities. He asserts that he likely lost advancement and earning potential as a result, given his prior progression. The claimant makes further criticisms about the alternative role offered at the February meeting and the failure to allow him to return to his former post. He references other difficulties such as the respondent’s failure to process a Subject Access Request, ongoing lack of communication, and refusal to permit attendance at the Officers Mess despite no apparent justification. Hearing

[20]At the outset it was accepted that the following claims appear to be made by the claimant in his ET1. Unfair dismissal Age discrimination Bullying and harassment (with no reference to any protected characteristic in respect of which a harassment claim in terms of section 26 of the Equality Act 2010 could be brought) Victimisation (with no reference to what internal complaint is being relied upon (and how that constitutes a protected act in terms of section 27 of the Equality Act 2010) and what alleged detriment was suffered because of that complaint)

[21]In the course of the hearing the claimant accepted that his claims for unfair dismissal and age discrimination were not competent and should be withdrawn. He did however want to proceed with the claims for victimisation/harassment and discrimination on the grounds of his part time worker status. After discussion at the close of the hearing the claimant indicated an intention to amend.

[22]Immediately following the hearing on the 25th of March 2026 the Tribunal wrote to the claimant indicating that it had received documents from him just prior to the hearing but that these had not been sent to the respondent. The letter provided as follows: 1. That considering the claimant has lodged two documents detailing the factual background to his claims, he asks that they are accepted as better and further particulars of his claims and the ET1 amended to include them. 2. In respect that the claimant wishes to pursue claims relating to less favourable treatment arising from his part time worker status, that he has until 1 April 2026 to lodge a written document setting out the factual and legal basis for such a claim and an explanation why it should be granted and comes at this stage in proceedings. The claimant needs to both consider whether the claims are time barred and if they have been raised in a service complaint. (The claimant was referred to the so-called ‘Selkent Principles’). 3. That the respondent’s agents shall have until the 17 April 2026 to set out any objections they have to the amendment.

[23]The Tribunal was conscious that the claimant was a party litigant and that in fairness to both parties these documents should be considered.(It turned out that they had been sent to the respondent’s agents some months earlier but this had not been apparent to the respondent’s solicitor). It was also clear that the claimant had not clearly articulated a claim under the PTWR and this matter had been discussed at the hearing. He had indicated that he wanted to amend. The claimant was given until the 1st of April 2026 to lodge a written document setting it the factual and legal basis for such a claim. He was asked to submit this in writing and to explain why it had been lodged at this stage in the proceedings. The respondent’s agents were given an opportunity to respond. The tribunal accordingly had both the issue of possible amendment to deal with as well as the respondent’s application for dismissal for lack of jurisdiction and in the alternative strike out. The consequence of this was that there was further correspondence between the parties. Rather than fix a further hearing it was agreed that it was in accordance with the overriding objective for the Tribunal to deal with the possible amendment on the basis of legal submissions. Discussion and Decision Amendment

[24]I first of all addressed the amendment to include a claim under the PTWR. The law is well trodden but nonetheless it can sometimes be difficult to apply in practice. The common factors that a Tribunal has to deal with are set out in the case of Selkent Bus Co Ltd v Moore

[1996] ICR 836

. In Selkent, Mummery J stressed that this overall assessment involves consideration of all of the relevant factors and stated that it is impossible and undesirable to attempt to list them exhaustively. He noted a number of factors that will generally be relevant to the assessment: the nature of the amendment, the applicability of time limits and the timing and manner of the application. Those factors are not a checklist to be ticked off (Abercrombie v Aga Rangemaster Ltd

[2014] ICR 209

). The paramount importance of balancing the injustice and/or hardship caused by allowing or refusing the amendment has been emphasised repeatedly (Vaughan v Modality Partnership

[2021] ICR 535

). It goes without saying that the Tribunal must be even handed in its approach and consider both sides’ positions. It was made clear in the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust that a tribunal can weigh an assessment of a claim's potential weakness when deciding whether to grant an amendment (or extend time on a "just and equitable" basis.

[25]The case of Choudhury v Cerberus Security and Monitoring Services Limited

[2022] EAT 172

also provided helpful guidance including the importance of identifying the amendment being sought.

[26]The amendment was set out in writing by the claimant. The claimant also submitted copies of two Service Complaints. The factual basis was as follows:a. The Claimant during the suspension was denied appraisal annual reporting which has impacted on the Claimant’s promotion opportunities. Where the appraisals were issued, they were not delivered via an interview as per policy and no explanation or opportunity for feedback was proffered to the Claimant which would be delivered within an interview to the Respondents full time employees.

b. The Claimant was not interviewed before or subsequent to the prolonged period of suspension, the process offered to the Claimants full time colleagues was not proffered to the Claimant. The Claimant suffered from mental anxiety as a result of not being made aware of the reason for suspension. A full time employee would have been provided with an explanation during an interview for the suspension.

c. For prolonged periods during the Claimant’s suspension the Claimant was denied the support of an assisting officer that would have been available to full time colleagues. The Claimant was disadvantaged compared to the Respondents full time employees as the Claimant had limited access to Service Policy, which an Assisting Officer could have provided as well as ongoing support denied to the Claimant.

d. Exclusion from medical, welfare and dental support that would have been available to the Claimant’s full-time colleagues during a comparable period of suspension.

e. Less favourable pay and conditions during the period of the Claimant’s suspension, the Claimant has not been fully remitted during his period of suspension.

f. The uniform allowance offered to the Claimant is disproportionately low to that offed the Respondents full time employees to maintain the same uniform.

g. The Claimant suffered professional and reputational damage to their full-time business; a full-time regular officer would not suffer the same.

h. Despite the Respondent lifting the Suspension of the Claimant on 3 February 2026, the Respondent has prevented the Claimant from returning to his place of work for nearly two months. The Claimant’s full time colleagues would have been returned to work and pay on the day the suspension was removed.

[27]In the course of the proceedings it had been brought home to the claimant that he required to take the step of raising Service Complaints before then raising proceedings with Tribunal. He submitted two Service Complaints relating to incidents on the 14 and 17 July 2024 with the amendment which he asserted gave the Tribunal jurisdiction.

[28]The amendment seeks to add in a new claim entirely unconnected with the original claim. He relies on a new set of circumstances although it was accepted that he had made reference to an issue described as full time employees getting full pay on suspension whereas as a Reservist he received none. That appeared to be the sole reference to any potential allegation of a difference in treatment on the basis of part time worker status. As Ms Wylie pointed out, if allowed, it would extend the time required for any hearing and require further witnesses and enquiry if the claim for victimisation proceeded.

[29]More significantly, in my view, is the argument that in order to bring a claim under PTWR, in terms of Regulation 13(3)(a) of PTWR, the claimant must make a Service Complaint "in respect of the same matter" The same matter is discrimination of the grounds of part time status. The claimant has now referenced and provided two Service Complaints on which he seeks to rely. In approaching this matter I did not taken an overly strict interpretation of the words used in the Service Complaints. The claimant is not a lawyer and the purpose of the procedure is to identify the grievance being raised. I looked at what they reasonably could be said to convey.

[30]The July 2024 service complaint is related to two training events. The claimant writes setting out the complaint: ‘‘I have previously attended reserve events in the first half of 2024 where the prerequisite for security clearance has not been mentioned. My understanding from emails received by me from Major Brill in September 2023 was that Lt Col McLenaghan did not wish to employ me to complete my security clearance due to budget concerns as the process was comprehensive and time consuming. I believe that Lt Col McLenaghan’s decision to exclude me while not facilitating a Security Clearance sponsorship application for me to complete I allege directly discriminates against me’’. He uses the word discrimination in the sense of unfair treatment compared to others. He does not identify a protected characteristic.

[31]Later he writes: ‘‘My chain of command has not informed me that I am excluded when my colleagues are able to participate in these events, thus I allege thus directly discriminating against me’’. There is no clear factual basis suggested for discrimination against the claimant on the grounds of part time worker status unless the allegation is that he was not allowed to go through the security clearance process because he was a part time worker. Later he says that other reservists are invited to such events. The ‘discrimination’ he suggests he suffers is compared to other workers which almost certainly includes other part time workers.

[32]I considered the August 2024 service complaint. This deals with the claimant’s complaints around his suspension in 2024. The complaint is around the claimant’s criticism of the way matters were handled and the impact on his civilian employment. It cannot be less favourable treatment because of part-time worker status, as the comparator (who would have to be a full-time officer in materially similar circumstances, so thus an individual who had been suspended and which process was allegedly being mismanaged) would not have other, primary employment that might be impacted.

[33]It is noteworthy that the allegations contained in the proposed amendment are different from the issues raised in the Service Complaints I have alluded to and not "in respect of the same matter" as required. They refer to numerous matters such as a denial of appraisal, annual reporting, promotion opportunities and so forth. The nature of the amendment is very different to the initial claim in the ET1, but also from a fair reading of the Service Complaints being founded upon. The hurdle of satisfying Regulation 13(3) of the PTWR in respect of having made a "service complaint in respect of the same matter" seems fatal.

[34]Time limits are important in employment claims. If the two Service Complaints dated July and August are as the claimant says "in respect of the same matter" then the claims are over 19 months' old. It is apparent therefore that the claims are brought out with the time limit of six months (by virtue of regulation 8(2) PTWR). 33. I think that there is some force in the suggestion that these proceedings have been somewhat of a learning curve for the claimant and that understandably perhaps he has manoeuvred his position, to meet the attacks mounted by the respondent’s solicitors on his claims. In short, the picture painted by the various Service Complaints is of continuing difficulties which the claimant himself does not attribute to any protected characteristic but seems more in the vein of a breakdown in relationships with senior officers. When making his complaints in July and August 2024 I do not believe he was drafting them in contemplation of taking employment Tribunal proceedings or with the Part Time Workers Regulations in mind. It is simply not clear which of the Service Complaints he believes ‘triggers’ his protections under the Regulations or which Service Complaint(s) can be said to relate to this matter. 34. Even if the claim is competently made (and I do not accept that it is) the balance of hardship in allowing the amendment is clearly against the claimant and in favour of the respondent who would be put to further expense and trouble to meet newly advances claims that appear to have little prospects of success. The amendment is accordingly refused. Victimisation/ Bullying and harassment

[35]Victimisation is defined in Section 27 of the EqA : Section 27 of the EqA is in these terms: A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. ii. Each of the following is a protected act — (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act

[36]The Service Complaints all have a history going back to the claimant’s suspension in July 2024. He has made to criticisms of the actions of the respondent and there are allegations of unwelcome behaviour such as the claimant being ‘‘marginalised’’ or suffering ‘‘harassment’’. At the hearing the claimant focussed on the Service Complaint dated 5 April as the ‘‘gateway’’ to being allowed to raise complaints of victimisation.

[37]In his email dated 26 November 2025 the claimant first refers to a Service Complaint of 5 April 2022(RBP31 – 41). The claimant has not clearly set out his position. He has not articulated that he was "marginalised" or "harassed" because he raised this complaint.

[38]The claimant’s submission of October 2025 makes no reference to this service complaint and instead refers to a Sheriff Court action at Wick Sheriff Court. Broadly his position at that point seems to be that because of this action he was punished by senior officers. The claimant has had opportunities to amend and adjust his claim to make his position clear. Crucially, I do not accept that he can in any event rely on this or any other Service Complaint produced as being a protected act as defined in section 27 EqA( 2)(a) - (d).

[39]It is helpful to consider the way in which the claimant regarded matters. Although there is a box ticked for age discrimination there is no reference to any of the alleged treatment as being on the grounds of a particular protected characteristic. In the Decision Letter relating to this Service Complaint to the claimant dated 17November 2022 (Bundle p40 – 59), it is noted at Page 45 that: "… on interview you did not indicate that you possessed any protected characteristics but offered that communications from the OC were 'increasingly accusatory, confrontational, and oppressive' and that these had, in your opinion 'passed the threshold of acceptability'.

[40]The claimant in his own Service Complaint does not formulate the complaint to reflect the statutory claim he is now making. I also accept that the claimant cannot rely on the Service Complaint from April 2022 as being the "service complaint about the matter" If this is what he relies upon then he failed to lodge an Employment Tribunal claim within six months of the alleged act of discrimination (in terms of section 123(2) of the EqA). The claimant cannot show that he has met the ‘gateway’ requirements of raising these matters and the claim is dismissed for want of jurisdiction.