Mr E Ker v The Chief Constable of West Yorkshire Police HELD: By CVP — 2021

Mr Ker, a serving police officer, brought disability discrimination claims in relation to his exclusion from entitlement to ill-health retirement benefits under the Police Pension Scheme 2015. The respondent applied to strike out the claim, arguing that the scheme operated under delegated legislation, that the decision was a statutory mathematical exercise with no discretion, and that the proper route was judicial review against the Home Secretary rather than proceedings in the Employment Tribunal.

The tribunal refused strike out. Relying on London Fire Commissioner v Sargeant, it held that there was a legitimate argument that the Equality Act 2010 provisions in sections 61 and 62 could affect the operation of the statutory pension scheme and that the availability of a public law route did not remove tribunal jurisdiction. It held that the claimant's section 15, section 13 and section 20 claims all had reasonable prospects of success at this stage, and that it was proportionate to add the Secretary of State for the Home Office as a second respondent rather than remove the Chief Constable or strike out the proceedings.

On limitation, the tribunal held that the claims were presented in time because the alleged discrimination was an ongoing state of affairs: the claimant's continuing ineligibility for ill-health retirement benefits under the scheme. It treated the case as analogous to continuing act authorities such as Barclays Bank v Kapur and Calder, and distinguished a one-off decision case. The tribunal said that, if limitation had been an issue, it would in any event have extended time on the just and equitable basis for the reasons it gave, including the technical nature of the claim, the claimant's relocation from New Zealand, delays involving the Police Federation, and the absence of demonstrated prejudice to the respondent. No final merits decision or monetary award was made in this judgment.