P Tapsell, of Counsel For the v Respondent — 2021

Mr R A Leslie had been employed by the Driver and Vehicle Standards Agency as a driving examiner from 28 August 2015 until his dismissal on 9 May 2019. The respondent accepted that he was disabled as a result of severe recurrent depression, post-traumatic stress disorder and anxiety. He had brought a first tribunal claim in August 2017 alleging disability discrimination about the October 2016 incident, alleged bullying, occupational health recommendations, relocation and disability adjustment leave. That first claim was withdrawn by email on 20 November 2017, and the tribunal issued a judgment dismissing it under rule 52 on 15 December 2017.

In the second claim presented on 27 August 2019, the claimant pleaded unfair dismissal, disability discrimination, victimisation and harassment. The respondent applied to strike out historic allegations on the basis of rule 37, rule 52 estoppel, time limits under section 123 of the Equality Act 2010, and the absence of any formal amendment for a number of matters first raised in further particulars. Employment Judge G Phillips held that the withdrawal email was clear, unambiguous and unequivocal, that the rule 52 dismissal prevented the same or substantially the same complaints from being re-litigated, and that the change from Department of Transport to Driver and Vehicle Standards Agency did not avoid that result.

On limitation, the tribunal applied the section 123 Equality Act 2010 framework and the continuing act approach in Hendricks. It found that allegations 1-5, 6 and 9 were out of time and were not shown to form part of an ongoing situation or continuing state of affairs; the judge also noted the gap of about 18 months between the April 2017 refusal of disability adjustment leave and the December 2018 occupational health issues. Allegations 7 and 8, concerning later occupational health and return-to-work matters, were allowed to proceed because they were arguably linked to the attendance and dismissal process, and allegations 10, 11, 12, 13, 14 and 15 were also allowed to remain in the case. The final order struck out allegations 1-6 and 9 of the Second Claim and limited the matter for the merits hearing to allegations 7, 8, 10-15.