Mr B Mistry v Ofsted — 2021

This was a preliminary hearing in Mr B Mistry's disability discrimination proceedings against Ofsted, with later-added unfair and wrongful dismissal claims. The tribunal recorded that Ofsted accepted he was a disabled person for Equality Act purposes by reason of PTSD arising from childhood abuse, and that he had been employed from 1 October 2009 until summary dismissal for gross misconduct on 16 September 2020. On 27 April 2021 the claimant withdrew a number of allegations, and the tribunal dismissed on withdrawal the harassment allegations at paragraphs 3.1-3.14, the direct discrimination allegations at 7.1, 7.3 and 7.4, the reasonable adjustment allegations at 15.8-15.14, and the victimisation allegations at 22.1-22.2.

The tribunal refused the respondent's strike out and out-of-time applications on the remaining pre-dismissal disability discrimination complaints. It held that the refusal on 4 February 2020 to change Matthew Ritson as line manager was out of time if treated as a stand-alone act, but that the claimant could still argue it formed part of a continuing act under s.123 Equality Act 2010. It took the same approach to the allegation about weekly contact during sickness absence and refused to strike out the allegation about working within the ARC department, applying the continuing act analysis from Hendricks, Aziz and South Western Ambulance Service NHS Foundation Trust v King and the general caution against strike out in discrimination cases from Anyanwu, Ahir, Ezsias and Mbuisa.

In the Dismissal Particulars, the claimant pursued unfair dismissal, wrongful dismissal, discrimination arising from disability, reasonable adjustment and victimisation claims. The tribunal recorded that the unfair and wrongful dismissal claims were filed in time, and it refused to strike out or dismiss the disability discrimination and victimisation complaints arising from the disciplinary process, dismissal and appeal. It also refused strike out or a deposit order on the s.15 claim and the reasonable adjustment complaints about advance questions and counting coping strategies as authorised tasks, because the reason why and reasonableness issues required evidence at the final hearing.