Mr P Moralee Respondent (1): Chief Constable Simon Chesterman Respondent (2): Civil Nuclear Constabulary v Respondent — 2023

The claimant was a police sergeant employed to carry firearms and was dismissed on 30 August 2022 for gross misconduct after sending racist and misogynist texts and sexually explicit photographs whilst at work. He relied on PTSD and a major depressive condition. At the public preliminary hearing on 21 August 2023, the tribunal also dealt with the claimant’s request to amend the claim to add section 15 Equality Act 2010 and an additional reasonable adjustments complaint, together with the respondent’s strike-out and deposit order applications.

Applying Selkent Bus Company Limited v Moore [1996] ICR 836, the tribunal allowed the amendments. It accepted that the application had been raised early, that the new complaints were broadly a re-labelling of matters already pleaded, and that there would be no real prejudice to the respondent. The tribunal then considered the merits of the amended claims under Rule 37 and, relying on Cox v Adecco [2021] ICR 1307, concluded that the section 13 direct discrimination claim had no reasonable prospect of success. Even assuming the claimant was disabled by PTSD and depression, the tribunal considered it inconceivable that he was disciplined and dismissed because of disability rather than because of very serious misconduct.

The tribunal reached the same conclusion on the section 15 claim. It said the claimant’s case was contradictory because the alleged “something arising” for the dismissal claim was the behaviour for which he had been dismissed, yet the medical evidence he had produced did not support that explanation, and any further medical evidence was irrelevant because the respondent did not know of it at the time. The alternative section 15 case based on the conduct of the hearing was also described as untenable because the claimant did not attend the hearing.

On the reasonable adjustments complaint, the tribunal considered that there were factual issues to be explored but that the claim had little reasonable prospect of success, applying the deposit order approach described in Hemdan v Ishmal [2017] IRLR 228 and Rule 39. It found that the adjustments relied upon were either offered, provided, or had not been raised by the claimant at all, including the suggestion that the hearing should have been in person. The tribunal therefore made a £1,000 deposit order. The claimant then stated that he would not pay the deposit and would not pursue the claim, and the reasonable adjustments complaint was dismissed upon withdrawal.