Claimant v Chief Constable of Derbyshire Constabulary — 2021

This was an open preliminary hearing on the respondent's application to strike out the remaining parts of the claimant's ET1 as an abuse of process. The surviving allegations were direct sex discrimination, direct race discrimination, and harassment arising from WhatsApp messages between PC A and PC B, including a message referring to the claimant with a racial slur. The claimant had previously brought ET1 no. 2603286/2019 about the disciplinary process, and that claim had been withdrawn before the March 2021 hearing.

Applying Henderson v Henderson, Johnson v Gore Wood and Co, London Borough of Haringey v O'Brien, and Prakash v Wolverhampton County Council, the judge held that the WhatsApp issue could and should have been raised in the earlier proceedings by amendment. The tribunal found that the claimant's legal team had the material by late January or early March 2021, that the claimant was able to give evidence and sign the 1 March statement notwithstanding his mental health difficulties, and that a reasonable and competent solicitor could and should have sought to amend ET1 no1 before it was withdrawn. The judge therefore dismissed the remaining claim as an abuse of process.

On costs, the tribunal rejected the claimant's estoppel argument based on the settlement correspondence. It considered the respondent's costs application under Rule 76, but decided not to make an immediate costs award; instead it limited any recovery to the part of the response dealing with res judicata in relation to the withdrawn first claim and directed the respondent to serve a confined costs schedule. No substantive compensation or tribunal award was made.