Mr C Tosh v The Chief Constable of the Police — 2019

Mr Tosh brought claims of discrimination on grounds of sex and disability arising from events between 2 February 2015 and 20 November 2017. He was a police constable and was summarily dismissed on 20 November 2017 after misconduct proceedings. The tribunal recorded that he had made earlier complaints and appeals in which he alleged gender bias and a failure to consider his disability, including a complaint to PIRC in September 2016, his dismissal appeal in December 2017, and a PAT appeal in 2018.

The claim was presented on 22 July 2019, after early conciliation on 16 to 18 July 2019. The tribunal first found that the claims were not brought within the three-month time limit in s.123(1)(a) Equality Act 2010. It then considered whether it was just and equitable to extend time under s.123(1)(b), applying the factors identified in British Coal Corporation v Keeble and the guidance it cited from Robertson v Bexley Community Centre, Southwark LBC v Afolabi, Rathakrishnan v Pizza Express, and Barnes.

On the delay, the tribunal found that Mr Tosh had suspected a sex discrimination claim well before the PIRC letter of 10 June 2019, and that the letter did not provide new information relevant to disability discrimination. It found that he was aware of the facts giving rise to his claims by at least September 2016 and December 2017, that he had no obvious impediment to bringing a claim earlier, and that he gave no explanation for waiting a further seven weeks after receiving the June 2019 letter before presenting the claim.

The tribunal also found that the delay would significantly and adversely affect the cogency of the evidence, that the respondent had not failed to cooperate with information requests, and that Mr Tosh had not sought professional advice about bringing a claim. Balancing prejudice, it concluded that no satisfactory explanation had been advanced for the late presentation and that it was not just and equitable to extend time. The tribunal therefore held that it did not have jurisdiction to consider the Equality Act claims and dismissed them.