Mr D Gabel v Chief Inspector of Diving — 2019

Mr D Gabel brought complaints of disability discrimination under sections 15, 19, 20, 53 and 54 of the Equality Act 2010 in connection with his wish to work as a diving supervisor at a Diver Competence Assessment Organisation, often described in the evidence as an HSE Dive School. The hearing on 24 April 2019 was a preliminary issue hearing. The claimant did not give evidence. The respondent called Ms Judith Tetlow, and the tribunal considered the Diving at Work Regulations 1997, the HSE approval regime, and the authorisations relied on for the Chief Inspector of Diving.

The tribunal found that the relevant qualifications body was the Health and Safety Executive, not the Chief Inspector of Diving. It accepted that regulation 14 of the Diving at Work Regulations 1997 allows the Executive to approve qualifications, that the HSE does not issue diving supervisor qualifications itself, and that the Chief Inspector of Diving performs functions on behalf of the HSE under the relevant authorisations dated 21 December 2001 and 18 July 2018. On that basis, the tribunal held that the respondent was not a qualifications body within sections 53 and 54 of the Equality Act 2010.

Because the respondent was not a qualifications body, the tribunal held that it had no jurisdiction to hear the claimant's claim against the Chief Inspector of Diving and dismissed the claim. The tribunal also rejected the claimant's later written arguments based on sections 49 and 149 of the Equality Act 2010. It held that section 149 does not confer a private law cause of action in the Employment Tribunal, and that section 49 had not formed part of the pleaded claim in the ET1 or at the earlier preliminary hearing. The tribunal said that, even if an amendment had been sought to add section 49, it would have been refused as too late and inconsistent with the overriding objective and the amendment authorities cited.