Mr E Ker v The Chief Constable of West Yorkshire Police: 1806739/2020
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 2021 |
| Citation | 1806739/2020 |
| Published date | 09 July 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case No: 1806739/2020 (V)
10.5 Reserved judgment with reasons – rule 62 1
EMPLOYMENT TRIBUNALS
Claimant: Mr E Ker
Respondent:
The Chief Constable of West Yorkshire Police
HELD:
By CVP ON: 10th June 2021 (and
11th June 2021 in
Chambers).
BEFORE: Employment Judge Eeley
REPRESENTATION:
Claimant:
Respondent:
Mr T Perry, counsel.
Mr D Basu QC
RESERVED JUDGMENT
1. The respondent’s application to strike out the claimant’s claim as an abuse
of process or on the grounds that it has no reasonable prospects of
success is refused. The claim is not struck out.
2. The Tribunal has jurisdiction to hear the claimant’s claim as it was
presented to the Tribunal within the statutory time limit at section 123 of
the Equality Act 2010.
3. The Secretary of State for the Home Office is added as a second
respondent to these proceedings. The claimant shall file and serve an
amended claim on both respondents setting out the basis of the claim
against the second respondent within 28 days of the date this judgment is
sent to the parties. The case shall be listed for a further preliminary
hearing upon expiry of the time limit for presentation of a response to the
claim by the second respondent.
Case No: 1806739/2020 (V)
10.5 Reserved judgment with reasons – rule 62 2
REASONS
Background
1. The claimant is a serving police officer and brings claims of disability
discrimination in connection with his exclusion from entitlement to ill health
retirement benefits under the police pension scheme. The case was listed
for a preliminary hearing to determine two issues:
(a) Whether the claim should be struck out as an abuse of process.
(b) Whether the claim has been presented outside the section 123(1)(a)
time limit and, if so, whether the Tribunal should determine that it
would be just and equitable to extend time and hear the case.
2. In order to determine these issues, I was referred to the contents of an
agreed bundle of documents including the written witness statements of the
claimant and Edward Simpson and Jan Swales on behalf of the respondent.
I had the benefit of skeleton arguments on behalf of both parties which were
supplemented by counsels’ oral argument.
Strike out for abuse of process/ no reasonable prospects of success.
The factual background to the claim
3. The claimant joined the respondent’s police force as a police constable on
12th December 2016 at the age of 24. The claim relates to the decision to
exclude the claimant from receiving ill health retirement benefits (“IHR
benefits”) under the Police Pension Scheme 2015 (“PPS 2015”). During the
recruitment process the claimant disclosed to the respondent that he had
injured his right knee playing rugby 8 years prior to his application and that
he had undergone reconstructive knee surgery as a result. The respondent
referred the claimant to the force’s Selected Medical Practitioner (“SMP”)
Dr Adejoro under regulation 36 of the Police Pensions Regulations 2015
(“PPR 2015”).
4. The SMP provided a report dated 1st December 2016 where he confirmed
that:
(a) The claimant had suffered a rupture of the cruciate ligament of his
right knee in 2008. He underwent a repair of the cruciate ligament in
August 2008 and thereafter made a full recovery.
(b) He had consulted a medical article which said that, on average 50%
of persons who suffered such injuries developed osteoarthritis with
associated pain and functional impairment.
(c) On the balance of probabilities, the claimant was likely to have a low
to medium risk of developing osteoarthritis between 15 to 20 years
post-injury, which could impact on his ability to perform the ordinary
duties of a police officer.
5. The SMP completed the pension scheme Form B where he stated:
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