Employment Judge WebbRepresenting himself for claimantMr C Ilangaratne for respondentDate 12 May 2025
JUDGMENT
[1]The claims for disability discrimination relating to events in 2016 and the grievance in 2020 were presented out of time. It is not just and equitable to extend time. The Tribunal does not have jurisdiction to deal with those claims. Those claims are dismissed.[2]The whistleblowing detriment claims relating to events in 2016 and the grievance in 2020 were presented out of time. It was reasonably practicable for them to be presented in time. The Tribunal does not have jurisdiction to deal with those claims. Those claims are dismissed. JUDGMENT having been sent to the parties on 22 December 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Law
[1]Mr Masih was employed by the Respondent from January 2013 to December 2021. His claim is about how he was treated during his employment and his dismissal. He says that he was treated badly by his employer and dismissed because of his race or his whistle blowing activities.[2]The Respondent denies this to the be case and says that Mr Masih was in fact dismissed because of his conduct.
The Hearing
[3]The Claimant represented himself and gave evidence. The Respondent was represented by Mr C Ilangaratne.[4]In making my decision I also considered the documents from the 419 page bundle of documents which the parties introduced had prepared for the hearing. The Claimant also provided a witness statement dated 5 December 2022.[5]I noted in the bundle, and it was confirmed to me by Mr Masih that he suffers from a stammer and did not want the way in which he presented himself to be held against him. I have taken into account that he has a stammer, but in any event his evidence was clear and he was able to answer questions put to him clearly and tell me why I should not strike out his claims. Claims and Issues[6]The Claimant has bought a claim against the Respondent for unfair dismissal, race discrimination and whistleblowing detriment[7]The issues to be decided in this preliminary hearing were identified in the Order of Employment Judge Camp dated 02 October 2022 and confirmed at the start of the hearing as follows:a. Were all the whistleblowing detriment complaints made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide: i. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or failure complained of? ii. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? iii. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? iv. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?b. Were all the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: i. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? ii. If not, was there conduct extending over a period? iii. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? iv. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1. Why were the complaints not made to the Tribunal in time? 2. In any event, is it just and equitable in all the circumstances to extend time?[8]The order of Judge Camp was clear that the Respondent should set out in a written application those parts of the claim that the Respondent wished to strike out, along with the reasons.[9]In the written application dated 08 November 2022 the Respondent only referred to those events that related to the grievance in August 2020 as being out of time.[10]In his submission Mr Ilangaratne expanded this application to include all the events prior to 20 December 2021.[11]Although this had not been specifically dealt with in the application, I considered that it was appropriate for me to deal with those events also. If I did not it would still be open for the Respondent to make a further application for those parts to be struck out and that would require a further hearing. The evidence I was provided by Mr Masih in his documents and the oral evidence also dealt with these claims and there was no prejudice to him in them being considered by me at the hearing.
Findings of Fact
[12]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point.[13]The Claimant was dismissed on 21st December 2021 and the claim was submitted on 19 March 2022. Any claims submitted about matters that happened before 20 December 2021 may be out of time.[14]The first act Mr Masih complains about took place in 2016 and relates to the appointment of a white man as a manager rather than himself.[15]The next event about which he complains took place in June 2020 when the claimant says the respondent failed to pay for his apprenticeship course that resulted in him being removed from the course.[16]The next events are those that date from August 2020 to November 2020 and relate to the Respondent ignoring his assessments of another employee and a failure to uphold a grievance and whistleblowing concerns.[17]The final events about which he complains related the disciplinary process in December 2021 and his dismissal on 21 December 2021 and the negative outcome in his appeal against dismissal in January 2022, and the fact his grievance submitted in December was no considered.[18]Mr Masih asked me to find that each of these events are linked because they are all about his employment. Mr Ilangaratne in his submissions said that they were in fact matters that arose in the course of employment and are not linked. I find that each of these events are different factually and that there are clear time gaps between them.[19]Mr Masih’s explanation for his failure to submit claim earlier was that he did not wish to lose his job by bringing a claim to the Tribunal and wanted to resolve the matter internally with his employer.
Procedure
[20]I find that Mr Masih did wish to resolve matter internally with his employer. However, I find that in each case, it was clear that the internal processes were competed but did not meet with Mr Masih’s expectation of being resolved in his favour.[21]Mr Maish when asked my Mr Ilangaratne about why, at the end of each of the internal process, he did not submit a claim then, his response was to repeat that he did not wish to lose his job.[22]There is no evidence that he was told by his employer in writing or orally that this would be the result. In evidence he was clear that in respect of the event in 2016 he was definitely not told that.[23]Mr Masih pointed to the negotiations that took place between him and the respondent and asked me to imply that this was evidence that employer would dismiss him. However, the negotiations in my view do not support that interpretation. I find Mr Masih’s fear of being dismissed should he have brought a claim earlier to be a subjective one.
Background
[24]Mr Masih’s evidence is that he has been conducting these Tribunal proceedings as a lay person , researching things on the ACAS website, among others. I accept that he is not a lawyer. However, his answers to questions about when he knew about time limits for bringing claims were unclear and evasive. I find that he is capable of identifying relevant Tribunal rules and procedures and could have done so from 2016 onwards.[25]I find that he was aware of all the facts about the events he complains about from 2016 onwards.
Law
[26]The Tribunal’s jurisdiction to deal with whistleblowing detriment claims is limited by section 48(3) of the Employment Rights Act 1996: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures , the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[27]In assessing if it was reasonably practicable to present claim within a time limit, I should give it a liberal construction in favour of the employee, Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53.[28]What is reasonably practicable is a question of fact for me to decide, and it is for the Claimant to show why the claim was not presented earlier.[29]Reasonably practicable, does not mean reasonable, nor does it mean physically possible, but means something like “reasonably feasible”, Palmer v Southend-on-Sea Borough Council 1984 ICR 372.[30]The Tribunal jurisdiction to deal with discrimination detriment claims is also limited. Section 123(1) of the Equality Act 2010 says: “(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[31]The discretion I have to extend under the just and equitable test is wider that that where it was not reasonably practicable to present a claim in time. But it is for the Claimant to show that it would be just and equitable to extend time.[32]In considering whether it is just and equitable to extend time I must consider the prejudice the parties would suffer as a result of the decision reached and to have regard to all the circumstance of the case.[33]In particular the I should have regard to the length of the delay and the reason for it, how evidence may be affected by that delay, the speed at which the claim was submitted once the facts on which the clam are based were know to the claimant and the steps taken to obtain advice once those facts were known.
Conclusions
[34]I have considered the facts as I have set out above and the submissions of the parties in reaching my conclusions on the issues before me.[35]Was the whistleblowing detriment claim made to the Tribunal within three months (plus early conciliation extension) of the act or failure complained of?[36]The claims were all submitted on the same date. I conclude the claim for whistleblowing detriment relating to 2016 was not presented within the relevant time limit. I also conclude that the claim for whistleblowing detriment relating to events of 2020 were not presented within the relevant time limit. The claims relating to whistleblowing detriment for events in December 2021 all occurred prior to the 21 December and I conclude these to were presented out of time.[37]If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?[38]I conclude that the length of time between the events of 2016 and 2020 and the different facts of those events means that they can not be described as a series of events when combined with those events of late 2021.[39]However, I conclude that the disciplinary process that began in December 2021 and ended with the final act of the Claimant dismissal on 21 December 2021 are factually related and can be described as a series of act. I conclude the claims in relation to the events in December 2021 were submitted in time because these were a series of related events that ended with the dismissal on 21 December 2021.[40]If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?[41]The Claimant knew about the facts that underlie those claims at the time and the Claimant has been able to submit this claim, having undertaken appropriate research; the Claimant did not suggest he could not have done the same in relation to the claim relating to events 2016 and 2020.[42]That there was an internal process does not of itself mean it was not reasonably practicable to submit the claim Bodha v Hampshire Area Health Authority 1982 ICR 200. In any event I have found that the internal process in each case had concluded in a way the claimant found unsatisfactory. The explanation for the claims not being submitted following the conclusion of the processes, that the Claimant had a subjective fear of being dismissed in my view would not mean it was not reasonably practicable, as that view was subjective and not based on statements by his employer.[43]I conclude it was reasonably practicable for the Claimant to have submitted his claim about the events in 2016 and 2020 with in the tribunal time limit.[44]As it was reasonably practicable for those claims to be submitted within the relevant time limit, I conclude the Tribunal does not have jurisdiction to deal with them.[45]Was the claim relating to discrimination made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?[46]In line with my conclusions set out at paragraph 36 above, the claims relating to events in 2016 and 2020 were not presented within the relevant time limits. I find that the claims relating to whistleblowing detriment for events in December 2021 all occurred prior and were presented out of time.[47]If not, was there conduct extending over a period? If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?[48]I conclude for the reason set out in paragraphs 38 and 39 above that the claim about the events of 2016 and 2020 can not be considered to be conduct extending of a period when combined with the events of late 2021. However, the events of December 2021 can be considered conduct over a period that concluded with the Claimants dismissal on 21 December 2021. I conclude claims in relation to those events in December 2021 were submitted in time.[49]If not, were the claims made within a further period that the Tribunal thinks is just and equitable?[50]I have found that one of the reasons Mr Masih did not submit a claim was that he wished to resolve the matter internally. In his written submission Mr Masih referred me to the case of Wells Cathedral School Ltd v Souter [2021] 7 WLUK 766 as support of the legal proposition that internal resolution should be encouraged and is a reason for extending time in these types of cases. However, I have found that in Mr Masih’s case the events of 2016 and 2020 were resolved by internal processes but not in a way that was satisfactory to him. The facts relating to those were known to him at the time. I place little weight on this as a factor that would enable me to extend time.[51]I have found Mr Masih’s other reason was his subjective fear of losing his job if he were to make a claim. I place little weight on this factor also because that fear is subjective.[52]The delay in submitting the claim about events in 2016 was significant, and I accept Mr Ilangaratne’s argument that it would now prejudice the Respondent because of difficulties in respect of obtaining evidence and I place significant weight on that in relation to the 2016 events. However, in relation to the events in 2020 that factor is less weighty, but there was still a delay from the time Mr Masih was aware of the facts, so I do place some weight on this as a factor against extending time.[53]I have considered that there would be prejudice against Mr Masih if I do not extend claims as it would prevent a Tribunal from fully examining his allegations and that is a factor on which I have placed weight.[54]In his submissions Mr Ilangaratne asked that I consider the merits of claim when assessing if it is just and equitable to extend time. However, neither party was able to point me to evidence that strongly pointed to a particular conclusion on the merits. I am clear that I am not being asked to make a decision on the merits claims before me and in those circumstances, I conclude this to be a neutral factor.[55]Having considered these factors above I conclude that the weight of the factors against extending time is greater than those for extending time. I conclude it would not be just and equitable to extend time for the claims relating to matters in 2016 and 2020.[57]If the Claimant fails to comply with this order for disclosure, then his claims will stand dismissed in their entirety in accordance with rule 38 of the Rules of Procedure”. 19. The context in which EJ Maxwell made this Order is set out at paragraphs 49 to 51 thereof, which read: “49. Whilst it is not appropriate to strike out today, I do have real concerns about future compliance by the Claimant. The criticism made of the Claimant’s conduct by Ms Akers [counsel for the Respondent] was fair. Much of his default appears to have been deliberate. The Claimant is an intelligent man. He has read the orders made and chosen not to comply because he does not agree with them. Rather than devoting time and effort to providing the particulars ordered, instead he sought to challenge previous rulings of the Tribunal’s jurisdiction and the scope of his claims. When he did provide information, he did not address himself to that which had been ordered or limit this to the period he was permitted to pursue. Notwithstanding it has been made abundantly clear to the Claimant that he can only pursue his complaints about the process followed from December 2021 which resulted in his dismissal, he has sought to provide information about events going back to 2014. He does this, even though his applications for reconsideration and variation have been refused. 50. If the Claimant continues in this fashion, then he risks being struck out in the future for non-compliance or unreasonable conduct. If the Claimant wishes to pursue the claims he has been permitted to, then he must abide by rulings and comply with orders of the Tribunal. 51. Given my concerns about the Claimant’s attitude and the risk of future noncompliance, it is appropriate that I make unless orders with respect to his case preparation obligations”. Correspondence after Hearing on 23 June 20. As pages 126 to 132 show, the Respondent’s solicitors provided documents to the Claimant as ordered. The Claimant requested multiple links from them to upload his documents in return. He was asked how many documents he intended on disclosing, reminded that complaints prior to December 2020 had been struck out and directed to the live list of issues. He replied on 26 July 2023 (pages 127 to 128) referring to (if I have understood him correctly) having previously reported security guards to the Respondent in relation to matters for which (he said) they were not dismissed, whilst he was dismissed for something similar. He added that there were grave health and safety issues from the start of his employment which in his view were not time-barred. 21. On 26 July 2023, the Respondent’s solicitors wrote to the Tribunal (page 126). It was said that the Claimant had provided 178 documents, many going back several years and including a school report. It was asserted that this represented a total disregard of EJ Maxwell’s Order, because it had been clear that the Claimant was to disclose documents relevant to the issues that had been set out by EJs Maxwell and Webb. This was the Conduct Application, seeking to strike out the Claim in its entirety because of failure to comply with EJ Maxwell’s Order and/or because of unreasonable conduct. 22. There was evidently further correspondence from the Respondent’s solicitors on 24 and 25 August 2023, which I have not seen, though in part at least it sought a postponement of the ADR Hearing. This was refused by Regional Employment Judge Findlay, who directed that a letter be sent to the parties on 29 August 2023 (pages 150 to 151). In addition to refusing the postponement application, in part the letter read (emphasis original): “The claimant was directed to send the respondent, by 28 July 2023, copies of any additional documents (other than those already supplied to him by the respondent) which are relevant to the issues listed in the order of Employment Judge Webb dated 21 December 2022 … If the Claimant wishes to rely on the excluded documents, he would have to place them in date order in a file and page number them, provide an index and provide 5 copies to the tribunal hearing the case. The tribunal at the final hearing will decide if any of those documents are admissible, all other directions must be complied with as set out in Judge Maxwell’s order”. 23. In response, on 7 September 2023 (page 152) the Respondent’s solicitors wrote to the Tribunal as follows: “It's the Respondent's position that of the 178 documents lodged as part of the Claimant's disclosure, 127 of those are not relevant to the legal issues to be addressed at the final hearing. The remaining documents are either duplicates of what was already included in the Respondent's bundle, or new relevant documents and therefore, added to the final hearing bundle”. 24. On the same day, in a separate email, the Respondent’s solicitors informed the Tribunal that the case was not ready for the Final Hearing, attributing this to the Claimant’s failure to comply with case management orders (pages 152 to 153). Employment Judge Meichen, 8 September 2023 25. The next Hearing was to be for ADR (by then, DRA) on 8 September 2023, before Employment Judge Meichen and to be held by video. EJ Meichen’s record of that Hearing is at pages 158 to 161. Unfortunately, he was not told until it was too late that the Claimant had attended in person. Neither the Claimant nor EJ Meichen can be criticised for that. Naturally, no dispute resolution discussions could take place, nor could EJ Meichen deal with the Respondent’s strike out application of 26 July 2023.26. He did however make several Case Management Orders for the Final Hearing which was now only ten days away. He noted: “The respondent’s main concern as expressed to me today is that the claimant has disclosed a large number of documents which the respondent considers to be plainly irrelevant, but the claimant is apparently insisting on relying on them, despite guidance from the Tribunal. Helpfully however the respondent has already compiled a bundle of the documents which it disputes (headed “Excluded Documents”). Mrs Amir [for the Respondent] also helpfully explained that the final hearing bundle (i.e., the bundle containing the documents disclosed where relevance is not disputed) is ready to be sent to the claimant”.27. EJ Meichen ordered that there would be two bundles for the Final Hearing, that the Tribunal hearing the case “may decide what to do about the disputed documents bundle” and stated that, “The respondent may raise its application for strike out/non-compliance with unless orders made on 26 July 2023 at the start of the final hearing and the Tribunal hearing the case may decide what to do about that”. In an email to the Tribunal on 11 September 2023 the Claimant said that he had disclosed his school report to demonstrate that he has had a stammer for a long time, so that the Tribunal would not doubt his credibility if he stammered when giving oral evidence.28. On 15 September 2023, the Final Hearing was postponed by the Tribunal at the direction of Employment Judge Flood. It had been due to last for ten days commencing on 18 September 2023. The correspondence on the Tribunal’s file shows that there had been some concerns about whether a judge could be found for the Hearing, but the reason for postponement was stated in the letter to be that it was converted to a public preliminary hearing to deal with the Respondent’s strike out application. Mr O’Dair accepted however that the postponement was not the responsibility of the Claimant. It does not appear that either party requested it. Law29. I make no apology for adopting parts of EJ Maxwell’s summary of the relevant law in relation to unless orders and the striking out of claims for noncompliance with Tribunal orders or unreasonable conduct. I add other references to case law as relevant. Unless orders30. Rule 38 of the Employment Tribunal Rules provides, so far as material: “(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred”.31. Where non-compliance is alleged, the task of the Tribunal is not to revisit the Order or to assess whether there should be relief from the sanction of dismissing the claim or response (or part). Its task is to look at the terms of the unless order itself, look at what has happened and decide whether that complied with the order or not – see Uwhubetine v NHS Commission Board England [2019] UKEAT/0264/18 in which the Employment Appeal Tribunal (“EAT”) said that the test to be applied is whether there has been material non-compliance, that being a qualitative rather than a quantitative test. The EAT added that there is no particular process that must be followed in the event of alleged non-compliance. What matters is whether the Order has been complied with or taken effect. Where there has been non-compliance a written notice must be issued under rule 38 and the party in question be given an opportunity to apply for relief from the sanction of their Claim (in this case) being struck out.32. I would also note the judgment of the EAT in Hamdoun v London General Transport Services Limited and another [2015] UKEAT/0414/14 in which the EAT stated that a “strict approach has to be taken to the automatic effect of a strike-out order. Because it requires no further consideration of a Tribunal before the effect is as stated it will be, in the event of non-compliance, there can be no such automatic termination of a claim for the failure to adhere to the spirit or the intention of an order: the failure is a failure to observe the letter of the order”. Striking out33. So far as material, rule 37 of the Employment Tribunal Rules provides: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds — … (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing”.34. Guidance on strike out orders was given by the Court of Appeal in James v Blockbuster Entertainment Ltd [2006] IRLR 630 CA. The Court said: “The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous and uncooperative in many respects …But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably … it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise wellfounded one, made on the eve or the morning of the hearing”.35. The Court continued, “It is common ground that … striking out must be a proportionate measure … It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 [of the European Convention on Human Rights] that striking out, even if otherwise warranted, must be a proportionate response … The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact, if it is a fact, that the tribunal is ready to try the claims; or as the case may be that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination”.36. Default with respect to Tribunal orders will not automatically result in a strike out therefore, and the Tribunal must consider whether there may still be a fair trial or whether the default in question means that the proceedings cannot be conducted satisfactorily – De Keyser Ltd v Wilson [2001] UKEAT/1438/00, in which the EAT noted the importance of considering the seriousness of the default.37. Mr O’Dair cited two further authorities on these issues, both concerned with applications for relief from the sanction of striking out a claim for failure to comply with an unless order. In Thind v Salvesen Logistics Ltd UKEAT/0487/09 (13 January 2010, unreported) the EAT said in the course of its judgment that there is an important interest in employment tribunals enforcing compliance with unless orders, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible. In Governing Body of St Albans Girls' School v Neary [2010] IRLR 124 the Court of Appeal said that it is well established that a party guilty of deliberate and persistent failure to comply with a court order should expect no mercy. Submissions38. Mr O’Dair said in his written and oral submissions that the task before me was not to consider whether the Claim stands struck out for failure to comply with EJ Maxwell’s Unless Order, but rather to consider whether it should be struck out for unreasonable conduct or because it is no longer possible to have a fair trial. I will return to that below, but note here that as a result his written submissions focused entirely on rule 37. He submitted that whilst it might be said that firm management by the Tribunal as to the relevance of the Claimant’s additional documents and at the Final Hearing generally will allow the case to proceed fairly, the Claimant’s conduct of the disclosure process is another example of unwillingness to accept the Tribunal’s rulings.39. He also submitted, by reference to the overriding objective at rule 2 of the Employment Tribunal Rules, that the Final Hearing is likely to be disproportionately long, that the only documents truly relevant are small in number (pages 218 to 289) and yet the case has been listed for ten days. He says it is likely to be extremely slow-moving and to include repeated attempts by the Claimant to litigate irrelevant matters, reminding me that a fair trial is one which can be fairly conducted without disproportionate expenditure of time and resources both on the part of the Tribunal and of the other party (here the Respondent). In oral submissions, Mr O’Dair drew attention to paragraph 7 of the document submitted by the Claimant just before this Hearing in which the Claimant said, that the Respondent “has no defence as to prevent [the] Tribunal’s consideration of evidences relating to the full tenure of Claimants employment”. He submitted that the firm hand taken by the Tribunal to date has not worked.40. The Claimant gave his submissions by my putting to him each of Mr O’Dair’s main points and seeking his response. He said that Baroness McGregor-Smith’s report is relevant because, as the Respondent’s former CEO, she is best able to give a view on its culture. As to documents related to the competence of some of his former colleagues, he said that they were relevant to his alleged protected disclosures. He also said they were relevant to the fairness of his dismissal in the way I have indicated above, namely that the Respondent had behaved inconsistently in dismissing him when it had not dismissed those colleagues and/or when he had repeatedly raised concerns about colleagues with the Respondent’s client in the past without the Respondent taking any action against him. He did not think that ten days would be sufficient for the Final Hearing. He was prepared to accept, after being asked more than once, that it will be for the Tribunal panel at the Final Hearing to determine what is relevant documentary or other evidential material. Conclusions41. Notwithstanding the position taken by Mr O’Dair, it is right that I begin with the question of whether the Claimant has failed to comply with EJ Maxwell’s Unless Order related to provision of documents, such that a notice should be issued under rule 38. If he has failed to do so, partially or otherwise, the Claim stands struck out. That is how unless orders work.42. I can deal with this point briefly. What the letter of the Order required was that by the specified date the Claimant send to the Respondent any other documents (that is, other than those the Respondent had sent to him) relevant to the issues as set out by EJ Webb, or otherwise inform the Respondent that there were no such documents. Based on what I have been told, it is clear that the Claimant sent the Respondent what he had that was relevant. The Respondent itself accepts that, telling the Tribunal in terms on 7 September 2023 that the Claimant had sent it some new relevant documents which would be added to the bundle.43. What I have to consider is whether, as the Respondent says, the Claimant failed to comply with the Order because he also sent some possibly irrelevant documents together with, it must be said, some obviously irrelevant documents, such as the Baroness McGregor-Smith review of racism in the workplace. For completeness, I should also consider whether sending the Respondent some documents it had already sent to him constituted non-compliance with the Order, though I add that this was not something contended for by Mr O’Dair.44. I am in no doubt that, as unnecessary and unhelpful as it may have been (at least in part), the Claimant did not fail to comply with EJ Maxwell’s Order by doing either of those things. What the Order required was for him to send the Respondent relevant documents and the warning part of what EJ Maxwell said was that if he “failed to comply with this order for disclosure” his Claim would be dismissed. The Order was therefore an order to make disclosure. It did not say – and I make clear that I would not have expected it to unless the matter had been specifically canvassed with EJ Maxwell by the Respondent – that if the Claimant sent irrelevant or duplicate documents his Claim would be stand dismissed, or any such wording. The Order was to send relevant documents. As I have said, the Claimant did not fail to do so. He did not fail therefore to comply with the letter of the Order. His Claim does not stand dismissed for failure to comply with it.45. I turn to the separate question of whether the Claim should be struck out because by disclosing the additional documents, combined with his earlier conduct of the case, the Claimant has conducted the proceedings unreasonably. Essentially, I have to consider first whether he has conducted the proceedings unreasonably and if so, secondly, whether a fair trial is still possible, taking account of any prejudice occasioned to the Respondent by any such conduct.46. I have recorded the history of the case to date above. What can be extracted from that is that the Claimant failed to comply with the Order for particularisation of his Claim (EJ Maxwell said he ignored it, so that this was in effect deliberate), then provided particulars beyond what was permitted. I do not go behind or beyond what EJ Maxwell said about this, namely that “if the Claimant continues in this fashion, then he risks being struck out in the future for non-compliance or unreasonable conduct”. Clearly implicit in that comment was a conclusion that the Claimant had not yet reached that threshold. He has now provided to the Respondent documents over and above what is going to be relevant for the Tribunal to consider. The decision for me therefore is whether that takes the Claimant over that threshold into unreasonable conduct of the case.47. Whilst like EJ Maxwell I have some concerns about the Claimant’s conduct, which I will return to below, in my judgment the way in which he disclosed documents falls short of rendering his conduct of the case unreasonable up to this point. The Court of Appeal in Blockbuster described unreasonable conduct as deliberate and persistent disregard of required procedural steps, which was also the wording used in Neary. I do not think we have reached that point. As I have said, the Claimant complied with EJ Maxwell’s Unless Order. The Respondent’s complaint is that he went beyond it. I do not think that the way in (and the extent to which) he did so can be described as deliberate disregard of the required procedural step, with the possible exception of his persistence in seeking to rely on Baroness McGregor-Smith’s report.48. I have noted what EJ Maxwell said about the Claimant being an intelligent man and that EJ Camp explained for the Claimant the irrelevance of some of the matters he referred to in the document attached to the Claim Form, including the McGregor-Smith report. I also have to take into account however the fact that he is not legally represented, the difficulty many litigants-in-person have in appreciating the difference between the task of pleading their case and the task of producing evidence to support it, and the misunderstanding that often arises as to what evidence will or will not be deemed relevant. Baroness McGregorSmith’s report is publicly available, but I have not seen the other disputed documents. I have however have been shown an index of them. Based on that index, some of the documents could relate to the way in which other security staff were treated in relation to matters similar to that which led to the Claimant’s dismissal and/or they may relate to similar ways in which the Claimant had previously conducted himself which had not led to his own dismissal. In other words, they may be relevant to the question of consistency of treatment. As to the school report, whilst it is highly unlikely to be relevant, the Claimant has provided an explanation of why it was disclosed which is understandable coming from a litigant-in-person.49. In this context, the disclosure of one obviously irrelevant document – the McGregor-Smith report – and the disclosure of some other documents which may not be relevant is not sufficient to take the Claimant over the threshold of what constitutes unreasonable conduct. It would in any event plainly be disproportionate to strike out the Claim, given that it is clear that it is still – at this stage – possible to have a fair trial. I note the following: 49.1. Whilst as I say, I have not seen the disputed documents themselves, I can see from the index that they run to 326 pages. Baroness McGregor-Smith’s report takes up almost 100 of those pages. EJ Camp has already said that the report will not be considered at the Final Hearing, and so unless the Claimant can identify a material change in circumstances which means EJ Camp’s decision in that regard should be reviewed, neither the Respondent nor the Tribunal will have to pay any attention to it. To avoid any doubt, I record that I agree wholeheartedly with EJ Camp. I cannot see how a report on workplace racism in the United Kingdom generally has anything of relevance to say in relation to this case, regardless of the author’s previous association with the Respondent. 49.2. I do not say that the balance of the disputed documents is negligible, but I cannot see how it materially prejudices this large employer Respondent, professionally represented as it is, to have to review this material and reach a conclusion as to whether any of it needs to be addressed. In fact, it seems clear that it has already determined it can be ignored. 49.3. I cannot ignore either that how the documents should be dealt with has already been addressed by the Regional Employment Judge and EJ Meichen, namely by the compilation of a separate bundle. That is what has been done. 49.4. Preparations for the Final Hearing appear to be concluded, so that the case is ready to be heard. We are effectively therefore in an analogous position to that in Blockbuster, such that striking out would be an exceptional step at this stage. What is really put in issue by the Respondent is the conduct of that Final Hearing and its length. 49.5. It will be for the Tribunal panel at the Final Hearing to determine what is relevant evidence and what is not. If the Claimant refers to documents in the disputed material, the panel can make clear whether it will have any regard to it. In my estimation, that is not likely to add materially to the length of the Final Hearing. 49.5. In any event, as the Employment Tribunal Rules empower it to do, the panel can timetable how long parties will have to question witnesses, to give their own evidence and to make submissions. This will include directing the Claimant, or indeed any witness, away from points that the panel is not interested in hearing about. 49.6. If the Claimant refuses to co-operate with the panel in the ways indicated above, the power to warn him of the possibility of striking out his Claim, and then to do so if he persists, remains an option for the Tribunal throughout the Final Hearing, subject of course to proper consideration of lesser sanctions and alternative options. 49.7. The case is not yet re-listed for the Final Hearing. I will re-list it at the next Hearing for what I deem to be the required length, having heard both parties on the point, based on the material I have seen and in particular the list of issues as defined by EJs Webb and Maxwell.50. The Respondent’s application is therefore refused. In summary, I am not satisfied that up to this point, the Claimant’s conduct of the case has crossed the line to become what could properly be regarded as unreasonable and even if it had, it would plainly be disproportionate to strike him out. Next steps51. Notwithstanding that conclusion, I repeat what EJ Maxwell stated to the Claimant, namely that he will be at risk of another such application, and at risk of it being granted, if in the lead-up to the Final Hearing (including at the next Hearing before me) and/or at the Final Hearing itself he refuses to properly consider and accept or otherwise disregards what he is directed or required to do by the Tribunal. In concluding this Judgment, I draw his attention to the following: 51.1. For the reasons already given, the report of Baroness McGregor-Smith will not be considered by the Tribunal at the Final Hearing. It is not relevant to the Claimant’s complaints. 51.2. It will not be acceptable for him to insist on reciting parts of his employment history if the Tribunal panel at the Final Hearing makes clear that it is not relevant to the issues it has to decide. 50.3. It is not and will not be satisfactory for him to simply say that everything is in his chronology. He must understand what his complaints are and what issues (or questions) the Tribunal at the Final Hearing will have to decide. The list of issues in relation to unfair dismissal and protected disclosure detriment are at paragraph 58, sections 1.1 to 5.12 of EJ Webb’s decision at pages 88 to 91, and in relation to his complaints of race discrimination they are at paragraph 43 of EJ Maxwell’s decision at page 121. It is those issues to which all evidence given at the Final Hearing – including the Claimant’s – must be directed. 52. The question of the Respondent’s application to strike out the Claim in its entirety on the basis that key elements of it have no reasonable prospect of success will be considered at the resumption of this Hearing, as separately notified to the parties. Note: This was in part a remote hearing. The Claimant attended at the Tribunal Hearing Centre and the Respondent remotely. The parties did not object to the case being heard in part remotely. The form of remote hearing was video.
Background
[1]These Reasons are provided at the request of the Claimant, made immediately following oral judgment and reasons being given on 2 November 2023.[2]Following the Hearing on 28 September 2023, by a Judgment with Reasons dated 13 October 2023 I determined that the Claimant’s Claim did not stand struck out for failure to comply with an unless order, and I refused the Respondent’s application to strike out the Claim for non-compliance with Tribunal Orders.[3]On 27 September 2023, the Respondent’s solicitors had submitted a further application, this one to strike out certain parts of the Claimant’s complaints on the basis that they have no reasonable prospect of success, the effect of which the Respondent said would be to dispose of the whole Claim, alternatively for deposit orders on the basis that the same parts of the Claimant’s complaints have little reasonable prospect of success.[4]There having been insufficient time to deal in full with this second application on 28 September 2023, I resumed hearing it on 2 November. I set out in the last Judgment and Reasons the reading I undertook on 28 September. Prior to resuming on 2 November, I read in addition the Claimant’s chronology and his summary of the same, running to 26 pages, which it appears stands as his witness statement. I did not read the Respondent’s witness statements, though the Claimant clearly had read them and made submissions about them accordingly. I made clear that it was for the parties to take me to any material additional to that which I told them I had read, if they wanted me to have regard to it in reaching my decisions.[5]As set out in my previous Judgment and Reasons, the Respondent’s application identified eight separate grounds for striking out or deposit orders, which were set out in some detail in Mr O’Dair’s skeleton argument. My approach was to take each in turn, first discussing it with Mr O’Dair to ensure I understood the Respondent’s application, secondly explaining the grounds of the application to the Claimant, and thirdly eliciting his response.[6]The same bundle of documents was used on both days of this Hearing. Page references below relate to pages in that bundle. On 2 November I also heard evidence about the Claimant’s financial means, but given that I decided not to make any deposit orders, I do not need to record that evidence here. Complaints and issues[7]The Claimant’s complaints, and the issues the Tribunal would have to decide in order to determine them, had been clearly identified by Employment Judges Webb and Maxwell at previous Case Management Hearings referred to in my earlier Judgment – pages 88 to 91 and page 121. Those complaints and issues, in relation to liability, are as follows. Protected disclosures[8]The Claimant’s case is that he made three protected disclosures. He relies on the following: 8.1. An email dated 30 November 2021 to EMR (the Respondent’s client, at whose site he was working), copied to the Respondent. 8.2. An email dated 13 December 2021 to the Respondent’s Chief Executive, Phil Bentley. 8.3. A video sent to Mr Bentley on 23 December 2021.[9]The Tribunal at the Final Hearing would be required to decide: 9.1. Did the Claimant disclose information? 9.2. If so, did he believe that the disclosure was made in the public interest and was that belief reasonable? 9.3. If so, did he believe that the information disclosed tended to show that the Respondent had failed, was failing or was likely to fail to comply with any legal obligation, alternatively that an individual’s health and safety had been, was being or was likely to be endangered? I note that the Case Management Summary of EJ Webb only refers to compliance with a legal obligation, but it is plain from discussing the matter with the Claimant that he also relied on the endangerment of health and safety, without in any sense changing the factual basis of the disclosures. Mr O’Dair sensibly did not raise any issue about this point.[10]If the Tribunal at the Final Hearing answered the above questions in the affirmative, the Claimant would have made a qualifying disclosure and the Tribunal would then have to decide whether it was protected. The last two alleged disclosures were made to the Respondent. The first was made to its client and to the Respondent. Again, that is not mentioned in EJ Webb’s Case Management Summary, but both parties addressed the point in their submissions to me. I return to it in my conclusions below. Detriment[11]If the Claimant made protected disclosures, the Tribunal would then consider his detriment complaints. Although for reasons which will become clear below, I did not need to address the alleged detriments at all, I record them and the issues the Tribunal would have to decide in relation to them, for completeness.[12]The Claimant relies on the Respondent having done the following things: 12.1. In December 2021, by the Claimant’s line manager, Mr H Bajwa, suspending him and subjecting him to a disciplinary process. 12.2. The negative outcome of his appeal against dismissal, set out in a letter of 14 January 2022, in particular the alleged fact that there was no consideration of the grievance or questions he had submitted on, respectively, 13 and 18 December 2021.[13]The Tribunal would have to decide whether the Respondent thereby subjected the Claimant to a detriment.[14]If so, the next question would whether that was done on the ground that the Claimant made a protected disclosure. Unfair dismissal[15]The Tribunal will first decide whether the reason or principal reason for the Claimant’s dismissal was that he made a protected disclosure. If it was, he will be regarded as having been unfairly dismissed.[16]If that was not the reason or principal reason for dismissal, the Tribunal will decide what the reason or principal reason was. The Respondent says the reason was conduct.[17]If the Respondent shows that the reason was the Claimant’s conduct, that would be a fair reason for dismissal. The Tribunal would then determine whether the Respondent acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant, including determining whether: 17.1. The Respondent genuinely believed the Claimant had committed misconduct. 17.2. There were reasonable grounds for that belief. 17.3. At the time the belief was formed the Respondent had carried out a reasonable investigation. 17.4. The Respondent otherwise acted in a procedurally fair manner. 17.5. Dismissal was within the range of reasonable responses. Race discrimination[18]As set out by EJ Maxwell, the Tribunal would first be required to decide whether the Respondent did the following things: 18.1. In December 2021, by Mr Bajwa, suspend the Claimant and subject him to a disciplinary process. 18.2. By Hayley Kirkman of Human Resources, concoct (i.e., fabricate) evidence against the Claimant, namely an email from Mr Bajwa to a Ms Delaney of EMR dated 30 November 2021 and an email sent by Delroy Ifill (the Claimant’s colleague) to Mr Bajwa on 11 December 2021. 18.3. By Sarah Saxelby also of Human Resources, on 22 December 2021, “call the shots” (i.e., tell the dismissing officer, Mr Shah what do) and withhold vital evidence from the minutes of the hearing by which the Claimant was dismissed. 18.4. By Mr Shah, dismiss the Claimant. 18.5. Provide a negative outcome to his appeal against dismissal, set out in a letter of 14 January 2022, in particular not considering the grievance or questions the Claimant had submitted on, respectively, 13 and 18 December 2021.[19]The Tribunal would then be required to decide whether that was less favourable treatment.[20]If it was, the final question would be whether that was because of race. Hearing the Respondent’s applications[21]During the Hearing on 28 September 2023 and by a subsequent Case Management Order, I raised with the Respondent whether I should hear its applications at all. This was on the basis that it had made an application for deposit orders on the ground that the complaints had little reasonable prospect of success previously and that application had been refused by EJ Webb on 21 December 2022.[22]If a judge decides that a complaint cannot be said to have little reasonable prospect of success, that necessarily entails that it cannot be said to have no reasonable prospect of success either. Accordingly, where an application for a deposit order has been refused, a party cannot apply to strike out a complaint on the same basis, because of issue estoppel, or because an Order has been made that cannot be revisited (given that there was no appeal against EJ Webb’s decision) absent a material change of circumstances, or because it would be contrary to the overriding objective. See Liverpool Heart and Chest Hospital NHS Foundation Trust v Poullis [2022] EAT 9 in relation to material changes of circumstances.[23]EJ Webb was not requested to provide written reasons for the decision rejecting the application. It was therefore crucial for me to know from the Respondent the basis on which EJ Webb’s decisions were reached – in other words, on what grounds the Respondent made its application for deposit orders on that occasion and what materials were before EJ Webb when the application was rejected. In response to my Case Management Orders to that effect, the Respondent provided a further skeleton argument from Mr O’Dair, Instructions to Counsel (not Mr O’Dair) for the Hearing before EJ Webb in December 2022 and the bundle of documents submitted for that Hearing. It also purported to provide Counsel’s attendance note from that Hearing but, as I indicated, I was unable to open it.[24]As I indicated at the outset of the resumption of this Hearing on 2 November, I was satisfied based on this new material that it was in order for me to hear the Respondent’s applications, though I made clear that this was subject to anything the Claimant may wish to submit to the contrary. This was because: 24.1. Counsel attending on 21 December 2022 had confirmed that the basis of the Respondent’s application on that occasion was jurisdictional, related to time limits, and the additional point that the complaints were vague and poorly particularised. 24.2. It seems clear that none of the contemporaneous documents on which the Respondent now relies were before EJ Webb – pages 240 to 329 of the bundle before me. 24.3. In relation to the race discrimination complaints, these were made subject to the requirement for further particulars, which were only finally clarified at the later hearing before EJ Maxwell, so that there can have been no application in relation to them. 24.4. I was satisfied in any event that the mutual disclosure of documents and exchange of witness statements since EJ Webb’s decision was a material change of circumstances.[25]Whilst of course the Claimant opposed the Respondent’s applications substantively, he did not offer any reason why I should not hear them. Specifically, he did not suggest that the Respondent’s account of the Hearing before EJ Webb was in any way inaccurate. I thus proceeded to conclude my consideration of the Respondent’s applications on 2 November, having begun that process on 28 September. The law Striking out
The law
[26]The possibility of striking out Tribunal complaints is provided for by rule 37(1)(a) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”). In Eszias v North Glamorgan NHS Trust [2007] EWCA Civ. 330, the Court of Appeal dealt with an appeal against the strike out of a claim that a dismissal was automatically unfair because the reason for it was that the employee had made protected disclosures. At paragraph 4, Maurice Kay LJ stated that a tribunal “should be alert to provide protection in the face of an application that has little or no reasonable prospect of success but it must also exercise appropriate caution before making an order that will prevent an employee from proceeding to trial in a case which on the face of the papers involves serious and sensitive issues”. At paragraph 26 he reflected on what is meant by “reasonable prospect of success” and stated that it requires “a realistic as opposed to merely fanciful prospect of success”. At paragraph 29 he went on to say, “It would only be in an exceptional case that an application ... will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts as sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”. He then referred to the decision in Anyanwu (see below) and advocated an approach which recognises the importance of hearing full evidence – which would include oral evidence – before making decisions as to merits.[27]In Anyanwu v South Bank Student Union [2001] ICR 391 the House of Lords (Lord Steyn) underlined in relation to discrimination cases “the importance of not striking out such claims as an abuse of process except in the most obvious and plainest cases”, going on to state that “discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of the claim being examined on the merits or de-merits of its particular facts is a matter of high public interest”. Similar sentiments were expressed by Lord Hope of Craighead: “discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence ... The risk of injustice is minimised if the answers to [questions of law] are deferred until all the facts are out”.[28]This approach was reiterated by the Employment Appeal Tribunal (“EAT”) in a discrimination case, Zeb v Xerox (UK) Ltd and others [2016] UKEAT/0091/15, in which Simler P said that the strike-out power “has rightly been described as a draconian one, and case law cautions Employment Tribunals against striking out a claim in all but the clearest cases, particularly where that claim involves or might involve allegations of discrimination”. It has also been reiterated by the EAT in an automatically unfair dismissal case, Morgan v Royal Mencap Society [2016] UKEAT/0272/15 – “where there is a dispute of fact, unless there are very strong reasons for concluding that the claimant’s view of the facts is simply unsustainable, a resolution of that conflict of fact is likely to be required before the case can be dismissed without a hearing”.[29]In light of these authorities, the power to strike out discrimination complaints in particular should be exercised very carefully. Establishing “no reasonable prospect of success” is a high threshold for a respondent to get over. A preliminary hearing should not involve the conduct of a mini-trial, hearing evidence and resolving factual disputes. Rather, the approach to be taken is to assume that the Claimant’s case is established at its highest, unless for example there are contemporaneous documents of the sort referred to in Eszias which the Claimant could not reasonably hope to contradict at a Final Hearing. As the EAT put it in Bahad v HSBC Bank plc [2022] EAT 83, to strike out a claim the employment judge must be confident that at trial, after all the evidence has come out, it is almost certain to fail, so it genuinely can be said to have no reasonable prospects of success at a preliminary stage, even though disclosure has not taken place and no witnesses have given evidence.[30]All of that said, the Court of Appeal said in Ahir v British Airways plc [2017] EWCA Civ 1392 that employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. It said, “in a case of this kind, where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced”.[31]Two further points should be noted. First, the EAT in Malik v Birmingham City Council and another [2019] UKEAT/0027/19 cautioned tribunals about the potential dangers of expecting litigants in person to explain their case under the pressure of questioning at the preliminary stage. Secondly, it is important for a tribunal not to proceed straight from holding that a complaint has no reasonable prospect of success to striking it out. If the threshold is reached, it must consider whether to exercise its discretion to do so. Deposit orders[32]Rule 39 of the Rules of Procedure provides an alternative to striking out complaints, and states “Where at a preliminary hearing ... the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ... to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”. If the deposit is not paid by the required date, the complaint is struck out. If it is paid, and then the Tribunal – usually at the final hearing – finds against a claimant for substantially the reason given in the deposit order, the claimant is treated as having acted unreasonably in pursuing it, unless the contrary is shown, and the deposit is paid to the other party. Otherwise, it is refunded.[33]In deciding whether to make a deposit order, as well as considering legal difficulties with a claimant’s case the Tribunal may consider the likelihood of a party being able to establish the essential facts on which they rely, thereby forming a provisional view of the strength of the case. Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14 makes clear that separate deposit orders can be made in respect of various arguments or allegations in a particular case. This is subject to an overall assessment of the proportionality of the total sum, given the requirement in rule 39 to have regard to the financial means of the person paying the deposit(s) before such an order is made. In Hemdan v Ishmail [2017] IRLR 228, Simler P described the purpose of rule 39 as being to identify complaints with little reasonable prospect of success and discourage their pursuit by requiring a sum to be paid and creating a risk of costs if the complaint is nevertheless pursued but fails on the ground identified in the deposit order. The purpose is “emphatically not” however to “make it difficult to access justice or to effect a strike out through the back door”. In other words, the deposit order must be one which the claimant can comply with.[34]I should say a little about the substantive law in relation to each part of the Claimant’s case which was the subject of the Respondent’s applications. I do not need to say anything about the law in relation to protected disclosure detriments as in respect of those complaints the Respondent’s application was based on striking out or obtaining deposit orders in relation to the Claimant’s case that he made protected disclosures. Protected disclosures[35]Section 43A of the Employment Rights Act 1996 (“ERA”) defines a “protected disclosure” as a qualifying disclosure made by a worker in accordance with one of sections 43C to 43H. Section 43B then defines what counts as a “qualifying disclosure”. For the purposes of this case, this is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; (d) that the health or safety of any individual has been, is being or is likely to be endangered.[36]A “qualifying disclosure” requires first of all a disclosure of information by the worker. Once a tribunal is satisfied that information has been disclosed, the next question is whether the two remaining requirements of section 43B set out above are satisfied. The first such requirement is whether the Claimant reasonably believed that the disclosure of the information was in the public interest. The second requirement is whether the Claimant reasonably believed that the information he disclosed tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation, or reasonably believed that the information he disclosed tended to show that the health and safety of any individual had been, was being or was likely to be endangered.[37]On the first of these requirements, as made clear in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2018] IRLR 837, the test is whether the Claimant reasonably believed that his disclosure(s) were in the public interest, not whether they were in fact (in the Tribunal’s view for example) in the public interest. The worker must actually believe that the disclosure is in the public interest and the worker's belief that the disclosure was made in the public interest must have been objectively reasonable. Why the worker makes the disclosure is not of the essence, and the public interest does not have to be the predominant motive in making it. Tribunals might consider the number of people whose interests a disclosure served, the nature of the interests affected, the extent to which they were affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed and the identity of the alleged wrongdoer.[38]The second of these requirements is assessed very similarly. In order for the Claimant to demonstrate that he reasonably believed the information he disclosed tended to show (for example) that health and safety was endangered, it is not necessary that this actually be true, although of course the factual accuracy of what is disclosed may be relevant and useful in assessing whether he reasonably believed that what he said tended to show that health and safety was endangered. This is a question of fact for the Tribunal, looking at the Claimant’s state of mind at the time he made the disclosures.[39]A “qualifying disclosure” is a protected disclosure if made in accordance with one of sections 43C to 43H of the ERA. Section 43C applies if a qualifying disclosure is made (a) to the worker’s employer. Section 43C(2) provides that, “A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer”.[40]Section 43G protects a qualifying disclosure if the worker reasonably believes the information disclosed, and any allegation contained in it, are substantially true; he does not make the disclosure for personal gain; one of the conditions in subsection (2) is met; and in all the circumstances of the case, it is reasonable for him to make the disclosure. As to subsection (2), for the first alleged disclosure, made to EMR as well as the Respondent, the Claimant relies on section 43G(2)(b), namely that he reasonably believed that it was likely evidence relating to the relevant failure would be concealed or destroyed if he made a disclosure to his employer. Unfair dismissal[41]Under Section 98(1) ERA, it is for the employer to show the reason, or if more than one, the principal reason for the dismissal. The question to be considered is what reason the Respondent relied upon. The case of Abernethy v Mott, Hay and Anderson [1974] IRLR 2013 is long-established authority to the effect that the reason for dismissal is “a set of facts known to the employer or as it may be of beliefs held by him, which cause him to dismiss the employee”. That case also made clear that the reason given by an employer does not necessarily constitute the real reason for dismissal. The reason or principal reason is to be determined by assessing the facts and beliefs which operated on the minds of the decisionmakers.[42]The Court of Appeal in Kuzel v Roche Products [2008] ICR 799 (approving in this respect the earlier decision of the EAT) said that the questions tribunals must answer in relation to a dismissal said to be automatically unfair because the reason or principal reason for it was a protected disclosure are: 42.1. Whether the Claimant has shown a real issue as to whether the reason put forward by the Respondent was not the true reason for dismissal. 42.2. If so, whether the Respondent has proven the reason for dismissal. 42.3. If not, whether it has disproved that the Claimant having made a protected disclosure was the reason or principal reason for dismissal.[43]If the Respondent shows the reason (or disproves that the protected disclosure was the reason) and establishes that the reason was one falling within section 98, the Tribunal must then go on to consider section 98(4) ERA in order to determine whether the dismissal was fair. In assessing these requirements in connection with a purported conduct dismissal, the Tribunal will of course have regard to the guidelines in British Home Stores v Burchell [1980] ICR 303 as to whether the Respondent believed the Claimant to be guilty of misconduct (on the basis of a reasonable suspicion), had reasonable grounds to sustain that belief, and when forming that belief had carried out a reasonable investigation in the circumstances. Race discrimination[44]Section 136 of the Equality Act 2010 (“the Act”) sets out the burden of proof provisions for discrimination complaints. That section and related case law makes clear that it is for the Claimant to prove a prima facie case at a final hearing. At the first stage, the tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them.[45]Direct discrimination is defined by section 13 of the Act. In short, there must be a detriment (or dismissal), amounting to less favourable treatment than was or would be afforded to others in not materially different circumstances (section 23 of the Act), because of race. A difference in race and in treatment is not sufficient – Madarassy v Nomura International plc [2007] IRLR 246; there must be something more, though this “need not be a great deal” – Deman v The Commission for Equality and Human Rights and others [2010] EWCA Civ. 1279.[46]The crucial question in a discrimination case is the reason why the alleged discriminator acted as they did. As Mr O’Dair pointed out, the EAT in Alcedo Orange Ltd v Ferridge-Gunn [2023] EAT 78, relying on the Court of Appeal’s decision in Reynolds v CLFIS (UK) Ltd [2015] ICR 1010, made clear that the individual who did the act complained of must themselves have been motivated by the protected characteristic (here, race).[47]In determining why the alleged discriminator acted as they did, the Tribunal does not have to be satisfied that the protected characteristic was the only or main reason for the treatment. It is enough for the protected characteristic to be significant in the sense of being more than trivial (Nagarajan v London Regional Transport [1999] IRLR 572). Unreasonable behaviour of itself is not evidence of discrimination – Bahl v The Law Society [2004] IRLR 799 – though the Court of Appeal said in Anya v University of Oxford and anor [2001] ICR 847 that it may be evidence supporting an inference of discrimination if there is nothing else to explain it. Submissions and conclusions[48]This was an unusual case in that all the documents had been disclosed and witness statements had been exchanged prior to this Hearing. This was because the Final Hearing had been postponed by the Tribunal, apparently due to the unavailability of a judge, after the parties had completed all of the preparations for it. Whilst as indicated in the summary of the law, it is important not to conduct a mini-trial at the preliminary hearing stage, the particular situation in this case meant that each party had the other’s evidence available to them in full, except of course for any oral evidence.[49]I deal now in turn with each of the Respondent’s applications, summarising the parties’ submissions in relation to each and setting out my conclusions. I list each issue using the wording adopted in Mr O’Dair’s skeleton argument and also using the order he adopted. Issue 1: Was the email sent by the Claimant to EMR, copied to the Respondent, on 30 November 2021 a protected disclosure?[50]The email in question is at pages 245 to 248. Its focus was very much the alleged aggressive behaviour and incompetence of one of the Claimant’s colleagues who was working as a security guard, but it also raised in detail, as context to those complaints, that the colleague had improperly obtained a master key to several of the client’s sites. It is the disclosure of that matter which is the heart of the alleged protected disclosure. The email also referred to the Claimant’s colleague leaving his post early.[51]The Claimant clearly has reasonable prospects of showing that he disclosed information in this email, even if the Tribunal confines its consideration to the point about the master key. What the Respondent says is that he will not be able to show that he had either of the required reasonable beliefs referred to in my summary of the law, including because he did not allege in the email itself that what he said involved matters of public interest.[52]Of course, employment tribunals will always have regard to what was written in any alleged protected disclosure at the time, but it is not necessary to qualify for protection under the ERA that a worker say it is a disclosure in the public interest or even to refer to that interest. The Claimant says he reasonably believed the information about his colleague having the master key tended to show a danger to health and safety and that disclosing this was in the public interest because the colleague was under investigation in relation to fires, was unstable (the Claimant alluded to that in the email) and could have caused a major incident at any of the sites in question.[53]As already noted, raising those issues does not have to have been the main focus of the email, or even the main intention in sending it, in order for it to be a qualifying disclosure. At this preliminary stage, I must also take into account that a full analysis of the Claimant’s beliefs, what they were based on and whether they were reasonable would require oral evidence to be elicited, so that the Tribunal could make relevant findings of fact. What can be said at this point is that the Claimant expressed concern in the email about the security implications of his colleague having a master key and leaving his post early, in relation to the latter referring to who would be blamed in the event of a fire breaking out. Taking those details into account and putting his case at its highest, I cannot say he has little or no reasonable prospect of persuading the Tribunal at the Final Hearing that he reasonably believed there was a risk to health and safety and that disclosing the colleague’s conduct was in the public interest, given the potential impact on doubtless multiple individual occupants of the client’s sites and other sites nearby them. As I have indicated, it will be for the Tribunal at the Final Hearing to decide (based on more detailed evidence, including oral evidence) whether the Claimant had these things, or other things unrelated to the public interest and health and safety in mind at the time, and the effects on the status of the alleged disclosure if he did not. I do not say therefore that he will establish that this email was a qualifying disclosure, but the burden is on the Respondent to show that he has no or little reasonable prospect of doing so, and I am not satisfied that it has, when the Claimant’s case is understood at its best.[54]As to whether he has little or no reasonable prospect of showing that this disclosure was protected if it was qualifying, as the Respondent says, it was sent to the Respondent’s client and not only to the Respondent. Mr O’Dair submitted that the Claimant has advanced no case for why it was appropriate to inform EMR of the matters referred to in the email. Having heard the Claimant’s reply to that however, I cannot say there is little or no reasonable prospect of him showing that his sending the email to the client meant that any qualifying disclosure within it was not protected, particularly where the Claimant says (putting his case at its best) that he was instructed to report matters of concern to the client first – see section 43C(2) ERA.[55]As set out above, the Claimant relies alternatively on section 43G(2)(b) because he says two serious misconduct issues related to other security guards had been disclosed before and the Respondent had not acted upon them. In other words, he says he reasonably believed that evidence relating to what he disclosed on 30 November would be concealed by the Respondent if it was the only recipient of the email. Putting his case at its highest as I must, and without any documentation flatly contradicting his contentions in either respect, I cannot say he has little or no reasonable prospect of showing that any qualifying disclosure was also a protected disclosure. Taking what he says at face value, he has more than little reasonable prospect of showing that section 43C(2) or section 43G applied. Issue 2 Was the email sent to the Respondent’s CEO on 13 December 2021 a protected disclosure?[56]This email is at pages 282 to 285. There is of course no issue in terms of who it was sent to. What the Respondent says is that it was just a recitation of the Claimant’s personal grievances, so that again he has no or little reasonable prospect of establishing the required reasonable beliefs.[57]The Respondent is correct in saying that the email included the Claimant’s assertion of racism and set out a grievance against two colleagues, including his manager, Mr H Bajwa, asserting the latter’s incompetence. He again referred to the client site being put at risk as a result, detailed his own qualifications and expertise. He then referenced what he had reported on 30 November. The rest of the email was the Claimant’s attempt to say why disciplinary allegations which had been brought against him by this point were unfounded, before he then referred to what seem to me to have been historic issues.[58]My discussion with the Claimant elicited that it is the alleged risks to the client’s site (or sites) on which he relies for these purposes. Essentially, the reference to and repetition of what he said in the 30 November email leads me to the same conclusion as I have reached in relation to Issue 1. As with the first alleged protected disclosure, it seems to me that the Claimant has a sensible basis for arguing that he disclosed information related to the colleague with the master key. As to whether he believed and reasonably believed that this tended to show a danger to health and safety and that disclosing it was in the public interest, again this does not have to have been the Claimant’s main motivation in sending the email. For the reasons given above in relation to Issue 1, putting the Claimant’s case at its best, I cannot say he has no or little reasonable prospect of persuading the Tribunal at the Final Hearing that this second email was also protected. I do not say he will establish that, but at the preliminary stage I do not see sufficient grounds for striking out his case in this regard or making it the subject of a deposit order. Issue 3: Was the video sent to the Respondent’s CEO on 23 December 2021 a protected disclosure?[59]The video is said to show one of the Claimant’s security guard colleagues asleep on duty. The Respondent has not asked me to consider the Claimant’s prospects of showing that this was a disclosure of information and so I say no more about that. The focus of the Respondent’s applications is the Claimant’s prospects of showing that he reasonably believed the disclosure of the video to be in the public interest.[60]What the Claimant said to me is that the video showed people being deployed on dangerous sites inappropriately. I cannot say that this was in the Claimant’s mind without his giving oral evidence and without other contextual evidence being considered to which I was not referred. Taking what the Claimant says on face value however, it is plain that he has better than little or no reasonable prospect of showing that he reasonably believed the information in the video tended to show a risk to health and safety – it can be sensibly argued that part of a security guard’s job is to protect the health and safety of individuals on the site in question.[61]As to the Claimant’s belief that disclosing this was in the public interest, and the reasonableness of any such belief, he said to me that the Respondent has major contracts at many sites nationwide. Again, it will be for the Tribunal at the Final Hearing to decide (based on more detailed evidence, including oral evidence) whether the Claimant had these things (or other things unrelated to the public interest) in mind at the time, whether he had a reasonable basis for the same, and the effects on the status of the alleged disclosure if he did not. Taking what he says at its highest however, at this preliminary stage the Respondent has not satisfied me that the threshold test for striking out this part of the case or subjecting it to a deposit order is made out.[62]As I have indicated a couple of times, I need say nothing further about the complaints of protected disclosure detriment. Mr O’Dair submitted that the Respondent’s application to strike out or for deposit orders in relation to these complaints was based on the Claimant having little or no reasonable prospect of showing that he made protected disclosures. Having refused the Respondent’s applications in those respects, the complaints of protected disclosure detriment will be considered in full at a Final Hearing. Issue 4: Was [the Claimant’s suspension and] the instigation of the disciplinary investigation by Harvey Bajwa materially influenced by the Claimant’s race?[63]It is clear that in relation to this allegation it is Mr Bajwa who is the alleged discriminator. The Respondent submitted that part of the reason this complaint has little or no reasonable prospect of success is that Mr Bajwa and the Claimant are of the same race. That is a factor in the overall assessment of the complaint’s prospects, not least because the Claimant’s response to this submission was to say that he and Mr Bajwa have different religions – there has never been any complaint by the Claimant in this case of religion or belief discrimination. That said, it is well-known that a person can be discriminated against, because of race, by someone of the same race as them and there are all sorts of reasons why that might happen. Accordingly, whilst I accept that it is much rarer than discrimination between people of different races, I would be unwilling to strike out the complaint or make a deposit order on that basis alone.[64]The same is true of the Respondent’s submission that it has (and had at the relevant time) a multi-racial workforce and that no evidence has emerged in disclosure or witness statements of discrimination against others of the same race as the Claimant. Those are things that it is right for me to take into account, but again are not of themselves an indication that there is little or no reasonable prospect of the Claimant showing discrimination in his individual case.[65]When combined however with the Claimant’s explanation of his case as to why he says the suspension and disciplinary investigation were acts of race discrimination, the difficulties with this complaint are substantial. The Claimant explained his case to be that Mr Bajwa was used as a pawn by more senior employees of the Respondent, specifically certain individuals in its HR department, to get rid of him, as shown by the fact that Mr Bajwa himself was removed from the Respondent’s employment after the Claimant’s dismissal. In other words, his case is that Mr Bajwa was employed, as someone “with the same skin colour” as him, to get rid of him and be a “smokescreen” to help the Respondent avoid allegations of race discrimination.[66]There are to my mind a number of substantial difficulties with that case: 66.1. First, it is inherently improbable that the Respondent would employ a manager simply – or even principally – for the purpose of removing the Claimant, dispensing with the manager’s services once that was done. I do not say that could not happen, but it is highly improbable to say the least. 66.2. Secondly, the Claimant’s case that Mr Bajwa acted as the pawn of others was no more than assertion on his part. He knows his case very well indeed, has seen the Respondent’s disclosure of relevant contemporaneous documents (which in essence amounts to no more than 80 pages – see paragraph 24.2 above), and yet did not point to any evidence providing any indication of support for his position in this respect. 66.3. Fourthly, as set out in my summary of the law it is clear that the individual who did the act complained of must themselves have been motivated by the protected characteristic, here race. The Claimant’s case, carefully casemanaged, is that it was Mr Bajwa who discriminated against him by suspending him and embarking on an investigation, but what the Claimant wishes to argue does not in fact impute a discriminatory mindset to Mr Bajwa at all: rather what is said to have been in Mr Bajwa’s mind was to do what his “paymasters” (as the Claimant put it) told him.[67]I am very conscious of the caution urged on tribunals in respect of applications to strike out allegations of discrimination. In relation to this complaint however, where: 67.1. disclosure and exchange of statements – albeit not the giving of oral evidence – has taken place, and 67.2. the Respondent’s case as to why Mr Bajwa took these decisions is entirely ignored, so as to put the Claimant’s case at its highest and not seek to resolve factual disputes, what the Claimant seeks to advance, and thus the complaint set out at paragraph 18.1 above, has no reasonable prospect of success. I also record that the Claimant had no difficulty telling me the basis for this complaint and that what he told me was consistent with what is set out in his chronology, so that I do not consider that even as a litigant in person he was put at any disadvantage in being asked to do so. Having found that a basis for striking out the complaint exists, I will return below to the separate question of the exercise of my discretion, Issue 5A: Who took the decision to dismiss? Was the Claimant’s dismissal formally taken by Mr Shah but in practice by a group of managers using him as a puppet in particular in relation to race?[68]As set out at paragraph 55 of Employment Judge Camp’s Case Management Summary from a Hearing on 29 September 2022 (see page 55): “The people who the Claimant alleges together decided to dismiss him are: the Respondent’s CEO, Phil Bentley; the Claimant’s line manager’s line manager Alison Raybould; another manager called Amanda Petch; Julie Mason, Head of HR; Jasmine Hudson, HR Director; Jennifer Duvalier, Head of Employee Concerns; Mark Hopkins, a line manager … The Claimant cannot say how any of those people influenced Mr Shah to make the decision to dismiss, nor does he have any evidence that they did so. He relies on evidence that he thinks shows that they, or some of them at least, had previously treated him badly”.[69]Mr O’Dair submitted that this aspect of the Claimant’s case had no reasonable prospect of success for three reasons: 69.1. It is inherently fanciful to argue that all of the people named above – all or many of whom are/were employed in senior positions with the Respondent – together decided that the Claimant should be dismissed. 69.2. The Claimant’s case again falls foul of the case law which says that the actual decision-maker must have been influenced by considerations of race, which the Claimant appears not to allege. 69.3. Mr Shah also shares the Claimant’s race.[70]The Claimant’s response to these submissions was as follows: 70.1. In relation to the last of the Respondent’s points, he and Mr Shah have different religions. I repeat what I said in relation to Mr Bajwa. There has never been before the Tribunal any complaint of religion or belief discrimination. 70.2. He firmly asserted that the basis for his case that he was discriminated against was that Mr Shah was a puppet. As stated above, and as identified by EJ Camp, this was no more than assertion on his part and he was unable to point to any supporting evidence of any description – all of the evidence, apart from oral testimony, being out – other than to say that Mr Shah did not address the fact that he was prevented from carrying out training at various EMR sites. That seems to me an incoherent basis for seeking to establish race discrimination in relation to the dismissal decision. Yet again therefore, whilst the formal complaint is that Mr Shah discriminated against the Claimant, the substance behind it is not to that effect. In other words, what the Claimant wishes to argue does not in fact impute a discriminatory mindset to the alleged discriminator. Rather, what is said to have been in Mr Shah’s mind was to do what his paymasters told him.[71]What the Respondent has identified, and the Claimant’s firmly asserted replies to it, represent to my mind formidable difficulties for him in pursuing the complaint identified at paragraph 18.4 above, particularly in a case where disclosure and exchange of witness evidence has taken place. Taking into account again what is said in paragraph 67 above, I find that it has no reasonable prospect of success for the reasons I have set out. I will return to the exercise of my discretion below. Issue 5B: Did the following acts of manipulation occur: i. Hayley Kirkman concocting an email on 30 November 2021, purportedly written by Mr Bajwa? ii. Hayley Kirkman concocting an email from Delroy Ifill to Mr Bajwa on 11 December 2021? iii. Sarah Saxelby telling Mr Shah what to do and withholding vital evidence from the minutes on 22 December 2021?[72]The Respondent’s application in these respects clearly relates to the allegations in the list of issues at paragraphs 18.2 and 18.3 above.[73]In relation to the first matter, the email is at page 242 and was sent by Mr Bajwa to Lisa Delaney at EMR. It appears to be a response to the Claimant’s first alleged protected disclosure, and raises a number of questions about the Claimant’s conduct. The Respondent’s argument is that at its highest, the email includes text which had been provided for Mr Bajwa by Ms Kirkman, that it is commonplace for HR staff to draft emails for managers, if that is what happened, and that the Claimant has identified no evidence to support his allegation that Ms Kirkman “manipulated” Mr Bajwa into sending the email. It also says Ms Kirkman was a junior member of the Respondent’s HR team who evidently would not have “concocted” an email and sent it on Mr Bajwa’s behalf, if that is what is alleged.[74]Reading the email on its own terms and without knowledge of the context in which it was sent, it does look like it was prepared for Mr Bajwa by someone else. Although that could only be confirmed by oral evidence, I can agree with the Claimant, for example, that saying in an email to EMR, “Why has Dev [the Claimant] gone to the customer and not Mitie as this is for us to deal with not EMR?” and referencing “potential gross misconduct” by the Claimant writing to the customer, does support that view. That said, when I asked the Claimant why he says Ms Kirkman did what was alleged because of race, he said that she was being “orchestrated” by senior people in HR and that she too was dismissed shortly after him.[75]In relation to the second matter, the email is at page 277 and was sent by Mr Ifill to Mr Bajwa, complaining about the Claimant. The Respondent says the Claimant’s allegation is fanciful, because he bases it entirely on the fact that Ms Kirkman’s name is at the top of the printed copy of the email, which shows no more than that she printed it or forwarded it at some point. The Claimant confirmed to me that this is indeed the factual basis of his complaint. He said again that Ms Kirkman was “being orchestrated by HR” and that she had to do what her paymaster said.[76]The Claimant faces serious difficulties in establishing the alleged facts on which his complaints against Ms Kirkman are based. He asserts without evidence that she drafted the emails – in fact, his case goes further than that, so that he alleges that she “concocted” them, which can only mean that she put the words of the emails into the mouths of Messrs Bajwa and Ifill to make it look as though this is what they were saying. That is an inherently improbable case, not least given Mr Bajwa’s alleged antipathy towards the Claimant reflected in the allegation against him. As to the second email, there is the further point that although the question of who wrote (as opposed to who sent) the email could only be established with any confidence by oral evidence, the Respondent is clearly correct that Ms Kirkman’s name being on the top of the email within the bundle shows no more than that she received it in her account at some point and probably printed it off. There is also the further highly improbable feature of these allegations in that what the Claimant is saying is that senior HR staff manipulated Ms Kirkman who in turn manipulated Messrs Bajwa and Ifill.[77]Further, in respect of both matters involving Ms Kirkman, the same problems arise as I have highlighted in relation to the alleged discrimination by Mr Bajwa and Mr Shah. First, the Claimant merely asserts, without any indication from the evidence, that she was a puppet for more senior HR officers. Secondly, the allegation is that Ms Kirkman herself discriminated against the Claimant in these respects and yet he does not impute to her any racial element in her conduct or thinking. Indeed, the Claimant told me that he had never met her, which raises a serious question about whether Ms Kirkman would even know the Claimant’s race. In short, the Claimant’s formal allegations are that Ms Kirkman discriminated against him but when asked to explain his case, he does not say that she did.[78]Again taking into account the matters rehearsed at paragraph 67 above, the threshold test for striking out the complaints identified at paragraphs 18.2 and 18.3 above is met. I will return to the exercise of my discretion below.[79]In relation to the third matter, concerning Ms Saxelby, I agree with the Respondent that the Claimant’s case contradicts the burden of his contemporaneous email (dated 22 December 2021) at page 309 in which he described Mr Shah as a “man on a mission” (that is to dismiss him) and as a “terminator” who knew exactly what he was doing, referring to Mr Shah achieving his “goal of complete termination”. I pause to note that, of course, this email further undermines the Claimant’s case represented by issue 5A, in that it is a strong assertion that Mr Shah made his own decision. The email does also say that Mr Shah was “sent in” to achieve this goal, but as noted above, that is something the Claimant asserted without directing me to any supporting evidence.[80]As to the minutes, I agree with the Claimant that the fact Mr Shah sent them to him (page 304) does not indicate who prepared them. I also take as read for these purposes the Claimant’s case that the comments of someone from EMR, Johnny Khan, who accompanied him at the hearing are not included. That said, the Respondent is plainly right that the email at page 309 firmly indicates the Claimant’s belief at the time that it was Mr Shah who determined what went into the minutes, the Claimant saying, “You even kept a watchful glance over to the minute writer correcting her several times [so] as to get the minutes to read how you wanted”. The Claimant’s own statement/chronology at page 22 also indicates that he believes Mr Shah prepared them, describing them as “his minutes” and saying he must have “bust a gut to get it all typed out on [the] same day”. The email and statement are completely at odds with his explanation to me that Ms Saxelby was pointing Mr Shah in the right direction.[81]Further, when asked why he says Ms Saxelby did what was alleged because of race, the Claimant said that she was “driven by the core agenda” of senior people in HR. I repeat what I have said above about the difficulties this presents for the Claimant’s case. Given that, and given that the Claimant’s case contradicts his own contemporaneous email, particularly in relation to the minutes, again I cannot see how his complaint has any reasonable prospect of success. I will come to the exercise of my discretion below. Issue 6: Was the dismissal of the Claimant’s appeal materially influenced by the Claimant’s race … in particular the Claimant relies on the failure to consider his grievance [and] the failure to consider the questions submitted on 13 and 18 December.[82]The Respondent submitted that the disciplinary process which led to the Claimant’s dismissal, and the appeal process which followed it, were reasonable and that the Claimant has pointed to nothing more than an outcome which he regarded as adverse – decided by Paul Wiggins – and his race in support of the first part of the complaint identified at paragraph 18.5 above. This, it says, is an insufficient basis for a complaint of race discrimination in relation to the appeal decision. As for the balance of the complaint, it seems to be agreed that the Claimant was informed by Mr Bentley that his grievance should be considered as part of the disciplinary process. The Respondent says that the grievance was indiscriminate in nature and that the Claimant has not said what the Respondent failed to investigate.[83]The Claimant told me that he never met Mr Wiggins, and again, referred to everything being orchestrated by HR. I repeat what I have said above about the difficulties this creates for him, namely that it is assertion without any indication of support from the evidence that is now substantially out in the open, and it also means that the Claimant does not in fact impute any consideration of race to Mr Wiggins himself. When asked why the appeal outcome was tainted by race discrimination, the Claimant referred again to the Respondent – this time Mr Wiggins – failing to address the fact that EMR wanted him to do training at other sites because of EMR’s concerns about rogue guards. I repeat that this seems to me to be an incoherent basis on which to base a complaint of race discrimination about the decision to dismiss his appeal.[84]I am satisfied again therefore, taking into account the matters rehearsed at paragraph 67 above and taking the Claimant’s case at its best, that the first part of the complaint identified at paragraph 18.5 above has no reasonable prospect of success.[85]As to Mr Wiggins not considering the Claimant’s grievance and the questions which he submitted on 13 and 18 December 2021, the Claimant’s case as to why that was because of his race is that there is an inconsistency between the statements prepared by the Respondent’s two witnesses, Mr Wiggins and Mr Shah. I repeat that I have not read those statements, but what the Claimant was keen to emphasise from them was that Mr Shah says he received an investigation report from Mr Wiggins, when the latter only got involved at the later, appeal stage. I do not see how the Claimant can hope to persuade the Tribunal at a final hearing that this is a basis for drawing an inference of discrimination by Mr Wiggins in not taking into account the Claimant’s grievance and questions. It is another incoherent argument.[86]Again, therefore the threshold test is met and for the reasons set out above I have found that to be the case in respect of all of the Claimant’s complaints of race discrimination. I must next determine whether they should be struck out accordingly, and conclude that it is right to exercise my discretion to do so. I have remained conscious of the caution enjoined by the case law, but having reached the conclusions set out above, I can see no benefit in allowing such fundamentally flawed allegations to proceed to a final hearing, taking up valuable judicial time and adding to the cost of the case for the Respondent.[87]I acknowledge that two of the allegations of race discrimination are repeated as protected disclosure detriment complaints which will proceed for the reasons I have given. The Claimant’s challenge to his dismissal – as will appear below – will also proceed as a complaint of automatically, alternatively ordinary, unfair dismissal. That is not a sufficient basis however for allowing the complaints of race discrimination related to the same matters to proceed, whether with or without the imposition of a deposit order, when in my judgment they are fundamentally flawed. Allegations of race discrimination are serious, and the concomitant of the cautious approach to be taken at the preliminary stage is that where they have no reasonable prospect of success it is not appropriate to leave them as something which the Respondent is required to contest. Of course, the balance of the race discrimination complaints – reflected in the matters discussed under Issue 5B – are in reality factually separate complaints and there is no basis for allowing them to proceed at all. Deposit orders do not seem to me to be a suitable alternative in respect of any of the complaints in the circumstances.[88]For the reasons set out above, the Claimant’s complaints of race discrimination are struck out. Issue 7: What was the reason for the dismissal for the purposes of the law of unfair dismissal? If the principal reason for the dismissal was conduct, was the dismissal reasonable within section 98(4) ERA?[89]Mr O’Dair’s submissions in respect of the reason for dismissal, rested on the assumption that the dismissal was not because of race or protected disclosure. As to the latter, he said that the application to strike out or to make a deposit order in respect of the complaint of automatically unfair dismissal was based on there being no or little reasonable prospect of the Claimant establishing that he made a protected disclosure. Given that I have found against the Respondent in that respect, the complaint of automatically unfair dismissal will proceed to be considered at a final hearing. I am not prepared therefore to say that there is no or little reasonable prospect of the Tribunal finding anything other than that the reason for dismissal was the Claimant’s conduct.[90]Similarly, even if there was no reasonable prospect of the Tribunal finding the reason to be other than as the Respondent asserts, I would not be prepared to strike out this complaint. The Respondent says that the evidence for some of the allegations was not disputed and that the misconduct was serious. Those are matters that have to be tested by oral evidence, or at the very least by consideration of documents other than those to which I was taken in this Hearing, and in full submissions once all of that evidence is considered.[91]I do not say that the Claimant will establish what he said to me, but putting his case at its best, he has a number of coherent things to say in relation to all of the main allegations against him that led to his dismissal. In short: 91.1. In relation to his communicating concerns about a colleague to EMR, he says that it was not sensitive information and was simply a repeat or continuation of regular authorised practice. 91.2. Whilst the Respondent says otherwise, he says he was monitoring CCTV when on his laptop as he accessed the control centre by that means. 91.3. Whilst again the Respondent says otherwise, he says that he completed the incidents book (referred to as the “DOB”) online and that is why the hard copy was not completed. 91.4. Yet again contrary to the Respondent, he also says he strongly disputed the disciplinary allegations.[92]To repeat, given the substantial conflict of evidence between the parties, these are all matters that should be fully considered with all the evidence before the Tribunal panel and fully analysed. I accept of course that when determining whether a dismissal was unfair a Tribunal does not have to find that a claimant actually misconducted himself, but the contested matters summarised above plainly go to the Burchell questions, including whether the Respondent reached reasonable conclusions after a reasonable investigation. I accept too Mr O’Dair’s submission to the effect that the range of reasonable responses test to be applied to all such matters inherently provides a margin of appreciation to employers in deciding whether to dismiss. That too however requires all the relevant facts and arguments to be before the Tribunal which, in contrast to the complaints of race discrimination, was not the case at this preliminary stage.
Summary
[93]In conclusion, the complaints that will be considered at a final hearing are those of protected disclosure detriment and unfair dismissal. This will include the question of whether the Claimant made one or more protected disclosures. The issues to be determined are as set out above.[94]There was insufficient time at the conclusion of this Hearing to discuss arrangements for a final hearing, and to make case management orders. A short telephone case management hearing has been arranged for this purpose. Note: This was in part a remote hearing. The Claimant attended at the Tribunal Hearing Centre and the Respondent remotely. The parties did not object to the case being heard in part remotely. The form of remote hearing was video.[1]The claimant applied to strike out the respondent’s response on the grounds that it is scandalous, vexatious or has no reasonable prospects of success or that the manner in which the proceedings have been conducted by or on behalf of the respondent has been scandalous, unreasonable or vexatious, pursuant to Rule 37(1)(a) and/or (b) of the Employment Tribunal Rules of Procedure. That application is refused.[2]The respondent applied to strike out the claimant’s claim on the grounds that the manner in which proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious, pursuant to Rule 37(1)(b) of the Employment Tribunal Rules of Procedure. That application is refused.[3]The respondent’s application for an anonymity order under Rule 50(3)(b) of the Employment Tribunal Rules of Procedure is refused.[4]A Case Management Order is provided to the parties separately.[1]This was a hearing listed further to the case management Preliminary Hearing before Employment Judge Gaskell on 7 February 2024 to consider:(a) The claimant’s application for the response to his remaining claims to be struck-out pursuant to Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 on the grounds that it is scandalous, vexatious or has no reasonable prospect of success; and/or pursuant to Rule 37(1)(b) that the conduct of the response to the claim has been scandalous, unreasonable or vexatious.(b) The respondent’s application pursuant to Rule 37(1)(b) for the strike-out of the remaining claims on the grounds that the claimant’s conduct has been scandalous, unreasonable or vexatious.[2]The claimant represented himself at the hearing. The respondent was represented by Mr Finn of Counsel. The hearing was a hybrid hearing. The claimant and Judge were in Tribunal. The respondent’s representative attended by CVP remote video technology. Preliminary matters[3]At the start of the hearing at 9.45 today, I asked the parties if any reasonable adjustments were needed to enable them to participate in today’s hearing. The claimant said that he had been told he was unfit for work because of anxiety and depression and that he had come to Tribunal because he had not heard back from the Tribunal in response to an email he had sent about his health.[4]In the hard copy of the Tribunal file, I located an email sent by the claimant to the Tribunal and respondent’s representative dated 19 June 2024, which appeared not to have been actioned. The email reads: “Hello Be advised, owing to the enormous stress this case has caused over the last two years. I am now on (3 lots of) prescribed medication, and my GP has signed me off sick. The Universal credit, state benefits, have (today) assessed me with, Indefinite “limited capacity for work”. See attached letter. Pursuant to the forthcoming hearing of 1 July 2024, I believe I have submitted all the evidence for a Judge to make a fair decision. But under the circumstances I await to be advised by the Tribunal if my attendance at the hearing is still required. As is already on the file, I do not have broadband at home to attend a remote hearing, Regards Dev Masih”[5]The attachment was not on the Tribunal file. The claimant said that the attachment was medical evidence. I adjourned the hearing in order to obtain and read a copy of the attachment. This is dated 19 June 2024 and states: “Your Universal Credit claim: Work Capability Assessment decision Dear Dev Following your Work Capability Assessment, we have decided that you have limited capability for work … You will not have to look for work, but you will need to meet with your work coach to take steps to prepare for work in the future. We call these work-related activities. Work-related activities could include learning how to write your CV or going on training courses to learn new skills. These activities will help you to start thinking about the types of work you could do. Your work coach will talk to you about the extra support that could be available to help you prepare for work ..”[6]On resuming the hearing, I clarified with the claimant that what he had referred to as medical evidence as the attachment is a work assessment in the context of a claim for Universal Credit. It is not a letter from a doctor to say whether he is well enough to attend at Tribunal today. The claimant said that I should decide whether he was fit enough to attend Tribunal today. It not being apparent from the claimant’s email of 19 June 2024 whether he was in fact seeking a postponement of today’s hearing, I asked him to confirm whether he sought a postponement today, on the grounds of ill health. The claimant said that he was waiting for the Tribunal to decide whether he was fit enough to be at Tribunal. I explained that I am not medically qualified and can only assess his fitness to attend on the basis of information he provides, including any medical evidence. I explained to him the procedure which would be followed at hearing today, in order to allow him to explain whether he thought he was well enough to participate and if so any adjustments that might be required. He said that he was concerned that if he gave evidence he would not be able to explain himself properly because he is not legally qualified and that it would be turned against him which he said had happened at previous hearings. The claimant also said that he has a stammer and that in previous hearings he has felt assessed on his performance. He confirmed there was no specific adjustment he required in that regard and that he has written everything he wants to say for today’s hearing which helps him express himself. I explained to the claimant that the purpose of today’s hearing was for the Tribunal to hear the claimant’s application for strike out of the response and the respondent’s application for strike out of the claim. I reminded the claimant of the Case Management Order of 7 February 2024 of EJ Gaskell which had set out the procedure for today’s hearing and that no evidence would be heard. I told him that I had details of the application he is making in the written submissions he had already provided and that he would have the opportunity to add to his written submissions if he wished to. If he has already said all that he wants to in writing, he is not required to add anything.[7]Having heard from the claimant and having reviewed the contents of the statement from Universal Credit which indicated that the claimant could participate in certain work-related activities, there was no evidence to indicate that the claimant was unfit to participate at the hearing today to the extent required. I explained to the claimant that the hearing would proceed, in line with the overriding objective. If he wished to add oral submissions to his written submissions, he would have the opportunity to do so, but was not required to do so. I explained that we would take a break once an hour and if the claimant felt unwell and required a break at any other stage, he should tell me at once.[8]The hearing proceeded and I am satisfied that the claimant was able to participate in proceedings effectively. He did not indicate to the contrary at any point during the hearing. The claimant added commentary to his written submissions and responded to points raised by the respondent’s representative in the respondent’s strike out application. There were several breaks during the hearing for various reasons, but none at the claimant’s specific request.[9]Having determined that the hearing should proceed today, I then dealt with an application made by the respondent’s representative orally that the Tribunal should consider making an order pursuant to s10-14 of the Employment Tribunals Act 1996 to anonymise the names of the two solicitors acting on behalf of the respondent, whose conduct forms the basis of allegations made by the claimant giving rise, in part, to his application for strike out. The respondent’s representative asks that an interim order is considered to cover proceedings today which can be revoked or continued depending on the Tribunal’s decision on today’s applications. No particular section of s10-12 of the Employment Tribunals Act 1996 was asserted, nor a specific Convention reason. It was submitted that the claimant has made career-threatening allegations against two solicitors, which the respondent says are malicious falsehoods, and that the solicitors have been caused professional embarrassment. The respondent’s representative confirmed that both of the individuals are now qualified solicitors - one had been a trainee solicitor at an earlier stage in proceedings – and had acted in their professional capacity at all relevant times. I provided the claimant with an opportunity to respond to the respondent’s application. He objected to the application and said that the solicitors had misled the Tribunal and had fraudulently misrepresented the situation to Baroness McGregor-Smith and this was not a case where their names should be anonymised.[10]I informed the parties I would consider whether it was necessary in the interests of justice or in order to protect the Convention rights of any person to make an order under Rule 50(3)(b) of the Employment Tribunal Rules of Procedure, to restrict the public disclosure of the names of the individuals accused by the claimant. I reminded myself that I should give full weight to the principle of open justice and to the Convention right to freedom of expression under Article 10. I can only prohibit disclosure if cogent evidence demonstrates this is strictly necessary in the interests of justice. I would therefore need to be persuaded that there was good reason to depart from the normal position.[11]As the party seeking the anonymisation order, the burden lies on the respondent to provide clear and convincing grounds that anonymisation is warranted to protect the Convention rights of the individuals in respect of whom the order is sought. The respondent did not assert a specific Convention right was engaged although it was clear from the application made that the concerns expressed over professional embarrassment could amount to an assertion of harm to the Article 8 private life rights of the individuals. The general concerns expressed about professional embarrassment do not, I find, establish identifiable harm to the Article 8 private life rights of the individuals, sufficient to displace open justice. Anonymisation would interfere with the Article 10 right to freedom of expression and the public interest in open proceedings. There was no cogent evidence put forward to justify this exception to the strong presumption in favour of open justice.[12]Having carefully considered and applied Rule 50, I determined that the respondent had not established sufficient grounds to depart from the principle of open justice and freedom of expression on the facts presented and I therefore refused the application for anonymity. Documentation[13]Prior to the hearing, I had been provided with a bundle of documents of 353 pages put together by the respondent’s representative. The bundle included copies of two cases referred to in submissions by the respondent’s representative: Rev Dr James George Hargreaves v(1) Evolve Housing & Support(2) Mr Simon McGrath [2023] EAT 154 and Mr A Ghosh v (1) Judicial Appointments Commission and (2) Martin Chamberlain, a first instance decision of the Employment Tribunal dated 6 November 2023.[14]During initial discussions with the parties, the claimant said that he had not read the bundle of documents prepared by the respondent’s solicitors and had sent an email to the Tribunal and the respondent’s solicitors which attached eight documents he wished to rely on at today’s hearing. He said he had not checked the hearing bundle to make sure that these documents had been included. I asked the respondent’s representative if he could confirm all the documents sent by the claimant had been included. He did not have instruction on this point and was unable to reach his instructing solicitors during an adjournment.[15]Following that adjournment, during which the Clerk located and forwarded me a copy of the email and attachments referred to by the claimant, I confirmed in discussions with the parties that it was evident that six of the documents were already in the bundle. Two documents – an email from the respondent’s representative Megan Carney to the Tribunal, going on record, dated 13 September 2022 and Instructions to respondent Counsel in respect of the 21 December 2022 hearing before EJ Webb - were not included. The Instructions to Counsel document – although a privileged document and not one which would normally be put before the Tribunal - appears to have already been produced by the respondent at a hearing before Employment Judge Faulkner on 2 November 2023 and referred to in EJ Faulkner’s decision at that hearing. In the circumstances, it appeared that these documents may be of some relevance to the issues before me today and had already been provided to the Tribunal. There being no objection from the respondent’s representative, I determined that these should form part of the bundle before me today.[16]It also became apparent in the course of the hearing that the first Public Preliminary Hearing Judgment of Employment Judge Faulkner had not been included in the hearing bundle. This Judgment is dated 13 October 2023 and relates to the part of the hearing which took place on 28 September 2023. As the parties both referred to matters which were discussed and determined during that hearing before me today, I determined that that Judgment should also be considered as part of the evidence before me today.[17]During the discussions about documentation, I also noted for clarity that the Case Management Orders of EJ Gaskell show the date of hearing as 7 February 2022, although it is evident from the dates of the Orders made, the signature date and the Tribunal record that the date of hearing was in fact 7 February 2024. Both parties agreed that this was the correct date although the claimant submitted that the incorrect date meant that EJ Gaskell’s Order was not valid. I explained to the claimant that a minor typo on the first page does not invalidate the contents of those Case Management Orders. I proceeded accordingly.[18]The claimant asked me to take into account all of the documents which have previously been sent to the Tribunal. I explained to the claimant that as there is a significant procedural history to this case, the Tribunal in dealing with the applications before it today cannot consider everything that might have been sent to the Tribunal at some stage in the case history. The focus of today was on those documents the parties had provided to the Tribunal as relevant for the purposes of the applications before the Tribunal today. I confirmed that these are the documents contained in the 353-page bundle, the two additional documents we had identified that the claimant wished to rely on and the Judgment of EJ Faulkner dated 13 October 2023, relating to his first Preliminary Hearing on 28 September 2023, his second Judgment, dated 17 November 2023 and related to the continuation hearing on 2 November 2023, already being in the bundle.[19]The claimant asked me during today’s hearing to order the respondent to disclose the Instructions to respondent Counsel for the Preliminary Hearing before EJ Camp on 28 September 2022. I declined to do so and explained to him that EJ Gaskell had already made a decision on this matter (Case Management Order 10, page 260) and explained his reasons for that decision to the claimant which were set out at the minute of hearing, (page 259 para 9). There was no new information before me to indicate any reason to vary that Case Management Order. Indeed, it would be most unusual for an order for disclosure to be made in respect of a privileged document. Procedure[20]There being two applications before me today, I agreed with the parties at the outset that I would hear the claimant’s application and the respondent’s response to it. Following a short adjournment, I would then hear the respondent’s application and the claimant’s response to it.[21]By the time I had heard dealt with the preliminary issues and heard both applications, it was evident there would be insufficient time to make a decision on the applications today and I informed the parties my decision would be reserved. The claimant said that he would in any event ask for written reasons for any decision as it assists him to understand the decision.[22]Included in the bundle were the following documents in support and response to the respective applications:(a) “Claimant’s Rule 37 Application” dated 21 January 2024, pages 241- 248 of the bundle.(b) Respondent’s response to that application dated 6 February 2024, pages 250-252.(c) “Claimant’s Response to Solicitors Lies” dated 7 February 2024, pages 253-254.(d) “Claimant’s Response to Judge Gaskell’s Order of 7 February 2024” dated 6 March 2024, pages 262-265.(e) Respondent’s “Defence to Claimant’s strike out application and Respondent’s strike out application”, dated April 2024, pages 346-353.[23]The claimant confirmed that the documents he had lodged, although related to his application to strike out the respondent’s response, effectively also responded to the respondent’s application to strike out his claims. The claimant however maintained that the outcome of the hearings before EJ Faulkner was that his claim could not be struck out by the respondent. I explained to the claimant that EJ Gaskell had already determined this issue and reminded the claimant of EJ Gaskell’s Case Management Orders and minute of hearing of 7 February 2024, reading out the relevant sections, which listed the claimant’s application for strike out and the respondent’s application for strike out to be heard today [Case Management Order 11 and paragraphs 2-7 of the minute of hearing.]
Background
[24]The applications before me today are not based on the background facts on which the claim and response depend, but rather steps taken by the claimant and respondent in the conduct of the Tribunal litigation. This has become procedurally protracted and there have been several previous Preliminary Hearings, Judgments and Case Management Orders which are relevant to the applications before me today. I summarise the chronology of hearings and relevant extracts from those Orders and Judgments below and refer to these in my conclusions: Case Management Preliminary Hearing before EJ Camp – 28 September 2022[25]The record of this Preliminary Hearing is at pages 47-62 of the bundle. The relevant sections of that record for the purposes of the applications before me today are set out at paragraph 56 of the case summary [page 54] as follows: “In light of various comments the claimant made in the document attached to the claim form giving details of the claimant’s claim … I [the Employment Judge] have explained to the claimant that .. [56.1] making allegations of “institutional racism” against the respondent does not help his case, because what he is alleging is that specific individuals mistreated him because they personally were racially prejudiced …[56.4] similarly, expert evidence from Baroness McGregor-Smith (see paragraph 42 of the details of claim) about race and racism in the work place will not be allowed at the final hearing.” Public Preliminary Hearing before EJ Webb – 21 December 2022[26]On 21 December 2023, the claimant’s claims of disability discrimination and whistleblowing detriment, relating to events in 2016 and a grievance in 2020 were dismissed by EJ Webb for lack of jurisdiction because they were presented outside of the statutory time limit.[27]EJ Webb’s case management record repeats the order of EJ Camp in relation to relevant evidence. “I say again what Judge Camp said in their order of 2 October 2022: 35.1 making allegations of “institutional racism” against the respondent does not help his case, because what he is alleging is that specific individuals mistreated him because they were personally racially prejudiced… 35.4 similarly, expert evidence from Baroness McGregor-Smith (see paragraph 42 of the details of claim) about race and racism in the workplace will not be allowed at the final hearing…[36]It is open to the claimant to disagree with this assessment, but if he wishes to bring evidence related to the above, he will need to make an application and provide clear reasons why the evidence is relevant and necessary for the Tribunal to deal with the outstanding issues in his case”28. The claimant sent two documents to the Tribunal, both dated 5 January 2023, one entitled “Permission to Appeal out of time Judge Camp’s Order dated 29 September 2022” and the other “Permission to Appeal out of time Reconsideration of Judge Webbs Order dated 21 December 2022.” These are at pages 104-115 of the bundle.29. A letter of 1 March 2023 was sent to the claimant upon the direction of EJ Camp, stating that any appeal was for the EAT, there could be no reconsideration by him as he had not given judgment and to the extent that variation of case management orders was sought, this was not granted because the claimant did not apply shortly thereafter and matters had been overtaken by the orders of EJ Webb.30. By a judgment of 2 March 2023, EJ Webb refused the claimant’s reconsideration application.31. A further letter from the Tribunal sent to the claimant at the direction of EJ Camp dated 22 March 2023 states: “1. The combined effect of the decisions made by Employment Judge Webb and me is that the claimant’s claims are limited to those set out in the written record of the preliminary hearing that took place on 21 December 2022. Judge Webb and I have refused the claimant’s applications for reconsideration and to vary or set aside the orders that we made. If the claimant wishes to appeal to the Employment Appeal Tribunal that is a matter for him.” Preliminary Hearing before EJ Maxwell – 23 June 202332. The Tribunal wrote to the claimant on 12 June 2023, stating that EJ Camp was considering striking out the claim because of the claimant’s failure to comply with EJ Webb’s Order made on 21 December 2022. A Preliminary Hearing took place before EJ Maxwell to consider whether there was compliance with an unless order dated 22 March 2023 and whether any part of the claimant’s claim should be struck out for non-compliance with Tribunal orders. The relevant sections of the record of that hearing for the purposes of the applications before me today state: “49. Whilst it is not appropriate to strike out today, I do have real concerns about future compliance by the claimant. The criticism made of the claimant’s conduct by Ms Akers was fair. Much of his default appears to have been deliberate. The claimant is an intelligent man. He has read the orders made and chosen not to comply because he does not agree with them. Rather than devoting time and effort to providing the particulars ordered, instead he sought to challenge previous rulings of the Tribunal’s jurisdiction and the scope of his claims. When he did provide information, he did not address himself to that which had been ordered or limit this to the period he was permitted to pursue. Notwithstanding it has been made abundantly clear to the claimant that he can only pursue his complaints about the process followed from December 2021 which resulted in his dismissal, he has sought to provide information about events going back to 2014. He does this, even though his applications for reconsideration and variation have been refused. 50. If the claimant continues in this fashion, then he risks being struck out in the future for non-compliance or unreasonable conduct. If the claimant wishes to pursue the claims he has been permitted to, then he must abide by rulings and comply with the orders of the Tribunal.” Preliminary Hearing before EJ Faulkner – 28 September and 2 November 33. This hearing took place over two days – 28 September and 2 November 2023 to consider compliance with an Unless Order made by EJ Maxwell on 23 June 2023 and the respondent’s strike out applications. A Judgment dated 13 October 2023, relating to the hearing on 28 September 2023, refers to Case Management Orders which had been made ten days prior to what was listed to be the full hearing on 8 September 2023 by EJ Meichen. Those Orders are not in the bundle although a summary of the sections relevant to today’s applications is set out as part of the 13 October 2023 Judgment of EJ Faulkner at paragraphs 22 – 26 as follows: “22. There was evidently further correspondence from the respondent’s solicitors on 24 and 25 August 2023, which I have not seen, though in part at least it sought a postponement of the ADR Hearing. This was refused by Regional Employment Judge Findlay, who directed that a letter be sent to the parties on 29 August 2023…. In addition to refusing the postponement application, in part the letter read (emphasis original): “The claimant was directed to send the respondent, by 28 July 2023, copies of any additional documents (other than those already supplied to him by the respondent) which are relevant to the issues listed in the order of Employment Judge Webb dated 21 December 2022 …If the claimant wishes to rely on the excluded documents, he would have to place them in date order in a file and page number them, provide an index and provide 5 copies to the tribunal hearing the case. The tribunal at the final hearing will decide if any of those documents are admissible, all other directions must be complied with as set out in Judge Maxwell’s order”. 23. In response, on 7 September 2023 … the respondent’s solicitors wrote to the Tribunal as follows: “It’s the respondent’s position that of the 178 documents lodged as part of the claimant’s disclosure, 127 of those are not relevant to the legal issues to be addressed at the final hearing. The remaining documents are either duplicates of what was already included in the respondent’s bundle, or new relevant documents and therefore added to the hearing bundle”. 24. On the same day, in a separate email, the respondent’s solicitors informed the Tribunal that the case was not ready for the Final Hearing, attributing this to the claimant’s failure to comply with the case management orders ... Employment Judge Meichen, 8 September 2023 25. The next hearing was to be for ADR … on 8 September 2023, before Employment Judge Meichen and to be held by video. EJ Meichen’s record of that Hearing is at pages 158 to 161. Unfortunately, he was not told until it was too late that the claimant had attended in person. Neither the claimant nor EJ Meichen can be criticised for that. Naturally, no dispute resolution discussions could take place, nor could EJ Meichen deal with the respondent’s strike out application of 26 July 2021. 26. He did however make several Case Management Orders for the Final Hearing which was now only ten days away. He noted: “The respondent’s main concern as expressed to me today is that the claimant had disclosed a large number of documents which the respondent considers to be plainly irrelevant, but the claimant is apparently insisting on relying on them despite guidance from the Tribunal. Helpfully however the respondent has already compiled a bundle of the documents which it disputes (headed “Excluded documents”). Mrs Amir [for the Respondent] also helpfully explained that the final hearing bundle (ie the bundle containing the documents disclosed where relevance is not disputed) is ready to be sent to the claimant”. 27. EJ Meichen ordered that there would be two bundles for the Final Hearing, that the Tribunal hearing the case “may decide what to do about the disputed documents bundle” … 28. On 15 September 2023, the Final Hearing was postponed by the Tribunal at the direction of Employment Judge Flood. It had been due to last for ten days commencing on 18 September 2023. The correspondence on the Tribunal’s file shows that there had been some concerns about whether a judge could be found for the hearing, but the reason for postponement was stated in the letter to be that it was converted to a public preliminary hearing to deal with the respondent’s strike out application. Mr O’Dair [for the Respondent] accepted however that the postponement was not the responsibility of the claimant. It does not appear that either party requested it”. 34. In considering whether the claimant’s claim should be struck out for unreasonable conduct, the 13 October 2023 Judgment of EJ Faulkner also addresses the relevance of Baroness McGregor-Smith’s report on workplace racism, as follows: “49 In this context, the disclosure of one obviously irrelevant document – the McGregor-Smith report – and the disclosure of some other documents which may not be relevant is not sufficient to take the claimant over the threshold of what constitutes unreasonable conduct. It would in any event plainly be disproportionate to strike out the Claim, given that it is clear that it is still – at this stage – possible to have a fair hearing. I note the following: 49.1 Whilst as I say I have not seen the disputed documents themselves, I can see from the index that they run to 326 pages. Baroness McGregor- Smith’s report takes up almost 100 of those pages. EJ Camp has already said that the report will not be considered at the final hearing and so unless the Claimant can identify a material change in circumstances which means EJ Camp’s decision in that regard should be reviewed, neither the respondent nor the Tribunal will have to pay any attention to it. To avoid any doubt, I record that I agree wholeheartedly with EJ Camp. I cannot see how a report on workplace racism in the United Kingdom generally has anything of relevance to say in relation to this case, regardless of the author’s previous association with the Respondent”. 35. The second Judgment of EJ Faulkner, dated 17 November 2023, addresses whether the respondent can pursue an application for strike out on the grounds that the complaints have no reasonable prospects of success. The sections relevant to the applications before me today are at paragraphs 23- 24.1, as follows: “23. EJ Webb was not requested to provide written reasons for the decision rejecting the application. It was therefore crucial for me to know from the respondent the basis on which EJ Webb’s decisions were reached – in other words, on what grounds the respondent made its application for deposit orders on that occasion and what materials were before EJ Webb when the application was rejected. In response to my Case Management Orders to that effect, the respondent provided a further skeleton argument from Mr O’Dair, Instructions to Counsel (not Mr O’Dair) for the hearing before EJ Webb in December 2022 and the bundle of documents submitted for that hearing. It also purported to provide Counsel’s attendance note from that hearing but, as I indicated, I was unable to open it. 24. As I indicated at the outset of the resumption of this hearing on 2 November, I was satisfied based on this new material that it was in order for me to hear the respondent’s applications, though I made clear that this was subject to anything the claimant may wish to submit to the contrary. This was because: 24.1 Counsel attending on 21 December 2022 had confirmed that the basis of the respondent’s application on that occasion was jurisdictional, related to time limits, and the additional point that the complaints were vague and poorly particularised…” Case Management Preliminary hearing before EJ Gaskell – 7 February 2024 36. On 7 February 2024 a case management Preliminary Hearing took place before EJ Gaskell, at which today’s hearing was listed to consider the claimant and the respondent’s strike out applications. The Minute of Hearing states: “5. It is evident from the claimant’s application that he is hoping by this application that he can reopen the judgements made by Employment Judge Camp, Employment Judge Webb and Employment Judge Faulkner; have those judgements set-aside; and thus reinstate elements of his claim which have previously been struck-out. I have explained to the claimant that such an outcome is not possible. If he wishes to reopen those earlier judgements he can either apply to the relevant judges to reconsider their judgements pursuant to Rules 70-73 of the Employment Tribunals Rules of Procedure 2013, or he can appeal to the Employment Appeal Tribunal. It is likely that any application for reconsideration and any appeal is now out of time. But he can ask the Judge or the Appeal Tribunal to extend time if there are good grounds. 6. Accordingly, the public preliminary hearing which I have listed will deal only with whether or not the response to the remaining claims should be struck-out and/or whether the claims themselves should be struck-out. 7. I have explained to the claimant that Rule 37 is a summary procedure. The tribunal will not hear and evaluate witness evidence. If he is to succeed, he will have to satisfy the Employment Judge that there is no reasonable prospect of a successful defence of his claims for unfair dismissal and/or protected disclosure detriment. Alternatively, that the respondent’s conduct is such that a fair trial is no longer possible. That is the test which will also be applied to the respondent’s application for the strike-out of the remaining claims. 8. I have also repeated guidance provided previously by Employment Judges with regard to the evidence which will be regarded as relevant in this case. The Employment Tribunal is concerned with the particular facts of events relating to the claimant. It is not concerned with wider and more general matters such as allegations of “institutionalised racism”. Accordingly, I repeat what the claimant has previously been told: that the proposed evidence from Baroness Ruby McGregor-Smith appears to have no relevance at all to the issues in the case. Further I have given the claimant certain guidance as to calling witnesses such as Mr Phil Bentley – the respondent’s CEO who in reality he wishes to challenge. The claimant cannot challenge the evidence given by witnesses who he calls. 9. Finally, at today’s hearing the claimant asked me to make an order for the disclosure by the respondent of its solicitor’s instructions to counsel in the hearing before Employment Judge Camp. The claimant advised me that a similar order had been made by Employment Judge Faulkner in respect of the hearing before Employment Judge Webb. I could find no record of such an order being made by Judge Faulker – and it would be highly unusual for a privileged document to be ordered for disclosure in such a way. The claimant has not persuaded me that there is any relevance in such disclosure to the issues which remain in this case or to the forthcoming preliminary hearing and accordingly his application is refused.” Law[37]A Tribunal is required when addressing matters such as those applications before me today to have regard to the overriding objective which is found in the Rules at Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Rule 2 which states as follows: (2) Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as is practicable –(a) Ensuring that the parties are on an equal footing;(b) Dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) Avoiding unnecessary formality and seeking flexibility in the proceedings;(d) Avoiding delay, so far as compatible with proper consideration of the issues; and(e) Saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.[38]The Tribunal power to strike out comes from Rule 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1.[39]Rule 37 provides: (1). At any stage in the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –a. That it is scandalous or vexatious, or has no reasonable prospects of success;b. That the manner in which the proceedings have been conducted by or on behalf of the Claimant or Respondent (as the case may be) has been scandalous, unreasonable or vexatious;[40]There are further grounds R37(1)c-e. These are not relied on by either party in the applications before me today.[41]Rule 37(2) provides that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations either in writing or at a hearing.[42]Where a response is struck out, the effect shall be as if no response has been presented.[43]There is in effect a two-stage test. First the Tribunal assesses whether one of the grounds in Rule 37 is made out and in particular in relation to Rule 37(1)(b) whether the unreasonable conduct is such that there can no longer be a fair hearing and then at the second stage the Tribunal considers whether or not to exercise its discretion to strike out, having regard to the overriding objective and proportionality. This will engage the Tribunal in considering what lesser action might be taken and in balancing the interests of the parties.[44]Elias LJ summarised the approach to be taken in Abegaze v Shrewsbury College of Arts [2010] IRLR 236: “In the case of a strike out application … it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed”.[45]This approach has been approved by the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630.[46]With regard to whether there has been scandalous, unreasonable or vexatious conduct, there must be a conclusion by the Tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on their behalf in such a manner.[47]The conduct in question may be that of the party’s representative as well as the party themselves, which is alleged by the claimant in this case. In Harmony Healthcare plc v Drewery UK EAT/866/00 a party was held to be fixed with the conduct of their representative. In Harris v Academies Enterprise Trust [2015] IRLR 208 the EAT upheld a Tribunal’s ruling that the conduct of the representative and the party may be distinguished in an appropriate case. It was not argued by the respondent that the Tribunal should distinguish the conduct of the representatives from the respondent in this case.[48]In Bennett v London Borough of Southwark (2002) IRLR 407 Sedley LJ considered the word “scandalous” stating that it was not to have the “colloquial” meaning but rather “two somewhat narrow meanings; one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process”.[49]The meaning of vexatious was considered in a family case in the High Court: Attorney General v Barker (2002) 1 FLR 7559 when Bingham LJ (as he then was) stated “vexatious is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis), that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.[50]In Bolch v Chipman [2004] IRLR 140 the EAT described the reasoning behind the “no fair trial” factor by stating that a strike out order is not, first and foremost, a tool to punish scandalous, unreasonable or vexatious conduct of proceedings. Rather, it is to protect the other party (and the integrity of the judicial system) from such behaviour which results in it no longer being possible to do justice.[51]The third factor which I must consider is that of proportionality. Simler P (as she then was) in Arriva London North v Maseya UK EAT/0096/16 para 27 said “There is nothing automatic about a decision to strike out. Rather, a tribunal is required to exercise a judicial discretion by reference to the appropriate principles. Even is there has been scandalous, unreasonable or vexatious conduct of proceedings and a fair trial is not considered possible, the tribunal must still examine the proportionality of striking out the claim or response and must consider other, less seismic orders because, as Sedley LJ put it in Blockbuster the power to strike is “a draconic power not to be readily exercised.”[52]The proportionality consideration requires an assessment by the tribunal of any alternative, lesser sanctions, for the conduct in question and a balance requires to be struck.[53]I remind myself of the Presidential Guidance that has also been given in this regard. Submissions and
Conclusions
[54]The claimant had lodged three separate submissions in relation to his application today, running to some 80 paragraphs over 13 pages. He submitted that overall there are nine main reasons for his application which are contained in his document headed “Claimant’s response to Judge Gaskells Order of 07-02-2024”. Having discussed the apparent duplication between each of those reasons with him, it was identified that these can be categorised as follows:(a) An alleged failure by the respondent to provide the Tribunal with an accurate hearing bundle for the hearing on 13 October 2023 (reason 1).(b) The respondent’s solicitors allegedly instructing Counsel to mislead EJ Camp and EJ Webb that Baroness McGregor-Smith did not want to be linked to the claimant’s case (reasons 2, 3 and 4).(c) The respondent’s solicitors allegedly barring the claimant from communicating with Baroness McGregor-Smith and lying to Baroness McGregor-Smith about this, and subsequently failing to clarify the situation with the claimant, which they had told Baroness McGregorSmith that they would do (reasons 5, 6, 7, 8 and 9).[55]I then heard submissions from the respondent’s representative in response to the claimant’s application for strike out. Following a short adjournment, I then heard submissions from the respondent’s representative in relation to the respondent’s application to strike out the claimant’s claim. I explained the grounds of the respondent’s application to the claimant and provided him with an opportunity to respond. As the applications overlap - the respondent’s application being predicated on what it says is the scandalous, unreasonable or vexatious manner in which the proceedings have been conducted by the claimant, since the hearing before EJ Faulkner in November 2023, which largely relates to the matters in the claimant’s application for strike out - I deal with each point in turn below, summarising the parties’ submissions and setting out my conclusions.[56]I considered firstly whether the response was scandalous, vexatious or has no reasonable prospects of success or whether the conduct stated by the claimant to exist had been established and whether it amounted to scandalous, unreasonable or vexatious conduct. I then considered whether the conduct stated by the respondent to exist had been established and whether it amounted to scandalous, unreasonable or vexatious conduct. Documentation – reason 1[57]I deal with this issue (set out at 55(a) above) and the parties’ submissions on it separately, this being factually distinct from the other matters raised, as follows:[58]In his document entitled “Claimants Response to Judge Gaskells Order of 07-02-2024”, paragraph 5, the claimant submits that Judge Faulkner “found that the bundle of documents supplied by the respondent legal team did not match for all concerned” [page 262]. Although the claimant was unable to point me to specific documents in support of this ground of his application, he maintained in oral submissions that the respondent had failed to provide an accurate hearing bundle, which was unreasonable conduct.[59]The respondent submits [para 12, page 349] that this is a misstatement by the claimant at best and that the situation is that the final hearing listed to be heard before EJ Faulkner could not go ahead because the claimant did not comply with orders to reduce his disclosure to relevant documents only and this was why the joint bundle was not ready. The respondent was ready and witness evidence had been drafted. The respondent says that the claimant’s submission is further evidence of the claimant’s unreasonable conduct and his attempt to either mislead or misremember.[60]It was at this point in the hearing that it became apparent – and I raised with the parties - that the Judgment of EJ Faulkner dated 13 October 2023 had not been provided by either the respondent or claimant in their documentation for hearing today and yet it appears it is this Judgment which records the issues concerning preparation of bundles. Having ensured that both parties had seen the Judgment and summarised what appeared to be the relevant sections of that Judgment, I told the parties that I would have regard to it in making my decision on their respective applications.[61]From paragraphs 20 – 28 of EJ Faulkner’s Judgment dated 13 October 2023 set out in the background section above, it is clear that there were issues with preparation of the bundle of documents for final hearing and that the respondent made an application for strike out of the claimant’s claims on the basis of the claimant’s failure to comply with Case Management Orders in respect of disclosure of relevant material only. As to the postponement of the full hearing, it appears there were issues with whether a judge could be found for the hearing in any event and EJ Faulkner’s conclusion on this point was “it does not appear that either party requested it”. The respondent clearly had difficulties with being able to prepare a bundle of documents for use at the final hearing, due to its position that the claimant had disclosed irrelevant material. It was that issue which led in part to the Public Preliminary Hearing before EJ Faulkner and a consideration of strike out of the claimant’s claims at that juncture. Prior to that, EJ Meichen and the Regional Employment Judge had issued directions about the bundle. Nowhere in the two Judgments or Case Management Orders of EJ Faulkner is it stated that EJ Faulkner found that the bundle of documents supplied by the respondent legal team did not match for all concerned.[62]I can find no evidence whatsoever to support the claimant’s assertion before me today that the respondent’s conduct in relation to the bundling of documents was unreasonable, scandalous or vexatious conduct and this assertion appears to be entirely without merit.[63]I turn now to consider the parties’ submissions and my conclusions in relation to the remaining grounds for the claimant’s application and the respondent’s cross-application, as set out at 55(b) and 55(c) above:[64]The claimant makes a number of written submissions in relation to these grounds:(a) At paragraph 22 of the claimant’s document “Claimants response to Judge Gaskells Order of 7 February 2024” [page 264] dated 6 March 2024, the claimant states that the respondent’s solicitors lied on 19 January 2024 to Baroness McGregor-Smith “that the solicitors barred claimant from communicating with the Baroness after Judge Camp had ruled out the Baroness’s link.”(b) In the document “Claimant’s Rule 37 Application”, the claimant submits: (i) At paragraph 3: “to a layperson, that email … effectively bans me from reaching out to the Baroness”. (ii) At paragraph 8: “Judge Camp was influenced and relied upon the email of Megan Carney”. (iii) At paragraph 9: “so if Megan Carney’s email and Barristers oral persuasion regarding the Baroness, is disproved, then I am in within my right to claim recission (of Judge Camps order in its entirety) and damages for Megan Carneys fraudulent misrepresentation. I looked up “fraudulent misrepresentation” to be when the person making the representation knows it is false or incorrect and intended to deceive or mislead”. (iv) At paragraph 29: “18-01-2024 I reached out to the Baroness, I quote from my email “At the start of my Tribunal journey, Mitie’s solicitors wrote to me saying I cannot communicate with Baroness McGregor-Smith”. The Baroness immediately wrote back as to who had said that I cannot get in touch with her. I sent the Baroness, Megan Carney’s email of 13-09-2022. The one that was tactfully timed to deceived Judge Camp”. (v) At paragraph 30 “19-01-2021 the Baroness responded back and I quote “I have emailed this solicitor and asked her why she has said you cannot contact me as that has not been something she agreed with me”. (vi) At paragraphs 31 – 38 the claimant sets out at length why he considers that the email sent by Qurra-Tulain Amir to Baroness McGregor-Smith on 19 January 2024 is not accurate, on the basis that at the time Megan Carney sent the email on 13 September 2022, the hearing before Employment Judge Camp had not at that stage taken place, and therefore the suggestion made by QurraTulain Amir on 19 January 2024 that the respondent’s solicitors had written to the claimant because of the decision of EJ Camp was incorrect. The claimant asserts that the email implied that it was the Judge who had said that he should not contact the Baroness [para 37]. The claimant describes the email sent by Qurra-Tulain Amir as “Big whopper of a lie that is, and one that should aid to Amir, Qurra-Tulain’s disbarment” [para 35] and at paragraph 36 “Oh dear but incorrect and blatant lie again”.(c) In the claimant’s document “Claimants Response to Solicitors Lies” the claimant repeats allegations about the conduct of the respondent’s solicitors. (i) At paragraph 5: “So even after said Solicitor being told by the Baroness that Solicitor had no legal right to mention the Baroness, said solicitor is so deluded that she has done nothing wrong. And even after being told by her paying client, Mitie Chief Legal Officer – Peter Dickinson, said solicitor remains defiant enough to accuse me of deceiving the Tribunal for even trying to pursue this case”. (ii) At paragraph 6 “..my Rule 37 application which goes into great detail how solicitor chose to manipulate the timeline of events to try to deceive the Baroness that it was Judge Camp that had decided to exclude the Baronesses connection. That was after deceiving Judge Camp that the Baroness did not want to be connected to this case”.[65]In oral submissions the claimant added that the Tribunal will see that Baroness McGregor-Smith is “absolutely livid that I should have been banned” and that “Peter Dickinson admits I shouldn’t have been precluded from speaking with the Baroness”.[66]In response to the respondent’s application to strike out, the claimant maintains that the respondent has exhausted all of their Rule 37 applications already when EJ Faulkner made his decision, and EJ Faulkner said that this case was going to hearing.[67]The claimant maintains that the Instructions to Counsel for the hearing before EJ Camp are the crux of the matter as the Case Management Order of EJ Camp was made with heavy reliance on what the respondent’s barrister had put to him at that hearing.[68]The respondent’s submissions are set out in two documents dated 6 February 2024 and April 2024 which the respondent’s representative summarised in oral submissions, as follows:(a) The respondent’s representative says that the application made by the claimant is factually incorrect, an attempt to mislead the Tribunal, defamatory and an attempt to continue with those parts of the claimant’s claim that had been struck out by previous Employment Judges.(b) The respondent’s solicitors were correct in asking the claimant that all correspondence in relation to the claimant’s claim should be sent to them, in line with the overriding objective in order that they know what the current position is of the claim.(c) The email sent by Megan Carney “kindly asks” the claimant not to copy certain persons into correspondence. It does not say do not contact the Baroness. It does not “effectively ban” the claimant from reaching out to the Baroness. It is asserted that the claimant has put a different effect on the email and attempted to mislead.(d) There is no evidence produced to say that EJ Camp saw an email from Megan Carney upon which the claimant bases his assertion that EJ Camp was influenced and relied upon the email of Megan Carney. This is the claimant trying to mislead the Tribunal.(e) The claimant’s application appears to be an attempt to have EJ Camp’s Order rescinded. This appears not to be possible. No appeal seems to have been received by the Tribunal.(f) The allegation made by the claimant about the contents of the email sent by Qurra-Tulain Amir is not correct as both EJ Camp and EJ Webb had ordered that Baroness McGregor-Smith is not to be called as an expert witness as her evidence is not relevant. This is asserted to be evidence of the claimant acting scandalously, unreasonably and vexatiously whilst trying to mislead the Tribunal.(g) In the claimant’s document “Claimants response to Judge Gaskells Order of 07-02-2024” dated 7 March 2024, the claimant states [para 3] that EJ Faulkner stated that Baroness McGregor can be called as a witness, without any evidence to that effect.(h) The claimant puts his case in the highest possible way in order to deceive and his claims should be struck out. It is submitted that there is no chance of a fair hearing.(i) The claimant has made baseless and outrageous accusations, which show scandalous, unreasonable and vexatious conduct, calling into question the integrity and honesty of the respondent’s representatives and trying to manipulate the situation to his own ends. The exclusion of evidence from Baroness McGregor-Smith– reasons 2, 3, 4[69]Turning first to the claimant’s submission that the respondent’s response should be struck out because the respondent misled the Tribunal which led the Tribunal to determining that the evidence of Baroness McGregor-Smith was not relevant to the case. Previous Employment Judges have dealt with the issue of whether Baroness McGregor-Smith is a relevant witness and concluded that she is not, as set out in the procedural history above. I shall not be revisiting that issue today, which has already been determined, and the reason for which has been explained to the claimant on multiple occasions by other Employment Judges.[70]In the context of the claimant’s application today, the claimant maintains that Baroness McGregor-Smith is a relevant witness and that the Employment Tribunal decision making process in relation to whether she is in fact a relevant witness has been tainted by the actions of the respondent, who misled the Tribunal about the relevance of her evidence.[71]I have carefully considered all of the documentation before me and the submissions of both parties and conclude that there is no evidence whatsoever to support the claimant’s assertion, for the following reasons:(a) It is evident from the summary of the case management Preliminary hearing before EJ Camp on 28 September 2022 that the reason the evidence of Baroness McGregor-Smith was being discussed was because the claimant had stated in his claim form at paragraph 42: “I will be approaching Baroness McGregor-Smith to either attend or at least be available over the phone on Tribunal dates, as to her expert opinion on key issues in this case. The Baroness wrote a 95-page review for the Government in 2017 titled “Race in the workplace – the time for taking is over. Now is the time to act”. At paragraph 56 of his case summary, EJ Camp records: In light of various comments the claimant made in the document attached to the claim form giving details of the claimant’s claim … I [the Employment Judge] have explained to the claimant that .. [56.1] making allegations of “institutional racism” against the respondent does not help his case, because what he is alleging is that specific individuals mistreated him because they personally were racially prejudiced …[56.4] similarly, expert evidence from Baroness McGregor-Smith (see paragraph 42 of the details of claim) about race and racism in the work place will not be allowed at the final hearing”(b) There is no indication in the case summary that EJ Camp received or had regard to any email from Megan Carney about this matter, nor that he made those comments because of representations made to him by the respondent’s representative. The case summary clearly states that the explanation was provided to the claimant because of comments made in the claim form.(c) The claimant sent two documents to the Tribunal, both dated 5 January 2023, one entitled “Permission to Appeal out of time Judge Camp’s Order dated 29 September 2022” and the other “Permission to Appeal out of time Reconsideration of Judge Webbs Order dated 21 December 2022.” These are at pages 104-115 of the bundle. On the claimant’s own account on 5 January 2023 – in the first document at paragraph 22 and in the second at paragraph 33 – there is no indication that it was the respondent’s representative who persuaded the Tribunal to make that Case Management Order. He states (in both documents): “At the hearing there was no objection from the respondents legal team as to restricting expert witnesses. Judge Camp went out of his way to exclude Baroness McGregor-Smith who was ex CEO of Mitie, and she has expert knowledge of the company and how a CEO should conduct themselves”. In fact, both documents produced by the claimant attribute the exclusion of that evidence entirely to the Tribunal, at that juncture simply indicating that there was no objection from the respondent’s representative.(d) There is further correspondence from the Tribunal and a Reconsideration Judgment by EJ Webb, as set out above, which demonstrate that the claimant was well aware of the avenues open to him to challenge those decisions at the relevant time, and indeed attempted to do so. The options were repeated to him by EJ Gaskell on 7 February 2024. It was only after the claimant was unsuccessful in challenging the prior Tribunal decisions, that the claimant alleged that the reason those decisions were made by the Tribunal was because the respondent’s representative misled the Tribunal at the hearings of EJ Camp and EJ Webb.(e) At paragraph 3 of his document “Claimants response to Judge Gaskells Order of 07-02-2024” the claimant states “Claimants Rule 37 application was made whilst pursuing matters to this case in accordance with Judge Faulkner’s order of 13-10-2023. Namely Judge Faulkner was specifically asked if Baroness McGregor-Smith can be called as a witness. The Judge said the Baroness can be called as a witness”. Before me today the claimant asserted that he had copied Baroness McGregor-Smith into whistleblowing emails in 2016 and submits that this was a relevant matter at the hearings before EJ Faulkner on 28 September 2023 and 7 November 2023. To the extent that Baroness McGregor-Smith might have had any relevant information to provide about alleged whistleblowing in 2016, that element of the claimant’s claim had already been dismissed on 21 December 2022 by EJ Webb as it had been presented out of time. There is therefore no evidence whatsoever to support the claimant’s assertion that EJ Faulkner said the Baroness could be called as a witness. Indeed, EJ Faulkner’s 13 October 2023 Judgment deals extensively with why a report from Baroness McGregor-Smith is not relevant to the issues before the Tribunal at paragraphs 48-49.1 and 51.1, as set out above.(f) Although EJ Gaskell had already explained to the claimant why no order for disclosure of Instructions to Counsel would be made, the claimant reiterated today his belief in the necessity of a disclosure order for the Instructions to Counsel for the hearing before EJ Camp in September 2022. He maintained that EJ Faulkner had ordered the respondent’s representative to disclose the Instructions for the hearing before EJ Webb. Whilst it appears that the respondent’s representative had disclosed those Instructions voluntarily in an effort to address a query about the scope of the strike out application being considered by EJ Webb, it is evident from the Judgments of EJ Faulkner that no such disclosure order for Instructions to Counsel was made by the Tribunal. Correspondence between respondent’s representative and claimant in relation to contact with Baroness McGregor-Smith – reason 5, 6, 7, 8 and 9[72]The claimant submits that the correspondence sent by the respondent’s solicitors to the claimant (on 13 September 2022) and by the respondent’s solicitors to Baroness McGregor-Smith (19 January 2024) is evidence of unreasonable, scandalous or vexatious conduct. That correspondence is set out below:[73]On 13 September 2022 Megan Carney, Employment Specialist at Dentons, solicitors acting for the respondent, notified the Tribunal that she had taken over conduct of the file from her colleague Qurra-Tulain Amir and requested that future correspondence be directed to her as the respondent’s representative. This email was copied to the claimant.[74]On the same date, 13 September 2022, Megan Carney wrote to the claimant. The email explains that she is the representative of the respondent. It reads: “Our client has kindly sent me your email of 9 September 2022, containing your list of issues. I write to confirm safe receipt. Please be advised, that as the respondent’s representative, all correspondence in relation to your Tribunal claim is to be sent to me and not to members of the respondent’s business or Baroness McGregor-Smith. I also kindly ask that you do not copy in members of the respondent’s business or Baroness McGregor-Smith into correspondence. Likewise, correspondence between parties should not copy in the Tribunal, unless you are making an application for an Order, or ACAS, unless we are engaging in settlement discussions. Doing so causes the Tribunal and ACAS unnecessary additional work for staff and creates delays in dealing with case work. We will be in touch shortly with a draft Agenda and list of issues for the preliminary hearing.”[75]Some 16 months later, on 19 January 2024 an email is sent from Baroness McGregor-Smith to Megan Carney at Dentons, which reads: “Dear Megan I have been sent this email yesterday from Dev Masih who I believe has a claim against Mitie. This email states he is to make no contact me with me. Could you please explain why you have put my name in this email and instructed an ex-employee of Mitie not to make contact with me? I have copied in the Chair of Mitie Group plc so he is aware of this. Best wishes Ruby”[76]The attachment Baroness McGregor-Smith refers to in her email had not been supplied by the claimant in his documents for today’s hearing. In his written submission labelled “Claimant’s Rule 37 Application” [pages 241-247] at paragraph 29, the claimant states: “18-01-2024 I reached out to the Baroness, I quote from my email “At the start of my Tribunal journey, Mitie’s solicitors wrote to me saying I cannot communicate with Baroness McGregor- Smith.”[77]On 19 January 2024, a response is sent to Baroness McGregor-Smith from Qurra-Tulain Amir, Senior Lawyer, Helix at Dentons. That email reads: “Dear Baroness McGregor-Smith I have been advised to respond to your message below to my colleague Megan, after it was forwarded on to the Mitie team. I am a senior lawyer in the team at Dentons who advises Mitie in connection with employment tribunal matters. You are correct that Mr Masih is pursuing an Employment tribunal claim against Mitie. As a preliminary issue the questions of witnesses arose, as is standard. Mr Masih informed the Tribunal that he would seek to bring you as a witness. This was considered by the Judge and he confirmed that your evidence would not be relevant to Mr Masih’s allegations/claims and that you should not be brought as a witness. Following on from this we sent Mr Masih an email which confirmed that, as the Judge had determined your evidence was not relevant, he should not contact you or others in connection with this matter save for going through the official channels. This was part of other steps we were taking to ensure that Mr Masih conducted the proceedings in line with the employment tribunal’s overriding objective. I hope this clarifies the matter. If you wish to discuss this any further then please let me know. Kind regards Qurra-Tulain Amir, Senior Lawyer, Helix”[78]There is a further email from Baroness McGregor-Smith to Dentons also on 19 January 2024: “Many thanks Amir, this is really helpful. However, I am not comfortable at the language used in the email you sent as this context was not make clear. The wording should have been agreed with me if you intended to mention me at all. I am disappointed at the wording which implies Mr Masih cannot contact me when you have no legal right to do so. Could you please write to Mr Masih and explain the context more clearly please. Best wishes Ruby”[79]Peter Dickinson, Chief Legal Officer of the respondent sends an email to Baroness McGregor-Smith later on 19 January 2024: “Ruby, Many thanks. I will ensure that we write to Mr Masih, clarifying the situation and making absolutely clear that he is not precluded from reaching out to you. Best regards Peter”[80]The claimant received an email from Baroness McGregor-Smith on 20 January 2024, copying him into the chain of emails set out above and stating, “you are entitled to write to me if you wish to and the lawyers are not allowed to tell you not to”.[81]Having carefully considered the chain of correspondence to which the claimant refers, I reach the following conclusions:(a) The email of the respondent’s representative dated 13 September 2022 does not ban the claimant from contact with Baroness McGregor-Smith. The respondent’s representative had quite properly written to the claimant to ask that correspondence related to the case be directed to the representative, rather than other individuals, and that members of the respondent’s business and Baroness McGregor-Smith should not be copied into that correspondence. The request was made politely and professionally. It also followed sequentially an email that Megan Carney had sent to the Tribunal stating that she was taking over conduct of the file from her colleague, asking the Tribunal to update contact details.(b) As to the more recent correspondence of 19 January 2024, between Baroness McGregor-Smith and Mitie, it is apparent that that chain of correspondence and the concerns raised by Baroness McGregor-Smith are generated by an email the claimant himself sent to Baroness McGregor-Smith on 18 January 2024. That email has not been provided to me. However, the claimant’s own submission is that he wrote to Baroness McGregor-Smith and that the email said: “At the start of my Tribunal journey, Mitie’s solicitors wrote to me saying I cannot communicate with Baroness McGregor-Smith”. For the reasons I have already set out, this misrepresents the content of the email sent by Megan Carney on 13 September 2022 and the chain of correspondence between Baroness McGregor-Smith, Dentons and Mitie which follows is therefore unsurprising.(c) The claimant makes a number of assertions of misrepresentation by the respondent’s representative Qurra-Tulain Amir to Baroness McGregorSmith in the email of 19 January 2024 and conversely the respondent’s representative submits that for the claimant to make such an allegation is scandalous, vexatious and unreasonable behaviour. The email reads “Following on from this we sent Mr Masih an email which confirmed that, as the Judge had determined your evidence was not relevant, he should not contact you or others in connection with this matter save for going through the official channels”. The email sent to the claimant on 13 September 2022 was sent before the hearing of EJ Camp at which the Case Management Order was made which had determined that evidence from Baroness McGregor-Smith was not relevant. The 19 January 2024 email contains an inaccuracy as Megan Carney’s email had not in fact stated that the Judge had determined that Baroness McGregor-Carney’s evidence was not relevant as, by 13 September 2022, EJ Camp had not yet considered that matter. That did not happen until 28 September 2022. Nor – as I have already determined above - did Megan Carney’s email in fact state that the claimant should not contact Baroness McGregor-Smith or others save for going through the official channels. The chain of correspondence must be read in context: it began because the claimant himself wrote to Baroness McGregorSmith saying that Mitie had written to him saying that he could not communicate with her, which was not in fact correct. The 19 January 2024 email is sent some 16 months after the original email by Megan Carney. At the point it is sent it was by then correct to state that the Tribunal had determined that evidence from Baroness McGregor-Smith was not relevant. It was not an email which was addressed to the claimant, nor to the Tribunal. It was not correspondence which has any bearing on the conduct of his litigation or the respondent’s defence to it before this Tribunal. It was in effect satellite correspondence, to an individual whose evidence had been determined by the Tribunal not to be of relevance to the matters before it. For those reasons, I do not find the slight inaccuracy in the respondent’s representative’s email of 19 January 2024 to Baroness McGregor-Smith is of any significance to the applications before me today.(d) The claimant says that the respondent’s solicitor has not written to him to say he can contact Baroness McGregor-Smith as had been stated in the email of 19 January 2024 from Peter Dickinson to Baroness McGregor-Smith. The claimant is evidently aware that he can contact Baroness McGregor-Smith, as he has received a copy of the chain of emails from Baroness McGregor-Smith and she has told him this herself. In any event, I do not find that this is of relevance to the issues before me today. The email was not addressed to the Tribunal or to the claimant, nor was it correspondence which has any bearing on the conduct of the claimant’s litigation or the respondent’s defence to it before this Tribunal.[82]In light of my conclusions above, I turn to the specific applications: Claimant’s application for strike out of the respondent’s response[83]Turning firstly to the claimant’s application to strike out, I have considered the claimant’s application carefully in light of the authorities and have considered whether the conduct stated by the claimant to exist has been established. I cannot find that the response or any part of it is scandalous, vexatious or has no reasonable prospects of success. I cannot find that the manner in which the proceedings have been conducted by or on behalf of the respondent has been scandalous, unreasonable or vexatious. This application therefore fails. Respondent’s application for strike out of the claimant’s claim[84]As to the respondent’s application to strike out, I do find that the conduct stated by the respondent to exist has been established. I find that the manner in which the claimant has conducted these proceedings since the hearings before EJ Faulkner which concluded on 7 November 2023 has been unreasonable and vexatious, for the reasons set out below. I do not find that the claimant’s conduct meets the definition of scandalous:(a) As set out above, the claimant has made allegations of serious wrongdoing against the respondent’s solicitors. There is no evidence whatsoever to support the allegations made.(b) The claimant’s application to strike out the respondent’s response was vexatious and unreasonable, being founded upon a misrepresentation of the procedural facts in this case, set out extensively in the previous Case Management Orders and Judgments of the Tribunal. Whilst I take into account that the claimant is a litigant in person and this is a case which has a procedurally complex history, it was evident through the claimant’s written submissions and oral submissions before me today that he was well able to put forward his application to strike out the respondent’s response, and to respond to the respondent’s application for strike out of his claim: his understanding and grasp of the issues in the case is extensive. I am not satisfied that any aspect of the claimant’s application was founded on a misunderstanding of Tribunal procedures because he is a litigant in person. Rather, I conclude that he has deliberately misinterpreted rulings and documents in order to support his narrative that the respondent’s representatives had misled the Tribunal and misled Baroness McGregor-Smith, after his previous attempts to re-open previous decisions of the Tribunal in relation to the claims he brings and the evidence he wishes to call failed.[85]Having found that grounds in Rule 37(1)(b) are made out, I have to consider whether strike out is proportionate and whether a fair trial is still possible.[86]I give consideration to the overriding objective and the need to approach matters flexibly, and take account of the fact that the claimant is a litigant in person, although for the reasons I have set out above I conclude that this is not a case where the claimant does not understand what is required of him procedurally and he is capable of complying. I take full account of the draconian nature of strike out and all the circumstances, taking into consideration the authorities and cases highlighted to me today. The respondent submits that there cannot be a fair trial and that no lesser sanction than strike out is available “as it is impossible for any tribunal to be able to find [the claimant] a witness upon whom they can rely”. I have carefully considered that submission. Although I find that the manner in which the claimant has conducted proceedings in relation to his application to strike out the respondent’s response was vexatious and unreasonable, that does not inevitably mean that he will continue to conduct proceedings in this way. The respondent will have the opportunity to cross-examine the claimant and make submissions about the reliability and credibility of his evidence at the final hearing, in the same way that the claimant will have the opportunity to crossexamine the respondent’s witnesses and make submissions about their reliability and credibility. Ultimately, it will be for the Tribunal at final hearing to determine the evidence which is reliable and credible.[87]The claimant’s repetition of matters which have already been dealt with, and his inaccurate assertions, is misleading, vexatious and unreasonable, wasteful of Tribunal time and not in line with the overriding objective. The claimant made a number of incorrect assertions about procedural matters which have already been determined by the Tribunal, as follows:(i) He maintained that the respondent’s representatives had provided an incorrect bundle which prevented the full hearing listed for September 2023 going ahead.(ii) He maintained that EJ Faulkner had said that the respondent could not proceed with the strike out application before me today. EJ Gaskell had clarified this point for the claimant, and explained that the respondent’s application would proceed today, yet the claimant repeated his incorrect assertion during proceedings today.(iii) He maintained that EJ Faulkner had ordered the disclosure of the respondent’s Instructions to Counsel in respect of the hearing before EJ Webb.(iv) He maintained that EJ Faulkner had said that Baroness McGregor-Smith could be called as a witness.(v) He asserted before me today that Baroness McGregor-Smith would attend the full hearing in order to give evidence about how the claimant had been banned from speaking to her. I reminded the claimant again that that would not be relevant evidence at the full hearing, as those issues are being addressed in his application today. As to evidence from Baroness McGregor-Smith more generally, this point has been dealt with extensively by previous Employment Judges.[88]I draw the claimant’s attention to the fact that I have found these assertions to be incorrect and that accordingly they should not be repeated.[89]I remind the claimant that the parties and their representatives are required to assist the Tribunal to further the overriding objective and in particular are required to cooperate generally with each other and with the Tribunal. The claimant told me today that he is intending to seek legal advice for the final hearing. That is a matter for the claimant. Whether or not he does, I record here that it is essential that he now abides by the rulings made by previous Employment Judges in his case and cooperates generally with the respondent and the Tribunal to bring this case forward to full hearing. Further conduct of this nature is very likely to result in his claims being struck out.[90]It was unreasonable of the claimant to accuse the respondent’s solicitors of lying. Honesty is a basic standard required of solicitors. If they are accused of lying, which the claimant has done throughout his written submissions, including in a document specifically titled “Claimants Response to Solicitors Lies” it is to be expected that they will take that accusation seriously. Baseless accusations have a damaging effect on the ability of the parties to cooperate, in line with the overriding objective, on matters that are essential to the preparation of a fair hearing. However, this would only make a fair hearing impossible if there was no prospect that the claimant’s conduct will improve. I record here that the claimant’s accusation of the respondent’s solicitors in these circumstances was unreasonable and that persisting with conduct such as this in the future is very likely to result in his claims being struck out.[91]This is effectively a final warning for the claimant. With that measure in place, I conclude that it would be disproportionate to strike out the claim and a fair hearing can still take place at this stage.[92]This case was originally listed for full hearing in September 2023. The parties indicated that witness evidence and documentation has been exchanged and that the case is largely now ready for hearing. Separate case management orders will follow.
Summary
Introduction
[1]There being no appearance by the Claimant and on the application of the Respondent and the tribunal having considered the information before it and made such enquiries that were practicable about the reasons for the Claimant’s absence, the claims are all hereby dismissed in accordance with rule 47 of the Employment Tribunals Rules of Procedure 2024[2]On the application of the Respondent, the tribunal hereby orders the Claimant to pay costs to the Respondent in the sum of £902.70 in accordance with rule 72(3) of the Employment Tribunals Rules of Procedure 2024 being the fees of the Respondent’s Counsel incurred at a Preliminary hearing held on the 26 November 2024 Approved by: JUDGMENT having been sent to the parties on 15 May 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:[1]This case was listed for final Hearing for six days before the tribunal commencing on the 12th of May 2025 to determine the claimant’s various claims of discrimination; detrimental treatment by way of raising protected disclosures; that he was automatically unfairly dismissed by raising protective disclosures and also ordinarily unfairly dismissed.[2]There had been two more recent Preliminary hearings of significance, firstly before Employment Judge Kelly on the 20th of August 2024 and secondly before Employment Judge Connolly on the 26th of November 2024. At the first Preliminary hearing attended by both parties via video link a discussion took place about preparation for the final Hearing and a further attended Preliminary hearing was set down by Judge Kelly for the 26th of November 2024 to consider (amongst other matters), the claimant’s application to amend his claim to add further new disclosures and detriments to the claims then before the tribunal. Judge Kelly within her orders directed that the claimant provide further particulars of the details of the proposed amendments themselves, so that that the tribunal could understand the matters it was having to determine and respondent the case it had to meet and which was opposed.
Preliminary matters
[3]At the hearing before Judge Connolly on the 26th of November 2024 the respondent was represented by Counsel, there was no attendance by the claimant. On the 23rd of November the claimant had written to the tribunal seeking a postponement of the said Preliminary hearing due to a medical emergency. There were various attachments to his said email application, and the postponement request was objected to by the respondent. On the 25th of November 2024 Judge Wederspoon treated the application as a postponement request and refused the same. According to the record of the Preliminary hearing that then followed on the 26 November, promulgated by Judge Connolly, there was no further contact from the claimant. Nevertheless, Judge Connolly went on to consider the matters before her (as she records) and heard from Counsel for the respondent and refused the application to amend. As she further records, the claimant had failed to provide the further particulars relating to the amendment application as ordered by Judge Kelly above. The final Hearing was to remain listed to commence on the 12th of May 2025.[4]Given that the claimant had not provided the above further particulars nor had attended at the hearing on the 26th of November as ordered, the respondent submitted that it may make application for costs arising from the day. Judge Connolly in her orders noted that if the respondent was to make an application for costs it should by the 10th of January 2025, confirm if it was pursuing such an application and to submit details of the costs sort and the amounts to both the tribunal and the claimant. The claimant was ordered if he wished for the tribunal to have regard to his ability to pay any such costs, that he should provide documentary evidence about his income and outgoings two weeks prior to the final Hearing. It was subsequently directed by the tribunal, that the said costs application should be dealt with at the final Hearing.[5]On the 6th of May 2025 following an email application with attachments was made by the claimant for a postponement of the final Hearing on the grounds that he was too ill to attend , Employment Judge Gidney having considered the same, on the same day refused the postponement notifying the claimant that in his view there was no current medical evidence produced by the claimant to sustain his submission that he was too ill to attend. It was ordered by Judge Gidney that the final Hearing should proceed as listed. On the 7th of May the claimant submitted a further email to the tribunal with some 22 attachments asking for a review of the refusal to postpone and to take the attachments into consideration. That email and those attachments were before the tribunal at the beginning of the Hearing on the 12 May.[6]At the Hearing today the tribunal had before it bundles of documentary evidence and witness statements from the respondent and a witness statement from the claimant, (which as submitted by the respondent was in effect no more than a chronology of the major events he was relying on). The respondent was represented by Miss Quigley of cancel. There was no appearance by the claimant so the tribunal took note of and considered the aforesaid email from the claimant with the 22 attachments referred to above. The tribunal also considered the information that it had on the file and made enquiries through its Clerk as to the whereabouts of the claimant both by telephone and physically within the building. There was no response in respect of either of those enquiries. The respondent therefore made applications for the dismissal of the claim and for an order for costs arising from the Preliminary hearing on the 26th of November 2024. The tribunal heard no evidence from the respondent and the applications were dealt with by way of oral submissions presented by Counsel for the respondent. The relevant
Law
[8]Rule 47 of the Employment Tribunal Procedure Rules 2024 deals with the non-attendance of a party. More specifically it records as follows:”if a party fails to attend or be represented at a hearing, the tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so it must consider any information which is available to it after any enquiries that may be practical about the reasons for the party’s absence.[9]Rule 74 of the aforesaid Tribunal Procedure Rules, deals with applications for costs or preparation time orders. More specifically rule 74(3) records as follows “the tribunal may also make a cost order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order rule or practice direction or where a hearing has been postponed or adjourned”. In addition the tribunal has also taken note of the guidance and principles arising from the decided case of Serco v Wells UKEAT/0330/15/RN The applications[11]Counsel for the respondent made two applications as referred to above. Firstly, she applied for the whole of the claim to be struck out on the basis that the claimant had failed to attend without good reason. That the application to postpone should be refused on the basis that the claimant’s email and attachments of the 7th of May did not disclose anything further by way of medical evidence than that which had already been considered by Judge Gidney earlier in the week and which said postponement application was refused by him. That the claimant had failed to set out the particulars required by Judge Kelly following the hearing in August 2024 and that in the absence of any oral evidence from the claimant, his witness statement and indeed the documentary evidence before the tribunal did not disclose any case to answer in respect of the claims of automatic unfair dismissal, detrimental treatment or discrimination. That in regard to the claim of unfair dismissal that the respondent would have argued in any event that it had dismissed the claimant fairly by reason of misconduct and would have been able to sustain that argument had the claimant attended.[12]The second application was for costs arising from the aforesaid Preliminary hearing to consider the claimant’s application to amend on the 26th of November which the claimant had failed to attend or provide further particulars of as ordered by Judge Kelly. It was submitted that the respondent had set out in accordance with the orders of Judge Connolly the basis of its application and details which was limited only to Counsel’s fees and travel costs for attending the hearing on the day at which the claimant’s amendment application was dismissed. It was submitted that the claimant had not produced any details of his means or any other matters that he wished the tribunal to take into account as ordered by Judge Connolly prior to the final Hearing and therefore those costs should now be awarded in favour of the respondent. The conclusions[14]In reaching the following conclusions the tribunal has taken into account the information before it and correspondence on the tribunal file received from both the claimant and the respondent, the relevant Procedure Rules and case law cited above and the oral applications made today on behalf of the respondent. As recorded above. It has heard no oral evidence.[15]Having regard to the application for the dismissal of the claim in the absence of the claimant and having carefully considered the claimant’s above mentioned email of the 7th of May with attachments, the tribunal was satisfied that there was nothing within those attachments that added anything new or further in terms of medical evidence preventing the claimant from attending the Hearing today than that which was already before Judge Gidney on the 6th of May. Judge Gidney refused the postponement of the final Hearing and taking into account the principles arising from the said decided case of Serco v Wells UKEAT/0330/RN the tribunal was satisfied that there was no material change in circumstances that could justify the postponement of the final Hearing. The tribunal was satisfied taking into account the submissions made by the respondent (in summary above) and the information available to it, that it was appropriate in light of the fact that there was no attendance by the claimant (and therefore no oral evidence that could be presented by him), that the claim should be dismissed in accordance with rule 47 of the aforesaid Procedure Rules. The respondent’s application in this regard therefore succeeds and the claim is dismissed.[16]Have regard to the application for costs incurred by the respondent at the Preliminary hearing on the 26th of November 2024, there was no evidence on the tribunal file to the effect that the claimant had in accordance with Judge Connolly’s order responded to the application for costs made on January 10, 2025 by the respondent and set out any means or arguments that he would wish to tribunal to take into account when considering the costs application. The Preliminary hearing was set down in principle to deal with the claimant’s application to amend his claim which was opposed by the respondent. He failed as ordered to appear at that hearing and to provide any of the further particulars relating to the amendment application also ordered by Judge Kelly. The tribunal concludes therefore that the claimant should be ordered to pay the respondent its costs incurred by its Counsel on that day in the sum of £902.70 in accordance with rule 72 (3) of the said Employment Tribunal Procedure Rules of 2024. Approved by