Mr F P Wandji Mboungueng v Severn Trent plc and others: 1306955/2023

EMPLOYMENT TRIBUNALS

Case No 1306955/2023

Between

Mr Franklin Paterson Wandji MbounguengClaimant

Severn Trent PLC and / or Severn Trent Water LTD and / or Severn Trent GroupRespondent

Before

Employment Judge Camp

Date 6 February 2024

JUDGMENT

The complaint that the claimant was unfairly dismissed is struck out.

REASONS

[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years' service to make an unfair dismissal complaint.

[3]The claimant was employed by the respondent for less than two years.

[4]Therefore, the claimant is not entitled to bring such a complaint.

[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.

[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant's other complaints are not affected by this judgment.

Introduction

[1]On 22 September 2025 I [Employment Judge Camp] made the following order: The Claimant’s application of 25 July 2025 to “Set Aside the Judgment …. practice, and is treated as, an application under rule 39(2) of the Employment Tribunal Procedure Rules 2024 to set aside an unless order, the decision of 2 July 2025 that there was not substantial compliance with that unless order, and the consequent dismissal of part of his claim) is refused.

[2]Due to other judicial commitments, I was not able at the time to give written reasons. My priority was to get a decision sent to the parties so that they knew where they stood and so that they could get on with preparing for a Dispute Resolution Appointment (which was due to take place on 29 September 2025 and which I had had to postpone) and the final hearing. These are the written reasons.

[4]On 2 July 2025, I made a number of decisions about whether the Claimant had complied with a series of unless orders that Employment Judge Faulkner made in February 2025. I decided he had not substantially complied with one of them, my decision being that, “The Claimant failed to comply with the unless order for the provision by 4 pm on 31 March 2025 of further information in relation to an alleged instance of “racial aggression” by Paul Spiby on 8 July 2022 at an ABCD review meeting. Any complaint about that alleged racial aggression has therefore been dismissed.” Written reasons were given for that decision at the time.

[5]On 25 July 2025 (which was within 14 days of my decision of 2 July 2025 being Aside the Judgment … sent to parties on 15 July 2024, and in accordance with Rule 70 of the Employment Tribunals Rules of Procedure 2013, I now apply for it to be set aside on grounds that it is in the interests of justice and that I have a 1 of 10 reasonable prospect of success if the case is re-heard.” The Respondent opposed that application in an email of 5 August 2025 and the Claimant made further submissions in support of his application in an email of 18 August 2025, headed “Reply to Respondent’s Objection”. No further submissions have been received from either side and (due to delays by the Tribunal administration) nearly two months passed between the Claimant making his application and the application being referred to me. In the circumstances, I was satisfied that both sides had had ample opportunity to comment and did not need to be given a further chance to do so. I was also satisfied, for much the same reasons, that having a hearing to decide the application was unnecessary. Indeed, my view was and is that having a hearing would have been positively undesirable, as it would have led to further delay, potentially jeopardising the trial dates and certainly affecting the feasibility of having a meaningful DRA.

[6]The Claimant’s application and submissions read as if the old, 2013 Rules still applied; and as if the Claimant thought that part of his claim had been struck out for non-compliance with a Tribunal order, whereas what had in fact happened was that it had been dismissed for breach of an unless order pursuant to rule 39 of the Employment Tribunal Procedure Rules 2024 (the “ETPR”). I therefore, in fairness to the Claimant and as set out in my order of 22 September 2025, treated his application as an application under rule 39(2) of the ETPR to set aside an unless order, the decision of 2 July 2025 that there was not substantial compliance with that unless order, and the consequent dismissal of part of his claim.

Background

[7]The background to and reasons for making the unless order, and those to and for my decision of 2 July 2025 are important and I refer to and repeat the written reasons I gave on 2 July 2025 as well as the written reasons of 25 February 2025 given by Employment Judge Faulkner for making unless orders on 25 February 2025 and the contents of the written record of the preliminary hearing of 24 February 2025. The facts and matters set out in the paragraphs immediately below are particularly relevant to the Claimant’s application that I am dealing with here.

[8]The claim form was presented on 26 October 2023 and the information the Claimant failed to provide related to something that happened over a year before that.

[9]In so far as the Claimant is suggesting that he substantially complied with the relevant unless order, I remain of the view that he did not, for the reasons given in writing on 2 July 2025. One of the main points of the unless order, which was an order to provide information about an allegation that he was subjected to “racial aggressions”, was to compel him to state, “the nature of the aggression (including any words used or the gist of any words used)”. Manifestly, he failed to do that. The relevant information he provided was that on 8 July 2022: “During the ABCD review meeting, Paul Spiby made several subtle but hostile comments. He went out of his way to highlight his power and influence within the organisation, trying to show me that I, as a Black individual, did not belong in a predominantly white business. His comments, though not explicitly racist in language, carried a strong undertone of exclusion. It felt as though he was trying to make me feel unwelcome, 2 of 10 as if my presence was inappropriate in a senior-dominated, white space. This behaviour was not only dismissive but racial in its undertone.” Without knowing what “comments” were allegedly made, it is not possible for the Tribunal or the Respondent to make sense of that allegation, for the Tribunal to judge its merits, or for the Respondent properly to respond to it.

[10]The claim was poorly particularised in the claim form and no specific allegation about the meeting on 8 July 2022 was made in it. The Claimant was ordered to provide further particulars of his claim at a preliminary hearing in June 2024 and did so in a draft list of issues on 6 August 2024. This included no allegation about that meeting either. At a preliminary hearing on 8 November 2024, after considering those further particulars and discussing the Claimant’s case with him, Employment Judge Faulkner produced a list of issues, which also did not contain any allegations about the meeting. The Judge noted in his reasons for making the unless order that, “The Claimant had the opportunity to provide details of [all relevant] complaints at a preliminary hearing on 8 November 2024. He did not do so.”

[11]Although at that hearing in November 2024 the Respondent made a very generous concession that it did, “not say that the Claimant requires permission to amend his Claim in relation to any of the complaints in the List of Issues below to the extent that they were fully and precisely identified”, the allegation relating to the meeting on 8 July 2022 was not “fully and precisely identified” – it wasn’t “identified” at all. In the circumstances, notwithstanding that concession, there is no complaint at all before the Tribunal about the meeting on 8 July 2022, because (see Chapman v Simon

[1994] IRLR 124

& Chandhok v Tirkey

[2015] IRLR 195

) it is not in the claim form and the Claimant has not been given permission to amend to add it to the claim. The Claimant would, then, have to have applied successfully to amend his claim form in order to be able to pursue that complaint even if he had substantially complied with the unless order.1

[12]The unless order the Claimant failed to comply with was a follow up to an order Employment Judge Faulkner made on 8 November 2024 which required the Claimant by 17 January 2025 to provide further details of “The dates on which the Claimant says he was subjected to any other racial aggressions … than [those he was ordered to provide details of in other orders] …. In relation to each such date, the Claimant shall specify who subjected him to racial aggression, where it took place, in what context (for example, at a meeting or in a one-to-one discussion), the nature of the aggression (including any words used or the gist of any words used) and, if there were any witnesses to it, the identity of those witnesses”2. He did not comply. (He did not comply with any of the further information orders that were made in November 2024 until 31 March 2025.) 1 Arguably, the same could be said for many of the other allegations / complaints he made in the further information he provided in response to the unless orders on 31 March 2025; but whether that is indeed the case in relation to any particular allegation / complaint will be something for the Tribunal at the final hearing to decide. 2 He was separately ordered to provide, “The dates, other than 18 July 2022, on which the Claimant says Paul Spiby made racial remarks to him…”, information he provided on 31 March 2025. The information he provided did not include anything about a meeting on 8 July 2022. 3 of 10

[13]The Claimant was effectively given a further chance to provide the necessary details between 17 January 2025 and the preliminary hearing on 24 February 2025, in response to the Respondent’s application of 31 January 2025 for an unless order. He had yet another opportunity at the hearing itself. Employment Judge Faulkner noted when making the unless orders that the Claimant had not “provided a satisfactory explanation for that failure [to comply]. I do not accept his assertion that the Respondent has failed to comply with the Orders I made requiring it to provide information and documents to the Claimant. I do not accept either that the Claimant has provided evidence supporting his contention that he is medically incapable of providing the details of his complaints”.

[14]Further, Employment Judge Faulkner refused a postponement application the Claimant made at the hearing on 24 February 2025 on medical grounds.3 He was clearly satisfied that the Claimant was capable of fully participating in that hearing and was choosing not to do so. It is noteworthy that the Claimant has, to my knowledge, never provided medical evidence that supports his assertions that he has been prevented or inhibited from complying with Tribunal orders because of ill-health. This is notwithstanding the fact that the Claimant (or purportedly family and friends on his behalf) wrote on a piece of paper which the Claimant held up in front of his face throughout the hearing [by video] on 24 February 2025 that his “doctor has advised that they will provide a formal medical letter confirming my health status, but this will take a few days to prepare. …This letter will be submitted to the Tribunal once available to the Tribunal”.

[15]The first time during the Tribunal proceedings that the Claimant mentioned a meeting on 8 July 2022 (or any specific relevant interaction with Mr Spiby other than a WhatsApp call on 18 July 2022) was when he purportedly complied with the unless orders, on 31 March 2025.

[16]By my count, before I made my decision on 2 July 2025, the Claimant had had ten opportunities to provide adequate particulars of any allegation he was making about what Mr Spiby supposedly said or did at a meeting on 8 July 2022 that was racially discriminatory and had not taken any of them, those opportunities being:16.1 in his claim form of 26 October 2023;

16.2 at or prior to the first preliminary hearing on 10 June 2024;

16.3 in his further particulars of August 2024;

16.4 at the preliminary hearing on 8 November 2024;

16.5 in response to Employment Judge Faulkner’s order requiring him to provide them by 17 January 2025;

16.6 before the hearing on 24 February 2025, in response to the Respondent’s application of 31 January 2025 for unless orders (which the Claimant did respond to in writing on the same date); 3 Two previous postponement applications had already been refused. 4 of 10

16.7 at the hearing on 24 February 2025;

16.8 in response to the unless order requiring him to provide them by 31 March 2025;

16.9 in response to the Respondent’s submission of 31 March 2025 that he had not complied with unless orders (which, again, the Claimant responded to in writing, on 1 April 2025);

16.10 between 19 May 2025, when Employment Judge Faulkner directed that there should be a hearing on the papers to decide whether the unless orders had been complied with, and 27 June 2025, when that hearing on the papers took place (the Claimant provided written submissions for that hearing, on 20 June 20254).

Relevant law

[17]As already mentioned, the Claimant made his application and put forward submissions in support of an application to set aside a strike-out judgment; and his complaint about Mr Spiby and the meeting on 8 July 2022 was not struck out, but dismissed for non-compliance with an unless order. The law relating to strikeouts for breach of orders is not quite the same as the law that applies in the present situation. The law that applies here was helpfully summarised by Eady J in paragraphs 40 to 44 of Chumbu v The Disabilities Trust

[2024] EAT 113

, which I adopt with gratitude and which should be deemed to be incorporated into these reasons.

[18]I note that [what is now] ETPR rule 39(2) read literally provides for an application to be made simply to set aside the unless order, but that that is not how the rule is to be interpreted. When deciding an application under rule 39(2), as well as considering the unless order itself and whether it was appropriate for it to have been made, the Tribunal has to make a broad assessment of whether it was and would be fair and just in accordance with rule 3 for the part of the claim that was dismissed to remain dismissed.

[19]I also note that it will not necessarily (or even presumptively) be the case that an unless order / the dismissal of the claim or part of it will be set aside if a fair trial remains possible. If it were so then unless orders would lose all or most of their meaning and power. All the circumstances must be taken into account and whether a fair trial remains possible is just one factor, albeit a very important one. 4 Not 2026, as typographically erroneously stated in the written reasons of 2 July 2025. 5 of 10 Decision on the application

[20]The reasons for my decision not to set aside the dismissal of any complaint about an alleged instance of “racial aggression” by Paul Spiby at a meeting on 8 July 2022 are:20.1 given the history (see above) it was, in my respectful view, entirely appropriate for the unless orders to be made when Employment Judge Faulkner made them, for the reasons he gave at the time;

20.2 the unless orders Employment Judge Faulkner made were sufficiently clear and he gave the Claimant a relatively large amount of time to comply with them to take into account (as the Judge put it) “the Claimant’s nonparticipation (he says on medical grounds) in the Hearing on 24 February 2025”, notwithstanding the Claimant’s failure to provide medical evidence. The fact that the Claimant understood what was required of him and had enough time is shown by the fact that he substantially complied with every part of all nine of the unless orders apart from in relation to this one allegation / complaint;

20.3 the sanction for non-compliance with the unless order the Claimant did not comply with was a proportionate one, being simply the dismissal of any complaint that was not adequately particularised in accordance with the order.5 If the Claimant has lost anything at all by the unless order taking effect (see paragraph

20.4 immediately below), all he has lost is one complaint amongst a great many, including several other allegations relating to Mr Spiby, and seemingly not one of the most significant complaints. It is very unlikely indeed that the absence of this complaint at the final hearing will have any impact on the overall outcome. The submission the Claimant makes in his application of 25 July 2022 that “The Complaint is Central to My Discrimination Claim” is objectively unfounded; 20.4 on my analysis (see paragraph 11 above), he has not in fact lost anything at all, because the complaint that has been dismissed was not a complaint that was properly before the Tribunal;

20.5 above, I set out the many opportunities the Claimant has had to provide the necessary information. From 31 March 2025, when the Respondent sought confirmation of the dismissal of claims, and probably before, and certainly from when he received my order of 2 July 2025, the Claimant knew that all he had to do to comply with the unless order was to write down what comments Mr Spiby allegedly made that the Claimant believes were ‘racial aggressions’. I imagine he could provide this information in one or two sentences. Despite writing to the Tribunal at some length at least four times since 31 March 2025 and twice since 2 July 2025, he still hasn’t done this. There comes a point where the Tribunal stops giving the benefit of the doubt to a party who knows what they have to do to comply with a Tribunal order and keeps not doing it. In the present case, that time is past. There has been deliberate and persistent failure to comply; 5 See paragraph 20 of the reasons for my order of 2 July 2025. 6 of 10

20.6 in so far as the Claimant has put forward possible explanations for his noncompliance – ill-health, ignorance of what was required of him and the fact he is a litigant in person, confusion because of the “overlapping and repetitive factual matrix” – I do not accept them. I repeat that he has provided no relevant medical evidence, and that he showed he understood and was able to comply with the unless orders by substantially complying with all of them except in this one respect;

20.7 dealing with the Claimant’s non-compliance with orders to provide further information has already taken up a considerable amount of Tribunal / judicial time and resources, and no doubt the Respondent has had to devote time and costs to it too. Granting ‘relief from sanctions’ would necessitate even more time, resources and legal costs being expended checking whether what the Claimant eventually produced in purported compliance with the order did in fact comply with it. That would be unfair to other Tribunal users and to the Respondent;

20.8 it is probably true that a fair trial would still be possible if I granted his application and that the Respondent would not be unduly prejudiced by my doing so, but these considerations are in my view outweighed by the other factors. Inaccurate references to caselaw

[21]Finally, I move onto something that has not in practice affected my decision on the Claimant’s application (in that I would have made the same decision even if it had not been a factor), but is of great concern.

[22]In his application and further submission, the Claimant has referred to a number of cases that either do not (as far as I can tell) exist, or that do not say what the Claimant has suggested they do. I cannot be sure that this has come about because the Claimant has used some kind of AI to help create his application and submission, but I strongly suspect that that is what has happened. Using AI is not in and of itself a problem, but what is a problem is if someone puts before a Court a submission using AI which they haven’t checked is accurate and which tells the Court things that are not true. See R (Ayinde) v London Borough of Haringey, Al-Haroun v Qatar National Bank QPSC

[2025] EWHC 1383 (Admin)

[23]In his application, the Claimant wrote: “Kanapathiar v London Borough of Harrow (

UKEAT/0439/03

) – A technical omission should not override the importance of hearing serious allegations of discrimination.” Although this case exists, and was decided by the EAT in 2003:23.1 I am fairly sure the EAT reference given is wrong. The reference given in the EAT’s judgment is PA/1281/02/MAA;

23.2 what the Claimant wrote about the decision is wrong too. In Kanapathiar, the EAT decided almost the opposite of what the Claimant suggests. It was a case to the effect that although, on the particular facts, the appellant’s appeal was appropriately accepted a day late, the EAT’s time limits rules were to be applied strictly other than in exceptional circumstances. The EAT 7 of 10 said nothing in particular about discrimination cases – I cannot tell from the EAT’s decision whether or not it was a discrimination case.

[24]The Claimant also wrote: “De Keyser Ltd v Wilson

[2001] IRLR 324

– Healthrelated non-compliance may justify relief from sanction.” This case exists and is about strike-outs, but is not about health-related non-compliance. It was not about non-compliance or relief from sanctions at all; it involved a strike-out for alleged scandalous conduct.

[25]The Claimant goes on in his application to refer to “Wright-Turner v London Borough of Hammersmith and Fulham (2024)” which he writes is, “A recent case affirming the Tribunal’s responsibility to accommodate procedural missteps in complex discrimination matters”. There is a decision of an Employment Tribunal following a final hearing in 2021 and a remedy hearing in 2024 substantially in favour of the claimant and which received quite a lot of publicity (because the claimant was awarded a large sum of money) called Mrs R Wright-Turner v London Borough of Hammersmith and Fulham and Ms K Dero (case number 2206237/2018). It is a first-instance decision on its facts which does nothing to affirm any “responsibility to accommodate procedural missteps in complex discrimination matters”. As far as I can tell, there has been no appeal, so no one affirmed the Employment Tribunal’s responsibility to do anything.

[26]The Claimant refers to “British Chambers of Commerce v Burton

[2013] IRLR 214

” (said by the Claimant to be to the effect that, “A strike-out should not occur unless necessary and proportionate”), which appears not to exist. Page 214 of the 2013 Industrial Relations Law Reports is part of the way through the judgment in a case called Haq & others v Audit Commission, which is an equal pay case and says nothing about strike-outs. There are hardly any cases of any kind in any of the law reports, or unreported but available through any of the many online databases of legal authorities I have access to, where the British Chambers of Commerce is a party, and no case at all where it is a party that is reported in the Industrial Relations Law Reports for any year. There is no case in the 2013 Industrial Relations Law Reports involving a party with the word “Burton” in their name either. There seem to be just six cases in the Industrial Relations Law Reports for any year where one of the parties has the surname Burton. None of them concerns strike-outs.

[27]In his second email concerning his application, of 18 August 2025, the Claimant wrote, “As recognised in Chapman v Simon

[1994] IRLR 124

, discrimination claims are often inherently difficult to particularise without disclosure”. Chapman v Simon is a well-known case and is mainly about how claimants may not pursue complaints that are not in their claim forms (or originating applications, as they were at the time of the decision). It does not support the proposition that “discrimination claims are often inherently difficult to particularise without disclosure”. It is not about particularisation of claims, nor is it about disclosure; the word “disclosure” and its variants do not appear even once in the judgment.

[28]Also in that email, the claimant wrote: “In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, the Court of Appeal confirmed that Tribunals should adopt a flexible and supportive approach where a claimant’s health conditions affect compliance”. This case did concern a claimant who was affected by ill-health in connection with a Tribunal claim, but 8 of 10 was not about compliance with orders, nor did the Court of Appeal confirm “that Tribunals should adopt a flexible and supportive approach” when dealing with claimants affected by ill-health. It was about time limits for bringing claims and one of the things the Court decided was that the Employment Tribunal had been entitled to extend time partly on the basis that the claimant had been very unwell. Although the difference between what the Claimant suggested this decision was about and what it is in fact about is not as stark as in relation to Kanapathiar, De Keyser Ltd v Wilson or Chapman v Simon, it is yet another inaccurate and potentially misleading reference to a case put forward by the Claimant.

[29]The Claimant’s position may be that he did not use AI to help produce his application and submission. If he did not then what he did is, potentially, if anything, more blameworthy than if he did.29.1 If he did use AI, then he evidently did not check the accuracy of what AI produced and was therefore reckless as to whether the information he gave the Tribunal was true and as to whether he was in danger of misleading the Tribunal.

29.2 If he did not use AI, then I struggle to think of any explanation for what he wrote other than that he simply made things up. This does not just apply to the non-existent case “British Chambers of Commerce v Burton”. With the possible exception of Abertawe Bro Morgannwg University Local Health Board v Morgan, it is not credible that anyone could read reports of the other cases the Claimant has referred to and genuinely think they say what the Claimant has submitted they do.

[30]Either way, there was a risk that the Tribunal would be misled. Moreover, either way the Tribunal – I – have had to spend a great deal of time trying to find a nonexistent case in order to satisfy myself that it definitely does not exist and even more time reading (or re-reading) from beginning to end the other cases the Claimant has referred to in order to make sure that there was not something in them, tucked away somewhere, that I was not previously aware of and that supports the Claimant’s submissions about them. It is not usually necessary for the Tribunal to do this, because normally people refer to cases reasonably accurately. If they refer to one I am familiar with, I don’t need to look it up in order to know that the reference is accurate (for example, the Claimant’s references to Anyanwu, Kwiksave v Swain and Blockbuster v James in his email of 18 August 2025). If they refer to one I am not familiar with, I can look it up and quickly see that it says what it is alleged to say.

[31]The total time I have spent on this point is literally hours. It is a waste of my time and means I have less time to deal with the cases of other Tribunal users, which is not fair to them.

[32]I have given some thought to what I should do about all this. What I have decided to do is not to make any orders on my own initiative. The main reason for my decision is that I think for me to take action at this stage – such as requiring the Claimant to explain himself and/or show cause why his claim should not be struck out for unreasonable conduct – would in practice not achieve anything other than unnecessarily to take up more of the time and resources of the Tribunal and the 9 of 10 Respondent and to disrupt preparation for the DRA and final hearing, which has already been disrupted significantly.

[33]I should make clear to the Claimant, however, that if in the future he makes further seriously inaccurate references to caselaw, or does anything else of a similar kind, this will be treated by the Tribunal with the utmost seriousness and could result in his whole case being struck out for scandalous and/or unreasonable conduct, in accordance with rule 38 of the Employment Tribunal Procedure Rules 2024.

[34]If the Respondent wants to make an application in relation to this, I am not stopping it doing so; and I am neither encouraging nor discouraging it from doing so; although I would urge the Respondent to consider whether any application is likely in practice to help its position in these proceedings.