Mr A Simister v Calor Gas Ltd and Others: 1401143/2024

EMPLOYMENT TRIBUNALS

Case No 1401143/2024

Between

Mr A SimisterClaimant

Calor Gas Ltd and OthersRespondent

Before

Employment Judge Bowen

In person for claimant

Mr. Naylor (instructed by Solicitor) for respondent

Date 23 July 2025

JUDGMENT

[1]The Claimant’s application to amend the claim is refused.

[2]The Respondents’ strike out application is granted in part:(a) The following paragraphs of the grounds of complaint (GOC) are struck out as having no reasonable prospect of success – Rule 38(1)(a): 10.1-4; 10.7; 10.11, 10.15-10.19, 10.23, 10.25, 12.1, 12.2, 12.3, 12.6, 12.12, 13.1-5, 13.7, 13.9, 13.11, 14.1-14.3, 14.5, 14.8, 15.1-15.3, 16.1-16.3.

(b) In relation to paragraph 13.4 of the GOC, the only allegation that survives is a complaint of a delay between 5 June 2023 when the Claimant raised his complaint until 13 June 2023 when it was responded to. The remainder of the allegations in paragraph 13.4 of the GOC are struck out as having no reasonable prospect of success.

[3]The Respondents’ application for a deposit order is refused.

REASONS

[1]The case came before EJ Goraj for a TCMPH on 29 November 2024. She set the case down for a public Preliminary Hearing to determine the issues set out in paragraph 5 below.

[2]EJ Goraj identified that the Claimant had brought the following claims:(a) Detriment/unfair dismissal for making PIDAS pursuant to s.47/48/103A Employment Rights Act 1996 (‘ERA’);

(b) Health and safety detriment pursuant to s.44(1)(c) ERA;

(d) Unlawful deduction of Wages (holiday pay and monies related to the use of a vehicle).

[3]All claims are issued against the Claimant’s employer, Calor Gas Limited. The whistleblowing detriment claims are issued against all 7 Respondents.

[4]Before EJ Goraj the Claimant indicated he wished to amend his claim to bring complaints of discrimination under the Equality Act 2010 (‘EqA’) in relation to allegations of direct age discrimination (which she observed did not appear to be pleaded in the claim form) and religion and belief discrimination. EJ Goraj urged the Claimant to give careful consideration as to whether it was proportionate to seek such additional claims in the view of the fact that he was already pursuing a substantial number of claims regarding his employment with the First Respondent. The Respondents indicated they would object to amendment and further that they intended to pursue strike out/deposit applications.

[5]The Preliminary Issues are as set out in EJ Goraj’s CMO as follows: “The Preliminary Issues at the Preliminary Hearing 1. The Preliminary Issues to be considered/ determined at the Preliminary Hearing (unless otherwise decided by the Employment Judge conducting the case) are as follows: - 1.1. Whether-(a) the claimant’s proposed claims of age discrimination and/or discrimination because of religion or belief (in this case belief) pursuant to sections 5 and/or 10 of the Equality Act 2010 (“the 2010”), as intimated at the hearing, are contained in the claimant’s claim form / particulars of claim (“POC”) and if not

(b) whether any application by the claimant to amend his claim form/ POC to pursue such claims should be allowed 1.2. Any application by the respondent (as intimated at the hearing) to strike out the claimant’s claims (including in particular his claims pursuant to section 44 (1) ( C) of the Employment Rights Act 1996 (“the Act”)) or that they (or any of them) should be subjected to the payment of a deposit as a condition of proceeding on the grounds that they have no or little reasonable prospect of success. 1.3. Clarification / confirmation of the issues to be determined at the Final Hearing including:- (a) to discuss with the parties whether it is possible, in accordance with the overriding objective and the guidance contained in Hendricks v Commissioner of Police for the Metropolis

2003 IRLR 96

CA, to reduce the number of respondents and/or public interest disclosure claims and (b) the future conduct and management of such claims including the listing of the claims for future hearing (s) and associated directions. The parties should ensure that they bring to the Preliminary Hearing confirmation of the number of proposed witnesses together with dates of availability for Hearing(s) for the following 12 months if required. 1.4. Any further permitted applications. 1.5. Consideration of possible judicial mediation ( if both parties wish to explore this further).” (p.73) Documents and procedure

[6]Neither Party sought any reasonable adjustments when I enquired.

[7]The hearing was conducted remotely by CVP. On one occasion the Claimant left the hearing without explanation. The hearing was paused so there was no impact on fairness.

[8]I was provided with the following documents:(a) Joint bundle – 134 pages;

(b) Joint bundle index;

(d) Witness statement of Sean Brennan (Calor Gas Limited);

(e) Respondents’ chronology, which the Claimant informed me was not an agreed document but it then transpired he had not read it;

(f) Respondents’ submissions;

[9]During the hearing, I took evidence from the Claimant in relation to the issue of ability to pay a deposit order. I found that he was reluctant to answer questions about his income and outgoings because of the personal nature of the information and he was apprehensive at the prospect of a deposit order being made. He told me that he would not put his family's income at risk and would not pay a deposit. I consider that he did his best to provide accurate information but that the figures provided might not be certain as he was working from recollection.

[10]At the outset of the hearing, I raised the appropriateness of taking evidence from Mr. Brennan as this was a preliminary hearing and he appeared to be seeking to give evidence about substantive factual issues. I referred the Parties to the EAT’s comments in Rainwood v Pemberton Capital Advisors LLP and others

[2025] EAT 51

at 35-36 and citing other authorities specifically emphasising that it would not be appropriate to conduct a “mini-trial” when looking at strike out on the grounds of no reasonable prospect of success.

[11]The Respondents considered this concern and agreed it would not be appropriate to call Mr. Brennan to give evidence at this stage. They confirmed they would make submissions about those matters. The Claimant was also in agreement with this and made clear that he disputed Mr. Brennan’s evidence. It was agreed that at most the statement was an indication of what evidence Mr. Brennan was likely to give should this matter go to final hearing.

[12]References to page numbers in this judgment are to the joint bundle unless otherwise stated.

[13]EJ Goraj had ordered the parties to work together to compile a bundle, made specific orders that the Claimant propose any additional documents and that a final bundle be sent to the Tribunal (p.76-7). The Parties discussed what to include and the Respondent sent the bundle to the Claimant on 1 May 2025 for his consideration (p.124). The Claimant was informed by the Respondent he could prepare his own bundle if there was a dispute (p.130). I was provided with a single bundle ahead of this Preliminary Hearing.

[14]At the start of the hearing, I confirmed the bundle of 134 pages at the outset of the hearing and discuss the documents I had. After the hearing started, the Claimant raised he had sent another bundle. It transpired he had not in fact sent a bundle but had instead sent to the Tribunal a file containing some 122 individual documents, the combined sum of which was according to the Respondent around 400 pages. It also included recordings of substantial length. I explained to the Claimant that this was not the bundle before the Tribunal at the hearing, that I had not seen/read all of those documents/recordings. I explained to the Parties that they would need to take me to any relevant document/part of a document and I would not read documents/listen to recordings I was not taken to. As a result, during the hearing, the Claimant referred me to a very limited number of documents out of the 122 submitted, which I took into account. I have set out the details of those documents in paragraph 43 below. Amendment application

[15]EJ Goraj considered that the claims required further particularisation and made detailed and specific orders for the Claimant to provide further information by 31 January 2025 (p.74-5) about all of his claims. She also ordered that he make any amendment application to pursue discrimination complaints by the same date (p.74). EJ Goraj specified the information that the Claimant should provide (both for any amendment application and existing claims) as follows: “Further information The claimant 2. The claimant must write to the Tribunal and the respondent by 31 January with the following : -2.1 Any application to pursue the claims of age discrimination and/or discrimination because of religion or belief which were intimated at the Hearing. Provided that if the claimant contends that such claims (or either of them) are already contained in his claim form/ POC he shall identify as such by reference to the relevant paragraph numbers in his claim form/ POC. The claimant shall, in any event, provide in support of any application to rely on such claims the following information :-

(a) the date of any alleged act of discrimination

(b) identity of the alleged discriminator

(d) explain why he says that the alleged treatment was related to age or religion or belief

(e) the identity of any comparator relied upon

(f) the nature of any “bad treatment” which he says he has been subjected to because of his age or religion or belief and

(g) why he says any application should be allowed. The claimant is referred to the Guidance of the President of Employment Tribunals and also to the guidance contained in the EAT Judgment of Mrs G Vaughan v Modality Partnership UKEAT 014720 BA (V) on amendments as discussed at the hearing.

2.2 In respect of the claimant’s complaints that he was subjected to detriments (pursuant to section 47 B (1)/ section 48 B(1) of the Act and/or dismissed (pursuant to section 103 A of the Act) the claimant shall confirm (in tabular form and by reference to the relevant paragraph number in his claim form/ POC the following information:-2.2.1 Having considered the guidance in Hendricks referred to above, confirm which of the alleged protected public interest disclosures (PIDAS) contained at paragraph 9 of his POC upon which he continues to seek to rely.

2.2.2 In respect of any PIDAS upon which the claimant seeks to continue to rely confirm why (a) in respect of each of the alleged disclosures / qualifying disclosures (by reference to paragraph 9 of his POC) he says that they were in his reasonable belief in the public interest and tended to show any relevant breaches of section 43 B (1) (b), (d) and or (f) (and which one/ ones) of section 43 B(1) of the Act relied upon.

2.2.3 In respect of any of the alleged detriments/ dismissal identified at paragraphs 10 of his POC ( by the First Respondent) upon which the claimant continues to seek to rely, the claimant shall confirm (by reference to each of the alleged detriments/ dismissal of paragraph 10 of his POC) the relevant dates and alleged perpetrators together with a brief description of the alleged treatment and why he says that he was subjected to it by reason of making PIDAs and including which of the alleged PIDAS contained in Paragraph 9 of his POC gave rise to which detriment.

2.2.4 In respect of the alleged PIDA detriments/ dismissal identified at paragraphs 11 – 16 upon which the claimant continues to seek to rely (in respect of the remaining respondents) the claimant shall confirm (by reference to the relevant paragraph numbers in this POC and insofar as he has not already provided it) any outstanding information as identified at paragraph 2.2.3 above.

2.2.5 Further details of the claimant’s claim for unlawful deductions from wages (paragraph 22 of the POC) including the relevant dates together with a calculation/ breakdown and explanation of any monies claimed in respect of holiday or other payments.

2.2.6 The Schedule of Loss referred to below together (to the respondent only) any medical evidence upon which he relies in support of any claim for injury to feelings/ personal injury which he says he has experienced because of making PIDAs/ raising health and safety concerns.”

[16]The Claimant did not comply with EJ Goraj’s orders by 31 January. Therefore, on 7 February 2025 the Respondents’ solicitors chased the Claimant for this (p.88). By reply, the Claimant suggested he was awaiting DSAR disclosure before complying asserted that EJ Goraj had requested this be provided to him (p.87). He also stated that the particulars of his discrimination complaint were at paragraph 10.3 of his grounds of complaint. There is no reference to the DSAR in EJ Goraj’s orders or case management summary. The Respondents’ solicitors disputed that EJ Goraj requested that DSAR documents be sent to the Claimant, re-attached her orders and specified the information that the Claimant needed to provide (p.85-6). The Claimant replied on 16 February explaining there was a misunderstanding, he had been working and had health issues (those were not specified) (p.85). He provided a schedule of loss (p.89-90) and a document called “Further response to initial meeting requests” (p.91-103) (‘Further Information’) and stated: “Moving forward, please find attached responses you have requested at this time. Done to the best of my abilities. Though it does seem very odd for such information to be passed from one side to another rather than just a document pack of evidence as requested to be completed in May 2025.” (p.85)

[17]Having considered the Claimant’s Further Information, provided on 16 February 2025, I made clear to the Claimant at the outset of the hearing that I would need clarification and particularisation of the claims. The Claimant indicated to me that he had provided as much information as he could.

[18]The Respondents’ were been ordered to reply to the ordered further information by 21 February 2025 (p.75-6) to include its position on amendment and applications it pursued including clarification on strike out. On that date, the Respondents’ wrote to the Tribunal (p.104-107). Within that letter, they raised allegations of the Claimant’s non-compliance with EJ Goraj’s orders (specifying the information not provided); confirmed objection to any amendment application and applying for an Unless Order.

[19]The Respondents’ solicitors stated that they drew to the Claimant’s attention sources of free legal advice on 29 November 2024 and raised this again on 21 February 2025, referring to ELIPS (p.107).

[20]The Claimant replied to this by writing to the Tribunal on 22 February (p.109-110) and within that letter he stated (amongst other matters): “Shoosmiths have made refence to the timeframe of response, negating the 2 week period waiting for the phone call minutes. As discussed with them; there was a misunderstanding on the actual requests from the initial case phone call with Judge. Once this was realised, I responded as quick as possible, under the pressured time frame given. Please consider, this is not my full-time job like everyone else’s. It would not have been possible for me to lay out the whole case within a few weeks. Especially over the Christmas break period. As explained to Shoosmiths if the extent of requests were clearly stated on the phone call, I would not have agreed to the time frame. As the respondents have stated they are unable to attend anything within 2025, I struggle to understand the pressure being put on me in this instance. Judge has given a date for the preliminary hearing conducted by video on the 21 st of May 2025, my understanding is that all requests are just requests not ‘orders’. It was stated that the Claimant has the ‘strictly limited date’ of the 28 th of April to produce a document pack for submission, which includes all relevant documents to the claim (available at that time), Also, much of the information the defendants are requesting they already have, so they are able to do their due diligence on this...” (p.109)

[21]The Claimant also confirmed he intends to pursue all of his claims and that he did not have anything further to add.

[22]EJ Livesey responded to this correspondence on 4 March (p.111) and stated: “The Order of 29 November 2024 was made ‘by consent’. Contrary to the Claimant’s assertion that it was a ‘request’, the Order was mandatory, and the timescales was clearly agreed and, given the context, were reasonable. The Order required the Claimant to provide specific information by 31 January. Adopting the numbering in the Respondent’s letter of 21 February, the Judge comments as follows; 1. In the absence of further information, it will now be up to the Judge conducting the hearing in May to determine whether the original claim did in fact contain such a claim(s). The Claimant has expressly stated that he has nothing further to add; 2. The alleged problems identified with the complaints under ss. 43B, 47B and/or 103A are noted. These issues may now lead the Respondent to make another different application, but the Claimant’s position has been made clear and he has had now had the opportunity to clarify his claim. A further order at this stage is not appropriate.”

[23]With reference to point 1 above, EJ Livesey later explained on 3 April 2025 that the Claimant had contended that he had supplied the details of his discrimination claim were in paragraph 10.3 of his particulars of complaint which is why he recorded that the Claimant had nothing further to add.

[24]On 26 March 2025, the Respondents’ wrote to the Tribunal to confirm again their position was that discrimination complaints were not pleaded on the ET1/claim form and they opposed any amendment; an application for strike out/deposit (Rules 38/40) (p.113-118). The basis of strike out was specified to be on the basis of no reasonable prospect of success (Rule 38(1)(a)); the manner in which proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious) (Rule 38(1)(b)); and/or non-compliance with orders (Rule 38(1)(c)).

[25]At the outset of this preliminary hearing, I asked the Respondent to reconfirm the scope of the strike out complaint. The strike out on the grounds of no reasonable prospects of success/deposit was in respect of all complaints interlinked with the argument that the claims were not sufficiently clear thus illustrating they had no reasonable prospect of success. The other grounds of strike out were also pursued. The Respondent continued to resist any amendment of the claim. This was clearly set out in their skeleton argument dated 16 May 2025 and provided to the Claimant in advance of the hearing. The Claimant’s amendment application – Discrimination complaints.

[26]The Claimant brought his claims on 29 April 2024 (p.2) and did not indicate a claim for discrimination on the ET1 (p.7). The ET1 was accompanies by a Grounds of Complaint (‘GOC’) (p.14-35). The ET1 makes specific reference to the Employment Rights Act 1996. Age discrimination

[27]The Claimant informed EJ Goraj that he wanted to bring a claim of direct age discrimination in relation to his suspension on the basis that he was treated less favourably than Mr. Tree who is older than the Claimant (p.81). However, he confirmed to me that no longer sought to pursue any such claim during this hearing. I therefore do not mention it any further other than to observe that there is no claim of age discrimination on the ET1/Grounds of complaint. Therefore, had the Claimant sought to pursue this he would have needed to apply to amend his claim. As I have concluded that no such claim has been pleaded it has not been necessary for me to dismiss any such claim upon withdrawal (i.e. there is no such claim before the Tribunal). Religion/belief discrimination

[28]The Claimant had also informed EJ Goraj that he wanted to bring a claim of unlawful discrimination because of belief which she recorded as follows (p.82): “The claimant further indicated that he also wished to pursue his PIDA complaints as complaints of unlawful discrimination because of religion of belief in breach of the 2010 Act. In summary, the claimant says that he is a member of multiple professional organisations and as such has philosophical/ ethical beliefs relating to the adherence to professional standards and practices in the gas industry and that he was discriminated against/ unfair dismissed because of such views. The claimant says that such claim is already contained in this POC. This is disputed by the respondent who says that a formal amendment application will be required.”

[29]To put some context to this, the ET1/Claim form contains scores of complaints of detriment. The Respondent puts this at almost 100. I consider that the precise number is difficult to ascertain because of the way in which they are pleaded for example, the use of open-ended language by the Claimant (such as “some” and “non exhaustive”) and sometimes more than one complaint is made in a paragraph. Nonetheless on any interpretation, the Claimant is already bringing a very complex and expansive claim. Therefore specification around which complaints of whistleblowing detriment are also said to be belief discrimination is essential.

[30]As set out above, EJ Gorag ordered the Claimant to particularise any such claim contended for by providing the information specified in her orders set out above.

[31]The Claimant did not make a formal written amendment application before this preliminary hearing and told me he had not realised he needed do. The Claimant confirmed he wished to make one verbally in the event that I concluded he had not pleaded such a claim on his ET1/GOC.

[32]The Claimant argued that the belief discrimination claim was already before the Tribunal. I asked the Claimant to confirm which document set out the basis and scope of his amendment application and he confirmed it was his particulars of claim. He referred me to paragraph 3 of his grounds of complaint which includes the following sentence: “The Claimant was subject to a continuing series of detriments including, but not limited to bullying, discrimination, reasonable treatment, financial manipulation, belittling ignoring, pigeonholing, denied equal training opportunities leading to severe anxiety and stress....” (p.16)

[33]With reference to the word “discrimination” the Claimant told me that the specific discriminating event was contained at paragraph 10.3 of the GOC (p.23) which states: “10.3 By, discriminating towards a period with professional qualifications and accreditations from outside the company circle.” (p.23)

[34]I asked what specific event was claimed to be discrimination factually. The Claimant stated “detrimental treatment”. He submitted that the above paragraphs 3 and 10.3 in the GOC “alluded” to the belief discrimination claim. He confirmed that he was alleging direct belief discrimination. I asked again for the specific incident or incidents and he said he had been bullied because of his professional standards. I asked what the bullying relied on was to which he responded, “are you aware of the dismissal and all of those events?”.

[35]I asked him to explain – the Claimant stated(a) decision to dismiss

(b) not permitting an appeal to dismissal;

(c) holding an unfair second/re-arranged disciplinary hearing on 12 December – this was unfair because (i) he had 1 day to prepare (ii) was not permitted to seek legal advice (iii) was not provided with information in relation to allegations that he had breached the Data Protection Act (opposed to the GDPR) and (iv) they doctored/edited their own disciplinary policy. I understood that the Claimant was seeking to bring these as allegations of direct religion/belief discrimination. He did not specify any actual comparators for these allegations and therefore I understood that a hypothetical comparator would be relied on.

[36]After this explanation, the Claimant then contended that this discrimination claim was “all over the ET1”. I therefore asked him to confirm where precisely the discrimination claims he was referring to were pleaded that he wished to bring as complaints of belief discrimination and he provided the following paragraph numbers of the GOC that he relied on: 10.10; 10.13-10.15 11.13; 11.10 12.14; then he said the decision to dismiss and “every single event” related to it; 12.15 (the whole of the disciplinary process and suspension); then he said “from the top of my head” 12.16 was wrong; 13.2, 13.4, 13.6, 13.9, 13.10, 14.1-14.11., 9.21. In addition the Claimant raised paragraph 10.1

[37]The Claimant requested time to review his position over the lunch break, I agreed to this. Following that break he did not immediately raise any additional paragraphs of the ET1/GOC relied on. Both parties had made submissions on whether the proposed discrimination complaints were pleaded on the ET1/GOC.

[38]The Claimant sought to make further submissions on amendment thereafter and then further changed the scope of his application. The Claimant stated he wished to bring such claims against multiple Respondents and said he thought they were all involved. The Claimant then stated he wanted to bring those complaints as follows: a) R1 all of the proposed paragraphs identified; b) R2 – 10.10, 10.14, 10.15, 10.17 and 11.13; c) R3 – None; d) R4 – para 13; e) R5 – 14.5, 14.3 and “maybe” 14.2; f) R6 – 15.2, 15.3, 15.21.

[39]In doing so, the Claimant raised yet further complaints of alleged discrimination by referring to more paragraphs of the GOC.

[40]Therefore, after a lengthy discussion about the scope of the amendment application, I understood that the Claimant sought to rely on the following paragraphs of the ET1/GOC as claims of direct belief discrimination (under s.13 EqA 2010): A) R1 – 9.21, 10.1, 10.10, 10.13, 10.14, 10.15, 10.17, 11.13, 11.10, 12.14, 12.15, 12.16, paragraph 13 (i understood this to be the entire section not just the 5 paras set out above), 14.1-14.11, 15.2, 15.3, 15.21, B) R2 – 10.10, 10.14, 10.15, 10.17 and 11.13; C) R3 – None; D) R4 – para 13; E) R5 – 14.5, 14.3 and “maybe” 14.2; F) R6 – 15.2, 15.3, 15.21.

[41]I have contained those paragraphs in Appendix 1 appended to this Judgment. This amounts to at least 36 claims against 5 Respondents.

[42]I asked what the specific basis of the Claimant’s belief argument was noting EJ Goraj recorded it as philosophical/ethical belief relating to the adherence to professional standards and practices in the gas industry. The Claimant confirmed he is relying on the “belief” element of this protected characteristic (opposed to religion). He referred to “several qualifications” that he has which have “got ethical guidance to adhere to be able to hold those ethical accreditations and qualifications.” He said the ethical guidance is to adhere to integrity and impartiality amongst other things.

[43]He referred me to the “Section 5” documents that were contained in the 122 documents he had sent to the Tribunal. I considered those documents as follows:(a) 5.1.2 Engineering council edit – This was a certificate of the Claimant’s membership in the welding institute dated 18 August 2020;

(b) 5.1.1. ethical-statement 2017 – This is a document setting out a statement of ethical principles for engineering professionals from the Engineering Council including honesty and integrity; respect for life, law, the environment and public good; accuracy and rigour; and leadership and communication.

(d) 5.2.3 CSWIP 3.1 Welding Inspector – a Certificate of proficiency for the Claimant dated 16 August 2018;

(e) 5.3.2. PCN Qualification – certificate for the Claimant 16 June 2018;

(f) 5.2.2. The Welding Institute Professional Rules and Code of Conduct V4;

(g) 5.2.1. CSWIP Code of Conduct.

[44]The Further Information also stated the following: That the discrimination had “occurred at many times” throughout the Claimant’s employment and was ongoing; he references the dismissal, withholding information (DSAR), court action and “subsequent action with the relevant authorities thereafter”. The Claimant provided a table which contains no less than 109 complaints against a lot of individuals. The table is extremely difficult to navigate and I raised this with the Claimant. The Claimant accepted that he had not completed the table very well. He referred me to the bottom of p.98 and 99 in relation to the issue of welding on 30 May 2023. Submissions on whether discrimination was pleaded

[45]The Respondents’ relied on their written submissions which were supplemented. It was submitted that the ET1 8.1 does not identify a discrimination claim, and nor does the main body of the form. The Claimant’s reliance on paragraphs 10.3 and 3 of the GOC was misguided, there was a single reference to discrimination in a line of detriments where no belief is identified. The start of paragraph 10 refers to s.47(B)(1) ERA namely, a whistleblowing claim, this prefaces the entire claim including sections 11-16 GOC. The claim pleaded was whistleblowing and the form should be read in that context. The Respondents’ submitted that the Claimant was seeking to add complexity to an already complex case when it adds little. The claim form and its structure are robust, with clear headings and there is not a discrimination heading. The suggestion of a discrimination complaint is inconsistent with the nature of the claim pleaded and there is no point adding these claims.

[46]The Claimant stated that paragraphs 3 and 10.3 GOC allude to a belief arising from qualifications and accreditations, he was given little time to write the GOC, and he is sure he could do it better. He could not at the time of submitting the GOC find a link between his qualifications and the EqA. He told me “It is what it is” and he thought he deserved the opportunity to discuss this in a court room. Submissions on amendment

[47]The Claimant confirmed he wished to make a verbal amendment application based on the above explanations of his complaints. He confirmed he was aware of the cases of Vaughan and Selkent. The Respondents wanted me to proceed to hear the application on that basis also.

[48]The Claimant submitted that the complaints should be discussed in court and be documented. He said they were serious matters, the Respondent has serious accreditation and should not ignore members of the inspection body. He said he had not understood he needed to make a written application in advance of this hearing and thought he could make the application verbally at this hearing. I asked what he said about prejudice, and he confirmed that the case was already stressful and unbelievably horrible for him. He stated that the entire situation was horrible. He commented that the initial hearing had not been as thorough as this one.

[49]The Respondents opposed the application. Mr. Naylor acknowledged that the matters were serious to the Claimant but the Respondents do not accept what was raised and there is an ongoing factual dispute as to the underlying allegations raised. It was maintained that these are new claims in that there is no belief discrimination claim on the ET1/GOC. The belief being asserted was said not to be cogent or clear and submissions about Grainger and associated case law were made. It was submitted that the documents the Claimant referred to in relation to his belief were just certificates and codes of practice, whilst the latter might set out principles one might adopt the Claimant has been in no way able to specify the belief and be particular about what is relied on and it clearly lacked cogency. It was submitted he ought to have been able to clearly set out his belief and how it meets the test in Grainger but had not done that. The timing of the application was said to be late and it was not in writing but presented orally. As to the Claimant’s understanding that the application could be made verbally at this hearing, Mr. Naylor submitted that the orders were clear, and the Respondents had made clear that a formal amendment application would be required which is reflected in EJ Goraj’s notes. EJ Goraj set out clearly what a claim should include in terms of detail, and it was not a matter for debate subsequently as to whether that information should be provided. Even at this hearing, the Claimant’s amendment application is not in writing, it ought to be and despite the Tribunal trying extremely hard to understand the claim it is still unclear as to the scope of the amendment. For example, paragraph 10.10 GOC “left out of applicable meetings” - which meetings it remains unclear and not specific; 10.17 alleges being ostracised but does not say by who, when or in relation to what. It was submitted that as an amendment application the requirement for specificity should be higher than in an originating claim because it should be sufficiently clear before being granted. The complaints are very generalised, and it would be inequitable for the Respondents to have to deal with new claims based on this type of application. Mr. Naylor submitted the complaints are out of time, it is over a year since the claim was presented and 17 months since the Effective Date of Termination. This should count against granting amendment. It was submitted that the Claimant has not provided any adequate explanation as to the timing of the application. The claim is already extensive as a whistleblowing claim, and belief discrimination would add little. It will require a further response. Mr. Naylor submitted that the Further information does not take the matter forward as it is unclear. The amendment application and its approach was described as incredible. The Respondents also observed the application had morphed into additional claims against a number of respondents and was not proportionate or in accordance with the overriding objective. The applicable law on amendment application

[50]An Employment Tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon

[1994] IRLR 124

. If a case is not before the Tribunal, it needs to be amended to be added.

[51]In Cocking v Sandhurst (Stationers) Ltd and anor

[1974] ICR 650

NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim or adding or substituting respondents. The key principle was that in exercising their discretion, Tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it.

[52]This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore

[1996] ICR 836

EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics

[2005] IRLR 201

CA. 19. The EAT held in Selkent Bus Company Ltd v Moore

[1996] ICR 836

EAT: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J as he then was explained that relevant factors would include:(a) The nature of the proposed amendment - applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action; and

(b) The applicability of time limits - if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. (Whether this is still “essential” is considered further below); and

(c) The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.

[53]These factors are not exhaustive and there may be additional factors to consider.

[54]The Balance of Prejudice was considered by HHJ Tayler in Vaughan v Modality Partnership

UKEAT/0147/20/BA

(V): [21] “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice.”

[55]In relation to the nature of the proposed amendment: A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without attempting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often called “relabelling”); and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

[56]It may be appropriate to consider whether the claim, as amended, has reasonable prospects of success. In Cooper v Chief Constable of West Yorkshire Police and anor EAT 0035/06, one of the reasons the EAT gave for upholding the Tribunal’s decision to refuse the application to amend was that it would have required further factual matters to be investigated “if this new and implausible case was to get off the ground”. However, Tribunals should proceed with caution because it may not be clear from the pleadings what the merits of the new claim are: the EAT observed in Woodhouse v Hampshire Hospitals NHS Trust EAT 0132/12 that there is no point in allowing an amendment to add an utterly hopeless case, but otherwise it should be assumed that the case is arguable.

[57]In Kumari v Greater Manchester Mental Health NHS Foundation Trust EAT [2022] 132 the EAT held that, when considering whether it was just and equitable to extend the time limit for presenting discrimination complaints, and whether to grant an application to add a further out of time discrimination claim by way of amendment, an employment tribunal was entitled to weigh in the balance its assessment that the merits of the proposed complaints were weak. The potential merits of a complaint are not necessarily an irrelevant consideration, even if, as in this case, the tribunal is not in a position to say that the merits are so weak as to have no reasonable prospect of success. The tribunal’s assessment of the merits was properly reached by reference to identifiable factors that were apparent at the preliminary hearing, and it took proper account of the fact that it did not have all the evidence before it.

[58]The Equality Act 2010:(a) Section 10 – protects religious belief and philosophical belief.

(b) Section 13 – prohibits direct discrimination:

[59]The leading case on the definition of philosophical belief is Grainger Plc and ors v Nicholson

2010 ICR 360

, EAT. a belief can only qualify for protection if it:(a) is genuinely held

(b) is not simply an opinion or viewpoint based on the present state of information available

(d) attains a certain level of cogency, seriousness, cohesion and importance, and

(e) is worthy of respect in a democratic society, is not incompatible with human dignity, and is not in conflict with the fundamental rights of others. Decision on amendment application

[60]I concluded that the Claimant had not pleaded a religion/belief discrimination claim on the originating ET1/GOC. The box for such a claim was not ticked and noting that was not determinative I read the totality of the originating ET1/GOC to consider if it was pleaded. The Claimant’s position on whether he had pleaded a discrimination claim on the ET1/GOC was contradictory because he asserted both that it was pleaded but also that he had not understood such a claim could be brought at the time of submission.

[61]The paragraphs that the Claimant relies on to argue it was pleaded, do not in my judgment bring a direct belief discrimination claim under the provisions of the EqA and are clearly references to his existing allegations of whistleblowing detriment. The reference to the word “discrimination” in paragraph 3 GOC is not reflective of a claim of discrimination connected to a protected characteristic (whether belief as asserted by the Claimant or otherwise) under the Equality Act 2010 and was clearly a general reference to being treated poorly as a form of whistleblowing detriment. Nor does paragraph 10.1 GOC set out a discrimination claim. That paragraph is under a bold heading “PUBLIC INTEREST DISCLOSURE DETRIMENT 47B ERA 1996” (p.22) and the following paragraph: “10. The Claimant was subjected to the following and more continuing series of conduct by the 1st Respondent contrary to section 47B(1) ERA 1996 on the grounds that he made the non-limited list of disclosures set out in section 9. Specifically...”

[62]I again concluded that this did not support that a discrimination claim was pleaded as asserted by the Claimant. I therefore concluded that if the Claimant wanted to bring such complaints that this would require amendment of the Claim.

[63]I therefore considered whether the Claimant’s amendment application should be granted.

[64]In my judgment, the Claimant’s application to amend is an amendment which seeks to add a new cause of action which arises out of the same facts as the original claim. The factual allegations are on the ET1 because the Claimant has referred to specific paragraph numbers, but he seeks to bring them as direct belief discrimination which is an entirely new cause of action. He is not seeking to for example raise new factual events.

[65]I must balance the potential prejudice to both parties. To deny the Claimant the right to amend his claim will effectively deny him the right to argue whether the acts he has already pleaded as whistleblowing detriment were direct belief discrimination. On the other hand, to allow him to amend his claim to include these complaints would involve the Respondents incurring further time and expense in having to meet at least 36 claims through the prism of discrimination.

[66]There is an overlap on the underlying factual matters raised which is a factor in favour of amendment. I accept that this will involve some of the same factual enquiries that are already before the Tribunal in the claim. involving the same witnesses, events and evidence. However, I do not consider that this amounts to a complete overlap: If permitted, the allegations will significantly expand the basis of the legal issues before the Tribunal and it is extremely likely to extend the length of the final hearing in this case. This is likely to add to the time and cost to all 7 Respondents. If the amendment sought was granted, it would require the evidence to be presented through the prism of an additional and different statutory test (s.13 EqA) and potentially additional evidence on matters such as any actual or hypothetical comparators, the conscious/subconscious motivation of the alleged discriminators and would inevitably require a significantly longer hearing to hear that evidence and for the Tribunal to determine (at least) an additional 36 claims.

[67]As it stands I observe that there are already scores of whistleblowing detriment claims against 7 Respondents in this case. I appreciate that there is some overlap in those complaints against each Individual Respondent. In addition, there are other heads of complaint including health and safety detriment, automatic unfair dismissal, wrongful dismissal, breach of contract and unlawful deduction of wages.

[68]Whilst the Claimant has identified paragraphs of his GOC that he seeks to rely on as direct belief discrimination (36), this has taken considerable discussion during this hearing and constantly changed. It was clear, that the Claimant had not put any real thought into the individual complaints of direct belief discrimination that he wished to bring in advance of this hearing. This is despite the fact that amendment was discussed before EJ Goraj and the Respondents had made clear that they would oppose any amendment of the claim.

[69]Furthermore, EJ Goraj ordered the Claimant to set out any amendment in writing and made very clear what information should be included (P.74).

[70]Despite that background, the scope of the amendment application was still, at the close of the preliminary hearing lacking in clarity. The Claimant has been given ample opportunity to provide particulars of his amendment application following the orders of EJ Goraj (p.74), the date of which were relaxed by the Respondents and over the almost 6 months that has passed since the first preliminary hearing on 29 November 2024. Despite that, the amendment application is still materially lacking in clarity, is unspecified and it is unclear precisely what the amendment would specifically be.

[71]I have considered whether the Claimant's Further Information assists in fully understanding the scope of the amendment application. I found that it was to the contrary unhelpful, was lacking in clarity/particularisation. I make the following observations on the Further Information table as examples of the lack of particularisation:(a) It is headed, “below is a list of some of the acts and detriments suffered (non exhaustive)” - which I interpret as a statement that even now this table of alleged discrimination complaints is incomplete and there might be more;

(b) “Multiple concerns highlighted at weekly meetings and conversations throughout employment” - this is so vague that it is difficult to ascertain if it is a claim about weekly meetings, no detail on the concerns highlighted, to whom or the dates for example are provided;

(c) The complaints traverse a period of at least March 2022 to the date of the further information – see “ongoing” for example p.102 and 92;

(d) There is an almost wholesale lack of particularisation on what the factual circumstances are which relate to the “act” set out. For example, the following are alleged acts of religion/belief discrimination:

(e) “Withholding of information and evidence” – this leaves the question what evidence.

(f) “Continuation of bullying” - there is no specification as to what the bullying was factually;

(g) “Ignored” - no factual explanation for why he claims he was ignored;

(h) “Unreasonable treatment” - no specification as to what that was;

(i) “Not actioned in line with ACAS guidelines” - there is no attempt to clarify this at all; (i) “Manipulated company procedures” - unclear what this was;

(j) “Ambushed”; “Harassed”; “Misrepresented”; “Misled”; “Unreasonable/unfair treatment”; “bullied”; “pre-meditated bullying”; “ongoing bullying”; “biased”; “belittling”; “undermined”; “Alienated” no details given;

(k) “Indirectly discriminated against also for age, due to not being at the company the same time as the accuser” (p.96) - I understand this is not pursued but if it was it totally lacks specificity and cannot be understood;

(l) “Grievance potentially not handled correctly” (p.98) - this is unclear and “potentially” begs the question what the allegation or detriment actually is;

(m) “After again highlighting that the serious pressure test failures from the year before were still unresolved” - this is not an allegation of against any Respondent but appears to be a claim the Claimant did something and there are multiple allegations with the same issue (p.100);

(n) “Not given equal treatment” - absolutely no attempt to particularise this has been made in the table (p.102);

(o) The alleged perpetrator is not always easy to link to the identified act because they are just listed next to allegations without an attempt to correlate. In addition, for some allegations it is unclear who is alleged to have discriminated e.g. “Calor Gas Ltd – Vicarious liable (senior management)”; “HR dept”; “Senior Management”.

(p) There is no attempt whatsoever on the table to explain why the Claimant considers that any alleged act/omission is related to religion/belief or put more broadly amounts to discrimination.

[72]I concluded that the information provided by the Claimant, purportedly provided in response to that order, does not comply with EJ Goraj’s orders. During the hearing I sought further clarification of the discrimination claims from the Claimant. In doing so I made clear that the Tribunal needs to understand the amendment he is seeking to make. I explained that this would usually need to be in writing so that the scope of any amendment can be properly understood.

[73]I have explained that the Tribunal can only determine claims that it understands and that are sufficiently clear and therefore, any amendment application needed some precision on the factual basis of complaint. I explained that the Respondent also needed to be able to understand the allegations/claims so that it could have a fair opportunity to respond to the amendment application. In addition, that would be necessary to enable the Respondent to identify relevant evidence and witnesses to defend its position. I explained that this was all part of a fair hearing. I explained that this is the Claimant's claim, and it is incumbent on him to set out with sufficient detail what the claims are and how he states they meet the required legal tests. Allowance would be made for him being a Litigant in Person but that does not mean he does not need to comply with orders and particularise complaints.

[74]That further information provided did not bring sufficient additional clarity to the paragraphs that the Claimant has relied on in his amendment application. The Claimant himself struggled to explain during this hearing what related to which complaint and accepted he had not provided the information very clearly. That further information was expansive yet included exceptionally vague information, generalisations. Furthermore, which that was purported to set out the discrimination complaint, the amendment application before me today was yet different again. I concluded that the manner with which the Claimant was pursuing his amendment application weighed against granting amendment.

[75]The Claimant had not put his application in writing as ordered. I was asked to consider a verbal application by the Claimant. The Respondents asked me also to proceed. The Respondents in submissions raised that the manner in which the Claimant made his application was inequitable to it because it was vague and lacked clarity (as did the underlying pleadings to which the Claimant referred). I accepted that submission and that an amendment application of this scope ought to be in writing. I do not consider the amendments sought can properly be referred to as minor, the Claimant seeks to bring 36 additional claims (at least) and in reliance on a complex legal proposition around protected belief. If the application was in writing, properly set out as ordered by EJ Goraj, then it would enable the Tribunal and the opposing party to fully understand the scope of the amendment sought. The Claimant did not do that in this case, which is a factor I concluded weighed against amendment being granted because I agreed with the Respondent’s submission that the application is vague as to content and scope. I concluded that this was a factor against granting amendment.

[76]I considered the premise of the protected belief asserted. The Claimant took me to very limited information in this regard and again had made no attempt to set out in any detail the scope of the belief. I was taken to the documents I have referred to above. However, the Claimant did not take me to any particular part of those documents to illustrate his point or explain the basis of claim. The Claimant appeared to operate on the basis that the Tribunal would itself identify what he was relying on within those documents, which was entirely unsatisfactory. It is not the function of the Tribunal to decide for itself what the Claimant relies on evidentially to support his claim or amendment application. This is the Claimant’s claim and it is his amendment application. He ought to have been in a position to particularise it. It was clear from EJ Goraj’s orders and the Respondents’ communications that the scope of the amendment application and clarification of the basis of the proposed claim would need to be addressed at this hearing. Even allowing for the Claimant as a Litigant in Person, the approach taken was not in accordance with the overriding objective. I reject the Claimant’s suggestion that he thought EJ Goraj’s orders were not a requirement and that he had misunderstood what she had ordered. The orders are clear and are recorded as having been made by consent.

[77]The consequence of the manner in which the Claimant had made his amendment application was that it remained vague:(a) The belief relied on was insufficiently precise or clear. It was put in very limited in terms of explanation and lacking in clarity – the scope and remit of the belief was unclear despite the Claimant having months to set it out clearly – it was not cogently set out. It was not of assistance to be referred to document without specificity by the Claimant. I make no finding that such a belief could not never be constructed conceptually and I acknowledge that it is potentially possible to argue a belief arises from morality and ethics but the way in which the Claimant was putting this is very unclear. I agreed with the Respondent’s position that the Claimant’s position was very vague and the precise belief asserted remained unclear.

(b) The underlying paragraphs of the ET1/GOC to be relied on as belief discrimination claims were in themselves lacking in particularisation and clarity despite the fact that orders were provided to particularise them by EJ Goraj (albeit as detriments) for example: (i) 9.21 is a reference to an alleged protected disclosure. It is unclear how this correspondence could be less favourable treatment because of a protected belief. (ii) It was unclear why the complaints were said to be less favourable treatment because of a protected belief or the basis of that complaint. (iii) Dates, alleged perpetrators, particulars of events are unclear in relation to some of the complaints. There is a lack of particularisation which creates doubt as to the scope and precise factual basis of the allegations. This was not assisted by the Further Information provided which was extremely difficult to follow and brief. (iv) Some sections contain complaints within a complaint all which are also vague and unspecified. (v) No comparator was identified as ordered.

[78]The issues with a lack of clarity can be summarised as follows:(a) 10.1, 13.2, 13.3, 14.2, 14.3, 15.,2, 15.3 - “bullying”, “multiple group bullying events” and “unreasonable treatment” is unspecified – leaving no clarity on what this relates to.

(b) 10.10 - Unclear which meetings or when.

(c) 10.13 and 10.14 - unspecified training or working opportunities; unclear if this is the same or a different allegation;

(d) 10.15 - unclear allegation of “pigeonholing” unclear area of job.

(e) 10.17, 11.13 - allegation of ostracising unparticularised and unclear.

(f) 11.10 - all very vague and unspecified.

(g) 12.15 - unclear which matter is being referred to or what delay is complained of.

(h) 13.1, 13.5, 14.1, 14.5, 14.8 “unreasonable and detrimental treatment” both are unspecified.

(i) 13.4, 14,4 allegation “ignored belittled and acted unreasonable towards the claimant” none of which are specified.

(j) 13.7 allegation of disproving raising of protected disclosures verbally and in writing but absolutely no detail of what the Claimant suggests was said or written.

(k) 13.9 Allegation of misrepresenting the content of a meeting – no detils of how or what was said/written that was misleading;

(l) 13.11 an allegation of breaching mutual trust and confidence, but without stating how.

(m) 13.12 allegation of spurious information but no attempt to say what it was;

(n) 14.6 unspecified allegation and why it is spurious.

(o) 14.7 (a repeated allegation) whilst clear it is the next steps meeting the rest of the allegation is very unclear to understand. For example, “false accusations” and “further spurious undefined allegations” again it is not clear what this relates to.

[79]Whilst I have not referred to every paragraph raised in the application the issues with a lack of clarity run through the scope of the amendment application. Also, it is not always clear which perpetrators are involved specifically to which event, the specific or general dates of event(s) and the scope of the complaint. I refer to my conclusions in relation to the “Further Information” table that the Claimant produced as summarised in paragraph 71 which further compound the issues with a lack of clarity in the amendment sought.

[80]I have exerted caution in considering the underlying merits of the proposed claims pursuant to Cooper and Woodhouse. Therefore, I concluded that it was more appropriate to consider the above issues with specificity and clarity through the prism of the manner with which the application had been made in the context of the amendment application and consideration of the overriding objective. I have considered whether a further order to particularise (if amendment was granted) would be in the interests of justice and in accordance with the overriding objective. However, I concluded that would not be the case because the Claimant has been given ample opportunity, including orders and the passage of time to set out clearly the factual and legal basis of his claims and any amendments. I accepted that it would be significantly prejudicial to the Respondents’ if the amendment was granted as sought given the lack of detail and particularisation that the Claimant has provided in relation to it, and in the context of having been ordered to provide this information and then chased for it by the Respondents’ solicitors (in very clear terms).

[81]I considered that the approach taken to the amendment application was reflective of the approach the Claimant had taken when the Respondents had requested clarification of his claim. The Claimant referred to the fact he worked full time (unlike it was inferred the solicitors), he had done his best and the Respondent could undertake “due diligence” to try and understand the claims. I understood that the Claimant was inferring they could (in effect) figure out the claim themselves from whatever had been said or happened previously. This approach is entirely unreasonable and not in accordance with the overriding objective. It is the Claimant’s claim and it is for him not the Tribunal or Respondent to particularise.

[82]If the amendment was not granted, the Claimant’s prejudice is limited to the extent that he has currently has the opportunity to bring a whistleblowing (and other claims) in relation to his employment (that are already before the Tribunal). That remains the case notwithstanding my decisions on strike out.

[83]An application to amend can be brought at any time in proceedings. But this application was made 17 months after the Effective Date of Termination, around 12 months since proceedings were issued and was made orally on the day of the hearing. Complaints of discrimination must be brought within 3 months of the act/omission (or last in a series of events) relied on pursuant to s.123 EqA 2010. That time limit may be extended if it is just and equitable do so. A complaint being out of time is not a determinative factor in deciding an amendment application.

[84]The delay in making the application has been considerable in these proceedings, it was not clear why the Claimant did not make his application sooner.

[85]Overall, I concluded that the balance of injustice and hardship fell in the Respondents’ favour and I have therefore refused the Claimant’s amendment application. There is clearly greater prejudice to the Respondents in granting the application as currently presented than to the Claimant in refusing it. Strike out – No reasonable prospect of success/Deposit order Rule 40

[86]The Respondents applied to strike out a number of the Claimant’s complaints on the basis that they had no reasonable prospect of success and in the alternative, applied for a Deposit Order on the basis that those complaints had little reasonable prospect of success (Rules 38 and 40 respectively).

[87]Due the amount of time spent in this hearing clarifying the scope of the Claimant’s amendment application, I invited the Respondents to focus submissions on the particular detriments pleaded by the Claimant. I noted that the Respondents have raised concern about whether the Claimant has actually “blown the whistle” at all in these proceedings. I understand the Claimant relies on 29 alleged qualifying protected disclosures. In order to make the best use of the hearing time available I decided to prioritise consideration of the strike out complaint in relation to the detriments.

[88]I record for the purposes of absolute clarity, that the Respondents have not abandoned a strike out application in relation to the qualifying protected disclosures relied on and I understand that position is subject to review by the Respondents. If the Respondents wish to pursue their application in that regard then it is not prevented from doing so and I have made orders below accordingly.

[89]I asked the Claimant if he had considered focusing his claims in light of EJ Goraj’s guidance around narrowing his claims, identifying the strongest allegations etc. The Claimant informed me that he wanted the Tribunal to say whether his allegations had no reasonable prospect of success opposed to him deciding to withdraw them. He told me he was doing the best he can as a Litigant in Person.

[90]I read to the Claimant an extract from Chandhok v Tirkey EAT

[2015] ICR 527

para 16-18. I explained why the Tribunal had ordered further particulars of his claims.

[91]The Claimant raised he was awaiting DSAR documents, namely his emails and that EJ Goraj had asked the Respondents to provide them. There is no reference to the DSAR in EJ Goraj’s orders or case management summary. I explained to the Claimant that the Tribunal does not have jurisdiction over DSARs in any event. Mr. Naylor confirmed the DSAR was raised by the Claimant but EJ Goraj made clear she did not have jurisdiction. He also checked his notes of the first preliminary hearing. He emphasised they were not verbatim, but confirmed no order was made around the DSAR according to his notes and recollection. I concluded that the Claimant should not need a DSAR to be able to particularise his claims or say what they are with sufficient detail. It remains entirely unclear why the DSAR would prevent this.

[92]Mr. Naylor confirmed that the specific paragraphs of the GOC which the respondent submitted had no or in the alternative little reasonable prospects of success were 10.1-4; 10.7; 10.8, 10.10, 10.11, 10.15-10.19, 10.23, 10.25, 11.19, 12.1, 12.2, 12.3, 12.6, 12.12, 12.15, 13.1-13.5, 13.7, 13.9, 13.11, 14.1-14.3, 14.5, 14.8, 15.1-15.3, 16.1-16.3.

[93]The basis of the application was that the complaints were vague, could not be properly understood, that the Claimant has referred to solicitors, the Respondent referred him to free sources of advice, and the Respondents challenge the Claimant assertion that he is doing the best he can. The Claimant has not complied with orders to particularise properly and the claim remains extremely vague. The Respondents made the point that the Claimant has failed to revisit his basis of claim despite being encouraged to consider it and there was no attempt to limit his claim. The Respondents referred to the Claimant laughing at times when attempts to clarify the claim were made.

[94]In relation to the complaints under s.44/100 Employment Rights Act 1996 the Respondents submitted that there were a lot of routes the Claimant could have taken to raise health and safety concerns with management. The First Respondent has a manager or volunteer safety champions on their sides and the workforce is not unionised. Concerns can be raised with managers, team members, health and safety champions or through the portal. The Respondents relied on the authority of Darrell Miles v Driver and Vehicle Standards Agency

[2023] EAT 62

– and submitted that this is authority that a representative or committee for a particular site meets the legal requirements under s.44 and 100 ERA, opposed to a representative needing to be present at the specific site at which the employee works (paras 25-32 of Miles). It relied on the written statement of Mr. Brennan as the evidence that he is going to give if this matter goes to final hearing on this issue.

[95]The Respondents relied on the orders made by EJ Goraj (as set out above) for the Claimant to particularise his claims and submitted that the Claimant had failed to do so. It submitted that the Further Information provided by the Claimant does not comply with the orders in at least 7 material respects. It was submitted that the lack of particulars provided in the ET1/GOC and in compliance with the order supported that the claims have no reasonable prospect of success. In this claim, the Claimant relies on 29 alleged protected disclosures, some of which date back to 2022, and approximately 120 alleged detriments.

[96]The Claimant submitted that it was easy for the Respondents to accuse him of not doing things but he has a full time job. He stated he was having difficulties with his mental health and has a family. The Claimant submitted to say he has not been trying was preposterous and he has disclosed everything he has. He submitted he did not want to take something out of his case and make the wrong decision. He was sceptical of the Respondents suggesting he could get free legal advice. The Claimant said a lot of documents have to be read in conjunction to understand his case. He accepted that there is a lack of detail and his claims cannot all be understood. He said if the last hearing was detailed like this one he could have done it. He said he has tried, there was nothing more he can do and it was clear to him it was not worth sticking your head above the parapet. In relation to s.44/100 ERA the Claimant disputed the Respondents’ evidence and submitted that he was not able to access work equipment or do anything whilst suspended. He said it was not reasonably practicable to report to a representative/committee during that period. Legal principles – Strike out/deposit

[97]The Tribunal’s power to make a strike out order are set out in rule 38 of the ET Rules as follows: “38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (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; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).”

[98]In relation to strike out applications, guidance been given by the House of Lords in the case of case of Anyanwu v South Bank Students’ Union

[2001] ICR 391

, and the Court of Appeal in Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

, and by Lady Smith in the Employment Appeal Tribunal in Balls v Downham Market High School and College

[2011] IRLR 217

. The former two cases made the point, that in cases of discrimination and whistleblowing respectively, that a strike out on the basis of no reasonable prospect of success should only arise in an exceptional case when central facts are not in dispute. It is not a question of assessing whether a claim was likely to fail or whether its failure was a possibility but that the claim had no reasonable prospect of success and that the tribunal should assess this from a careful consideration of all the available material.

[99]A strike out application succeeds where it is found that, even if all the facts were as pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways

[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. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”

[100]There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.

[101]Where a litigant in person is involved, the tribunal should not simply ask the question orally to be taken to the relevant material in support of the claim but should also carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; Cox v Adecco Group UK [2021] 1CR 1307. 16.

[102]The EAT, in the case of Mechkarov v Citibank NA

[2016] ICR 1121

, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.

[103]In Malik v Birmingham City Council and anor EAT 0027/19 the obligation to take the claimant’s case at its highest for the purposes of a strikeout application was emphasised, particularly where a litigant in person is involved.

[104]In Cox v Adecco, His Honour Judge James Tayler observed: ‘There has to be a reasonable attempt at identifying the claims and the issues before considering strike-out or making a deposit order. In some cases, a proper analysis of the pleadings, and any core documents in which the claimant seeks to identify the claims, may show that there really is no claim, and there are no issues to be identified; but more often there will be a claim if one reads the documents carefully, even if it might require an amendment.’

[105]Rule 40 of the Employment Tribunal Rules 2024 provides as follows: Deposit orders 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order—(a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and

(b) the deposit must be paid to the other party (or, if there is more than one, to such other partyor parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.” Decision on strike out – no reasonable prospect of success

[106]The Tribunal must consider whether it has been established whether any claim or part of a claim has no reasonable prospect of success and then, if any ground is established whether to exercise its discretion as to whether or not to order the strike out. Strike out is a draconian measure.

[107]I had regard to the overriding objective of dealing with cases “fairly and justly” set out in rule 3 of the Tribunal Rules 2024. This includes ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance and avoiding delay.

[108]The application contains an application to strike out a significant number of whistleblowing detriment and health and safety detriment claims. I have taken into consideration the guidance in Anyanwu and Ezisias and the above case law in cautioning against the strike out of such claims. I have considered the fact that the Claimant is a litigant in person and had expressed he has had difficulties with his mental health. There was no corroborative evidence of the extent of that and not much detail was provided by the Claimant in any event.

[109]I have concluded that the following claims contained in the GOC are unclear, vague and lack specificity: Paragraphs: 10.1-4; 10.7; 10.8; 10.10, 10.11, 10.15-10.19, 10.23, 10.25, 11.19, 12.1, 12.2, 12.3, 12.6, 12.12, 13.1-5, 13.7, 13.9, 13.11, 14.1-14.3, 14.5, 14.8, 15.1-15.3, 16.1-16.3.

[110]This is despite the fact, that the Claimant has been ordered already to particularise them by EJ Goraj. This was chased also subsequently chased by the Respondents.

[111]I do not accept that the Claimant did not understand EJ Goraj's orders regarding the particularisation of the claims. They are clear. I find that the Claimant’s approach to those orders was not in accordance with the overriding objective for the reasons stated above and I have also set out my conclusions on the scope of non-compliance in paragraphs 130 and 131 below.

[112]The Claimant provided his Further Information which I find is extremely difficult to follow and lacks clarity. We also discussed this through the prism of understanding the existing claims in the GOC. During the hearing, the Claimant himself could not follow that information and conceded it was not put clearly. I find that the Claimant has had a reasonable and repeated opportunity to particularise his complaints. The Claimant has had almost 12 months since the claim was issued, had access to legal advice prior to issue, has had months to particularise those complaints and the complaints remain vague. The Claimant also informed me at the outset of the hearing that he has provided all the information he can thus it is very unlikely that any further orders would extract further clarity. In any event, the Claimant has had multiple reasonable opportunities to give any further details and I do not consider it would be in accordance with the overriding objective to make repeated orders for the provision of the same information. This difficulty does not arise arising because of any core dispute of facts, it arises because of the vagueness with which the allegations have been made (and continue to be pursued). I therefore concluded that even taken at their highest the following allegations contained in the GOC do not have a reasonable prospect of success: Paragraphs: 10.1-4; 10.7; 10.8; 10.10, 10.11, 10.15-10.19, 10.23, 10.25, 11.19, 12.1, 12.2, 12.3, 12.6, 12.12, 13.1-5, 13.7, 13.9, 13.11, 14.1-14.3, 14.5, 14.8, 15.1-15.3, 16.1-16.3.

[113]In relation to paragraph GOC12.15 I understand that this relates to the first disciplinary hearing, the complaint is about delay and is part of the disciplinary process. I am not satisfied this has little or no reasonable prospects. I therefore neither strike that allegation out or make a deposit order.

[114]In relation to GOC13.4 insofar as it relates to a delay in not responding to his complaint until 13 June 2023 I am not persuaded that it can properly be said to have little or no reasonable prospect of success. However, the allegation of being “ignored, belittled and acted unreasonable towards the claimant following a protected disclosure being made, which also implicated gross negligence and a serious breach of trust and confidence 5/6/23”, I conclude that this is again very vague. I have therefore concluded that this element has not reasonable prospect of success. For the same reasons as above I have decided to strike that element of the case out. Therefore, the only allegation that survives in that paragraph is a complaint of a delay between 5 June 2023 when the Claimant raised his complaint until 13 June 2023 when it was responded to.”

[115]In relation to the health and safety detriment claim under s.44/100(1)(c) ERA, there is a core dispute of fact between the parties as to whether there were any representatives and whether the Claimant was able to contact them. I have therefore decided that taking the Claimant’s case at its highest it cannot reasonably be concluded that the allegation has no reasonable prospect of success and nor can it be said that it has little reasonable prospect of success.

[116]In light of the above decisions I have decided not to make any deposit orders arising from the Respondents’ strike out application. Strike out – non-compliance with orders/conduct

[117]The Respondents applied to strike out the Claimant’s claims on the basis of Rules 38(1)(c) non-compliance with an order of the Tribunal and/or Rule 38(1)(b) the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious.

[118]The Respondents submitted that there has been substantial failure of the Claimant to comply with EJ Goraj’s orders, the detail of which was set out in their correspondence dated 26 March 2025 (p.113-118). The Respondents submitted that the Claimant had failed to comply with paragraphs 2.1 and 2.2.2-2.2.6 of EJ Goraj’s CMO.

[119]The Respondent submitted that the Respondent had chased compliance on 7 February 2025, confirming what they expected to receive and asked him to provide it. The Respondent submitted that the Claimant’s further responses and communications on the topic were obstructive and that although further information has been provided it does not actually provide the information ordered. Therefore, as it stands the Claimant has continued to fail to comply with the Tribunal’s Orders.

[120]In the alternative the Respondents submitted that the Claim should be struck out for the manner in which the proceedings have been conducted by the Claimant. In this regard, the Respondents refer to the Claimant bringing claims against 7 Respondents despite the fact that the Respondents have stated it would accept any award of compensation would be met by the First Respondent. In addition, they refer to the volume of complaints which they put at 115 detriments (and other complaints). They submit that the Claimant has not taken heed of the overriding objective, and keeping the claim within reasonable bounds.

[121]The Respondents also referred to detailed written submissions and to the case of James v Blockbuster and argued the Claimant’s behaviour has been wilful non-compliance with the Tribunal’s orders.

[122]The Claimant said he had tried his best to comply with orders and referred to having a job, family and mental health. He said he was under a lot of stress. He submitted a fair hearing was still possible but accepted the claim form could be a lot better. Relevant legal principles

[123]Striking out for non-compliance with an order is a draconian step. It should not too readily be exercised (Blockbuster Entertainment Limited v James

[2006] IRLR 630

, CA). A decision to strike out on this basis must be proportionate to the offence because it is a terminal ruling and the common law and Article 6 require it (Bharaj v Santander UK Plc.

[2023] EAT 152

[124]I have considered all of the relevant factors in the overriding objective – Rule 3. This includes the Tribunal considering, the magnitude of the noncompliance; whether the default was the responsibility of the party or his or her representative; what disruption, unfairness or prejudice has been caused; whether a fair hearing would still be possible, and whether striking out or some lesser remedy would be an appropriate response to the disobedience (Weir Valves and Controls (UK) Limited v Armitage

2004 ICR 371

, EAT).

[125]In terms of strike out under Rule 38(1)(b), strike out for unreasonable conduct requires conduct that is either deliberate and persistent disregard of required procedural steps or has made a fair trial impossible and in either case strike out must be proportionate (Blockbuster v James).

[126]In Emuemukoro v Croma Vigilant (Scotland) Ltd

2022 ICR 327

, EAT, the Appeal Tribunal considered the requirement for ‘deliberate and persistent disregard’ of the required procedural steps in a case where the respondent’s representative was alleged to be at fault. In the EAT’s view, the reference to the conduct being ‘deliberate’ would probably exclude mere oversight or negligence which was not the result of any intentional or deliberate failure to implement proper systems for managing case progress.

[127]In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a tribunal must consider whether a fair trial is still possible — De Keyser Ltd v Wilson

2001 IRLR 324

, EAT. In that case the EAT made it clear that certain conduct, such as the deliberate flouting of a tribunal order, can lead directly to the question of a striking-out order. However, in ordinary circumstances, neither a claim nor a defence can be struck out on the basis of a party’s conduct unless a conclusion is reached that a fair trial is no longer possible.

[128]Guidance on the term “scandalous” was provided by the Court of Appeal in Bennett v Southwark London BC

2002 ICR 881

, CA. It means irrelevant or abusive of the other side.

[129]A vexatious claim has been described as one pursued not with the expectation of success but to harass the other side or out of some improper motive (ET Marler Limited v Robertson

1974 ICR 72

, NIRC). Or an abuse of process. Decision on strike out Rule 38(1)(b) and (c)

[130]I considered the conduct to which I have been referred. The Claimant has provided a table of Further Information (p.91-103). I have considered that information and concluded that the Claimant has failed to comply with Order 2.2 of EJ Goraj’s orders in the following respects:(a) He did not provide a written amendment application yet did seek to amend his claim (Order 2.1). However, it has transpired that that failure has actually disadvantaged the Claimant himself. I have considered that application and rejected it. The Respondents therefore do not need to deal with such claims. I have observed though, the failure to comply and I have rejected the Claimant’s position that he had misunderstood the orders or that they were optional (opposed to a requirement).

(b) He has failed to provide all of the information in relation to his whistleblowing complaints in particular he does not: (i)Make references to specific paragraph numbers in the Claimant’s particulars of claim; (ii)Make it clear why each PIDA relied upon was in the Claimant’s reasonable belief in the public interest; (iii)Set out why each specific PIDA tended to show any relevant breaches of section 43B(1)(b), (d) and/or ERA 1996; (iv)Set out which specific provision in section 43B ERA 1996 is relied upon in respect of each PIDA; (v)Make it clear what detriments the Claimant was allegedly subjected to as a result of allegedly making PIDAs. (vi)Set out why he was subjected to the alleged treatment by reason of making PIDAs; and (vii)Set out specifically which PIDA gave rise to which alleged detriments.

(c) The Claimant has failed to provide all of the information ordered in relation to his unlawful holiday pay claim. The Respondents submitted that there was a lack of clarity in his unlawful deduction of wages calculation but it did not strike me that this was a substantial failure to comply with the order made.

(d) In relation to the medical evidence relating to the Schedule of loss (order 2.2.6) the Claimant has indicated to the Respondents it will be provided in due course (p.115) opposed to the date of the Order (thus there was not compliance).

[131]I therefore concluded that there had been substantial non-compliance. Whilst I accept that the Claimant, who is a litigant in person, is finding the litigation difficult, has a family and full time job, it is his claim. Therefore, if he wishes to pursue his claims he must engage with the Tribunal’s orders. I have also rejected the suggestion that EJ Goraj’s orders were not clear, could reasonably be interpreted as optional or that the Claimant could not take steps to comply with them. Indeed, even at the date of this hearing, the Claimant has still not fully complied with those orders.

[132]The effect of the non-compliance is that the Respondents still do not have complete clarity on the claims brought by the Claimant and nor does the Tribunal. The non-compliance has caused a delay in the litigation as the final merits hearing has not currently been listed. A respondent cannot prepare its defence without clarity as to the basis of claim. If we were already at a final hearing of this claim, based on the current level of detail, there would be a stronger argument from the Respondents that a fair trial is not possible. However, we are not at the final hearing of this claim, and I am satisfied that a fair hearing of this case is still possible. The Tribunal has a variety of ways to try and secure compliance with orders such as for example, an unless order. Such an order has not currently been made.

[133]Whilst I have found the Claimant’s explanation for non-compliance unconvincing, I am not persuaded that strike out of the entire claim is a proportionate response to the Claimant’s failure to comply with orders at this juncture. I consider that such an order would be disproportionate. Therefore the Respondents application to strike out under Rule 38(1)(c) is refused.

[134]The above findings are also relevant to my consideration of the application for strike out of the claim under Rule 38(1)(b). I note that there are 7 Respondents and over 100 claims (at least), although by reason of the above decisions that has now been reduced. However, the Respondents did not apply in this hearing to strike out any additional complaints on the grounds that they have no reasonable prospects of success. Any consideration of whether the Claimant has done a qualifying protected disclosure for the purposes of the EqA will be considered on another occasion (if appropriate and an application continues to be pursued by the Respondents). I am in no position to reach any such concludes at this hearing and I have already struck out the complaints which I have concluded had no reasonable prospect of success, and to which the Respondents made an application.

[135]The Tribunal does not have the power to force a claimant to withdraw claims or to reduce the number of Respondents simply due to the number or volume. I accept that this is voluminous claim and I also can see that attempts to encourage the Claimant to focus on the most recent and strongest allegations have been made. The Claimant does not wish to do so. The Claimant may revisit that position, should he wish to do so at any time.

[136]I conclude that the Claimant's conduct cannot properly be described as scandalous or vexatious. Whilst I do consider that the Claimant’s failure to provide the ordered information is unreasonable and in part has been deliberate, I also take into consideration that he is a Litigant in Person. During the preliminary hearing, my observation of the Claimant is that he will comply with further orders made by the Tribunal in these proceedings and understands the importance of doing so. I have also explained to him at length why the Tribunal and Respondents need to understand his claims. Ultimately, I do not accept that it would be proportionate or in accordance with the overriding objective to strike out all of the claims on this basis: I am satisfied that a fair hearing is still possible and I consider a strike out under Rule 38(1)(b) would be disproportionate. Therefore, the Respondents’ application to strike out under Rule 38(1)(b) is refused.

[137]This case remains listed for case management hearing on 12 September 2025 at 10 am (3 hours) via CVP. The purpose of the hearing is to:(a) Agree a list of issues (the Claimant is reminded that he must be prepared to give details about his ongoing claims at this hearing);

(b) Make orders to prepare the case for a final hearing;

(d) Discuss whether the parties are interested in exploring Judicial Mediation.

[138]The following orders are made for preparation of that hearing:(a) The Parties are to use reasonable endeavours to agree a joint list of issues and shall send them to the Tribunal by 4 pm on 7 September 2025.

(b) The Parties are to complete updated Case Management Agendas and shall send them to the Tribunal by 4 pm on 7 September 2025.

(c) The Respondent is to provide a preliminary hearing bundle (which it shall seek to agree with the Claimant) limited to 100 pages by 4 pm on 7 September 2025. The bundle must only contain documents relevant to the case management hearing.

(d) The Respondent is to confirm within 7 days’ receiving this order whether it continues to pursue its application to strike out of any claim(s) on the basis that the Claimant has not adequately pleaded a qualifying protected disclosure and/or any other basis (not already pursued) and if so, whether it still seeks a public preliminary hearing to determine that application, marked for the urgent attention of Employment Judge Bowen. Approved by: