Mr M Y Medudhula v Lloyds Bank plc: 1603692/2024
JUDGMENT
[1]On the Respondent’s application, the Claimant’s claim is struck out: 1.1. under Employment Tribunal Rule 38(1)(b) because the manner in which the proceedings have been conducted has been unreasonable; 1.2. under Employment Tribunal Rule 38(1)(c) because the Claimant has not complied with the Tribunal Rules or a Tribunal order; 1.3. under Employment Tribunal Rule 38(1)(d) because it has not been actively pursued; 1.4. under Employment Tribunal Rule 38(1)(e) because it is no longer possible to have a fair hearing in respect of it during the current listing window (or any foreseeable such window).[2]Introduction: 2.1. By notice dated 4 March 2025 (p118-119 of the preliminary hearing bundle to which all page references relate unless otherwise stated) this matter was listed for final hearing commencing yesterday 5 January 2025 for five consecutive days, to determine liability only. 2.2. In the circumstances described below, the final hearing was postponed and the second day, today, was converted to a preliminary hearing to consider the Respondent’s application of 22 December 2025 (p146-7) to strike out the claim on the basis that a fair hearing could not be held in this trial window on the following grounds: 2.2.1. Unreasonable conduct of the litigation; 2.2.2. Breach of case management orders and 2.2.3. Failure to pursue the claim actively. 2.3. On 23 December 2025 the Claimant was given 14 days’ notice of today’s preliminary hearing, and on the same date Legal Officer Murphy wrote an explanatory email to the parties (explaining the need to postpone the final hearing and the agenda for today’s hearing) on my direction (p150). 2.4. The Claimant appeared today alone and unrepresented; he confirmed that he had before him the preliminary hearing bundle and draft final bundle, both provided by the Respondent. He also confirmed his understanding of today’s proceedings, the nature and grounds of the Respondent’s application, and potential consequences, which I explained to him at the outset. The hearing commenced at 10:00. 2.5. Ms Crew made the Respondent’s application following the introduction, concluding at approximately 10:40; I offered the Claimant the opportunity to consider matters over a break which he gratefully accepted ; Mr Medudhula responded, commencing at 10:57 and concluding at 11:22; Ms Crew exercised her right to reply. At 11:27 I retired to deliberate and reach a decision on the application in the light of all that I had heard and my reading of one of the cited authorities (Emuemukoro v Croma Vigilant (Scotland) Ltd(1) Miss Claimant Huggins & Others(2) [2022] ICR 327]. I returned to announce my decision at 12:18, concluding at 12:37, whereupon Counsel, noting both that the Claimant was a litigant in person and that he had not been making notes (despite my suggestion to him that he might wish to) requested these Reasons.[3]The Facts: 3.1. The Claimant was employed by the Respondent from 21 March 2022 until 13 April 2024 when he was dismissed, ostensibly, for a reason related to conduct. The Claimant claims that he was subjected to detriment and dismissed because he made public interest disclosures (automatic Unfair Dismissal) and that in any event he was Unfairly Dismissed. 3.2. Early Conciliation took place between 21 May 2024 and 3 June 2024, and the Claimant presented his claim to the Tribunal on 8 July 2024. 3.3. There have been two earlier case management hearings, the first conducted by Employment Judge Cawthray on 8 October 2024 (minutes commencing at page 75) and the other by Employment Judge Moore on 15 January 2025 (minutes commencing at p98) (“the January preliminary hearing”). It is evident from both sets of minutes that the Judges concerned spent time explaining matters to the Claimant and in particular that Judge Moore explained what was required of both parties to bring matters to a final hearing. 3.4. I am satisfied that albeit a litigant in person with no prior knowledge of or experience in employment law and practice and procedure in the Tribunal, the Claimant understood what was required of him and was fully aware of the steps to be taken in preparation for the final hearing. Without wishing to patronise, I found the Claimant to be courteous, clear, relatively concise, focussed, and to have a grasp on what deficiencies there have been in his preparation. He knew his case; he seems to have understood the explanations given to him by Judge Cawthray and Judge Moore and he confirmed that he understood me; he knew what was being asked of him in furtherance of this litigation. 3.5. Over time the Respondent complied with case management orders and wrote repeatedly to the Claimant stressing the need for him to reciprocate and to comply with Orders. It agreed a request for an extension of time from the C. It explained steps to be taken and consequences for default. It gave due notice of applications to the Tribunal for Unless Orders and for strike out. It continued with due preparation for the final hearing which should now be on day 2. The documents before me do not indicate any hectoring or heavy-handed conduct of the litigation by the Respondent. Based on my reading of inter-party correspondence and Counsel’s submissions it appears that the Respondent conducted itself conscientiously and diligently, but not officiously. Its conduct was in line with the co-operation required of parties by Employment Tribunal Rule 3 (4). 3.6. By virtue of Orders made by Judge Moore at the January preliminary hearing, the Respondent was due to deliver an agreed hearing bundle to the Claimant by 14 May 2025 and witness statements were to be exchanged by 4 June 2025. 3.7. The parties duly completed disclosure; the Respondent prepared and delivered to the Claimant a draft bundle. The Claimant unsuccessfully sought an Order for specific disclosure, being dissatisfied with the outcome of a DSAR. His application to the Tribunal failed. He says he is still dealing with the ICO. The Claimant has not indicated approval of the bundle and says today that he has not even read through it yet. 3.8. The Respondent indicated in a timely fashion that it had prepared, and was ready to disclose, its four witness statements in line with Judge Moore’s timetable. The Claimant suggested both sequential disclosure of statements, the Respondent going first, and that he did not know that he was required to produce one. The Respondent explained that the extant Order was for simultaneous exchange and that he was, indeed obliged to provide his own statement. The minutes of the January preliminary hearing make it explicitly clear on both points. As of today, the Claimant has not commenced a draft statement let alone finalised one. Given that he does not have a statement yet, I consider that his suggestion of sequential exchange may have been disingenuous, as he has stated that he is not relying on any other supportive witness evidence. 3.9. It is apparent that for his own reasons, and notwithstanding his delays to this date, the Claimant disengaged from the litigation in October 2025. He wrote to the Respondent on 15 October 2025 indicating that he was not relying on any additional witnesses. On 18 October he wrote to the Respondent complaining about the DSAR, said he had “lost” his health and said he needed time because of his anxiety and depression (P133). He did not produce medical evidence. He did not respond to any subsequent correspondence from the Respondent. 3.10. Given the above delays the Respondent applied to the Tribunal on 7 November 2025 for Unless Orders regarding agreement to a bundle and exchange of statements. 3.11. On 9 December 2025 the Tribunal asked the parties to confirm readiness for the final hearing and reminding the Respondent of the need to send documents to the Tribunal (p144) 3.12. In the absence of any response from the Claimant or the Tribunal the Respondent chased that application for Unless Orders on 15 December 2025 (p142). On 18 December 2025 Regional Employment judge Davies wrote to the Claimant asking for his comments “by return” (p147). 3.13. The Claimant did not reply to the Regional Judge by return. On 22 December 2025 (four days after the Regional Judge’s intervention) he applied for a postponement of the final hearing (p145-146). He cited various reasons to justify his lack of readiness. 3.14. I accept that the Claimant has had to face the following recent vicissitudes and misfortunes: 3.14.1. A divorce 3.14.2. Divorce litigation 3.14.3. The lapsing of his immigration visa 3.14.4. The need to apply for a new visa on 23 September 2025 and its delayed outcome (still unknown) 3.14.5. Continued unemployment until November 2025 which caused financial issues, including in relation to his rent. 3.14.6. Litigation anxiety in respect of this case 3.15. I further accept from the Claimant’s submission that he is anxious and that he occasionally, albeit rarely, takes anti-depressant medication (in that he is still sparingly using tablets last prescribed for him in June 2025) and that he pays for private on-line counselling as and when he feels the need. I note that, notwithstanding his visa situation, he is entitled to avail of emergency or crises care from the NHS but that he has not felt the need to avail of it. In terms of this litigation, he feels anxious when receiving or responding to emails, but nothing described by him would indicate more than to be expected anxiety and concern when involved in litigation; the Claimant did not describe severe, debilitating, let alone incapacitating, mental ill-health. 3.16. The Claimant has not got, let alone disclosed, evidence of incapacity to conduct this litigation or to participate in a hearing by reason of mental illhealth. He is discomfited by the litigation, but he has shown today that he is able to participate fully. 3.17. The Claimant requested that I stay proceedings for “five to six months”, whereupon he hoped to be in a position to apply himself to this litigation. He made this request (subsequently reduced to three months, but without conviction) only on the basis of his health. His divorce has been finalised and neither the divorce itself or related litigation are any longer issues; he has made the visa application and there is nothing now for the Claimant to do but await the outcome; the Claimant secured work in November and December and he is ready, able and willing to work now. All that said, the Claimant has still not produced medical evidence of any incapacity to conduct litigation or participate in a hearing. He hopes that he will feel less anxious in about five months time when he hopes that he may feel more inclined to correspond with the Respondent and the Tribunal. He relied on anxiety about the final hearing as a reason for needing the postponement, without being able to answer Counsel’s submission that such will be the case whenever the hearing would be re-listed. 3.18. The Claimant confirmed that he had been able to, and did, liaise with the ACAS Conciliation Officer and had hoped that with that effort he would achieve a financial settlement of his claim. It seemed to me from his explanation that this was where his effort was focussed immediately before the listed hearing date, although I cannot go so far as to say that he was engaged in brinkmanship, although he may have been. 3.19. I took judicial notice and explained to the parties that the earliest possible re-listing of this final hearing would be in September 2026.[4]The Law: 4.1. Counsel made clear, comprehensive and balanced submissions on the applicable law which she explained fully for the benefit of the Claimant. The Claimant confirmed his understanding and did not oppose the submission on the law or raise any other legal matters, understandably given he is a litigant in person. 4.2. This is an application made under Rule 38 (b), (c), and d) (unreasonable conduct, non-compliance with the Orders made at the January preliminary hearing, failure to pursue actively from October 2025) leading to the conclusion of R38(d) that a fair hearing cannot be held in the current listing window. 4.3. I have first to decide whether the grounds under R38 (b-d) are made out and then whether a strike out would be a proportionate response because a fair hearing is no longer possible, as opposed to it being a punishment. 4.4. In considering proportionality I have to consider that strike out is a severe sanction which is to be used with restraint; I have to consider whether any action short of striking out the claim is likely to be effective (such as making an Unless Order, coupling Orders with Strike Out Warnings, or making a Costs Order). Parties to litigation ought to be given a fair opportunity to make their case and to have it heard. It ought to be unusual to strike out a claim, absent evidence of persistent and deliberate failure to comply, to act reasonably in doing so and to pursue the claim actively. 4.5. In reliance on Emuemukoro v Croma Vigilant (Scotland) Ltd(1) Miss Claimant Huggins & Others(2) [2022] ICR 327, I accept Counsel’s submission that I have to consider, not whether a fair trial could ever be held at some indeterminate date in the future, but whether a fair trial is possible in the trial window, here 5 – 9 January 2026 despite or because of the Claimant’s conduct. That is what triggers consideration of a strike out. It is appropriate to consider undue expenditure of time and money to make a fair hearing possible, the demands of other litigants, and the finite resources of the Respondent and the Tribunal. In effect I would have to consider whether anything less than a strike out would amount to an unacceptable prejudice to the Respondent. I must consider what alternative “fix” is available that is in accordance with the overriding objective of the Tribunal.[5]Decision: 5.1. The Claimant is in serial breach of the Orders made at the January preliminary hearing. 5.2. The Claimant has failed to explain or evidence satisfactorily any incapacity despite my acceptance of difficult personal circumstances over the recent years. He has however still not looked at the draft bundle and has not yet started preparation of the required statement; that is difficult to understand in the circumstances. He has done nothing towards the final preparation despite resolution of his marital difficulties and the submission of his visa application (which was lodged on 23 September 2025). The Claimant was explicit that only his health was a relevant factor, and it had been the only factor for several months; the other misfortunes and issues were given as background to his health issues. 5.3. The Respondent made it clear in correspondence that medical evidence was required by it, and I made it clear in December that it would at least be helpful to the Claimant. He says he was not ordered to produce any and so he has not submitted it in detail. Reliance on medical incapacity without proof and despite representations by the Respondent and guidance from me is unreasonable conduct. It is his choice not to disclose records but, in the circumstances, it is unreasonable to expect that the Respondent or the Tribunal will assume incapacity without more than his say so that he is too anxious. 5.4. Failing to even look at the bundle and to prepare his own statement is unreasonable, absent evidence of incapacity, The Claimant only describes mild and expected anxiety in any event. 5.5. From October until late December the Claimant disengaged fully without providing a satisfactory explanation. He also failed to respond to the Regional Judge as directed. When he re-engaged it was only to ask for a postponement immediately before the holiday period of the final hearing which was due to start at the beginning of January, because he was not ready. That was unreasonable conduct. 5.6. The Claimant’s unreasonable conduct is evidence of a failure to pursue the claim actively and amounts to breaches of said Orders. 5.7. Clearly it is not possible to conduct a fair hearing in this listing window (5-9 January 2025). No fix is viable. The next such window is likely to be September – December 2026, but given the request for a stay for 5 - 6 months and then only the hope of an ability or willingness to pursue preparation, I have no confidence that a fair hearing would be possible and would proceed at that point. In fact, everything submitted by the Claimant indicates an indefinite period before effective listing. It also appears that the Claimant has made a positive decision to disengage rather than that he is reluctantly incapacitated. Maybe that decision is based on concern for his health, but it is nevertheless wilful and not enforced on him. 5.8. In the above circumstances I consider that anything short of a strike out would amount to an unacceptable prejudice to the Respondent and would be contrary to the overriding objective. I consider that Stike Out Warnings and Unless Orders are only likely to set the Claimant up to fail later, and in any event he has stated that he needs 5 – 6 months before being able to consider pursuing his claim; such steps will involve delay and cost implications and perhaps satellite litigation with further preliminary hearings; those implications will have an adverse bearing on the Respondent and the Tribunal (and its service to other litigants). A Costs sanction will be ineffective in securing progress, and in any event the Claimant says he has no money. 5.9. The Claimant has had the opportunity to prosecute his claim. He has decided not to do so. He has lost his opportunity, and he is responsible for that. The Respondent has been obliged to respond to a claim and has acted appropriately n the course of this litigation; it cannot in all fairness be expected to face the uncertainty of protracted yet stagnant litigation, running to a timetable set by the Claimant’s convenience, without evidence of any compelling reason for indulging the Claimant. 5.10. Although loathe to say so, and reluctant ever to strike out claims or responses without them being heard, the interests of justice dictate a strike out of this claim in its entirety. Approved by: