Mr B Barnett v The Sheffield College of Further Education and Sparks Teaching Services Ltd: 1804060/2024

EMPLOYMENT TRIBUNALS

Case No 1804060/2024

Between

Mr B BarnettClaimant

Mr S Robinson, SolicitorRespondent

Before

Employment Judge Brain

Members

Mrs J L Hiser

Mr M Taj

In person for claimant

Mr S Robinson (instructed by Solicitor) for respondent

Date 10 October 2025

REASONS

[1]The claimant (‘C’) brought a claim against the respondents of indirect disability discrimination and victimisation. These claims were brought pursuant to the Equality Act 2010.

[2]A reserved judgment was promulgated on 2 September 2025. C’s claims were dismissed.

[3]The impugned acts of which the claimant complained are those of staff employed by the first respondent. Mr Robinson confirmed that were the claimant to succeed with some or all of his claim, then the first respondent would meet any liability of the second respondent. Therefore, this is a claim against the first respondent. From now, the Tribunal shall use the term “the respondent” (abbreviated to ‘R’) which shall be understood to be a reference to the first respondent.

[4]R made an application which was heard on the first morning of the hearing for an Order striking out C’s case pursuant to rule 38(1)(b) of the Employment Tribunals Rules of Procedure 2024 upon the basis that the manner in which the proceedings have been conducted by or on behalf of C had been unreasonable.

[5]The tribunal heard evidence upon R’s strike out application from C and his flatmate Stacey Mackenzie-Wintle. On behalf of R, the tribunal heard evidence from Jane Parr (who is employed by the respondent as curriculum manager – media and games) and from Katie Marshall-Preece (academy director of art and creative industries at the college).

[6]The application was dismissed. The judgment on R’s strike out application was included in the reserved judgment. As reasons for the dismissal of the strike out application were given at the hearing, the reserved judgment did not include them but did incorporate (at paragraph 12 of the reasons) a statement of the parties’ entitlement to request reasons. C sought reasons which are now provided. Finding of facts

[7]This application rests entirely on the events of 25 June 2025. The respondent raises three matters which arose that day as the basis of the application.

[8]As a preliminary point, the Tribunal discounts the R’s witnesses’ allegations about acts of alleged and unspecified passive aggressive behaviour from C and his flatmate Stacey Mackenzie- Wintle over the last 18 months. These appear to have nothing to do with the conduct of the case anyway. We accept that R’s witnesses are finding the process stressful, but that can be no reason to summarily end the case. If this was sufficient, then very few cases would be heard as respondents could easily thwart claims by praying in aid the stress suffered by their witnesses. Employment disputes do happen. This comes with the territory when managing employees and managers may be expected to show a degree of resilience.

[9]On the evening of 25 June 2025, there was a celebration event at the College for students to showcase their work in the current academic year, and to which the public were invited. C and Ms Mackenzie-Wintle attended.

[10]C has not had any work from R for over a year now. The students therefore were not showcasing any work they’ve done under C’s tutorship in the current academic year. However, there was no dispute that some of the students there had worked with C in previous academic years. This was a legitimate reason for him to be at the event.

[11]In the circumstances of the pending hearing and the poor relationship between the parties, it was perhaps unwise for C to attend and unwise for R not to have preempted matters and prevented him from attending. C acknowledged the possibility of there being an objection to his presence in the recording of the third incident with which we are concerned. It was within R’s gift to have barred C from the event. C’s attendance was a hostage to fortune. Sadly, but perhaps predictably, the evening did not pass off uneventfully, and allegations have been levelled from each side against the other.

[12]The first allegation or issue is that at 4 pm that afternoon Ms Mackenzie-Wintle said ‘how fake’ in front of a group of students and a staff group consisting of Nicola Gabbitas, Allan Colley (technical trainer) and Jane Parr.

[13]Nicola Gabbitas sent an email about this the next day. However, she has not given evidence to the tribunal. The email can therefore be given little weight, as her account of matters has not been tested in cross examination. Mr Colley has not given evidence about this matter either, even though he is a witness in the case itself. Jane Parr has given a witness statement about the events that evening and said that the remark had been made.

[14]Ms Mackenzie-Wintle gave evidence on this matter. She denied making the remark and said she couldn’t understand what the alleged ‘how fake’ comment was directed at or what it meant.

[15]This wasn’t a comment made by C, but rather by his witness in these proceedings. There is no evidence that he encouraged Ms Mackenzie-Wintle to say this or agreed with her remark (if she said it) or that C himself said anything at all.

[16]The second allegation of unreasonable conduct against C is that he made a hand gesture towards John Taff. This was a couple of hours later, at around 6 pm.

[17]Mr Taff described this in his email of 27 June 2025 as a derogatory sexual gesture made towards him and Allan Colley. Mr Taff is the only one from the respondent’s side on this issue who was able to give a first-hand account of this incident as Mr Colley did not see this.

[18]Mr Colley did not raise a complaint at the time. Mr Taff did so. However, Mr Taff did not appear to give live evidence. We were told he is on annual leave in Bournemouth, but R did not apply for permission for him to give evidence. Arrangements could easily have been made for him to give evidence by video link.

[19]Against that, we have a first-hand account from C. He was cross examined and stood by his case.

[20]Further doubt is cast on R’s case by the fact that C does not appear in video footage of the area in question at the time the incident is alleged to have taken place. We watched some of the footage. R’s solicitor has watched it in full and fairly acknowledged that C does not appear anywhere on it at any time. It is impossible to enter the room without been seen on the video as the display banner in the clip only obscures a small part of the room. It would not be possible for C to have entered the room concealed entirely by the banner.

[21]The video footage is supportive of C’s case. He is the only witness who gave a first-hand account of matters. His account is supported by the video. It is credible. R did not produce any evidence in support of their allegation. We find as a fact that C did not act as alleged.

[22]The third incident took place at around 7:20 pm. It involved Mrs Parr and Ms Mackenzie-Wintle.

[23]It is noteworthy that by this time of the day C had been allowed to remain on the premises for so long. There is no evidence that R spoke to Ms Mackenzie-Wintle or C about their behaviour up to this point, which tells against it being inappropriate and corroborates our findings in paragraph 21.

[24]It is agreed that Ms Mackenzie-Wintle and Mrs Parr met in a corridor, that she grinned or smiled at Mrs Parr and that Mrs Parr remarked on Ms MackenzieWintle’s facial expression. There are differences in accounts despite this measure of agreement.

[25]Mrs Parrs’s evidence is that Ms Mackenzie-Wintle walked towards her on the corridor, looked her straight in the eye and leant into her with a grin to which Mrs Parr said, ‘what in God’s name is that about’ and then that Ms Mackenzie-Wintle replied ‘pardon’ to which Mrs Parr did not reply. She alleges that Mrs MackenzieWintle laughed as she walked away.

[26]Ms Mackenzie-Wintle’s account is that the two did meet in the corridor, and that she didn’t want to blank Mrs Parr so attempted to smile after which Mrs Parr said, ‘what the f*** is that about.’

[27]Each gave a contemporaneous account supportive of their version of events. Mrs Parr’s was by email of the next day.

[28]There was an account given contemporaneously by Ms Mckenzie-Wintle to C straight afterwards. This is in the form of the recording which we mentioned earlier. She accepted on the recording that it may have been perceived to be sarcastic to have grinned at Mrs Parr.

[29]Mrs Parr accepted remarking on the smile or grin. There is a difference between them as to what was said by her, but it is common ground that Mrs Parr asked Ms Mackenzie-Wintle what it (the grin) was about.

[30]The recording of Ms Mckenzie-Wintle’s is unusual feature. It was made by C who explained that he had his phone to hand and decided to record Ms MackenzieWintle in a state of stress. He has not recorded her before. We accept she did not know it was being recorded which is credible given her candour in acknowledging that it may have been unwise to grin at Mrs Parr.

[31]C sent an email to R’s solicitor on 27 June, urging care on the part of R’s witnesses. This was a reasonable request based on what Ms Mackenzie-Wintle had reported to C about Mrs Parr’s actions.

[32]We reject R’s case that C and Ms Mackenzie-Wintle conspired to somehow concoct a case for strike out of R’s response by recording a fake allegation against Mrs Parr. C did not make such an application. If there was a conspiracy afoot, it was not followed through which tells against there being one.

[33]We agree with C that Mr Robinson has opportunistically seized upon the recording as evidence of unreasonable conduct by C. He cannot have known of the recording until after his strike out application was made as C did not disclose it until he filed his reply to the application.

The relevant law

[34]R’s application is made pursuant to rule 38(1)(b) of the Employment Tribunal Procedure Riles 2024. Under rule 38(1)(b) a tribunal may strike out a party’s claim on the ground that the manner in which the proceedings have been conducted by or on behalf of the claimant has been unreasonable. (R only relies on the unreasonable conduct limb of rule 38(1)(b)).

[35]The approach to strike out applications is summarised in Harvey on Industrial Relations and Employment Law, part P1 at [648]: “The first question is whether there has been scandalous, unreasonable or vexatious conduct of the proceedings which may result in a strike out. If so, the second is whether a fair trial is no longer possible. If that is fulfilled the third is whether strike out would be a proportionate response to the conduct in question. The fourth is, if the claim or response is struck out, what further consequences might follow, including consideration of whether a respondent debarred from participation at the liability stage should nevertheless be permitted to appear at the remedy stage.”

[36]Upon the second issue of whether a fair trial is possible, in Force One Utilities Ltd v Hatfield

[2009] IRLR 45

, EAT, a tribunal struck out the respondent’s response and debarred them from taking any further part in the proceedings, either as to liability or remedy, on the ground that a fair trial was no longer possible. The conduct in question consisted of threats made by a director of an associated company of the respondent, who had conduct of the proceedings on their behalf, to the claimant as they left the tribunal building following a hearing which had been adjourned to enable the claimant to obtain legal advice. The claimant was, as the tribunal found, put in real fear for his safety.

[37]Upholding the tribunal’s decision and applying the staged approach summarised in paragraph 34 above, the EAT (Elias J presiding) noted that this was ‘wholly unacceptable conduct which goes to the very root of the tribunal’s ability fairly to assess the evidence of the witnesses.’ Although it was argued that the tribunal should have carried out a balancing exercise, weighing up the adverse effect on the claimant with the detrimental effect on the respondent if they were debarred from defending the case, the EAT held that this was not appropriate in such a case. Elias J stated (at [36]): ‘We do not accept that a balancing exercise is the correct metaphor in a case of this kind. The intimidatory conduct of one party is specifically designed to put the other in fear of the consequences of continuing with the action. Where a tribunal concludes that the intimidated party will be unable to manage that fear and is likely to tailor the evidence to fit with the other party’s case, then it seems to us that the only proportional response is to disallow the intimidating party from being allowed to take further part in the proceedings, at least with respect to liability. It is a draconian step to take and it plainly does affect the ability of the intimidating party to defend the case, but that is a consequence which that party has brought upon itself.’

[38]Hargreaves v Evolve Housing

[2023] EAT 154

(16 November 2023, unreported) serves as a reminder that there must be consideration of the third limb (proportionality of a strike out) and that even if no other order (short of strike out) could be seen as appropriate, that in itself does not justify a strike out if overall there could still be a fair trial. At [23] it is stated that: '…the fact that no alternative order is merited or appropriate cannot itself serve to establish that the Draconian sanction of strike-out is warranted. Such a sanction then becomes simply a punitive measure.'

[39]Upon the third consideration of proportionality, in Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

[2006] IRLR 630

, after expressing the view that the power to strike out is draconian and should not be readily exercised, Lord Justice Sedley observed: “It takes something very unusual to justify the striking out on procedural grounds of a claim which has arrived at the point of trial.” Discussion and conclusions

[40]Of the three allegations made about the events of the evening of 25 June 2025, there is one allegation against C about his conduct and two against Ms MackenzieWintle about hers. It is not suggested that C was involved in the third incident and there is no evidence that he participated in or was responsible for the first incident.

[41]About the second incident, we have found that C did not make the hand gesture. R could have called Mr Taff to give evidence. The weight to be given to his account in his email reduced accordingly His evidence as to what he says he saw was not tested by cross examination as to how far away he was from C, his position, how long he saw C for, how many people were between him and C and so on. Crucially C doesn’t appear on the video at any point when the incident is said to have arisen.

[42]Circumstantially, it is significant that R did not ask C to leave after the incident, as may have been expected if he had behaved towards managers in such a contemptuous manner. We therefore found that C did not gesture towards R’s witnesses as alleged. The application made on the basis of the second incident falls at first base as no unreasonable conduct by C has been established.

[43]If we are wrong to prefer C’s account and that we had found that C did make the gesture, then this was connected with the proceedings as Mr Colley (who was present when the gesture was allegedly made) is a witness (as C knew by 25 June 2025). Hence, it would have amounted to unreasonable conduct of the proceedings and come within the scope of rule 38(1)(b).

[44]However, such does not render a fair trial impossible as Mr Colley has not given evidence to the effect that he was in any way intimidated by C’s conduct within the test in Force One Utilities. Indeed, he gave no evidence at all in support of the strike out application.

[45]The two witnesses who gave evidence for R on the strike out issue do not say that they saw any derogatory gesture from C. C’s conduct was not directed at them so cannot reasonably be intimidation of them such that their evidence would be tainted as described in Force One Utilities. The second limb of the test is not established either.

[46]R’s solicitor accepted that this was not the main thrust of the application anyway. R’s focus was on Ms Mackenzie-Wintle’s conduct in leaning into Mrs Parr during the third incident.

[47]Even if it was established that Ms Mackenzie-Wintle had behaved as alleged, then the matter having reached the point of trial then (per Blockbuster Entertainment Ltd) it would be wholly disproportionate to strike out C’s case where steps may be taken such as allowing a witness to give evidence from behind a screen, or by video link. It is significant that R did not ask for a ground rules hearing or any special measures before Mrs Parr gave evidence at the strike out hearing whereas an application was made for her to give evidence in this way for the substantive hearing. This suggests that she was not so fearful of C that she was unable to give her best evidence (albeit with adjustments).

[48]The recording by C of Ms Mackenzie-Wintle is unusual. It is something C has not done before. However, we cannot see how that can in any way affect the R’s witnesses or intimidate them such that they were unable to give their best evidence. None of them suggested they were affected by the recording. It was not them being recorded. Again, if strange behaviour alone were the benchmark, fewer cases would be heard.

[49]It will be noted that we have not made factual findings about the first and third incidents. The Tribunal needs to be cautious as R intimated a strike application against Ms Mackenzie-Wintle whose case against R is to be heard during week commencing 21 July 2025. Our findings would not bind another tribunal as Ms Mackenzie-Wintle is not party to this case, but the findings may be persuasive.

[50]Ms Mackenzie-Wintle is not responsible for conducting C’s case. She is a witness only. What is done by a representative is presumptively done with the party’s consent but that doesn’t apply to witnesses. Of course, a witness may act at the behest of a party to intimidate a witness for the other party, but we find that she was not put up to act as she allegedly did by C.

[51]Even if she did make the “how fake” comment, there is no evidence that C adapted it and even if he had it is difficult to see frankly how it could have served to intimidate the witnesses to any significant degree such as to jeopardise the fairness of the trial. We agree with Ms Mackenzie-Wintle that this is a strange allegation to make. If C was really set upon conspiring with her to intimidate the R’s witnesses, this was a rather feeble way of going about it. The point of trial having been reached and Mrs Parr being able to give evidence by use of a screen renders it disproportionate to strike out the claim because of this conduct anyway.

[52]C only had Ms Mackenzie-Wintle’s account of the events in the corridor and had no reason to disbelieve her. There was no reason to repudiate her conduct. Further, there was no way of knowing that C and Mrs Parr would meet one-to-one in the corridor again telling against there being some kind of conspiracy.

[53]As a fact, as with the first incident, those in the third incident were in any case not the acts of C. Ms Mackenzie-Wintle was not acting at C’s behest or as his agent, proxy or representative. Her conduct cannot be grounds to strike out C’s case as she is in no sense conducting the case on his behalf such as to engage rule 38(1)(b). The same considerations apply as in paragraph 47 about the ability of Mrs Parr to give her best evidence. It would be wholly disproportionate to strike out C’s claim, it having reached the point of trial, upon the basis of the third incident.

[54]That being the case we need not make factual findings about the first and third incidents. It would be unwise for us to make findings of fact as to what happened between Ms Mackenzie-Wintle and Mrs Parr given the prospect of a strike out application being by R against her ahead of the hearing of her case. We do note however that Ms Mackenzie-Wintle works alongside the R’s witnesses and there is no evidence of any other complaints against her.

[55]The strike out application fails, and stand dismissed. Approved by