Mr C D Lisle and Ms C James v PNG Export Services Ltd: 1809284/2024 and 1809285/2024

EMPLOYMENT TRIBUNALS

Case No 1809284/2024, 1809285/2024

Between

Mr C D Lisle and Ms C JamesClaimant

PNG Export Services LtdRespondent

Before

Employment Judge Miller

Mr R Richards Jones (instructed by solicitor) for respondent

Date 19 January 2026

JUDGMENT

The respondent’s application to strike out the claimants’ claims is refused.

REASONS

[1]On the second morning of the final hearing, part way through Mr DeLisle’s evidence, Mr Richards Jones made an application to strike out the claimants’ claims, although Mr Richards Jones was not explicit and it was not clear, whether the application was in respect of both claimants.

[2]I gave an oral judgment at the time with reasons. Unfortunately, I did not produce a written judgment about that decision for which I apologise. I only realised this when I received a request for reasons. I therefore produce this reserved judgment on that application setting out the judgment and reasons for it.

[3]The application by the respondent is to strike out the claimants claims on the basis that it is no longer possible to have a fair hearing under Rule 38 Employment Tribunal Rules of Procedure 2024.

[4]This says, as far as is relevant to the application the respondent made: 5. 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— … (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).

[6]That application is refused for the following reasons.

[7]There are two bases for this application. The first basis of the application was that Mr De Lisle had harassed one of the respondent’s witnesses Mr Zilkin in giving his evidence yesterday by mocking his Russian accent, and that amounted to harassment.

[8]It is not immediately obvious that Mr De Lisle mocked Mr Zilkin’s Russian accent, but he certainly made a reference to it and appeared to mimic it, which was not appropriate. Whether that amounted to harassment or not within the meaning of section 26 Equality Act 2010, I cannot say without taking evidence form all the parties concerned and I have not been invited to do so. However, mimicking an accent is certainly capable of potentially amounting to harassment.

[9]Mr Richards – Jones submitted that this meant that Mr Zilkin cannot be expected to be cross examined by someone who has harassed him. I note at this point that it was only Mr De Lisle who had mimicked Mr Zillkin’s accent – not Ms James, but Mr Richards – Jones did not distinguish between the two claimants for the purposes of his application.

[10]The application was NOT put on the basis that the claimants, or Mr De Lisle particularly, had conducted the case in a scandalous, unreasonable or vexatious manner under rule 38 (1)(b). However, in any event the question is always whether it is possible to have affair hearing, regardless of whether the reason for that is a reason under 38 (1) (b) or under (e).

[11]I was not referred to any cases in respect of this part of the application, but Harvey’s on Industrial Relations at paragraph 663.01 in division T says that potentially there is a higher test under 38 (1) (e) than under (b), i.e. a fair hearing is no longer possible as opposed to there being “a significant risk that a fair trial could not take place”.

[12]It is also well established that the tribunal must where possible try to facilitate a hearing on the evidence as opposed to striking out – strike out is an extreme measure to be used in extreme cases.

[13]In my judgement, Mr De Lisle’s conduct in mimicking Mr Zilkin’s accent falls far short of meaning that there can no longer be a fair hearing, or a significant risk that a fair trial could not take place.

[14]The Tribunal regularly hears evidence from many witnesses who are making allegations of, or have actually been, harassed by the respondent in any particular case. The Tribunal can and does deal with that by making adjustments and ensuring that people are able to ask and answer questions fairly and as reasonably as possible.

[15]I will, therefore, make such adjustments as are necessary to allow Mr Zilkin to give his evidence when it comes to it. (In the event, Mr Zilkin was content to be questioned by Mr De Lisle and did not require any adjustments).

[16]The second basis for the first application is that Mr De Lisle spoke to some potential witnesses overnight thereby breaching my direction not to speak about the case and this, Mr Richards – Jones says, will make the claimant’s evidence unreliable. Again, Mr Richards – Jones did not distinguish in his application between Mr De Lisle and Ms James.

[17]I have had regard to two relevant cases: Chidzoy v British Broadcasting Corporation (2018)

UKEAT/0097/17

and BOLCH (appellant) v. CHIPMAN (respondent)

[2004] IRLR 140

[18]In those cases, the claims were struck out because the claimants’ or their witnesses in the particular case had spoken to journalists in the course of giving their evidence. It was not clear from the cases whether they were represented or not but they spoke to journalists, this came to the respondent’s attention, and they were successful in their applications to strike out the claims on the basis that the witness had acted unreasonably or vexatiously. The applications were not put on the basis that it was not possible to have a fair hearing. The question of whether a fair hearing is still possible is, however and as discussed above, part of the question about whether to strike out a claim in most, if not all, cases.

[19]These are different circumstances. Mr De Lisle is representing himself and supporting (in fact, at times de facto representing) Ms James although she is also technically representing herself. Mr De Lisle was in a difficult position. I had explained that he could not speak to anybody overnight (after the first day’s evidence) but that he could speak to his witness Mr Liam Platten about his attendance – there was an issue about when he could attend and by what means.

[20]He did do that and on discovering that Mr Platten was unable to attend he sought to obtain separate additional witnesses. This would necessarily have involved discussing the case to some extent but in the particular circumstances it is at least understandable why Mr De Lisle would do that. Had he had the benefit of a legal representative, they could have sought additional witnesses and sought permission of the tribunal to obtain instructions from Mr De Lisle about that. Mr De Lisle was not represented and was left with little choice. Although Mr De Lisle did a good job of presenting his limited detailed knowledge of tribunal procedure and the consequent failure to obtain permission to seek additional witnesses is understandable.

[21]In the event, those witnesses did not give evidence so any conversations he had with them necessarily did not impact on their evidence.

[22]Mr Richards – Jones is perfectly entitled to cross-examine Mr De Lisle about his conversations while under oath to attempt call the credibility of his evidence into account. He can also make submissions about that if he wants to.

[23]I refer to my discussion of the law above and the same principles apply. It is only in extremis that a case should be struck out and Mr Richards – Jones made the applications under rule 38 (1) (b), not (e).

[24]There are other steps short of striking out the claim the respondent can take to ensure they have a fair hearing including questioning Mr De Lisle making submissions about his contact with witnesses.

[25]Those conversations do not in therefore mean that it is not possible for the respondent to have a fair hearing.

[26]On that basis the respondent’s application is refused.

[27]The second ground on which the respondent made an application to strike out the claimants’ claims was that they effectively had no reasonable prospects of success. Mr Richards – Jones said that the evidence Mr De Lisle gave on the first day about substitution to the effect that he would try to find someone to cover for him on what he described as short notice absences meant that the claim that the claimants were workers had no reasonable prospects of success.

[28]The evidence that Mr De Lisle gave is not such that the claimant no longer has any reasonable prospects of success. Substitution is not a straightforward question. There are a number of ways in which someone can be responsible for finding someone to do their work (to use relatively neutral terms) ranging from asking their employer in a straightforward case to get someone else to cover them through to providing a subcontractor with completely unfettered discretion.

[29]In Pimlico Plumbers in the Court of Appeal (Pimlico Plumbers Ltd and another (appellants) v Smith (respondent)

[2017] IRLR 323

) Sir Terence Etherton MR gave examples of five categories of substitution, some of which will be definitive in respect of worker status and some of which will not.

[30]Mr De Lisle’s evidence was that he needed to ask for, did ask for and got permission to provide a particular substitute. That appears to be one of the examples of substitution that would not necessarily be determinative of worker status either way. The upshot of that is that I need to hear evidence from the respondent about that and submissions form both parties before I can make a decision about that.

[31]I cannot possibly, therefore, say that Mr De Lisle’s or Miss James’ claims have no reasonable prospect of success on that basis, so the claims are not struck out. Approved by: