Mrs R Kumbharati v Network Rail Infrastructure Ltd: 2206741/2018

EMPLOYMENT TRIBUNALS

Case No 2206741/2018

Between

Mrs R KumbharatiClaimant

Network Rail Infrastructure LtdRespondent

Date 12 May 2025

REASONS

[1]The documents relied on by the claimant in her application for reconsideration were before the tribunal at the hearing on 27 November 2019. She submitted very detailed and lengthy schedules in which she identified some of her complaints as ‘race discrimination’ (in some cases relying on ethnic origin or colour) and others as ‘sex discrimination’ but has failed to explain any link between the treatment and her protected characteristic. All she has done is made a statement that she believes the treatment was based on her race or her sex and, in some cases, both. Her reconsideration application simply cross-refers to those documents without any signposting of which particular part of the document supports her application.

[2]The claimant was given every opportunity to identify why she believed that the way her employer treated her was because of her race or her sex but, other than a comment made in 2017 which was not part of her grievance or her ET1, she had no other grounds other than a difference in treatment and a difference in protected characteristic. In her application for reconsideration, she has not identified any new matters or made any new representations to support her position.

[3]In order to succeed in her claims that, on the balance of probabilities she was discriminated against, it is not sufficient simply to rely on the fact of a protected characteristic and the fact of her treatment. As she has failed to identify any evidence of a link between the two, I find that there is little prospect of her discrimination claims succeeding at trial. Victimisation claim

[4]She has failed to show that her grievance was a protected act, or that there were any other protected acts, so I find that her victimisation claim has little reasonable prospect of success. Public Interest Disclosure claim

[5]Even if I accept that she raised concerns about safe reporting and included this in her ET1, this does not change my finding that her public interest disclosure claim has little reasonable prospect of success.

[6]I have therefore concluded that there is no reasonable prospect of my original decision being varied or revoked. I am not satisfied that it would be in the interests of justice to vary or revoke my decision. 15 December 2020

[1]The Claimant has brought three claims. The first claim number (2206741/2018) was subject to a series of deposit orders made as a result of the Respondent’s application heard on 27 November 2019. The Claimant appealed the deposit orders and sought a reconsideration. Both the appeal and reconsideration failed. The Claimant has not paid the deposit. There was a brief hiatus when the allegations which were subject to the deposit order were struck out and then reinstated when it became clear that the application for reconsideration had not been addressed. Thereafter it was referred to EJ Davidson who refused it. Accordingly, the first claim allegations that were subject to the deposit order are struck out. The only residual allegation in the first claim is an equal pay claim based on like work.

[2]The Claimant brought the second claim (2203669/2019) on 24 September 2019, and she admits this second claim includes some matters which were in the first claim. The Claimant explained that this was in part because she had failed to tick a box which asked the Tribunal to refer the claim to the regulator. The Claimant said that at a hearing before Judge Davidson, she had asked what happened about the reference to the regulator and had been told that was a matter for the tribunal staff. She also said that there had been discussion about how she could introduce new matters and while she was aware there was an option to apply to amend, she was worried about the timing and the question of whether she would be out of time. In consequence, she thought it was preferable to issue a new claim which meant she could tick the box asking the document to be referred to the regulator. She accepts that some of the matters in the second claim duplicate matters in the first claim.

[3]The second claim is presented in two parts. The first part is the ET1 form. The second part is a Schedule, which was sent as an attachment to the ET1. The Schedule sets out all the allegations and is again in two parts, the first being headed Equality Act Schedule which then has two separate allegations and the second part being headed Public Interest Disclosure Schedule (“PIDA Schedule”)which has eight sections. Number 5 in the Public Interest Disclosure Schedule is repeated, so section 5 is referred to in this judgment as the first section 5 and the second section 5.

[4]In both the Equality Act Schedule and the PIDA Schedule, there are a number of columns. In the PIDA Schedule, the Claimant has included columns detailing the date of the disclosures relied upon, the details of the disclosure, the sub sections of section 43B of the Employment Rights Act 1998 which she relies on and the basis of that reliance. She also has columns detailing why she says the disclosure was in the public interest. A part of the Schedule addresses detriments and there are columns which identify the detriment number, its date, the description of it, the alleged perpetrators, witnesses and what the Claimant says was the link between the detriment and the disclosure.

[5]The third claim (2205768/2020) was issued on 28 August 2020 after the Claimant was dismissed and it is not a matter which was the subject of any application today in relation to strike out. The Application

[6]The Respondent seeks a strike out in relation to the second claim. I had submissions from the Respondent and the Claimant, and the Claimant gave witness evidence. 10.7 Judgment with reasons – rule 62 2 March 2017

[7]First the Respondent says some claims are out of time. Secondly the Respondent says some claims are an abuse of the process. Thirdly the Respondent says that there has been issue estoppel in relation to some matters. I have taken those grounds in turn. Jurisdiction - Time

[8]Under section 48(1)(a) Employment Rights Act 1996, claims must be brought within three months of the event complained of. This time limit is usually adjusted to allow for the ACAS conciliation process but in this case the certificate (to the extent it is applicable and there is an argument that it is not) was issued the same day and therefore, this did not have the effect of extending time. At most, the Respondent says that if the ACAS process had extended time, it would have moved it by 4 days. The second claim was issued on 24 September 2019. For the purposes of this application, I have taken the date most advantageous to the Claimant which is the date three months beforehand, moved by 4 days, and that is 20 June 2019. Prima facie any events occurring before 20 June 2019 are out of time.

[9]Time can also be adjusted where there is a continuing act, so that in effect, if the Claimant is subjected to a series of acts over a period which have a relevant connection, she can claim in relation to the earlier acts if the last or later acts were in time.

[10]It is important to note that some events which the Claimant complains about are matters where she says the Respondent failed to act. Section 48 provides that complaints about detriments which are done on the ground that an employee has made a protected disclosure can be presented to an employment tribunal. Section 48 (3) and (4) set out the time limits for such complaints. Section 48(4) addresses continuing acts and failures. Failures are treated in a different manner to continuing acts. Section 48(4)(b) states: a deliberate failure to act shall be treated as done when it was decided on; and the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[11]The Respondent argued that in a number of the sections in the PIDA Schedule, there was no detriment which was within time. In relation to those sections where there was a detriment within time, the Respondent argued that there was not a prime facie case that they formed a series with those pleaded in the same part which were on their face out of time. For this reason, the Respondent argued that the “in time acts” could therefore not rescue those which fell outside the time limit. This argument was based on the case of Lyfar v Brighton and Sussex University Hospital Trust

[2006] EWCA Civ 1548

at para 10. The Respondent admits this is a discrimination case but is considered by various 10.7 Judgment with reasons – rule 62 3 March 2017 authoritative texts also to apply to time limits under section 48 of the Employment Rights Act.

[12]The Claimant argued that the events were part of a continuing act and her witness statement sets out her belief that the detriment she relies upon was ongoing. She also explained why she thought it necessary to issue a new claim.

[13]I am bound by the statutory provision in relation to any acts which are failures to act. The test applicable to claims for a PIDA detriment, under section 48 (3) of the Employment Rights Act 1996 is that it must be brought within the time period, except where the Tribunal is satisfied that it was not reasonably practicable for the claim to be brought in time, and then it must be brought within such further time period as the tribunal considers reasonable. The Claimant did not make a request for an extension of time or suggest that it was not reasonably practicable for her to have brought her claims within the time period.

[14]I recognise that the Claimant considers there was an ongoing detriment but where there is a failure to act, the law is clear about how the time of the failure is to be assessed.

[15]The Claimant has clearly identified the disclosures she relies upon and the detriments which she argues she was subjected to in consequence of those disclosures and in relation to the following allegations, there is no detriment which is within time.15.1 Section 2 has two detriments. The Claimant says the first took place on 30 July 2018. The second one took place on 6 August 2018 and the Claimant says it is still ongoing. In so far as a complaint is about a failure to act, it cannot be treated as ongoing. The first detriment in this section is a complaint about a failure to reply by Neil Soden to the Claimant's request for feedback and monitoring of her close call. This is not stated to be ongoing, but assuming the Claimant meant that it should be, based on the statutory provision, the latest date when this could have been effective for the purpose of calculating time is the point at which it could reasonably have been expected that Mr Soden would have replied. I assess that would have been within one month at the longest. The second detriment is a request to Neil Soden and Rob Walton to be part of safety leadership made on the 6th of August 2018. The Claimant complains she has been given no information on how to be part of this. This is also a complaint about a failure to act. I have nothing to suggest that there has been an inconsistent act and therefore I have to decide when the period expired within which the Respondent might be expected to have done the failed act. In other words I have to decide by when the Respondent might have been expected to provide information about how to be part of the safety leadership. I would have expected that any information would have been provided within one month. Accordingly, applying the test in section 48(4) of the Employment Rights Act 1996, the last date of the two detriments in Section 2 is 6 September 2018. This is significantly out of time and the claims in this 10.7 Judgment with reasons – rule 62 4 March 2017 section are therefore struck out on the basis that the tribunal has no jurisdiction to consider them.

15.2 Section 4 of the PIDA Schedule sets out three detriments which took place between 11 January 2018 and 6 August 2018. All three detriments are failures to act on the part of the Respondent. The last one which took place on 6 August 2018 is the Claimant’s request to Neil Soden and Rob Walton to be part of the safety leadership and is identical to the detriment I have described above. For the same reasons, I regard the maximum time during which the Respondent might have been expected to act as one month after the date of the Claimant’s request. Therefore, time runs from 6 September 2018. As noted, the earlier detriments are also failures to act. The Claimant complains that in June 2018 Frank Liu and Rob Walton didn't consider her for opportunities in his team and hired contractor staff and that the first one is that Rob Walton and Frank Liu didn't invite her to any integration meetings. From the dates of the incidents described, all these events took place in 2018 and are thus significantly out of time and therefore the claims in section 4 are struck out.

15.3 The first part of Section 5 includes two detriments both of which of the Claimant identifies as taking place in April 2018. She complained that Neil Soden did not give her any feedback on IP IMS task despite her requesting this at a review meeting in March 2018. Secondly, she complained that John Nixon ignored her request to have an IP IMS session in the next team meeting. Tasks were assigned but no encouragement or feedback given. It is clear that both of those alleged detriments are failures to act and that both took place in or around April 2018. Allowing for a reasonable period of time within which the Respondent should have acted, it seems that both failures to act must have crystallised one month later (i.e. by May 2018) and they are both significantly out of time and are struck out.

15.4 Section 6 lists 8 detriments which the Claimant identifies as taking place on 10 April 2017, 23 March 2018 and 18 March 2019. The incidents are all failures to act. I carefully considered all of them and particularly the last one. Some are about specific performance review forms and three are about a failure to arrange a performance review meeting in March 2019. The last detriment on the list is not dated but must fall within the dates above which are the dates given for all the detriments. The Claimant complains that Mr Soden moved a budget allocated to her project to another project without informing her or a designated commercial manager or sponsor. I am satisfied that the detriment is the failure to communicate with the Claimant and this too is a failure to act. Allowing a reasonable period for Mr Soden to communicate with the Claimant about it, as it happened, according to the Claimant, in March 2019 she would have expected Mr Soden to communicate with her within one month, i.e. by April 2019, so these matters are significantly out of time and are struck out.

15.5 Section 7 lists three detriments which the Claimant says occurred between 12 November 2018 and 14 March 2019. The event in March 2019 is the removal of the Claimant’s “substantial post” which was a specific act. On 10.7 Judgment with reasons – rule 62 5 March 2017 the face of it these matters occurred between 7 and 3 months before 20 June 2019, and are clearly significantly out of time. They are struck out.

15.6 Section 8 lists one detriment which occurred on 2 May 2019 when the Claimant complains of a failure to act by Human Resources who ignored a request she made for a Handbook. Again, as this is a failure to act. I would normally expect a simple request for a document to have ben acted on within a week or two, but even allowing for a time period of one month for the Respondent to have acted, I would assess the date when it occurred as 2 June 2019, so that it is out of time by almost three weeks.

[16]I have considered whether I should also strike out sections 1, 3 and the second Section 5 on the basis of the Respondent’s submission that there is not a primary facie case that these detriments form a series with those pleaded which are outside the time limit. While I understand the Respondent’s arguments on that point, I am not satisfied that I can reach a firm conclusion without further evidence. The question of whether they could form a part of a series should be left to the full merits hearing to determine. I will not strike them out for this reason. Issue Estoppel

[17]The Respondent argues that certain of the allegations mirror those in the first claim which have been struck out because the Claimant failed to pay a deposit. Where there is an allegation which was part of the first claim and subject to a deposit order, which the Claimant chose not to pay so that the claim is now struck out, there is an issue estoppel which means that allegation cannot be raised again in new proceedings.

[18]The Respondent relies upon the Judgment in the case of Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd

[2013] UKSC 46

at para 17 per Lord Sumption which explains that res judicata is a portmanteau terms used to describe a number of different legal principles with different juridical origins. He then proceeds to explain each of them. Lord Sumption’s explanation of the fourth principle (issue estoppel) reads as follows: “Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355, [1775–1802] All ER Rep 623. ‘Issue estoppel’ was the expression devised to describe this principle by Higgins J”

[19]Employment Judge Davidson made a deposit order on the basis that detriment claims which relied on the Claimant having made qualifying disclosures on close calls in which the Claimant reported that her colleagues had failed to sign in and out of attendance registers in accordance with company protocols had little reasonable prospect of success. Had I not already struck it out as above, I would have struck the repeats of that allegation out for this reason and thus both detriments raised at section two of the PIDA schedule in the second claim would be struck out for this reason. 10.7 Judgment with reasons – rule 62 6 March 2017

[20]Section 1 of the PIDA schedule lists as detriment 2, a matter which the Respondent says is essentially the same as paragraph 102 of the chronology to the first claim at page 107 of the joint bundle and also the summary at page 188 paragraph 36, being the complaint about the Claimant’s rating on the 2018 annual capability record. I have reviewed the Schedule and the prior documents, and I am satisfied that it is the same matter. This is also a matter which has been struck out as a result of the non-payment by the Claimant of the deposit following EJ Davidson’s order and it is therefore subject to issue estoppel and must be struck out.

[21]Section 3 of the PIDA schedule lists as detriment 4 a matter which the Respondent says is pleaded at paragraph 80 of the chronology to the first claim at page 103 of the joint bundle, and appears in the summary at page 186 paragraph 26, being a complaint that fit notes forwarded in July 2018 to Neil Soden were not acknowledged. I have reviewed the Schedule and the prior documents, and I am satisfied that it is the same matter. This is also a matter which has been struck out as a result of the non-payment by the Claimant of the deposit following EJ Davidson’s order and it is therefore subject to issue estoppel and must be struck out.

[22]Part 2 of Section 5 of the PIDA schedule lists as detriment 1, a matter which the Respondent says is pleaded at paragraph 107 of the chronology to the first claim at page 108 of the bundle and appears in the summary at page 189 paragraph 42, being a complaint by the Claimant that she gave a presentation to various colleagues and that neither Mr Soden, nor Mr O Toole, who were present said anything to her about it. Essentially this is a claim that they did not give the Claimant any feedback. I have reviewed the Schedule and the prior documents, and I am satisfied that it is the same matter. This is also a matter which has been struck out as a result of the non-payment by the Claimant of the deposit following EJ Davidson’s order and it is therefore subject to issue estoppel and must be struck out.

[23]Part 2 of Section 5 of the PIDA schedule lists as detriment 2, a matter which is pleaded at paragraph 108 of the chronology to the first claim at page 109 of the bundle and also the summary at page 189 paragraph 44, being an allegation that the Claimant was not involved in presentations while other managers were. I have reviewed the Schedule and the prior documents, and I am satisfied that it is the same matter as appears in the summary at item 44. This is also a matter which has been struck out as a result of the non-payment by the Claimant of the deposit following EJ Davidson’s order and it is therefore subject to issue estoppel and must be struck out. Abuse of process

[24]The Respondent has also argued that bringing the second claim falls foul of the rule in Henderson v Henderson, which put briefly is an expectation that a party to litigation will bring forward their whole case rather than bringing later proceedings in respect of matters which could have been brought forward with the first claim but were not. The Respondent has referred the Tribunal to an 10.7 Judgment with reasons – rule 62 7 March 2017 EAT decision in Lynch v East Dunbartonshire Council

[2010] ICR 1094

which held that the doctrine of lis pendens does not apply in the ET but it is open to the ET to strike out a second claim as vexatious under Rule 37(1)(a) if the circumstances are such that by bringing the second claim in that context the Claimant is acting improperly or oppressively.

[25]The Claimant has explained that she brought the second claim after the Judge informed her that for new matters, she would need to bring a new claim. She was also told about the process for amendment. The Claimant did not obtain legal advice. Having understood from Judge Davidson what a public interest disclosure claim was, she appears to have decided that many of the matters she had raised should be public interest disclosures. Bearing in mind the time limit she says for the fresh issues and the preliminary hearing date for the first claim on 27 November 2019, she submitted a new claim on 24 September 2019. She says she was concerned that if any of my amendments were not considered at the November hearing then she would be out of time. She also says “in the ET1 for the second claim, I ticked the box for section 10 which I did not do in my first claim”.

[26]It is clear that this aspect of the Respondent’s application depends on me concluding that the Claimant has acted oppressively so as to fall within the provisions of the employment tribunal rules allowing for a strike out where the Claimant’s conduct has been vexatious. At this stage, while I can see that the Claimant’s conduct has had an oppressive impact on the Respondent because of the large number of individual items that the Claimant has raised and the length of time over which they are spread, it is not clear to me that the Claimant has acted vexatiously. Rather it seems that as a litigant in person she has been somewhat concerned to ensure that she did not miss an opportunity to raise her claim in format she considered appropriate due to what she would see as a technicality of procedure. For this reason, I am not prepared to strike out any further allegations on this ground at this stage, but this decision does not determine the matter for all time. If the Claimant continues to introduce new claims which she could have brought already, it would be open to some future tribunal to conclude that her conduct overall, including conduct I have considered, has reached that threshold.

[27]This Judgment has been corrected this 15th day of April 2021, under Rule 69 of the Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013. 10.7 Judgment with reasons – rule 62 8 March 2017

The Law

[28]Before striking out in any of these situations, the tribunal must give the party against whom it is proposed to make the order a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[29]In general, the grounds for striking out a pleading under r 37(1)(a) include an abuse of the process of the tribunal. The term "abuse of process" is not narrowly construed, and the circumstances constituting such an abuse are not limited to claims (or defences) that are "sham and not honest and not bona fide." Stuart-Smith LJ observed in Ashmore v British Coal Corporation

[1990] IRLR 283

: A litigant has a right to have his claim litigated, provided it is not frivolous, vexatious or an abuse of the process. What may constitute such conduct must depend on all the circumstances of the case; the categories are not closed and considerations of public policy and the interests of justice may be very material.

[30]As a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute (see, e.g., North Glamorgan NHS Trust v Ezsias

[2007] EWCA Civ 330

). Only in an exceptional case will it be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence.

[31]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union

[2001] IRLR 305

, HL, a race discrimination case, Lord Steyn stated (at para 24): For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.

[32]This is not a fetter on the tribunal's discretion, but the power to strike out in discrimination cases should be exercised with great caution. - 8 -

[33]A tribunal should not take the view that Anyanwu creates some form of public policy that prevents claims being struck out, as is made clear by Lord Hope at paragraph 39 of Anyanwu itself. Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [sic] taken up by having to hear evidence in cases that are bound to fail.

[34]The Court of Appeal in Ahir v British Airways Ltd

[2017] EWCA Civ 1392

made it clear there is no general proposition that where there is a potential disputed on facts a claim must proceed. It is necessary to look carefully at the facts and to consider the nature of the dispute.

[35]Underhill LJ put it as follows: 16 … 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, and I am not sure that that exercise is assisted by attempting to gloss the well understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success.’

[36]It can be seen from Ahir that it is not enough for a claimant to assert there is a dispute of facts, and that, therefore, the tribunal is compelled to find there is a prospect of success. First, the claim must be clear. Second, the facts alleged and relied on should be clear. Third, resolution of those facts should be capable of demonstrating discrimination whether directly or by way of inference. Fourth, the respondent's explanation should be considered. Fifth, if the explanation is disputed, there should be some plausible explanation for this from the claimant.

[37]There is nothing Ahir which conflicts with the general proposition that the claimant's case should be taken at its highest on the pleadings see e.g. Ukegheson v London Borough of Haringey

2015 ICR 1285

[38]Ahir is particularly important in the context of claims that have been made clear and are properly pleaded. In those case it may be possible to analyse if the claim had no reasonable prospect of success, for example it may be fanciful. The positions may be complicated in claims which are fundamentally unclear. The pleaded case may reveal no basis for bringing a claim. However, there may be an underlying, insufficiently pleaded case that may have a prosect of success. It may be impossible to ascertain the likely prospect of success of the underlying claim. In those - 9 - circumstances, it may be inappropriate to strike out before the claimant is given an opportunity to clarify the claim, such that the prospects can be properly considered. Further difficulty arises when the claimant has been given an opportunity to clarify a claim, but fails to do so. It may then be necessary to consider if the claimant’s counduct is such that the claim should be struck out.

[39]Cases that have been conducted by or on behalf of the claimant or respondent in a way that is scandalous, unreasonable or vexatious may be struck out. Strike out provides a means for dealing with litigants (or their advisers) who conduct their cases in a disruptive and unruly manner or refuse to obey the directions of the employment judge. If the unreasonable conduct has taken the form of a deliberate and persistent disregard of required procedural steps, or it has made a fair trial impossible, strike out may be appropriate (see Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

). Where these conditions are fulfilled, it is necessary for a tribunal to consider whether striking out is a proportionate response to the misconduct. Sedley LJ put is as follows: 5. This power, as the employment tribunal reminded itself, is a Draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response...

[40]Burton J, giving judgment in Bolch v Chipman

[2004] IRLR 140

, EAT, a case concerning allegations of behaviour that was scandalous, unreasonably, or vexatious stated that there are four matters to be addressed (see para 55). First, there must be a conclusion by the tribunal not simply that a party has behaved scandalously, unreasonably, or vexatiously, but that the proceedings have been conducted by or on his behalf in such a manner. Second, even if such conduct is found to exist, the tribunal should normally decide whether a fair trial is still possible. Third, even if a fair trial is not considered possible, the tribunal must still examine what remedy is appropriate, which is proportionate to its conclusion. It may be possible to impose a lesser penalty than one which leads to a party being debarred from the case in its entirety. Fourth, even if the tribunal decides to make a strike out order, it must consider the consequences of the debarring order. If the order is to strike out a response, it is open to the tribunal to allow a respondent to be heard on remedy.

[41]Claims may also be struck out when not actively pursued. It may be appropriate to have regard to the decision of Birkett v James 1978 AC 297. There are two distinct situations. The first is where there has been intentional and contumelious default by the claimant. This may include a serious or repeated failure to comply with an order of the tribunal, or - 10 - conduct amounting to an abuse of the process of the tribunal. Although, it would still be necessary to consider discretion. As to the second situation, it must be shown, first, that there has been inordinate and inexcusable delay on the part of the claimant, and, second, that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the respondent. Strike still requires the exercise of discretion: is a fair hearing possible; is strike out proportionate.

[42]In Rolls Royce plc v Riddle

[2008] IRLR 873

, EAT, Lady Smith pointed out that it is quite wrong for a claimant "to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the tribunal and/or its procedures" (para 20).

[43]It is important to bear in mind there are two stages. The first stage, may be seen as the threshold stage, and that involves asking whether any of the grounds for striking out are met. The second stage is the exercise of discretion. There must, at least, be consideration of whether there can still be a fair trial, and second, a consideration of whether strike out is proportionate.

[44]I should note the importance of a claimant setting out the claim clearly in order to facilitate a fair hearing. It is for the claimant to set out the case in a relevant statement of case. (I have referred to the claim form and any statements of case generally as the pleadings.) It is common, particularly when individuals are not represented, for there to be deficiencies in the initial documentation. Those deficiencies are sometimes addressed by what are generally referred to as further and better particulars. It is important to recognise that, rather than being a necessary part of the pleadings, the use of further and better particulars is a remedial response to a failure of process.

[45]It is frequently the case that further and better particulars, when provided, identify new facts. The addition of facts will normally require an amendment, see Selkent Bus Company Limited v Moore

1996 ICR 836

. However, a tribunal should avoid excessive formality. Where neither party makes specific objection to a new fact, it is included as part of the claim without the need for a formal amendment. However, this reflects a pragmatic approach; it is not a right. Care should be taken to prevent the remedial process of further and better particulars from circumventing the exercise of a tribunal’s discretion to grant amendments.

[46]In short, the process of providing further and better particulars may be a pragmatic way of rectifying a deficiency in a pleading.

[47]The issues are a distillation of the pleaded case. It is a way of identifying what are the causes of action and what are the specific factual allegations, said to be some form of detrimental treatment, that are to be determined in the action. Care should be taken to ensure the identification of issues - 11 - does not circumvent the exercise of a tribunal’s discretion to grant amendments.

[48]In Land Rover v Short UK EAT 496/2010, Langstaff J confirmed that where a dispute arises about the issues, it is for the tribunal to make a ruling. In Price v Surrey County Council and another, UK EAT 450/2010, Lord Justice Carnworth confirmed that the tribunal must exercise control over the form of the issues, even if agreed by the parties. In that case, the issues were described as a confused amalgam of factual allegation and major issues. The tribunal should not simply accept the issues provided by the parties, even if the parties agree them between themselves. It is part of the tribunal's role to exercise control over the way in which the issues are presented.

[49]The point was re-emphasised by Langstaff P in the case of Chandhok v Tirkey EAT 190/14.17. I readily accept that Tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before Employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute.

18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an - 12 - Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

[50]In Smith v Tesco Stores Ltd

[2023] EAT 11

, the EAT has recently confirmed the need for a claimant to engage with the process constructively. Strike out was justified in all the circumstances when Mr Smith’s repeatedly failed to respond meaningfully to a draft lists of issues and thus disregarded the duty of cooperation. Claim one

[51]It is common ground there is only one claim remaining in claim one, and that is breach of the equality clause under section 66 Equality Act 2010. It is the claimant’s case that whilst working on the second phase of the ground investigation project with HS2 as a client, from 17 March 2017, she undertook like work with her comparator Mr Paul Munday, but did not receive the same benefits.

[52]The claimant failed to set out in her claim form what matters she relies on when asserting that her work was like work with Mr Munday. The respondent has not sought to strike out this claim.

[53]I have noted that the respondent has applied to amend. That application will need to be determined.

[54]It appears the respondent’s basic position, as agreed by the claimant, is that her pay was a band three level salary and Mr Munday’s was a band four level salary. It is the respondent’s position that there were material differences in their work and their responsibility. The claimant’s pleading does not address any similarities or differences in work. If the respondent is right, and the work was not like work, that will determine the equal pay claim. I consider it appropriate for the issue of like work to be decided as preliminary issue, and I will give instructions in relation to this separately.

[55]In due course, if the claimant is successful in establishing like work, it will be necessary to consider the remainder of the claim, and in particular whether there is a material factor defence. Whether that matter should be considered with claims two and three will be for the judge who hears the like work preliminary issue. Claim two

[56]It was agreed that there were claims of direct race discrimination, victimisation, and harassment. In addition, there are allegations of whistleblowing detriment.

[57]As for the claims of direct race discrimination, victimisation, and harassment, there was substantial agreement in principle, albeit the claimant disputed the exact wording identifying the detriments. I am - 13 - satisfied that the respondent has identified the detriments correctly, and I have recorded them in appendix 1, which sets out the issues in the claims.

[58]I have set out in the issues below the claims of direct discrimination, harassment, and victimisation as they appear in the claim form. If the claimant wishes to include any further allegations of detriment she may not do so without amendment. The claimant specifically confirmed that for direct race discrimination, she relies on only detriment one. The claimant specifically confirmed that for victimisation and harassment she relies on both detriment one and detriment two. At various times, the claimant has sought to dispute the exact wording, I am satisfied that the detriments as now drafted reflect the claims as pleaded. It is for the tribunal to exercise control over the form nature of the issues. I note that the issues are simply a summary of the claims are not a replacement for the claim form itself. Ultimately, if a tribunal, at the final hearing, takes the view that the detriments have not been identified adequately, it is open to that tribunal to clarify.

[59]For the purpose of victimisation, the claimant alleges that she undertook six protected acts. The protected acts relied on, to the extent the respondent has been able to identify them, are as follows:a. raised concerns about unfair treatment in March and April 2017 to;

b. raised concerns about unfair treatment and harassment in the Grievance hearing in August 2018 and November 2018 and appeal hearing in March and April 2019;

c. raised concerns about unfair treatment with Human Resources on September 2018 by;

d. informed Human Resources about ACAS and Employment Tribunal claim in October 2018;

e. submitted a claim to the Employment Tribunal in November 2018 in which allegations of discrimination were made; and

f. raised concerns about bullying, harassment and ongoing discrimination to Human Resources in December 2018.

[60]It is accepted that raising issues concerning ACAS and submitting a claim in November 2018 are potentially capable of being protected acts. What information was given to human resources, and how, in October 2018 is unclear, but the respondent has not taken issue with this.

[61]As for the remainder of the allegations, they all simply refer to raising concerns about treatment. There is a complete failure to set out what those concerns were, how they were raised, with whom, and what information was given.

[62]Pleading the nature of the protected act is not complicated or difficult. All that is required is to state what was communicated to whom, how it was communicated, when it was communicated, and what was the specific information. I have regard to section 27 Equality Act 2010. There are broadly four types are protected acts: bringing proceedings; giving evidence or information in connection with proceedings under the act; doing anything for the purpose or in connection with the act; and making - 14 - an allegation that another person has contravened the act. In addition, the giving of false evidence or information, or the making a false allegation, is not protected, if the evidence or information is given, or the allegation is made in bad faith.

[63]It follows that the respondent, in defending a victimisation claim based on a protected act, has several lines of defence. First, the circumstances said to constitute the act need to be identified, as their circumstances may not fall within one the four categories which could be a protected act. If the protected act is not identified with sufficient accuracy, the respondent is fundamentally denied the opportunity to consider whether the victimisation claimant fails at the first hurdle. In addition, a respondent is entitled to know whether what is relied on is evidence, information, or allegation. It should know with sufficient certainty so that it is able to consider the potential defence, and if necessary, bring evidence on two questions: first, whether the evidence information, or allegation was false, and second, whether the evidence, information, or allegations was made in bad faith.

[64]The claimant, in making broad allegations that she raised concerns fails to identify whether what is being referred to is evidence, information, or allegation. There are two consequences. The first is that the pleading itself does not as it stands demonstrate an arguable case that there has been a protected disclosure. This opens the possibility of that allegation been struck out as having no reasonable prospect of success. Of course, it would be inappropriate to do so without giving the claimant an opportunity to make the allegation clear. If the allegation is to be clarified, such clarification may require an amendment.

[65]It is clear from the claimant’s oral representations that it is not her intention to clarify, but instead she seeks to set out further allegations in her witness statement, or even to approach this in an ad hoc manner at the final hearing. It is clear, therefore, that she is consciously and deliberately, failing to set out the nature of the case.

[66]The result is that the respondent does not know, in relation to these four alleged protected acts, which simply refer to raising concerns, what is the case it is to answer. It does not know what is said to be, if anything, the relevant evidence, information, or allegation. This fundamentally denies the respondent an opportunity to respond adequately or at all to the allegations. The respondent has been denied the opportunity to identify whether the alleged events occurred on to bring evidence on that basis. It is denied the opportunity to say whether alleged protected disclosures involved the provision of false evidence, information or allegation whether the allegations were made in bad faith. Without identifying the specifics of the alleged concerns, respondent has been denied the information it need for there to be a fair hearing. - 15 -

[67]I accept that a claimant should be given a reasonable opportunity to clarify her claim. In this case inevitably that would involve the addition of facts, and that must involve amendment. It is inappropriate to allow the claimant further unbridled licence to add to, or supplement, her claim without maintaining the necessary control of amendment.

[68]The four protected acts identified which simply refer to raising concerns do not sufficiently identify the allegations. As I have noted, it is arguable that they have no reasonable prospect of success as they stand. The claimant’s failure to clarify these protected acts is, in my view unreasonable conduct of these proceedings and the threshold for strike out is met. Further, the lack of clarification, for the reasons given, fundamentally undermines the respondent’s right to a fair hearing. I have considered whether they should simply be struck out. In my view the claimant has had more than ample time and ample opportunity to clarify the matters. However, I am prepared to give her one final chance. If she wishes to proceed with those allegations, she must identify the protected acts adequately. As this will involve a addition of facts, she should be obliged to apply to amend. If she does not apply to amend the four allegations to include the relevant detail, they will stand struck out in accordance with the unless order (above). If she does apply, then they should be subject to further scrutiny, and the tribunal should consider them having regard to the normal principles applicable to amendment.

[69]The claimant alleges whistleblowing detriment in claim two. She relies on protected disclosures. The respondent has taken these from the relevant schedule to the claim form. The whistleblowing detriment claim has already been subject to a number of strike outs and I will deal with what remains.

[70]The second claim is supported by a document set out in a Scott schedule format. That document contains “an Equality Act schedule” and a “public interest disclosure schedule.” I am concerned with the second part of the schedule. That is set out in several sections. Some of that schedule has been struck out in previous decisions and I am concerned with the balance.

[71]It is the respondent’s position that the schedule lacks proper particularisation and in particular there is a failure to particularise the whistleblowing complaints. The respondent’s application states: The Claimant’s Second Claim was lodged on 24 September 2019. Despite being lodged over three years and four months ago, the Claimant has still not fully particularised her whistleblowing complaints in that she has not:• precisely identified the protected disclosure relied on in each case. The Claimant has not set out the words alleged to have been used;

• in respect of the failure under s43B(1)(a)-(f) the Claimant has not: o clearly identified the public interest she relied on in respect of each protected disclosure; and/or - 16 - o has not adequately set out the basis on which she reasonably believed that the information tended to show a failure; and/or o has not adequately set out whether she relies on a failure that has occurred, is occurring or is likely to occur;

[72]The schedule contains a number of alleged protected disclosures. The protected disclosures relied on for each of the sections is not the same, albeit there is some repetition and overlap. There are numerous alleged detriments identified which attach to various alleged protected disclosures.

[73]In its draft list of issues, the respondent sets out those matters said to be protected disclosures as contained within the claimant’s schedule. I am satisfied that the respondent has, essentially, used the wording as set out in the claimant’s schedule. Although it appeared that the claimant continued to dispute the accuracy of the respondent’s issues on this point. It is necessary to set out the various disclosures as they are relevant to each of the sections which remain before the tribunal.

[74]Section 1 of the claimant’s schedule is dealt with at6.1.1 – 6.1.7 and the alleged detriments are identified as follows: 6.1.1 raised a Close Call using the contractors system on 30 November 2017 after a site visit regarding the inappropriate personal protection equipment of Bridgeway Contractors while doing GI Works;

6.1.2 challenged the construction manager in a meeting on 12 December 2017 for visibility of close calls raised by all contractors at Euston Site;

6.1.3 raised concerns regarding the safety reporting and close calls for GI works with Anthony Sutton on 10 September 2019;

6.1.4 raised concerns regarding the reporting of close calls for GI works with Neil Soden on 24 September 2018. Neil Soden was the Programme manager and Principal Designer representative for GI works for HS2 project at Euston;

6.1.5 emailed Anthony Blackhall (Construction Manager for Euston works) on 12 December 2017;

6.1.6 emailed Neil Soden (Principal Designer Representative and Programme Manager) on 12 December 2017;

6.1.7 emailed Neil Soden on 24 August 2019 for close calls numbers;

[75]Section 2 of the public interest disclosure schedule has previously been struck out.

[76]The relevant protected disclosures from section 3 of the public interest disclosure section are set out at10.1.1 – 10.1.9 of the draft list of issues as follows:1 10.1.1 raised concerns about line management, secondment and career progression with Neil O Toole and Neil Soden on 14 March 2017, 29 March 2017 and 20 April 2017;

10.1.2 emailed detailing the issues with line management, missing reporting structure and its effect on health and wellbeing in Appeal letter on 19 November 2018; 1 Detriment four of this section was previously struck out - 17 -

10.1.3 raised concerns in the appeal hearing meeting on 14 March 2019;

10.1.4 raised concerns using Network Rail speak out policy on 28 September 2019;

10.1.5 emailed to Neil Soden and Human Resources with concerns regarding fit note acknowledgement on 15 November 2018;

10.1.6 emailed to Stephen Moffat and Human Resources on 19 November 2018 with appeal letter;

10.1.7 raised concerns with Andy Lundberg regarding line management issues on 14 March 2019;

10.1.8 raised concerns using Network Rail’s speak out policy on 28 September 2018;

10.1.9 submitted a claim to the Employment Tribunal for Discrimination;

[77]Section 4 of the schedule of public interest disclosures had been struck out previously, as has the first section 5.

[78]There was a second section 5 to the schedule of public interest disclosures. Several of the alleged detriments had previously been struck out. The protected disclosures are set out at 14.11 and 14.12 of the draft issues as follows:14.1.1 raised concerns about access to the Claimant’s personal information in an appeal letter to Steve Moffat on 19 November 2018; and

14.1.2 raised concerns about access to the Claimant’s personal information by unknown managers in an Appeal hearing meeting on 14 March 2019.

[79]The final sections of the schedule of the protected disclosures schedule, sections 6, 7, and 8 have all previously been struck out.

[80]It is the respondent’s position that the claim for whistleblowing detriment should be struck out. Part of the reason is the failure of the claimant to identify the protected disclosures, and the reason why they are protected, adequately or at all. The respondent’s written submissions state the following:10. As will be clear, the R highlighted in its list of issues considerable gaps in C’s pleaded claims that rendered the R unable to compile a comprehensive list of issues. Those gaps relating to C’s whistleblowing detriment claims under the Second Claim, as identified by the R in the list of issues, are as follows: 10.1. Precise particulars about the protected disclosures relied upon by C, including the words said to have been used by C to make the protected disclosure [paras 6.1, 10.1, 14.1]; 10.2. Identification as to which protected disclosures are relied upon in respect of each specific detriment [paras 6.1, 10.1, 14.1]; 10.3. The basis on which C asserts a belief the information tended to show a failure under s.43B(1)(b) or (d) ERA [paras 7.1, 11.1, 15.1]; 10.4. Whether, in respect of each protected disclosure, C was relying on a failure under s.43B(1)(b) or (d) that had occurred, was occurring or was likely to occur [paras 7.1, 11.1, 15.1]; 10.5. Identification of which asserted public interest C relied upon in respect of each alleged protected disclosure [paras 8.1, 12.1] (the same failure applies to para 16.1 albeit it is not referred to in R’s list of issues); - 18 - 10.6. Sufficiency of identification of detriments [para 13.1]; and 10.7. The date of a works coordination meeting which C says she was not invited to (and relies upon as a detriment) [para 9.1.4].

11. The gaps are thus extensive and wide-ranging.

12. In C’s response to the R’s list of issues [R480], the only gaps C sought to fill was to identify in 3 tables which protected disclosures were relied upon in respect of which detriments [see tables at R484, R488, R494]. Even in doing that, there were problems in C’s response, namely: 12.1. No protected disclosures were identified in re detriment 4 in the table at [R484-486] nor detriment 12 in the table at [R488-491]; 12.2. She relied on a number of detriments which were already struck out by EJ N Walker, namely detriment 2 in the table at [R484- 486], detriment 4 in the table at [R488-491] and detriments 1-2 in the table at [R494-495]; and 12.3. She relies on some protected disclosures which she does not appear to assert are causative of any detriments, namely disclosures 3 and 7 in the table at [R484-486] and disclosure 4 in the table at [R488-491].

13. Apart from the link between detriments and disclosures, C did not seek to cooperate at all with the R in filling the other gaps in the list of issues essential for determining C’s Second Claim. On the contrary, her response is monumentally unhelpful, with C repeatedly asserting merely that there were sufficient details provided in the ‘PID Part A Schedule’ (i.e. the table of particulars by which C presented her claim) and in the bundle and witness statement C produced for the PH on 12.03.21 [see C’s responses from R480-496 at paras 6.2, 7.2, 8.2, 9.2, 10.2, 11.2, 12.2, 13.2, 14.2, 15.2, 16.2, 17.2]. C does not make any attempt to elucidate the answers to the gaps or even to identify from where in those extensive documents the answer could be found.

14. C has shown a wanton failure to cooperate with the R to ensure that the list of issues was fully set out for this PH. This is the 10th PH in C’s claims, and the 9th since C presented the Second Claim. An extraordinary amount of ET resources has been used up on C’s claims, such that litigation which commenced 5 years ago still has no listed trial date.

15. At every stage, C has obfuscated rather than providing clarity, such that nearly 4 years from presentation of C’s Second Claim the R still does not know the case it is required to meet.

16. Moreover, C’s latest obfuscation and lack of cooperation has occurred in the face of very clear guidance from EJ Hodgson as to what he expected from the list of issues and as to the potential consequences to C if the information was not provided.

17. Save to the limited extent set out above, C neither provided the relevant information in responding to the R’s list of issues, nor did C apply to amend her claim in order to fill the gaps.

[81]During the hearing, the claimant did not engage with these issues adequately or at all. The claimant failed to acknowledge there were deficiencies in her claim or that further clarification should be given. Instead, the claimant alleged that the respondent’s conduct has been inappropriate and the response to each claim to be struck out. - 19 -

[82]In its supplemental submissions, the respondent described the claimant’s conduct during the hearing on 24 April 2023 as follows: 17. C resisted numerous opportunities to answer questions posed by EJ Hodgson in order to try to identify C’s position on the issues in the Second Claim, with C’s approach being to repeatedly ignore the EJ’s questions and to provide responses wholly unrelated to the question posed.

[83]This to be a fair and reasonable record the claimant’s approach.

[84]I gave both the parties opportunity to file further submissions following the hearing, which both took advantage of. I considered the claimant’s further submissions carefully.

[85]At the conclusion of the hearing on 24 April 2023, I reiterated the key matters to be dealt with in each claim, and I confirmed the matters on which it would be helpful to receive submissions.

[86]In particular, I highlighted that I would be considering whether the schedule, sufficiently identified the information said to constitute the protected disclosure, and the reason why each was protected. The claimant provided as follows: 3. SECOND CLAIM (2203669/2019): As highlighted by the claimant in her submissions on 24 April 2023 and previous submissions on 23 Feb 2023, 29 March 2023 and 1 April 2023, respondent has made third strike out application on 23 Feb 2023. On previous occasions tribunal has converted the March 2020 hearing to strike out on 7 Feb 2020 before the respondent strike out application on 12 Feb 2020. Respondent has now made another strike out application on 23 Feb 2023. On previous occasion, respondent ignored the tribunal orders given in Dec 2020 and submitted the strike out application on 25 January 2021 after 4 pm deadline. To start with respondent have fundamentally not submitted the ET3 response on 24 Dec 2019 which they claim to have submitted. Whether or not tribunal has accepted the response is a different question, but the respondent has provided incorrect information to the tribunal saying that they submitted ET3 response on 24 Dec 2019 in their bundle. Respondent had an opportunity to make a strike out of the allegations at the March 2021 that they seem to request now. Respondent had also an opportunity to appeal the judgements or orders for second claim on previous occasions regarding the strike out, but they did not do so, they have not even made a reconsideration application. Respondent has now wasted tribunals precious time and resources with another hearing and claimant had to sacrifice her personal time during weekends to deal with respondent’s vexatious and scandalous conduct. Respondent in their bundle has also misleaded the tribunal to appear that her Equality and PIDA schedule that were part of the claim were not part of the claim but further and better particulars. 4. Respondent also tried to remove the claimant harassment claim from second claim. Claimant has detailed her harassment claim in her witness statement for March 2021 hearing and the Judge has identified this claim in her orders. Respondent totally ignored this claim in their submissions in July 2021 and Dec 2022 hearing. Harassment claim was neither reflected in their agenda nor in their list of issues for July 2021 and Dec 2022 hearing. Respondent was given a warning in the case management of July hearing - 20 - which says that ‘If the Tribunal determines that the respondent has breached any of the claimant’s rights to which the claim relates, it may decide whether there were any aggravating features to the breach and, if so, whether to impose a financial penalty and in what sum, in accordance with section 12A Employment Tribunals Act 1996.’ Claimant says that it is not a minor mistake but a major mistake which in itself is enough for the tribunal to strike off all the respondent’s responses. Recent case management for Case Number: 1308232/2019, A v London EV Company Limited) Paragraph 22 says that ‘Respondents, particularly if legally represented in accordance with their duties to assist the Tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the Tribunal to identify the documents and key passages of the documents in which the claim appears to be set out, even it may not be explicitly pleaded in a manner that would be expected of a lawyer and take particular care is a litigant in person has applied the wrong legal label to a factual claim that if properly pleaded would be arguable.’ 5. Also, to note that while going through the respondent bundle at the 24 April hearing, claimant pointed out to the Judge that List of issues (with changes made in blue text) from Page numbers 464 to 479 of the respondent bundle is not a correct reflection of the claimant’s actual pleadings and not as per the claimant’s response from 480 to 497. A simple example of this is that respondent has not captured the date 21 November 2018 in Section 10.1.9 in Page 488. Looking at the respondent bundle pages, it appears that respondent has not captured all the victimisation issues under Equality Act. Claimant did not have an opportunity to go through each and every line of the respondent’s list of issues and it was very difficult to navigate through respondent bundle as they have not captured claimant’s responses in their amended list of issues. Claimant is not confident that fair trial is possible with this type of respondent misconduct. It is respondent unreasonable conduct if they makes changes and submit the bundle / amended documents after the hearing / claimant’s submissions when they had several opportunities to do so before this.

[87]Whilst these submissions raise a number of issues, they do not address the respondent’s submissions that the claim is inadequately pleaded such that the respondent cannot know adequately or at all the claim it is to meet.

[88]I set out, in relation to protected acts above, the importance of identifying, accurately, in pleadings those matters relied on. For it to be a protected disclosure, there must be a qualifying disclosure made in the circumstances envisaged by section 43B Employment Rights Act 1996 . There are key elements which must be established. The disclosure must be of information. It follows that information should be set out and identified. It must be made in the public interest. The pleading should be sufficient to identify why it is alleged it was made in the public interest at the time. The disclosure must, in the reasonable belief of the employee, tend to show one or more relevant failing as identified at 43B (1) (a) – (e). It should be possible to identify what is said to be the relevant failure, and the reasonable belief should either be explained or clearly implicit.

[89]The requirement for this detail is not unjustified pedantry. It is a necessary part of the identification the claim. Without the information, the respondent - 21 - and the tribunal may be left guessing at what is inntended. At best, this is likely to lead to lengthy, disorganised, unclear, and confused proceedings. That in itself may be sufficient to negate the possibility of a fair hearing. A fair hearing is not any hearing. It should be one which uses tribunal resources in an appropriate manner. However, alleged protected disclosures that are inadequately pleaded fundamentally prejudice the respondent. At best it prevents the respondent from being able to engage appropriately, reasonably, and proportionately with proceedings, but more likely, it denies the respondent an opportunity to identify the relevant information, so that it can identify what the claimant says is the relevant information and circumstances of the alleged protected disclosure. This denies the respondent the opportunity to prepare adequately or at all by obtaining the relevant evidence. That seriously and potentially fatally undermines the respondent’s right to a fair

hearing.

[90]Such failure is important in any case. When the allegations of protected disclosures are multiple and diffuse the difficulties are compounded to the point where the claim becomes unmanageable and oppressive. When claims develop that characteristic, then there may be a question of unreasonable conduct, or even vexation.

[91]During the course of the hearing the claimant made it plain that she resisted the tribunal’s attempts to clarify the issues and asserted she considered her claims to be clear. Instead of accepting guidance and engaging with the process of clarification, she blamed the respondent for failing to set out the issues adequately or at all. The claimant, however, in seeking to resist the guidance went significantly further; she made it plain that she did not wish to be constrained at the final hearing by carefully defined issues. Put simply, the claimant refused to engage with, or cooperate, with the process of clarifying and defining her claims.

[92]Nevertheless, it is still necessary to look carefully at the claim form. The tribunal should not be distracted into imagining that the claim exists elsewhere other than in the pleaded claim itself. I considered each of the alleged protected disclosures and in particular considered whether each identifies adequately the information disclosed, the relevant failure relied on, the reasonable belief of the claimant as to why it was made in the public interest, or why it demonstrated a relevant failure.

[93]I do not find it necessary or proportionate to, in relation to each alleged protected disclosure to make detailed findings. I also observe there is danger in artificially considering each alleged protected disclosure separately, particularly when the claimant basis her case on the totality of the cumulative effect.

[94]I found that the claimant has failed to set out to any sufficient degree of all the information relied on. I will consider several examples by way of illustration. I will use the numbering as set out in the respondent’s draft list of issues. - 22 -

[95]In 6.1.2 there is general reference to challenging the construction manager. In 6.1.3 there is reference to raising concerns. In 6.1.4 there is further reference to raising concerns. In 6.1.5 there is simply a reference to an email without any attempt to identify the information. This is similar for 6.1.6 and 6.1.7. There is slightly more information in 6.1.1, but not significantly. That pattern proceeds across the remainder of the protected disclosures relied on with one possible exception which is the submission of the employment tribunal claim for discrimination on 21 November 18 (10.1.9); however, even in relation to that what is said to be the relevant failure, or the public interest, is not identified.

[96]I find that the nature and extent of the claimant’s whistleblowing detriment section in the second claim remains wholly unclear.

[97]The claimant has had numerous opportunities to address the deficiencies. Previous judges have highlighted the difficulty. The problems were addressed once again on 8 December 2022 before me. The claimant had an opportunity to address the deficiencies when responding to the respondent’s draft of the issues . The claimant had an opportunity to address the deficiencies at the hearing. Instead, she has made it plain that she will not engage with that process and does not accept any deficiency.

[98]The claimant’s refusal to engage with the process is in my view deliberate and contumelious obfuscation. There is a deliberate refusal to engage with the process or to accept the need to set out the claims clearly. Instead of agreeing to engage with the process of clarifying her own claims, the claimant has adopted the opposite stance and sought to ensure that the claims remain obscure to maximise, in her view, the arguments that she can raise the final

hearing.

[99]I am satisfied the claimant understands what is required of her. I take into account that she is a litigant in person, but she has now gained considerable experience of the process and has the benefit of assistance and guidance from more than one judge.

[100]I do not accept the claimant’s contention that the respondent has acted inappropriately. Respondents are frequently asked to assist in drafting issues. This is a pragmatic approach. Many respondent representatives, as is the case here, no doubt having regard to their overriding duty to the tribunal, seek to engage positively and to assist. The issues are a distillation of the pleaded case. In a reasonably pleaded case, there should be virtually no need for the assistance of either the claimant or the respondent. The judge should be able to draft the issues from pleadings. In this case, it appears the claimant takes the view that the responsibility for pleading and clarifying her claims lies with the respondent or the tribunal. That is a misunderstanding. It is for the claimant to plead her case in a way in which it can be understand an heard fairly. - 23 -

[101]When a case is not set out clearly, it is appropriate for the tribunal to give ample opportunity to claimant to rectify that situation. However, there comes a point when it is apparent that the process has failed and there is no prospect, whatsoever, of the claimant engaging in a way which is constructive. At that point, it is necessary to ask whether the claim can still proceed, in the sense of whether there can be a fair hearing.

[102]For the reasons I have given, the whistleblowing detriment claim in the second claim is based on unparticularised alleged protected disclosures. The claimant fails to plead the alleged protected disclosures adequately or at all. In particular there is a failure to set out the information, the relevant failure, the basis for the claimant’s reasonably belief as to the likelihood of failure, or to identify the public interest element. One may be marginally clearer than the others, but the case is put on the basis of the cumulative effect of the totality and treating them differently would be arbitrary. Further, for the reasons I have given, the respondent is fundamentally prejudice and unable to prepare for the hearing. I’m satisfied there is no possibility of there being a fair hearing of the claimant’s allegation that she suffered detriment for whistleblowing as set out in the second claim. I therefore strike out the section 47B Employment Rights Act 1996 claim. The third claim

[103]During the course of the hearing, as noted above, the respondent applied to strike out the claim of automatic unfair dismissal. This was considered fully at the hearing. I asked for the application and the submissions be clarified by way of supplemental submissions, I gave the claimant an opportunity to file further submissions.

[104]Claim three was submitted on 28 August 2020. It contains allegations of unfair dismissal and automatic unfair dismissal, contrary to section 103A Employment Rights Act 1996.

[105]The narrative to the claim states “The reason for my dismissal was on the grounds of making several public interest disclosures as detailed in the additional information.”

[106]The additional information sets out a “timeline of events for automatic unfair dismissal.” It identifies nine alleged protected disclosures page 254. Nov 2019: Subsection 1b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by raising Health and Safety concerns by email on 28th Nov 201 9 with Union representative & by email on 29th Nov 2019 to Human Resources Jan 2020 : Subsection 1b and 1 d of Section 43B PIDA - Made a qualifying disclosure in accordance with section 43C by raising Health & Safety concerns by email on 8th Jan 2020 with Employee relations advisor & Union Representatives Jan 2020 : Subsection 1b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by raising Health & Safety concerns by email on 15th Jan 2020 with HR manager - 24 - Jan 2020: Subsection 1b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by raising concerns by emails on 15th Jan 2020, 23rd Jan 2020 and 31st Jan 2020 with HRBP and Head of HR regarding a health and safety issue Jan 2020: Subsection 1 b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by raising concerns by email on 31st Jan 2020 to line manager on a health & safety issue Feb 2020: Subsection 1b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by reporting a health & safety issue via Network Rail internal system on 20th Feb 2020 March 2020 : Subsection 1b and 1 d of Section 43B PIDA -Made a qualifying disclosure in accordance with section 43C by formally raising a grievance on 27th March 2020 with Head of HR regarding a health & safety issue June 2020 : Subsection 1 b and 1 d of Section 43B PIDA-Made a qualifying disclosure in accordance with section 43C in the Appeal Hearing held on 9th, 11th and 16th June 2020. … Made a qualifying disclosure in accordance with section 43C in the in the disciplinary hearing, regarding data protection legal obligation on 21 st Aug 2020

[107]The claimant fails to set out adequately or at all what is said to be the information disclosed. Instead, there are bare assertions of qualified disclosures.

[108]The respondent did not initially take this point. As noted, these claims have a long history.

[109]Claim three included an application for interim relief which led to an interim relief hearing. Since then, there have been various other hearings at which the claim was considered. In seeking to draft the issues, the respondent took into account the representations made at various hearings in which it appeared the claimant had sought to clarify what amounted to the information for each of those alleged protected disclosures. This approach was contrary to my order of December 2022, which directed the parties to consider only the pleadings. The respondent’s approach did, reasonably and fairly, reflect what the respondent understood to be the agreed position between the parties. It was therefore a generous position for the respondent to adopt and one which assisted the claimant. At the hearing, the claimant refused to accept the accuracy of the information as identified in the issues, or to accept that there had been any prior agreement.

[110]It is for the claimant to identify her case. It is for the claimant to plead what information is said to constitute the alleged protected disclosure. I made it clear to the claimant it was open to her to accept the respondent had identified the information correctly in the draft issues, in which case it could be incorporated in the issues with the respondent’s consent and, - 25 - therefore, without the need for formal amendment. The alternative would be to consider the claim form itself. Ultimately, and despite my seeking to clarify the position, the claimant refused to accept that the respondent had set out accurately the alleged information said to constitute the protected disclosures. Therefore, I could not adopt the respondent’s draft of the issues, instead it is necessary to consider only the claim form.

[111]I have already noted, as set out above, the importance of identifying the information, the relevant failure, and the grounds for the reasonable belief that the information tended to show a relevant failure made in the public interest. It is for the claimant to set that out in the pleadings. I also noted the importance of allowing the claimant every opportunity to clarify a pleading which falls short in one respect or another. I have also considered why that is important and why failure to provide appropriate clarification leads to severe prejudice to the respondent and the inability to have a fair hearing. Those observations are equally relevant here.

[112]In its supplemental submissions the respondent says the following:32. The position on the automatically unfair dismissal claim under the Third Claim is similar to that on the s.47B claim under the Second Claim, and the points made there can be largely repeated.

33. As identified by EJ Hodgson, C’s claim itself did not identify at all the information said to constitute the protected disclosures. The R has done its very best to understand and identify that information and to set it out clearly in its list of issues. The R even added C’s preferred text (in blue print) to the asserted disclosures in the List of Issues sent to C on 23.02.23 [R464]. C has had that document for two months, and knew it would be discussed at this PH. Notwithstanding this, C attended the hearing wholly unprepared to engage on whether she accepted that the R’s list of issues correctly identified the alleged protected disclosures. As a result, when asked by EJ Hodgson, C refused to accept that any of the protected disclosures were correctly set out in the list of issues, yet was unable to identify any way in which they were not.

34. This leaves C in a position in which she has pleaded a claim which lacks any of the relevant and essential information as to the content of the alleged protected disclosures (and no application to amend to add that information), and a refusal by C to engage cooperatively on the list of issues in order to enable the ET to confirm through that means what the disclosures were.

35. C’s entire approach to this exercise was an obstructive one. In spite of EJ Hodgson’s repeated and patient efforts to go through the list of issues with C and to understand any dispute on how the R has characterised what it understands to be the disclosures, C repeatedly refused to answer questions posed. C returned time and time again to the fact that Joseph Mullally is described as ‘Human Resources’ rather than ‘Human Resources Business Partner’ [see 475, para 21.1.1] – a wholly insubstantial and irrelevant issue, of no probative value at all.

36. C’s obstructive approach at the PH – and her failure to engage sensibly with the R’s efforts to identify the protected disclosures following C’s inadequate pleadings – means that almost three years after C’s Third Claim was presented there is not agreement about the protected - 26 - disclosures relied upon in respect of the s.103A claim. It is a disagreement that ought not to be intractable but which C’s conduct renders intractable. The ET can have no confidence that C will resile from her obstructive approach and act cooperatively to enable the issues to be settled.

37. For like reasons to those set out at para 29 above in respect of C’s Second Claim, the R would urge the ET to strike out C’s s.103A claim within the Third Claim.

[113]The claimant’s written submission on how I should approach the third claim were as follows: 6. THIRD CLAIM (2205768/2020): Claimant has raised the concerns with respondent list of issues starting from 11 December 2020 until the hearing on 24 April 2023. If the respondent is disputing what has been agreed at the 9 Dec 2020 hearing regarding the list of issues, then it is the matter for the respondent to request the transcript of the hearing from the tribunal in relation to this (which they should have done by now). It is clear from claimant’s submissions and documents and respondent bundle for Dec 2020 hearing that claimant provided cast list with Job titles and actual emails of the protected acts with clear names of the persons and the appeal hearing meeting notes. These were considered in length at the Dec 2020 hearing and the respondent agreed to make the amendments following the hearing, but respondent continuously ignored what was agreed and provided the same list of issues again and again to number of Judges. (excluding the names or roles or excluding the actual issue or providing the different job titles for same person). It was also agreed at the preliminary hearing followed by email to tribunal in Dec 2020, that full email chain and appeal hearing notes dated 13 July 2020 that the list of issues are referring should be available, but claimant has not seen this in respondent bundle. This vexatious and scandalous conduct of the respondent has made it appear as if the issues for third claim are not protected acts. Also, if the tribunal can see the page 475 in the respondent bundle for the paragraphs 21.1.2. and 21.1.3 that they are referring same person Craig Etherington as Employee relations advisor (in paragraph 21.1.2) and then as Senior HR manager (in paragraph 21.1.3). Tribunal to note that claimant has submitted the eT1 form for third claim within one week of her dismissal as part of Interim relief application. 7. Respondent made changes to the list of issues after the claimant submissions on 14 Feb 2023 and they also agreed at the 24 April hearing that they did not include the correct Job title for Joseph Mullally (he was the HR business partner at Network Rail). Claimant is asking, why did not the respondent provide the correct list on 1 Feb 2023 and wait for claimant’s response (in Red text on 14 Feb 2023). Respondent also chose not to include claimant’s responses in the amended list. If the respondent is making changes to the list of issues after the claimant has made submissions, then this is not a reasonable conduct, because respondent had the opportunity to make the changes in their first submission of list following the Dec 2020 hearing but they misleaded the tribunal. Claimant is being put to pressure after two and half years in explaining all the issues again and again to a different Judge when there was already a preliminary hearing held in relation to the third claim in Oct 2020, Dec 2020, in July 2021 and in Dec 2022 with three different Judges. This is a severe injustice to the claimant who is a litigant in person compared to represented respondent and claimant feels biased. 8. Tribunal also to note that respondent representative website https://www.eversheds-sutherland.com/global/en/index.page demonstrates - 27 - that Respondent representative is a specialised employment law solicitor with international client’s base, with thousands of legal and business advisers worldwide. So how can the respondent make so many errors in their bundle preparation and not complying with the tribunal order. Respondent is tactfully doing this to mislead the tribunal and claimant. Respondent is also claiming that the witnesses have left the business and the case is historical in their submissions.

[114]I find that these submissions do not engage with the core issue – the claimant’s failure to set out the information said to constitute protected disclosures.

[115]I have considered whether there should be a further attempt at particularisation. The need for clear particularisation has been made clear at various times during the history of these claims. It was the central theme of the case management discussion on 8 December 2022. The directions given on that day were designed to assist the parties to focus on those matters which need to be addressed, and it was made plain that this was a final opportunity for the claimant to comply. Given the totality of the history, the evidence of the written documentation, the position adopted at the hearing, and the subsequent submissions I am satisfied that the claimant’s approach will not change.

[116]The claimant has failed to plead, adequately or at all, what is said to be the information constituting protected disclosures in the third claim. In my view there is no prospect of her engaging with that process. The claimant’s approach causes severe prejudice for the respondent. The respondent cannot prepare adequately or at all for the hearing. The respondent cannot identify the relevant evidence. Without the adequate pleading, there is no prospect of the hearing being conducted in a way which is fair to both sides.

[117]I have concluded the claimant’s conduct of the claim in relation to these matters is unreasonable; it is arguably vexatious, but I do not have to finally decide that point. On the pleaded claim, none of the alleged protected disclosures can succeed, as none identifies a disclosure of information. It follows, on the pleaded case there is no reasonable prospect of success. The claimant has been given more than ample opportunity to clarify her claim and has failed to do so . Instead, she has consciously chosen not to engage. Further she has behaved in a way that is it obstructive and her conduct is contumelious. Most importantly, there is no prospect of there being a fair hearing of the automatic unfair dismissal claim. I am satisfied that the claimant has been given sufficient opportunity to engage in a way which may rectify the deficiency in the pleadings. Not only is the claimant failed to do so, but her continuing conduct also demonstrates a conscious frustration of to all attempts to assist here and to make progress. I have considered if a lesser sanction would be appropriate; I find it would not. In the circumstances, I strike out the claim of automatic unfair dismissal. The claimant’s application for strike out - 28 -

[118]I should consider the claimant’s application to strike out the responses. As I have noted, it is far from clear that strike out was the intention of the various applications made by the claimant, and I have sought to take a purposive approach at the hearing.

[119]In seeking to strike out the three responses, the claimant relies upon the totality of her written submissions. As to the alleged unreasonableness of the respondent’s conduct, the further submissions state: 9. ALL THE THREE CLAIMS: Claimant also requests the tribunal to look into the ‘CLAIMANT OBSERVATIONS ON RESPONDENT BUNDLE’ sent on 20 April 2023. Claimant is spending substantial amount of time to deal with respondent non-compliances and chasing them for bundles. The manner in which the respondent has prepared the bundles is scandalous, unreasonable or vexatious, it is no longer possible to have a fair hearing. Claimant and tribunal had to turn to several pages forward and backward at the 24 April 2023 hearing making it difficult to clarify the issues. There was not a single document where the claimant’s responses were captured with respondent changes in the respondent bundle. Looking at the respondent list of issues line by line and cross checking them against claimant original list of issues and agreements following the previous preliminary hearings would cause further delay to the full trial date setting and another preliminary hearing. 10. Respondent has neither agreed the index or bundle of documents inspite requesting the bundle on 1 April 2023 by the claimant. Also, claimant is struggling to understand why the tribunal is considering the list of issues referring to Watford tribunal / bundle or referring to July 2021 hearing, when the respondent was given an opportunity before the hearing to provide correct versions. Claimant is put in a position that leads to Judge into error for subsequent hearings. Also, almost one hour of tribunal time was wasted on 24 April hearing as Judge did not have access to the respondent bundle. Respondent claims to have uploaded it on 14 April 2023 after 4 pm. Judge had to adjourn and asked the counsel / solicitors to send the bundle of documents. Claimant is not sure which bundle the solicitors have sent to the Judge as claimant or Londoncentralet@hmcts.gsi.gov.uk was again not copied in the email ignoring the rule 92. Also, claimant is struggling to understand why the Judge has considered the bundle that was not copied into claimant and Judge also referred to some previous bundles that they have received which claimant did not have access to at the time of hearing. It is unclear what has respondent sent to the tribunal on the hearing day as the claimant was not copied as they were also referring to some documents that sent over one day before the hearing. Claimant for these reasons feels that hearing was not conducted fairly. 11. There is also a fundamental issue with respondent bundle submissions which claimant tried to highlight on 20 April 2023. Respondent has not provided the bundle before 4 pm as requested by the legal officer, they seem to claim that they were waiting for the DUC link. From the tribunal case management order for Dec 2022, it is clear that respondent could have provided the bundle in separate sections instead of waiting for the DUC link. Also, it is not clear when did the respondent request the link (claimant not copied) and when did the tribunal provide the link to the respondent because the claimant has also requested the link on 23 March 2023 and 1 April 2023, but she was not given any link to upload. - 29 - Also, respondent seems to believe that claimant need not be copied in all the emails to the tribunal and vice versa contradicting the Rule 92.12. In Emuemukoro v Croma Vigilant (Scotland ) the ET, faced with a respondent who had failed to comply with bundle and witness statement directions which made a fair trial impossible within the listed five-day trial window, struck out its response at the start of the trial. On appeal, the EAT confirmed that whether a fair trial could have been possible at a later date was immaterial: when considering a strike-out application on the first day of trial it is enough, to trigger consideration of strike out, that a party’s unreasonable conduct meant a fair trial was not possible within that trial window. Whether or not the power ought to be exercised then would then depend on proportionality. Even though, full trial dates have not been fixed in this case, the non-compliances and irregularities are almost similar in nature including that respondent tried to remove the actual claims and did not capture all the issues or did not capture them correctly. Respondent has tactfully prepared the bundles to actually delay the full hearing and mislead the tribunal at preliminary hearings. For the conduct to be misleading or deceptive, it is not necessary that the conduct conveys either an express or implied representation, but that conduct is sufficient to lead or likely to lead the judge into error. Recent case management for Case Number: 1308232/2019, (A v London EV Company Limited) Paragraph 25 says that ‘Deciding when it is convenient for a party to comply with a Tribunal order is not a choice that a party has; compliance with Tribunal orders, is mandatory and not optional. Clarification of the parties respective cases is an essential step and forms the foundation of trial preparation; it is the list of issues which determines the disclosure and witness evidence which is required for the final hearing.’

13. Respondent claims that all the emails from the Eversheds should be considered as if from respondent representative which claimant disagrees. Respondent should not be disclosing her case details to all the employees at Eversheds, they should disclose it to only relevant people and they should in their communication say that they have sent on the behalf respondent representative (mentioned on the eT3 form). Without this information, claimant is correct in saying that the emails are from unknown people as the communication email does not reflect that they are sent on behalf of the respondent representative. Also, tribunal to note that all the communications to be copied into the tribunal and vice versa under Rule 92 which respondent is continuously ignoring. For October 2020 hearing, two bundles were received from the Eversheds (one day before the hearing) and the respondent did not confirm which bundle to be referred for the hearing, they also sent an email around 5:30 pm on 8 October 2020 saying that they sent two bundles.

14. Respondent conduct for the September 2021 hearing (for which claimant has not received the notice of hearing from tribunal) is undoubtedly unreasonable. There was an email from Alija Shqipran (Shqipran.Alija1@justice.gov.uk) on 3 Sep 2021 to the respondent at 11:28 am and mentions that reply to be sent to Londoncentralet@hmcts.gsi.gov.uk. Respondent totally ignored this and sent the reply to someone unknown and Alija Shqipran. Respondent who is represented did not alert the tribunal about the persons not on the eT1 response form. In their email on 3 Sep 2021 (tribunal London central not copied) respondent themselves says that they were not clear on the purpose of the preliminary hearing.

15. As submitted at the 24 April 2023, claimant feels biased as her application related to the respondent non-compliances and irregularities was set aside until the end of the day even though she has made several - 30 - applications related to this since Jan 2021 and preference was given to respondent strike out applications. Claimant has also mentioned that she has raised the concerns regarding the non-compliance and irregularities application that was put to the tribunal before Dec 2022 hearing and she has included that in her agenda at that time. Claimant believes that she has been put to disadvantage by not looking into her concerns at Dec 2022 hearing and delaying it to end of April 2023 hearing. Claimant was asked to pause several times when she raised questions about the fundamental issues with the respondent bundle and her applications. Claimant also feels unfair when she is being put in a position again and again to explain that the Equality and PIDA schedules were prepared as agreed at the hearing in August 2019. Claimant also felt pressurised the way the hearing was conducted to accept or not accept the list of issues as the hard copy of the bundle of 569 pages was delivered to the claimant less than a week and the Judge had not received a copy until the hearing day (hearing was paused while the bundle was requested from respondent). As explained in earlier paragraphs there are no single document of list of issues where claimant’s responses were captured and there were several other observations that claimant has detailed out on 20 April 2023. Also, there was no document on what changes have been made to the list of issues since it was issued in December 2020 and amended several times since then by the respondent and why. Claimant hopes the Judge will consider all the previous submissions including this in the interests of justice and claimant bundle has already been provided to the tribunal on 16 April 2023. For avoidance of doubt respondent has been copied.

[120]The respondent’s submissions address the proposed strike out of the respondent’s responses. The submissions are extensive and I have set out the most important below. Unfortunately, the submissions are lengthy. This reflects the nature of the complaints made by the claimant and the respondent’s concern to demonstrate what it considers to be the position. I am also conscious that the claimant has suggested her submissions that, in some manner, no proper consideration has been given to her application to strike out and hence why I consider it appropriate to set out in some detail the submissions on both sides. The following extract from the respondent’s submissions will suffice to demonstrate the respondent’s position. 35. The R’s responses to those allegations in C’s table [at C362] are set out, for ease of reference, in the table below: Row C’s assertion R’s response 5-6 R’s response to C’s Second R emailed its response in time on 24.12.19 Claim was due on 26.12.19 but [C126], but subsequently realised the R did not submit the ET3 until Grounds of Resistance were attached but not 02.01.20 the ET3. Accordingly on 02.01.20 R submitted the ET3 and applied for an extension of time for its submission [C108]. The ET then accepted the R’s response on 31.01.20 [C110]. Thus the Grounds were presented on time, the only failure was to attach the ET3, and this was remedied swiftly and the R’s application - 31 - was accepted by the ET in accepting the response. 7-10 R did not provide the The notice of claim for the Second Claim set disclosure list or trial bundle out summary case management orders solely for the Second Claim on 6 and in respect of that claim which included 20.02.20 respectively as per disclosure by 06.02.20 and production of the case orders, providing them bundle by 20.02.20 [C102], and a full hearing on 03.03.20. to commence on 01.06.20. However, by February 2020,(i) EJ Wade had intimated her view that the Second Claim should be consolidated with the First Claim [C98] but had not decided on the point,

(ii) C had applied for reconsideration of the unpaid deposit orders made in the First Claim [R130- 138],

(iii) C had appealed against the deposit orders and that had been rejected on the sift but time continued for C to assert her rights under r.3(10) of the EAT Rules for an oral hearing [R150]

(iv) the R had applied to strike out C’s Second Claim and for consolidation of the two claims [C132-133] and the PH listed for 04.03.20 had been converted to consider the strike out application, and

(v) neither the R nor the ET had ever received a full copy of C’s particulars of claim, but merely a copy in which each page was cut to A4 size, meaning much of the text was missing (hence EJ Tayler ordered C at the 04.03.20 PH to provide a full hard copy of the particulars to the ET and R [C136, para 2]. At that PH, the First and Second Claims were consolidated, the full hearing listing was vacated and the claims were stayed pending determination of C’s reconsideration application and appeal [C136, paras 1, 3, 5]. Hence at the dates set out in the case management order, the R and ET lacked the full particulars of claim, it would have been impossible to comply with disclosure duties, and there was no possibility that the full hearing dates were going to remain in place. Moreover, consistently with the R’s strike out application large amounts of the claim were struck out and any disclosure and trial bundle in those circumstances would have been redundant and a waste of legal costs. There were thus clearly excusable reasons for non-compliance with the timetable, C did not raise the matter at the PH before EJ Tayler, and C suffered no prejudice at all by the R’s approach. 13 The Notice of Claim in case no. The Notice of Hearing is at [C152], listing the 2205768/2020 (“Third Claim”) hearing for 09.10.20 and requiring documents was sent on 30.09.20 and to be sent 3 working days beforehand – required any documents 5 06.10.20 and not 04.10.20 as per C’s days before the interim relief assertion. hearing listed for 09.10.20, but R provided theirs on 08.10.20. - 32 - The hearing was an interim relief hearing. The ET will be well aware of difficulties for Respondents in compiling documents and statements long before such hearings due to the swiftness in which they are listed. In this case, the R’s difficulty was compounded by the lack of clarity in C’s ET1 about the nature of her claim and the disclosures she relied upon [see C’s particulars at C146 and C151]. This made it very difficult (and perhaps impossible) for the R to identify the disclosures. C did not provide any clarification of her disclosures until 19:59 on 07.10.20 [C155- 160] (so C herself sent documents after the stipulated deadline). That enabled the R’s solicitors the following morning to more readily identify the documents relied upon for the protected disclosures and to compile a bundle and witness statement, which it sent the following afternoon [C161]. It clearly acted with alacrity in doing so, and cannot sensibly be criticised for this. Moreover, the night before the hearing C sent to the ET 3 zip files containing around 140 separate files of multiple pages [see EJ Elliott judgment at R214, paras 13-14]. Accordingly to the extent that there was any unreasonable non-compliance, it was by C and not by the R. The R’s alacrity in putting together a bundle which identified the asserted protected disclosures enabled the hearing to go ahead and for EJ Elliott to understand the context and to reach a decision on the question of interim relief. The R’s actions did not prejudice C but rather assisted the ET to properly conduct its hearing. 16- The agenda for the PH on The R accepts the agenda was sent in late, 17 09.12.20 was due on 02.12.20 but assert that it is the most minor of but not sent until 07.12.20 infractions and caused no prejudice to the hearing. Moreover, the ET will be aware the primary purpose of the agenda is to enable to the ET to conduct the hearing, the EJ had the agenda in good time before the hearing, and no prejudice was caused by sending it 2 days beforehand. There is no indication from EJ Joffe’s Case Management Summary that she had any concern about when the R sent in their agenda [C212]. - 33 - 18 The R sent a bundle of This is a bizarre allegation. As set out in the documents from ‘unknown R’s response to C’s r.6 application [C430], the people’ on 07.12.20 bundle was sent by an Eversheds paralegal with an Eversheds email address, the solicitor with conduct of the case was copied in, and the email set out at the start the relevant case number and ‘We act on behalf of the Respondent, Network Rail Infrastructure Limited in the above matter’ 20- Following the 09.12.20 PH, the The PH occurred on 09.12.20 before EJ Joffe. 21 R sent a list of issues which As set out in EJ Joffe’s case management did not make amendments summary, the R provided a draft list of issues ordered to be made by the ET in the Third Claim and C was given the as had been agreed at the PH. opportunity to review it and raised points of amendment [C214-215, paras (22)-(23)]. EJ Joffe then ordered the R to send C and the ET the finalised list of issues incorporating the amendments agreed at the hearing [C215, para 1.1]. R's counsel took a careful note of the amendments proposed by C and agreed at the hearing, and then amended the List of Issues accordingly for the R’s solicitors to file. The amended version is at [C205]. The amendments made were to add “David Rogers” to para 3.1.10, the dates to paras 3.1.10.1-8, and the final sentence to para 3.1.11. It appears that C believed that she had requested, and it had been agreed, that all names and roles be added to the list of issues. It may be that that was C’s intention, albeit it is not what C said at the hearing. In any event, after C insisted that the names and roles of the recipients of each disclosure be added to the list of issues [C225-226], the R did so notwithstanding it was not what was agreed at the hearing [email of 18.01.21 at C227, and amended list at C228]. It is not feasible or a proportionate use of time for the ET more than two years later to resolve whether the C’s or R’s understanding of what was agreed at the PH on 09.12.20 was correct, but in any event the R agreed to add in the names and roles and there is no possible basis on which this matter can sensibly be the topic of a r.6 sanction. 26 R was required by EJ Joffe’s The R accepts that the order is as set out by order to set out its application C [see C216, para 2.1]. to strike out C’s claims by 4pm on 25.01.21 and the R failed to The R’s email was sent out 1 hour and 5 do so. minutes late – at 17:05 on 25.01.21 [C236]. The hearing on that application was listed more than 6 weeks later on 12.03.21 and C - 34 - was in no way prejudiced by a 65 minute delay in receiving the application. C wrote to the ET on 26.01.21 seeking action against the R for the 65 minute delay [C240]. It was wholly disproportionate for C to do so then and all the moreso to raise it as a basis for sanction against R more than two years later on. 29 When the R updated the C does not provide any emails about this in bundle for the 12.03.21 PH it her bundle. Notably C was sent a hard copy sent C only a soft copy of the bundle on 26.02.21 [see C267] and sent her update by email and not a hard own bundle by email [C267]. copy. To the extent that the R sent any additional update to the bundle by email, C provides no evidence that she complained about this or sought a hard copy of it, nor that it in any way prejudiced her. No such issue was raised, to the R’s recollection, at the hearing of the PH, nor is there any suggestion that C lacked capacity to print out and to insert any additions that were emailed to her. 31 The R was supposed to send The skeleton was sent at 16:15 on 09.03.21, the skeleton for the 12.03.20 15 minutes late. The delay resulted from PH by 16:00 on 09.03.21 but difficulties the R’s solicitors had in getting failed to do so. the email to send. In any event, no prejudice is caused by a 15 minute delay and there is no possible cause for sanction for a 15-minute delay 2 years ago in the sending of the R’s skeleton. 36, The R sent bundles of Once again, it is absurd for C to suggest non- 38 documents from “unknown compliance in raising these allegations. people” for the 05.07.21 PH on 03 and 04.07.21 The Rs had sent a bundle for the 05.07.21 hearing on 28.06.21 [referred to at C312]. The R subsequently became aware that C had appealed EJ N Walker’s judgments of 12.03.21 and updated the bundle accordingly on 03.07.21 [C312]. The following day, the R filed a note I had produced to assist the EJ [C313]. Both were sent by Rachel Snipe, one of the solicitors with conduct of C’s claim. She was not unknown to C and has been party to considerable correspondence in this matter. In any event, even had she been unknown this would not amount to non-compliance. 42- For the PH on 08.12.22, R did It is accepted by the R that the draft list of 43 not provide a list of issues by issues was ordered to be provided by 14 days 24.11.22 as ordered, nor an before the PH [C321, para 1.2] and the agenda agenda by 02.12.22 as ordered. 7 days beforehand [C340]. It is accepted that the R sent both on 02.12.22 [as asserted by C at C367, row 45]. Both were sent well in advance of the PH and caused no prejudice to C. In any event, at the - 35 - PH EJ Hodgson ordered the list of issues to be drafted in a different format, which would have been the case whenever the agenda and list of issues had been sent. There is, once more, no sensible basis for the ET to sanction the R under r.6 in respect of this matter. 45 R removed the harassment The R had not removed any harassment claim claim from the list of issues from the list of issues. No harassment claim had been included in the list produced in June 2021 [R274] and accordingly was never removed by the R from its list of issues. It is understandable from C’s table of particulars why the R had not properly appreciated that C had raised a harassment claim. The Equality Act schedule produced within those particulars has a column headed ‘The Provision of the Equality Act relied on’ [C68], in which C had only written “Race Discrimination”. The omission by the R was thus inadvertent. It was certainly not a failure to comply with any order. Once the R appreciated that C had intended to include a harassment claim within the Second Claim, it added it to the draft List of Issues sent on 01.02.23 [see R465-466]. There is no basis for any r.6 sanction in this regard. 36. It will be abundantly clear from the above table that a r.6 application based on the matters raised in C’s table of non-compliance is wholly misguided. To the extent that there are failures to comply with time limits, they are minimal, C suffered no prejudice, and the R did send each document in good time before the hearing. Moreover, on no occasion was there any need for a follow-up order or an unless order from the Tribunal to get the R to comply. 37. As regards the additional matters raised in C’s application of 14.02.23, updated on 23.02.23, and set out at para Error! Reference source not found. above:

a. The removal of the harassment claim is dealt with under row 45 in the above table;

b. C is misguided in complaining about the removal of remedies from the List of Issues. It was made clear at the last PH and in the Case Management Summary that the List of Issues should not set out the legal questions but should focus on the heads of claims, specific allegations and factual basis of those allegations [C370, para 2.12], which is why the R’s draft list of issues is limited to liability. This is not an example of the R not complying with ET directions, but adhering to them.

c. C’s complaints about removing names and changing/removing names/roles is misguided, as the R has done nothing of the sort. The R has already dealt with the inclusion of names and roles at rows 20- 21 of the above table. - 36 -

d. C complains about the R excluding/failing to include issues. To the extent that relates to the harassment claim, it is dealt with above. To the extent it is intended to relate to some other claim, C has not specified it and thus the R cannot answer the allegation. 38. On 29.03.23 C sent a further email making allegations against the R and urging the ET to take action [C439-442]. In large part the matters set out are repetitive of those already dealt with. It appears the only additional points on which C urges action are below (with responses from R):

[121]I have no doubts that there have been failings on the part of the respondent. The respondent has not complied with of all deadlines. There have been typographical errors, for example some documents have been labelled as in the Watford employment tribunal. There has been some failure to includes dates.

[122]It is not every breach of order which will be seen a significant or which would be prejudicial to a fair hearing. When considering strike out, the tribunal should have regard to all the circumstances, which may include the following: the effect of any breach, and whether the effect will be to cause prejudice; the reason for the breach; how blameworthy is the conduct. Overarching all that is a consideration about whether the possibility of a fair hearing has been undermined.

[123]It is common in litigation, in all courts and tribunals, at all levels, for there to be breach of orders, often in the form of minor delays.

[124]It is also necessary to consider the overall conduct of the respondent. Here, as I set out above, the respondent has, patiently, sought to identify the issues and to assist the claimant. In setting out the issues in accordance with my order of 8 December 2022, the respondent has acted reasonably, helpfully, and entirely in compliance with its duty to the tribunal to assist in promoting the overriding objective. The conduct of the respondent, and its advisers, is consistent with the overriding objective and is reasonable. Nothing the respondent has done undermines the prospect of a fair hearing. The opposite is true, the respondent’s actions have sought to facilitate a fair hearing, despite the claimant’s conduct. I reject the claimant’s application to strike out any of the responses.

[125]It will be necessary to consider, in due course, the application to amend.

[126]I find it is appropriate, first, to consider the question of like work. The equal pay claim will be relevant to the remedy in the remaining claims, should the claimant be successful in her claims. I envisage that once the question of like work is resolved, if breach of the equality clause remains live, any material factor defence, can be dealt with at a final hearing. At that hearing, it may be appropriate to deal with the remaining discrimination, victimisation, and harassment claims, as well as the claim of unfair dismissal. However, a final decision on that will be taken in due course. - 37 - . Employment Judge Hodgson Dated: 23 May 2023 23/05/2023 Appendix 1 List of issues remaining Claim one - 2206741/2018

Introduction

[1]It is common ground there is only one claim remaining in claim one, and that is breach of the equality clause under section 66 Equality Act 2010. It is the claimant’s case that whilst working on the second phase of the ground investigation project with HS2 as a client, from 17 March 2017, she undertook like work with her comparator Mr Paul Munday, but did not receive the same benefits.

[2]The respondent denies like work, and in the alternative raises a material factor defence. Claim two - 2203669/2019

[3]For the purposes of direct race discrimination, the claimant relies on one alleged detriment: a. Detriment one – by the respondent on a date unspecified failing to hold an interim or holding any conversation meetings to discuss the claimant’s performance during the financial year 2018 to 2019 before sending her a pay award letter received on 26 June 2019.

[4]For the purposes of victimisation and harassment the claimant relies on detriment one and a further detriment as follows: - 38 - a. Detriment two by the respondent failing on a date unspecified to provide the claimant with copies of notes, including witness statements, in advance of the grievance hearing on 26 September 20, 2019 in accordance with the grievance handling policy.

[5]For the purpose of harassment, it is the claimant’s case that the conduct related to her race.

[6]For the purpose of victimisation, the claimant alleges six protected acts. It is agreed that two matters raised, in principle, could be protected acts, being the following:a. by informing human resources about an approach to ACAS and an employment tribunal claim, in October 2018; and

b. by the claimant submitting a claim to the employment tribunal in November 2018 in which allegations of discrimination were made.

[7]In addition, there are alleged protected acts which are materially unclear, and which are not recorded in these issues at present. Each refers to raising concerns, but such concerns are not specified, and may require amendment if they are to be relied on.

[8]The claim of detriment for whistleblowing has been struck out for the reasons given. Claim three - 2205768/2020 The claimant alleges she was unfairly dismissed.

[10]It is the respondent’s case that she was dismissed for a fair reason being either some other substantial reason, or a reason related to conduct. It is the respondent’s position that there was a significant material breakdown in the working relationship which entitled the respondent to dismiss the claimant and further or in the alternative that breakdown related to the claimant conduct.

[11]The claim of dismissal for whistleblowing, contrary to section 103A Employment Rights Act 1996, has been struck out. - 39 -

[1]The Claimant’s witness statement (any references to which shall be identified as [C/X]).

[2]The Claimant’s skeleton argument (any references to which shall be identified as [C subs/X]).

[3]The Respondent’s updated written submissions (any references to which shall be identified as [R subs/X]). The Respondent’s legal authorities. The Claimant’s email dated 9 January 2025.

[6]Additional documents relating to the Respondent's costs’ application dated 28 January 2025.• A bundle produced by the Claimant of 125 pages (any references to which shall be identified as [CB/X]). (3) I heard submissions from both parties and the Claimant gave evidence. Relevant legal principles (4) Materially, rule 38(1) provides for strike out of all or part of a claim on any of five specified grounds which include: (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). (5) Strike out is a draconian power not to be readily exercised. (6) A two-stage approach is required. Firstly, a Tribunal must consider whether any of the specified grounds for strike out have been established and if so, it is must then consider whether to exercise its discretion to strike out. This second stage engages consideration of the overriding objective, including the question of proportionality i.e. whether a lesser sanction is available and appropriate. (7) In respect of rule 38(1)(b), the EAT has held in Bolch v Chapman

[2004] IRLR 140

that a Tribunal must consider the following four matters: 2 of 26

• The first question is whether there has been scandalous, unreasonable or vexatious conduct of the proceedings.

• 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. (8) Bolch was cited with approval by the Court of Appeal in Blockbuster Entertainment Ltd v James

[2006] IRLR 630

when the Court qualified this guidance by identifying the following cardinal conditions for strike out on this ground: “The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response…” (9) These ‘cardinal conditions’ are disjunctive. As the EAT stated in Leeks v UCL Hospitals NHS Foundation Trust

[2024] IRLR 866

, in Blockbuster the Court “held that a deliberate and persistent disregard of required procedural steps” may be sufficient for consideration of strike out…although such default will often mean that there is a significant risk that a fair trial could not take place because of the likelihood of repetition of the behaviour.” (10) In respect of rule 38(1)(c), the EAT in Weir Valves and Controls (UK) Ltd v Armitage

[2004] ICR 371

, identified the following relevant factors:

• the magnitude of the non-compliance

• 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 remains possible, and

• whether striking out or some lesser remedy would be an appropriate response (11) In respect of rule 38(1)(d), as per the guidance set out in the House of Lords decision of Birkett v James

[1978] AC 297

, there are two distinct grounds for strike out:

• there has been a delay that is intentional or contumelious (i.e. disrespectful or abusive to the Court / Tribunal (the “first Birkett principle”), or

• there has been an inordinate and inexcusable delay by the Claimant or their legal representatives, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause or have caused serious prejudice to the Respondent (the “second Birkett principle”). 3 of 26 (12) The distinction between these grounds was underlined by the EAT in Rolls Royce plc v Riddle

[2008] IRLR 873

, when it explained: “The first is that it is quite wrong for a claimant, notwithstanding that he has, by instituting a claim, started a process which he should realise affects the employment tribunal and the use of its resources, and affects the respondent, to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the tribunal and/or its procedures. In that event a question plainly arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the tribunal for his claim. That is a distinct and different matter from the second problem which is that if a claimant has failed to actively pursue his claim to an inordinate and inexcusable extent so as to give rise to a risk of real prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be fair trial and if there is doubt about that whether the claim should then be prevented from going any further.” (13) The question of whether a fair trial remains possible is relevant to 38(1)(b), (c), (d) and (e). In relation to 38(1)(b), (c) and (d) there is no requirement to conclude that a fair trial is not possible in absolute terms; the question is whether there is a 'significant risk' that a fair trial is no longer possible (see Arrow Nominees v Blackledge

[2000] 2 BCLC 167

); and Emuemukoro v Croma Vigilant (Scotland) Ltd

[2022] ICR 327

).1 (14) In Emuemukoro the EAT cited Arrow Nominees to hold that the factors relevant to whether a fair trial is possible are not confined to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact but include the undue expenditure of time and money, the demands of other litigants and the finite resources of the court. (15) The EAT in Leeks itemised the following factors that a Tribunal will generally be required to scrutinise when the loss of a potentially relevant witness is relied on to assert that a fair hearing is no longer possible:

• Who is the witness

• What evidence can the witness give

• How long ago did the matter(s) about which the witness is to give evidence occur

• Has a draft or finalised witness statement been taken

• To what extent is the evidence supported by contemporaneous documentation

• Can other witnesses give evidence about the matters

• Is the employer still in contact with the witness

• Is the employee prepared to give evidence voluntarily

• Can attendance be secured by making a witness order 1 Although, where a Tribunal has held that there has been a deliberate and persistent disregard of the required procedural steps (under rule 38(1)(b)) or where (under rule 38(1)(d)) the Tribunal is satisfied first Birkett principle is engaged, this question is potentially only relevant to the issue of whether strike out is a proportionate sanction (see respectively, Blockbuster and Leeks; and Riddle). 4 of 26

• Is there any reason to believe that the witness is now disposed against the interest of the employer (16) In Leeks, the EAT underlined that where the conduct falls within rule 38(1)(b), (c) and / or (d) the likelihood of recurrence is relevant to the possibility of a fair trial, and explained: “Where a party has conducted proceedings in a manner that has been scandalous, unreasonable or vexatious, has failed to comply with the ETR or an Order of the Employment Tribunal or the claim has not been actively pursued, that may be relevant to the possibility of a fair trial because if there has been repeated default in the past it is common for it to be repeated in the future, particularly if the party in default does not persuade the Employment Tribunal that their approach will change.” (17) Similarly, in relation to the question of proportionality, a Tribunal must take account of the duration and character of the unreasonable conduct (see Blockbuster), and the distinction between, on the one hand, repeated failures to comply with orders over an extended period, and on the other hand, an aberration which is unlikely to recur (see Harris v Academies Enterprise Trust

[2015] IRLR 208

). (18) Unlike the other grounds which are advanced by the Respondent in this application, rule 38(1)(e) does not require any culpable conduct to be established, although. The focus is whether or not a fair hearing remains possible. Chronology and history of this litigation (19) It is necessary to set out an overview of the convoluted history of these proceedings. (20) The Claimant has brought three claims against the Respondent. As Mr Braier noted in his submissions, this was the 12th preliminary hearing in these combined proceedings. (21) In the first claim (2206741/2018) (“Claim 1”), presented on 21 November 2018, the Claimant brought claims including for race and sex discrimination, equal pay and protected disclosure detriment. All claims save for the claim for equal pay for like work, were the subject of a deposit order (made on 28 November 2019) which the Claimant did not pay. The Claimant applied for reconsideration of the deposit order and also appealed against that order. The appeal did not pass the sift (by a sealed decision dated 11 February 2020). The claims which were the subject of the deposit order were struck out (by a judgment dated 16 November 2020). However, these claims were then reinstated when it became clear that the Claimant’s reconsideration application had not been considered. The reconsideration application was refused (by an order dated 15 December 2020) and all the claims (save for the equal pay claim) were struck out for non-payment of the deposit (by a judgment dated 9 April 2021). The Claimant also appealed against the strike out judgment which was rejected as it was found to be out of time and an application to extend time was refused by the EAT (by a sealed 5 of 26 decision dated 24 October 2022). Accordingly, only the claim for equal pay remains extant. (22) In the second claim (2203669/2019) (“Claim 2”), presented on 24 September 2019, the Claimant brought additional claims for race discrimination, harassment and victimisation, and protected disclosure detriment. Claims 1 and 2 were consolidated on 4 March 2020 and stayed pending the determination of the Claimant’s reconsideration application and appeal in relation to Claim 1. Much of the protected disclosure detriment claim was struck out (by a judgment dated 9 April 2021) with all remaining claims being the subject of a deposit order (made on 9 April 2021) which the Claimant paid. The Claimant appealed against the deposit order which was rejected by the EAT on the sift as disclosing no reasonable grounds for appeal (by a sealed decision dated 2 July 2021). The remainder of the protected disclosure detriment claim was then struck out by May 2023 Judgment. The Claimant applied for a reconsideration but not in relation to the strike out judgment, which was refused (by an order dated 7 July 2023). The only remaining claims are claims for direct race discrimination (a single alleged detriment), harassment and victimisation (a single but different alleged detriment) (see May 2023 Judgment, Appendix 1 ‘List of issues remaining’). In respect of the victimisation claim, an unless order was made at the preliminary hearing on 24 April 2023 (as set out in the May 2023 Judgment) in relation to four of the six alleged protected acts relied on, which the Claimant has failed to comply with so that these (four) protected acts have been dismissed. (23) In the third claim (2205768/2020) (“Claim 3”), presented on 28 August 2020, the Claimant brought claims for ‘ordinary’ unfair dismissal and ‘automatic’ unfair dismissal by reason of protected disclosures. Claim 3 also included an application for interim relief which was heard at a preliminary hearing on 9 October 2020 and dismissed on the same date. Claim 3 was consolidated with the first two claims (a decision which I understand was made at a preliminary hearing in March 2021). The Claimant applied to amend the claim to add new claims for unlawful deductions and for automatic unfair dismissal by reason of asserting a statutory right which was considered at a preliminary hearing on 5 July 2021 and refused (by an order dated 19 July 2021). The Claimant applied for that decision to be “reconsidered” and she also made a further application to amend her claim to add 10 new allegations of breach of contract which were refused (by an order dated 27 September 2021 (the “September 2021 Order”) to which I shall return). The Claimant appealed against the decision to refuse her amendment application and the decision to proceed with the hearing on 27 September 2021 in her absence which were rejected by the EAT on the sift as disclosing no reasonable grounds for bringing the appeal (by a sealed decision dated 26 July 2022). The claim for automatic unfair dismissal was struck out (by the May 2023 Judgment). As noted above, the Claimant applied for reconsideration but this application did not relate to the strike out judgment. Accordingly, only the claim for ordinary unfair dismissal remains extant. (24) Taking stock, at the point at which the May 2023 Judgment was promulgated (a judgment to which I shall return), the following steps needed to be taken before the claims could be decided at a final hearing: 6 of 26

[1]The determination of the like work issue in relation to the equal pay claim which was to be decided as a preliminary issue at a preliminary hearing.

[2]The determination of the Respondent’s outstanding application to amend its response to Claim 1 to be decided with or without a hearing.

[3]Case management of the remaining claims, including finalising the list of issues and making orders preparatory to a final hearing, including listing the final hearing. (25) EJ Hodgson therefore ordered the parties to propose directions for dealing with(1) and

(2) by writing to the Tribunal by 4pm on 8 June 2023 (May 2023 Judgment, paragraph 4). June 2023 to November 2024 (26) The Respondent complied with these directions (on 5 June 2023) which included renewing its application to amend its response. The Claimant did not. What the Claimant did instead was to object to the Respondent’s amendment application and to apply for reconsideration on 5 June 2023. As noted above, the Claimant’s reconsideration application was refused by an order dated 7 July 2023. (27) At the last preliminary hearing, on 20 November 2024, the Claimant agreed that she did not take any action in relation to her claims in the 17-month period between 5 June 2023 and 18 November 2024. (28) As Mr Braier has set out in his written submissions [R subs/20-21], during the same period, the Respondent:

• Applied on 26 June 2023 for the four protected acts to be “struck out” on the basis of the Claimant’s failure to comply with the unless order.

• Sent the Claimant disclosure by copy documents and list on 3 July 2023, in accordance with its proposed directions.

• Corresponded with the Claimant on 24 July 2023 in relation to seeking agreement on the bundle for the preliminary hearing on like work.

• Wrote to the Tribunal on 21 August 2023 seeking an update and providing its dates of availability for the preliminary hearing on like work.

• Wrote to the Tribunal on 20 October and 12 December 2023 to request an update.

• Replied on 14 December 2023 to the Tribunal’s request (sent the previous day) for a bundle of relevant documents in which reference was made to the outstanding directions in relation to the preliminary hearing on like work and the Respondent’s application to amend, the Claimant’s failure to comply with the unless order and her lack of correspondence since 5 June 2023.

• Applied on 24 April 2024 to strike out the claims.

• Wrote to the Tribunal on 22 May and 1 July 2024 seeking an update on the strike out application.

• Re-sent its strike out application to the Tribunal on 8 July 2024 as ordered earlier that date.

• Wrote to the Tribunal on 3 September 2024 to request an update on the strike out application. 7 of 26

• Wrote to the Claimant on 21 October 2024 and 18 November 2024 in relation to the bundle for the preliminary hearing on 20 November 2024 (in respect of which the Tribunal had issued a notice of hearing on 14 October 2024). (29) The only step taken by the Claimant between 5 June 2023 and the preliminary hearing on 20 November 2024 was to make a very late application to postpone that hearing, on 18 November 2023, which was refused. (30) I pause here to observe that there have therefore been at least two extended periods of hiatus in these proceedings: firstly, between March and November 2020 when there was a period of stay to enable the Tribunal to address the Claimant’s reconsideration application (and presumably, any further determination by the EAT if the Claimant sought an oral hearing in respect of her appeal which had not passed the sift), and in which there was a delay in the Tribunal forwarding the reconsideration application to the relevant Judge until later in the year (which was likely to be attributable, at least in part, to the temporary closure of the Tribunal in late March 2020 as a result of the Covid pandemic (see September 2021 Order, para 5)); and secondly, between June 2023 and October 2024, when there was no stay in place and in which, at least for the first part of that period, the parties had been ordered to take specific action in order to progress the proceedings. The preliminary hearing on 20 November 2024 (31) The record of the preliminary hearing on 20 November 2024 and my reasons for adjourning it are set out in the Case Management Summary and Order dated 11 December 2024 (the “December 2024 Order”). Of note is that I found (December 2024 Order, paras 3-5 and 7):

• The Claimant’s assertion that she did not understand which strike out application would be considered at that hearing was “difficult to accept” in the circumstances in which the notice of hearing confirmed that the Respondent’s applications would be considered at the hearing, including strike out, and there was only one outstanding strike out application (dated 24 April 2024) in respect of which the Respondent had written repeatedly to the Tribunal, to which the Claimant had been copied.

• The Claimant claimed that she had not received the Respondent’s bundle for the hearing. However, she had failed to review the Respondent's correspondence dated 18 November 2024 which included its skeleton arguments and legal authorities, and which put the Claimant on notice that of the hearing bundle prepared by the Respondent (in the event that the Claimant had not received the Respondent’s previous email dated 21 October 2024).

• The Claimant “had failed to act proactively or to engage with the respondent or the tribunal”.

• Had the Claimant been fully prepared, the Respondent’s strike out application could have been dealt with in the time available. 8 of 26 The Claimant’s compliance with the orders made on 20 November 2024 (as varied by the December 2024 Order) (32) As explained in the December 2024 Order (at para 11) it was necessary to vary some of the dates for compliance with the orders made at the hearing on 20 November 2024 because of the delay in finalising the Order. (33) The Claimant was ordered to confirm whether and if so, when, she provided the information specified in the unless order by the (extended) deadline of 4pm on 16 December 2024, because the extent to which the Claimant had complied with the unless order remained unclear at the November 2024 hearing. The Claimant initially emailed the Tribunal on 9 December 2024 [CAB/27] to request clarification of the information required, in the following terms: “…claimant is not clear on what clarifications the tribunal is expecting. Tribunal has not provided any written instruction on what is required…Claimant requests written instructions from tribunal on what she needs to provide to comply with order”. Although the parties had not yet received the December 2024 Order, I had spent time during the hearing explaining this order and repeating the order I made, and it was incumbent on the Claimant to take a careful note and to ensure that she understood the action she was required to take. However, even if the Claimant had been unable to take a complete note during the hearing, the Respondent’s representative Ms Snipe had already, on 22 November 2024 [CAB/14-15], written to the Claimant to clarify the orders I made, including the order relating to the unless order, as being, accurately: “By 4pm, 27.11.24, C to write to the ET to confirm whether or not she complied with the order of EJ Hodgson…” In those circumstances, there was no reasonable basis on which the Claimant could have remained unclear about the information she had been ordered to provide. (34) The Claimant then emailed the Tribunal on 9 January 2025, having failed to apply to extend the time to provide this information, to contend that in response to the unless order she had provided the specified information to the Tribunal on 25 April 2023 with reference to her witness statement dated 1 March 2021 and / or the documents contained in the hearing bundle which was produced on the same date. She therefore believed that no further information had been required. (As I have set out below, the Claimant now accepts that she failed to comply with the unless order). (35) The Claimant engaged with some of the other orders I made in relation to this hearing. As will be seen, the Claimant wrote to the Tribunal on 20 December 2024 to apply for an extension of time for compliance with orders made in relation to the bundle for this hearing. She served a witness statement on 8 January 2025 and written submissions at a later date. However, as the Claimant conceded, she served her own bundle instead of cooperating with the Respondent to agree on a consolidated bundle, as ordered. (36) The background to this is as follows:

• The Respondent’s representative, Ms Snipe, emailed the Claimant at 6.14 pm on 21 November 2024 [CAB/15-16] to request confirmation of the 9 of 26 address to re-send the November 2024 hearing bundle to the Claimant by 12pm the next day to ensure delivery by 4pm on 25 November 2024.

• The Claimant replied at 4.57pm the next day [CAB/15] to confirm her address and send a second email a few minutes later [CAB/15] to request confirmation of the orders made at the November 2024 hearing.

• As has already been noted, Ms Snipe replied on the same date (i.e. 22 November 2024) [CAB/14-15] to set out her note of all the orders made, including in relation to the hearing bundle.

• The Claimant then emailed the Tribunal and Ms Snipe on 2 December 2024 [CAB/19] to complain that the Respondent had not included the index with the hard copy of the bundle, that the bundle was not ordered and difficult to navigate and she requested a smaller bundle in addition to written confirmation of the Tribunal’s orders when she noted “I am a litigant in person and find [it] extremely difficult without any written instructions from tribunal”. The Claimant neglected to state that she had already been provided with the Respondent’s note of the orders made.

• Ms Snipe replied on the same date to the Claimant and Tribunal [CAB/22- 23] to confirm that a hard copy of the bundle index would be sent to the Claimant, that the Claimant had already seen all the documents in the bundle, and that she had written to the Claimant on 22 November 2024 to set out the orders made at the 20 November 2024 hearing. In a follow-up email sent only to the Claimant [CAB/26], Ms Snipe explained that pages 764-775 of the bundle had been omitted in error and would be sent to the Claimant.

• The Claimant emailed Ms Snipe on 9 December 2024 [CAB/35-36], when she explained that maintained she was “struggling to comply with orders” in the absence of written case management orders and she identified 30 documents to be added to the bundle for this hearing.

• In her reply, on 16 December 2024 [CAB/34-35] Ms Snipe referred to her email dated 22 November 2024, when she had set out her note of the orders and contended that in providing a list of documents for inclusion in the bundle, the Claimant had failed to comply with the orders made. Ms Snipe then confirmed that 28 of the 30 documents identified by the Claimant were already included in the bundle, that one of the remaining two documents appeared to be a duplication of another document which was in the bundle and the Respondent had no record of the one remaining document. Ms Snipe asked the Claimant to confirm that the bundle was now agreed.

• The Claimant instead emailed the Tribunal and Ms Snipe on 17 December 2024 [CAB/40-42] to forward her email of 9 December 2024 and to state that she hoped that the Respondent was complying with the orders and would include the documents she had itemised. Ms Snipe replied on the same date [CAB/40] to refer to her email the previous day and noted that absent any statement from the Claimant to the contrary she assumed that the bundle was agreed.

• However, Ms Snipe emailed the Claimant on 19 December 2024 [CAB/44] to explain that having reviewed the December 2024 Order and noting the revised dates for compliance with the orders made, to request any comments on the bundle by the end of the next day to ensure that the Respondent was able to comply with the deadline of 23 December 2024. 10 of 26

• The Claimant emailed the Tribunal and Ms Snipe on 20 December 2024 [CAB/48-49] when she explained that she had not initially understood that the hearing in February 2025 would deal with the Respondent’s costs’ applications in addition to the strike out application, she had been out of the country since 12 December 2024 and would not return until 1 January 2025 “due to unavoidable personal circumstances” and did not have access to the bundle in either hard copy of electronic form, and she requested an extension of time to provide a response to the bundle, to 6 January 2025. In the same email, the Claimant also noted the variance between the dates for compliance with the orders in the December 2024 Order and the dates set out in Ms Snipe’s email of 22 November 2024 which she appeared to suggest had been done deliberately to mislead her. Notably, this was the first time the Claimant appeared to acknowledge that the Respondent had provided her with details of the orders made at the hearing on 20 November 2024. In any event, the Claimant’s allegation was unfounded as well as misguided because I had subsequently varied the dates for compliance to take account of the delay in promulgating the December 2024 Order, as explained in that Order (as noted above).

• Ms Snipe responded on 23 December 2024 [CAB/45-47] to object to the Claimant’s application (and to deny the allegation that the Respondent had sought to mislead the Claimant). Ms Snipe confirmed that a copy of the updated bundle was sent electronically to the Claimant on 16 December 2024 and a hard copy sent on the same day with unsuccessful attempts being made to deliver it on 17 and 19 December 2024, noting that the Respondent had not been aware prior to the Claimant’s correspondence on 20 December 2024 that she was out of the country.

• In a further email to the Tribunal on 3 January 2025 [CAB/51] the Claimant complained that the Respondent had failed to comply with the order to send her paper and electronic versions of the agreed bundle by 4pm on 2 January 2025. She said that she had been unable to access the electronic bundle via the link sent by the Respondent. The Claimant contended that this delay would impact on her ability to comply with the remaining orders, including the provision of a witness statement by 8 January 2025. The Claimant also applied for the Respondent’s applications to be dismissed on the basis of its non-compliance with the Tribunal’s orders.

• Ms Snipe replied on the same date [CAB/54-55] to confirm that an electronic version of the bundle has been sent to the Claimant on 16 December 2025 and resent on 3 January 2025, and a hard copy of the bundle had been sent on 16 December 2024 but had not been successfully delivered, and was due to be redelivered on 4 January 2025.

• In an email dated 6 January 2025 [CAB/58] the Claimant complained that she was still without access to the bundle in either format and she hoped that the Tribunal would now take action against the Respondent “for their vexatious behaviour in [not] providing paper and electronic versions of the bundle”.

• The Tribunal then wrote to the parties on 8 January 2025 to query whether the Claimant sought an extension of time to exchange witness statements and she was ordered to confirm whether she had received the bundle and if so, on what date. The Claimant replied on the same date [CAB/70] to 11 of 26 confirm that she did not seek an extension of time, having received the electronic bundle on 3 January 2025 and a hard copy the following day. (37) From the foregoing, it is clear that the Claimant failed to comply with the order to provide the information about her compliance with the unless order, by 16 December 2024. A related concern is that the Claimant wrote to the Tribunal on 9 December 2024 to assert that she was “not clear on what clarifications the tribunal is expecting” (in relation to the unless order) when Ms Snipe had already clarified this on 22 November 2024. (38) It is also clear that that the Claimant failed to cooperate with the Respondent in relation to the preparation of the bundle. In fact, instead of engaging constructively with the Respondent as required by the orders I made and in accordance with the overriding objective, more generally, the Claimant accused the Respondent of acting vexatiously and seeking to mislead her. As soon as she was aware of the need to leave the country, the Claimant was obligated to inform the Respondent about any impact this would have, or was likely to have, on her compliance with the orders, to seek the Respondent’s agreement in good time to vary any orders in principle and to make a timely application to that effect to the Tribunal; equally, in the circumstances in which she required access to an updated physical bundle and knew that she was out of the country, the onus was on the Claimant to make arrangements for the bundle to be posted to an address at which the bundle could be delivered. To the extent that the Respondent failed to comply with the order to provide the Claimant with an agreed bundle this was because the Claimant failed to cooperate with the Respondent to reach an agreed position on the bundle. Thus, instead of taking these steps, the Claimant misdirected her focus and energy on making unfounded and misguided criticisms of the Respondent. The Claimant’s compliance with the unless order (39) The background to the unless order is that at a preliminary hearing on 8 December 2022, EJ Hodgson made observations, provided extensive guidance and made orders in relation to the list of issues (see Record of Case Management Summary dated 14 December, Schedule A, paragraphs 2.1 to 2.16). Pursuant to those orders, the Respondent produced a draft list of issues, the Claimant responded on 14 February 2022 with her comments and the Respondent then incorporated some but not all of these comments into a further draft list of issues (the “draft LOI”) which was considered by EJ Hodgson at the preliminary hearing on 24 April 2023. (40) In the May 2023 Judgment, EJ Hodgson ordered the Claimant to provide information in the terms set out therein at paragraph 2 (the “specified information”) [694]. The specified information related to four of the six alleged protected acts the claimant relied on to bring her victimisation complaint (i.e. paragraphs 4.1.1, 4.1.2, 4.1.3 and 4.1.6 of the draft LOI). That order was an unless order made under was that then rule 38 (now rule 39, under the Employment Tribunal Procedure Rules 2024). The consequence of a failure by the Claimant to comply materially with that order was that the four alleged protected acts would be dismissed without further order. 12 of 26 (41) For the reasons set out below, I was satisfied that the Claimant failed to comply with the terms of the unless order. Accordingly, the four alleged protected acts set out at paragraphs 4.1.1, 4.1.2, 4.1.3 and 4.1.6 of the draft LOI have been dismissed. A notice of dismissal has been issued separately. (42) I reviewed the information the Claimant sent to the Tribunal on 25 April 2023. The Claimant relied on an email she sent to the Tribunal at 1.47pm on 25 April 2023 [PB/742-747]. The first thing to note about that correspondence is that it is headed “Claimant’s further submissions in relation to striking out the Respondent[‘s] Responses”. When I asked the Claimant to identify the parts of that email in which she provided the specified information, the Claimant identified a passing reference to her “previous submissions on 23 Feb 2023” [PB/743]. That was patently not in compliance with the terms of the unless order. For completeness, I then reviewed the Claimant’s submissions dated 23 February 2023 which the Claimant confirmed was her annotated response to the Respondent’s iteration of the list of issues, in which the Claimant had not identified the specified information and in which she referred to a witness statement prepared for the preliminary hearing in March 2021. I accept Mr Braier’s assertion that all iterations of the list of issues had been considered by EJ Hodgson at the preliminary hearing in April 2023. This was also consistent with the May 2023 Judgment (see para 7 [696- 697]. It is evident that EJ Hodgson was satisfied that the Claimant had failed to particularise the alleged protected acts (as set out in paras 4.1.1, 4.1.2, 4.1.3 and 4.1.6 of the draft LOI) in Claim 2 as at the date of the April 2023 hearing. (43) What is also clear is that in purporting to comply with the unless order, the Claimant repeated the same conduct which EJ Hodgson had emphasised was not compliant with a previous order he had given for her “to provide the relevant information, or she should consider applying to amend” (May 2023 Judgment, para 5, reciting para 2.16 of the order made on 8 December 2022 [696]) when he observed: “The claimant has failed to comply. For example, in her response to the draft list of issues para 6.2, she refers to “Further details provided in the PID’s schedule, claimant’s witness statement and claimant bundle provided for the preliminary hearing 12 March 2021.” (44) Having reviewed these documents together, the Claimant conceded that she had failed to provide the specified information in unless order. The Claimant said that she had made a mistake and that as a litigant in person she had understood that she had provided the specific information. I find that very difficult to accept and reject the Claimant’s assertion as being wholly lacking in credibility. The terms of EJ Hodgson’s order were clear and unambiguous. Further, EJ Hodgson had provided the clearest exposition of the specific information required and why this was necessary. The Claimant had been ordered to clarify the protected acts relied on and to do so by means of an amendment application. The Claimant had patently failed to do this. The Claimant’s prior assertion that she had complied with the unless order was also unsustainable by the fact that she had previously made multiple applications and therefore knew what form such an application was required to take. In reality, as the email heading made clear, the purpose of 13 of 26 Claimant’s correspondence on 25 April 2023 was to buttress her application to strike out the responses not to comply with the unless order. (45) Although it was not relevant to the issue of whether the Claimant had complied with the unless order, the Claimant’s correspondence dated 9 January 2025 [CAB/73-74] did not comply with the order I made. (46) As Mr Braier indicated, the Claimant had a right to apply for relief against the sanction of dismissal of the four alleged protected acts, which I emphasised to the Claimant, notwithstanding her apparent concession in her written submissions [C subs/8] that if the Tribunal was not minded to “allow the claims to progress as they stand”, which was her principal position, she was content for the four alleged protected acts to be “struck out, so that, the remainder of the claims can progress to full and final merit hearing expeditiously”. The Claimant’s evidence (47) In acknowledging her failure to correspond with the Respondent or Tribunal between 5 June 2023 and 18 November 2024, the Claimant’s evidence [C/4, 6.8, 6.9] was that “I have tried my best to comply with tribunal orders” and “I do apologise if I have missed any tribunal orders which was not done deliberately but due to lack of clarity and the volume of information” that “as a claimant-inperson, I have not received any communication from the tribunal requesting response or comments on the respondent emails and hence believed that no response was required” and “the only email communication that I have received from the tribunal between June 2023 and 10 October 2024 was regarding my reconsideration application…I truthfully believed that no response was required from me.” The Claimant’s evidence [C/9] was also that “if I have missed any deadlines…[t]his was not a deliberate move as I was overwhelmed with several emails in relation to [my] job search and the stress I was going through and trying to cope with different orders from different judges” and she added that her ability to comply with orders “sometimes in a timely manner” had been impacted by having to respond to “several strike out applications and costs applications by the respondent and going through large numbers of documents.” (48) In her statement [C/6.1], the Claimant maintained that there was a lack of clarity about which strike out application would be decided at the preliminary hearing on 20 November 2024, because the Respondent had made three applications on 24 April 2024. The Claimant referred to emails sent by the Respondent’s legal representative at 8.06 am, 9.06 am and 1.37 pm. Although the Claimant had failed to include the complete correspondence in her bundle, however, insofar as they referred to strike out, each of the excerpts included in that bundle were identical. (49) In respect of the order for the parties to propose directions for the determination of the Respondent’s amendment application, the Claimant’s written evidence [C/6.5] was that she had responded promptly to the Respondent’s application, however, as was clear from the documents, and as the Claimant conceded in oral evidence, whilst she had written to object to the application, she had failed 14 of 26 to make any proposals for its determination, as ordered. She had therefore failed to comply with this order. (50) In respect of the order for the parties to propose directions for the preliminary hearing on like work, although the Claimant’s written evidence [C/6.7] was that she believed she had responded to the Respondent’s proposed directions before the deadline of 8 June 2023, she conceded in oral evidence that she had not provided any response and was unable to explain why. She had also therefore failed to comply with this order. (51) In respect of her failure to respond to the Respondent’s correspondence dated 3 and 24 July 2023 which related to the preparation for the preliminary hearing on like work, the Claimant’s written evidence [C/6.8] was that she believed that no response was required because the Tribunal had not been copied in to this correspondence nor had the Tribunal requested that she responded to the Respondent’s correspondence. The Claimant’s oral evidence was that EJ Hodgson had directed the Respondent to copy all correspondence to the Tribunal and she was concerned that by omitting to do this in the July 2023 correspondence the Respondent was trying to mislead her. I expressed some scepticism at this evidence because it was patently lacking in credibility. As Mr Braier put to the Claimant, by that date, she had attended 10 preliminary hearings, was cognisant of the overriding objective and the need to cooperate with the Respondent as well as the Tribunal, she had corresponded with the Respondent for several years. (52) The Claimant was then questioned about the events relating to the preliminary hearing on 27 September 2021. It is not in dispute that the notice for that hearing, dated 3 September 2021, was sent in error to Sue Singer, a representative of an organisation called Support through Court, instead of the Claimant, in addition to the Respondent. This was a standard notice of hearing which is sent out for a first case management hearing which informs the parties that the claim and response will be discussed and case management orders made to prepare and fix a date for the next hearing. The Respondent wrote to the Tribunal (copied to the Claimant) on the same date to query the purpose of the hearing. According to her written evidence [C/7.2-7.3]: the Claimant also corresponded with the Tribunal on 13 September 2021 to request the documents to which the Respondent’s email had referred; the Claimant sent further emails to the Tribunal and Respondent on 22 and 24 September 2021; on the second of these dates, EJ Joffe emailed the parties to explain that her previous instructions confirming the reasons for the further preliminary hearing had been listed had not been actioned; and EJ Joffe requested that a bundle of recent correspondence could be collated and forwarded to her by return; the Claimant requested clarification regarding the bundle to which EJ Joffe referred her to the notice of hearing; on the same date (i.e. 24 September 2021), the Respondent forwarded the notice of hearing to the Claimant. The Claimant’s written evidence [C/7.3] was also that she “truthfully gathered that I would be wasting the tribunal resources and time as the notice of hearing referred to Sue Singer and no clarity was provided in the notice of hearing regarding the purpose of the hearing”. 15 of 26 (53) As EJ Joffe’s September 2021 Order made clear, the hearing had been listed to deal with the Claimant’s application (dated 1 August 2021) to add a new breach of contract claim and her separate application (dated 2 August 2021) to vary the decision made on 19 July 2021 to refuse her amendment application, in addition to deciding on the Respondent’s first application for costs (dated 12 August 2021). EJ Joffe also noted that whilst the Claimant had not been initially notified of the hearing, she had been put on notice of it by the Respondent on 3 September 2021, the Tribunal had written to the parties on 23 September 2021, including to the Claimant’s email address, to explain the purpose of the hearing. The Claimant’s statement omitted to refer to the Tribunal’s correspondence of 23 September 2021 and when I asked the Claimant whether she received it, she said that she had no reason to deny it. I therefore find that the Claimant was notified by the Tribunal about the hearing and its purpose on 23 September 2021. EJ Joffe also noted in the September 2021 Order that when the Claimant wrote to her on 24 September 2021 to query the purpose of the hearing, she re-sent the correspondence of the previous day to which the Claimant replied to acknowledge “I have been just informed by Judge Joffe that there is some hearing on Monday [27 September 2021]” and she requested documents in relation to it; the Claimant then wrote on the same date to withdraw her application to add a breach of contract claim and to apply instead to add a new claim for wrongful dismissal. (54) The hearing on 27 September 2021 proceeded in the Claimant’s absence. The Respondent telephoned the Claimant at the start of the hearing, as EJ Joffe explained (September 2021 Order, para 2): The claimant did not attend the hearing today. In the absence of a Tribunal clerk to assist, the respondent’s solicitor telephoned the claimant. I understand that the claimant said that she had had no notice or documents for this hearing and terminated the telephone call. In deciding to proceed with the hearing, EJ Joffe made the following observations (September 2021 Order, paras 6-8) (emphasis added): I had regard to rule 47 of the Tribunal rules. It was unfortunate that there have been issues with the Tribunal’s communications with the parties and [for] that I apologise on behalf of the Tribunal. However it seemed to me that the claimant knew from 3 September 2021 that there was a further hearing listed for today. She was fully aware of what applications she had made. I could not see that she had attempted herself to clarify the situation prior to last week and ultimately her communications with me and the Tribunal continued to insist that she did not know what the hearing was about even when that had been explained to her. It appeared that the claimant was available for the hearing but chose not to attend. She provided no explanation to the Tribunal for her non-attendance. It was open to her to attend and make representations as to why consideration of her applications should not proceed today but she chose not to do that. I bore in mind that the claimant by this stage is an experienced litigant, albeit that she is a litigant in person. She would have been aware that the respondent would have incurred costs in attending today and that Tribunal time had been set aside which would not be available to other litigants. In all of the circumstances, and 16 of 26 having regard to the overriding objective, I concluded that it was appropriate to proceed in the claimant’s absence. (55) Although I am not bound to do so, I adopt these observations and find that the Claimant was on notice of the preliminary hearing on 27 September 2021 and the purposes for which that hearing had been listed, and she deliberately refused to attend the hearing. Taking the Claimant’s evidence at face value, she chose to rely on the fact that the notice of hearing identified Ms Singer in error and she disregarded the clarification she received from EJ Joffe (as I have underlined in the above passage). It is also troubling that in failing to refer to all the relevant correspondence, specifically the Tribunal’s correspondence dated 23 September 2021, the Claimant’s statement was misleading. May 2023 Judgment (56) In making submissions in support of the Respondent's application, Mr Braier cited several passages of EJ Hodgson’s May 23 Judgment which it is convenient to set out here. As has already been noted, these proceedings had previously come before EJ Hodgson for case management on 8 December 2022.

• EJ Hodgson noted that at the preliminary hearing on 8 December 2022 “there remained fundamental difficulties. The allegations remained unclear and they were not in a fit state for trial” (para 3).

• Having made directions in relation to the further clarification of the claims, EJ Hodgson noted that whilst “there had been previous substantial attempts…all attempts at clarification had been largely ineffective” (para 5). He concluded that “[t]he respondent has sought to comply with my order. The claimant has failed to comply” (para 7 and see also paragraph 43 above).

• EJ Hodgson then provided an overview of the history of these proceedings and noted: “No single claim has been adjudicated, despite the first claim being filed nearly 4 and a half years ago. The fundamental difficulties [sic] revolves around the nature of the claims and the lack of clarity. There have been numerous attempts to identify the claims. It is apparent that during those hearings, the claimant has been extensive guidance on what is necessary and how she should approach matters. There remain significant difficulties, and it is those difficulties which have, essentially, prevented the matter from proceeding…” (para 22) and further “the ongoing failure to define the claims adequately was preventing a fair hearing…” (para 23).

• Turning to the four alleged protected acts which were made the subject of the unless order, EJ Hodgson observed “they simply refer to raising concerns about treatment. There is a complete failure to set out what those concerns were, how they were raised, with whom, and what information was given” (para 61).

• EJ Hodgson concluded in relation to the victimisation claim (emphasis added): “It is clear from the claimant’s oral representations that it is not her intention to clarify, but instead she seeks to set out further allegations in her witness statement, or even to approach this in an ad hoc manner at the final hearing. It is clear, therefore, that she is consciously and 17 of 26 deliberately, failing to set out the nature of the case” (para 65) and further “The claimant’s failure to clarify these protected acts is, in my view unreasonable conduct of these proceedings and the threshold for strike out is met. Further, the lack of clarification, for the reasons given, fundamentally undermines the respondent’s right to a fair hearing” (para 68). However, notwithstanding “the ample time and ample opportunity” given to the Claimant, EJ Hodgson decided to give the Claimant “one final chance. If she wishes to proceed with those allegations, she must identify the protected acts adequately. As this will involve a[n] addition of facts, she should be obliged to apply to amend” (para 68).

• In respect of the Respondent’s application to strike out the extant protected disclosure detriment claim, in which the Respondent complained about the Claimant’s ongoing failure to particularise the claim, her lack of cooperation to engage with the Respondent to remediate these deficiencies and that she had obfuscated instead of provided clarity, EJ Hodgson found that (emphasis added): “During the hearing the claimant did not engage with these issues adequately at all. The claimant failed to acknowledge there were deficiencies in her claim or that further clarification should be given. Instead, the claimant alleged that the respondent’s conduct has been inappropriate and the response to each claim…be struck out” (para 81) and further, he endorsed the following description of the Claimant’s conduct during the April 2023 hearing in the Respondent’s supplemental submissions that “C resisted numerous opportunities to answer questions posed by EJ Hodgson in order to try to identify C’s position on the issues in the Second Claim, with C’s approach being to repeatedly question the EJ’s questions and to provide responses wholly unrelated to the question posed” (paras 82 and 83). Similarly, EJ Hodgson found that “During the course of the hearing the claimant made it plain that she resisted the tribunal’s attempts to clarify the issues and asserted she considered her claims to be clear. Instead of accepting guidance and engaging with the process of clarification, she blamed the respondent for failing to set out the issues adequately or at all. The claimant, however, in seeking to resist the guidance went significantly further; she made it plain that she did not wish to be constrained at the final hearing by carefully defined issues. Put simply, the claimant refused to engage with, or cooperate, with the process of clarifying and defining her claims” (para 91) and further that the Claimant had maintained this stance despite having “had numerous opportunities to address the deficiencies…Instead, she has made it plain that she will not engage with that process and does not accept any deficiency” (para 97).

• EJ Hodgson concluded (emphasis added): “The claimant’s refusal to engage with the process is in my view deliberate and contumelious obfuscation. There is a deliberate refusal to engage with the process or to accept the need to set out the claims clearly. Instead of agreeing to engage with the process of clarifying her own claims, the claimant has adopted the opposite stance and sought to ensure that the claims remain obscure to maximise, in her view, the arguments that she can raise the final hearing” (at para 98) and he added “I am satisfied the claimant understands what is required of her. I take into account that she is a litigant in person, but she has now gained considerable experience of the process 18 of 26 and has [had] the benefit of assistance and guidance from more than one judge” (at para 99).

• Finding that “there is no prospect, whatsoever, of the claimant engaging in a way which is constructive” (para 101), EJ Hodgson decided to strike out the detriment claim on the ground that there was no possibility of there being a fair hearing (see para 102).

• Turning to the Respondent’s application to strike out the claim for automatic unfair dismissal, EJ Hodgson similarly found that giving the Claimant a further opportunity to particularise the alleged protected disclosures would be futile which meant that there was no prospect of a fair hearing (see paras 115 and 116). In deciding to strike out that claim, EJ Hodgson made the following findings (emphasis added): “I have concluded the claimant’s conduct of the claim in relation to these matters is unreasonable; it is arguably vexatious, but I do not have to finally decide that point. On the pleaded claim, none of the alleged protected disclosures can succeed, as none identifies a disclosure of information. It follows, on the pleaded case there is no reasonable prospect of success. The claimant has been given more than ample opportunity to clarify her claim and has failed to do so. Instead, she has consciously chosen not to engage. Further she has behaved in a way that is it obstructive and her conduct is contumelious. Most importantly, there is no prospect of there being a fair hearing of the automatic unfair dismissal claim. I am satisfied that the claimant has been given sufficient opportunity to engage in a way which may rectify the deficiency in the pleadings. Not only [has] the claimant failed to do so, but her continuing conduct also demonstrates a conscious frustration of to all attempts to assist here and to make progress…” (para 117).

• EJ Hodgson also considered the Claimant’s applications to strike out the responses to her claims. He noted that the Claimant brought these applications “on the grounds that the respondent’s behaviour and its failure to identify the issues or deal with them appropriately, has made a fair trial impossible” (para 14). Additionally, EJ Hodgson noted that “the claimant’s position is the failure to make progress, and the difficulties which exist in identifying the claim, rests entirely at the respondent’s door and all difficulties are caused by the respondent's inappropriate conduct and unreasonable approach” (para 26). EJ Hodgson rejected the Claimant’s assertion that the Respondent had acted inappropriately in relation to the drafting of the list of issues (see para 100). Acknowledging that “there have been failings on the part of the respondent” (para 121), EJ Hodgson rejected the Claimant’s application in the following terms: “It is also necessary to consider the overall conduct of the respondent. Here, as I set out above, the respondent has, patiently, sought to identify the issues and to assist the claimant. In setting out the issues in accordance with my order of 8 December 2022, the respondent has acted reasonably, helpfully, and entirely in compliance with its duty to the tribunal to assist in promoting the overriding objective. The conduct of the respondent, and its advisers, is consistent with the overriding objective and is reasonable. Nothing the respondent has done undermines the prospect of a fair hearing. The opposite is true, the respondent’s actions have sought to facilitate a fair hearing, despite the claimant’s conduct” (para 124). 19 of 26 The Respondent’s submissions (57) Mr Braier submitted that having brought excessive claims much of which had been excised through deposit orders not being paid and strike out, the intention in March 2021 had been that the issues would be finalised at the preliminary hearing on 5 July 2021, however, the Claimant had produced her own list of issues, and had made amendment applications, had chosen not to attend the September 2021 hearing which he submitted was an act of disrespect and contempt. This was compounded by the Claimant’s failure to comply with EJ Hodgson’s extensive efforts to order her to clarify her claims. (58) Mr Braier submitted that in respect of the 17-month period between 5 June 2023 and 18 November 2024, the Claimant took no action at all and in particular, she failed to comply with EJ Hodgson’s order to propose directions for the preliminary hearing on like work, failed to comply with the unless order to provide the specified information in relation to the alleged protected acts, failed to respond to any correspondence from the Respondent or the Tribunal. This was to be contrasted with the Claimant’s previous history of extensively litigating her claims, including by pursuing unmeritorious applications for reconsideration and / or appeal. (59) Mr Braier submitted that there was no reasonable explanation for these failures: the terms of the unless order were clear and unambiguous; the Claimant had corresponded with the Respondent at various times without being ordered to do so by the Tribunal; the Respondent’s correspondence dated 24 July 2023 and 21 August 2023 self-evidently required a response from the Claimant; the Claimant could have no doubt about which strike out application was to be decided at the preliminary hearing in November 2024 and if she was genuinely in any doubt failed to take any opportunity to clarify this with the Tribunal. The Claimant had ignored all efforts over the 17-month period to progress the claims; her lack of preparedness meant that the preliminary hearing could not proceed as listed; and more than six years after the Claimant had presented Claim 1, the case remained some distance from a final determination. This was on top of the Claimant’s actions over the preceding two years in which the Claimant had obstructed the efforts made by the Respondent and the Tribunal to progress the claims and which had led to EJ Hodgson’s adverse findings about the Claimant’s conduct. Mr Braier submitted that these findings had been reinforced by the Claimant’s subsequent behaviour both by her silence and her obstruction of the preliminary hearing in November 2024, and by her failure to comply with the orders I made, particularly in relation to the bundle. (60) Mr Braier also submitted that the Claimant’s conduct had resulted in an extraordinary use of the Tribunal’s resources, with this being the 12th preliminary hearing which demonstrated the extent to which the Claimant’s conduct was not in accordance with the overriding objective. (61) Mr Braier also submitted that some of the claims were very stale. The equal pay claim related to a period of work from more than seven years ago. The discrimination, harassment and victimisation claims in Claim 2 related to alleged detriments that were incidental omissions i.e. conversations that were not held 20 of 26 and notes that were not provided from more than five years ago. Additional time would be needed before these claims could be decided at a final hearing which would only add to this time lag. (62) Mr Baier confirmed that the Respondent was likely to call seven witnesses, if required, four of whom it no longer employed:

• Ross Harris, the grievance manager, whose evidence was relevant to the claims for race-related harassment / victimisation in Claim 2, who left the Respondent in 2020.

• Anne Manning, Head of HR, whose interactions with the Claimant were central to the purported reason for her dismissal whose evidence was therefore relevant to the claim for unfair dismissal (Claim 3), and who left the Respondent in 2021.

• Craig Etherington, HR officer, whose evidence was relevant to the equal pay claim (Claim 1) and the claims for direct race discrimination, racerelated harassment / victimisation in Claim 2, who left the Respondent in August 2022.

• Peter Luby, the dismissing manager whose evidence was therefore relevant to the claim for unfair dismissal (Claim 3), who left the Respondent in January 2023. Mr Baier also confirmed that the Respondent had not obtained draft statements from any of the seven witnesses. He submitted that this was because of the ongoing state of disarray and lack of clarity in relation to the claims which was substantiated by the fact that the Respondent had applied successfully for deposit orders and strike out. He said that in respect of each of the four witnesses who had ceased to be employed, the Respondent remained hopeful that they could be contacted, would agree to give evidence voluntarily and there was no reason to believe that they were ill-disposed towards the Respondent. The Respondent did not therefore contend that any of it witnesses were no longer available to give evidence. Instead, Mr Baier posited that given the significant passage of time since the index events, the memories of the Respondent’s witnesses would have inevitably faded and would erode further by the date of any final hearing, and further, that recollection of events would be made more difficult because many of the allegations concerned incidental omissions and by the absence of contemporaneous documents. He submitted that this delay had caused or was likely to cause serious prejudice to the Respondent’s ability to defend these claims, which included allegations of race discrimination, and there was a significant risk that a fair hearing was no longer possible. (63) He concluded that the Claimant had repeatedly acted in a contumelious manner over what had become an inordinately protracted process and she had not heeded the findings in the May 2023 Judgment. (64) In summary, the Respondent’s primary position was that the Claimant’s claims should be struck out under rule 38(1)(d) on the basis that her inaction over the 17-month period had been intentional and contumelious by reference to the first Birkett principle. 21 of 26 (65) Alternatively, that the claims should be struck out under rule 38(1)(d) on the basis of the second Birkett principle, because of the significant risk that there could not now be a fair trial. (66) Alternatively, that the claims should be struck out under rule 38(1)(c) because of the Claimant’s failures to comply with the Tribunal’s orders and the lack of confidence that this pattern of conduct would cease were the Claimant to be given a second chance. (67) Finally, that the claims should be struck out under rules 38(1)(b) and (e) on the basis of the Claimant’s failures to comply with the Tribunal’s orders and her unreasonable conduct and the resultant delays which meant there was a significant risk of the prospect of a fair trial. The Claimant’s submissions (68) The Claimant submitted that it was wrong for the Respondent to assert that she failed to participate / engage in these proceedings for 17 months, she had at all times engaged, including during and since the preliminary hearing on 20 November 2024. She maintained that any failure to comply with the Tribunal’s orders or to respond to the Respondent’s correspondence had not been deliberate or disrespectful but arose from a lack of understanding about the Tribunal process, for example, the process for making an adjournment application; and relatedly, with having to deal with different types of hearing and different orders from different judges. The Claimant also alluded to personal circumstances about which she had not elaborated in her witness statement, including caring for her mother and her son, and looking for work. The Claimant said that she would ensure that she complied with all future orders. She sought a second chance. Having brought a grievance and grievance appeal against the Respondent, she wanted to obtain justice through this litigation. The issues in the claims had been clarified. A fair trial remained possible. (69) Mr Yahaya added that this application had revealed that the Claimant had a serious lack of understanding about the Tribunal process which explained her conduct. The Claimant had not been disrespectful or scornful (i.e. contumelious) and wanted to progress her claims and have a second chance. She would seek legal support to ensure that she complied with all future orders and her claims could be progressed expeditiously. Conclusions (70) The Claimant failed to take any action to progress these claims between 5 June 2023 and 20 November 2024. This included a failure to comply with the orders made by EJ Hodgson to propose directions in relation to the Respondent’s amendment application and the preliminary hearing for like work. Additionally, I agree with Mr Braier that the Respondent’s correspondence dated 24 July 2023 and 21 August 2023 which related to the latter, required a response from the Claimant. I reject the Claimant's evidence that she was only required to respond to any correspondence from the Respondent if ordered to do so by the Tribunal or only if the same correspondence had been copied to the Tribunal. I also reject 22 of 26 the Claimant’s evidence EJ Hodgson ordered the parties to copy the Tribunal into all correspondence. There was no record of this order. Nor was such an order plausible. I would add that the only action the Claimant took over that extended period was to make a very late application to postpone the hearing, two days beforehand. This period of hiatus was qualitatively different from the period in 2020 when the Tribunal had stayed the proceedings. The Claimant provided no reasonable explanation for this conduct and her inaction over this lengthy period. (71) The Claimant also failed to comply with the unless order. The Claimant’s assertion that she had understood she had complied with the terms of this order (before she conceded the point) was unsustainable and wholly lacking in credibility. The terms of the unless order were clear and unambiguous as were the basis for the order and the specific information required. The Claimant had not provided the specified information in the form of an amendment application (or at all). There was no reasonable basis for this failure. (72) The Claimant had also failed to ensure that she had been fully prepared for the hearing on 20 November 2023. The Claimant’s assertion at that hearing that she had not understood which strike out application would be heard lacked credibility, as did her evidence for this hearing that the Respondent had made three different strike out applications on 24 April 2024. It was also of some concern that the Claimant maintained that assertion in the face of the unambiguous documentary evidence to the contrary. The Claimant also failed to act proactively or to engage with the Respondent and the Tribunal to clarify the purpose of that hearing and to ensure that she had access and had reviewed all relevant documents in advance of it. This conduct echoed the Claimant's prior conduct in relation to the September 2021 hearing. It resulted in the preliminary hearing in November 2024 being ineffective and the deferral of the Respondent’s strike out application. (73) The Claimant also failed to comply with my order to confirm whether she had complied with the unless order either by providing the required information by the specified deadline or at all. (74) The Claimant also failed to comply with the orders in relation to the provision of the bundle for this hearing. (75) I do not accept the Claimant's evidence that this conduct was inadvertent. The Claimant’s failures to comply with the Tribunal’s orders and to act in accordance with the overriding objective were not only persistent but deliberate, disrespectful and contemptuous of the Tribunal and its procedures. (76) Firstly, what is clear, as EJ Hodgson found, is that over the course of these protracted proceedings the Claimant, whilst a litigant in person, has accumulated the experience of multiple hearings and has had the benefit of detailed and careful guidance from several judges in the form of oral and written directions. Further, the Claimant has made numerous applications to amend her claim, for strike out of the responses and for reconsideration, in addition to her appeals to the EAT. None of that, as I have previously emphasised (December 2024 Order, para 5) fixes the Claimant with the degree of knowledge as would apply to a legal representative, it is to state the incontrovertible reality of the circumstances in 23 of 26 which the Claimant has conducted these proceedings. I agree with EJ Hodgson’s finding that “the claimant understands what is required of her” so that, materially, she understood what she was required to do to comply with EJ Hodgson’s order (as set out in the May 2023 Judgment), understood the purpose of the hearing in November 2024 and understood the orders I made (as set out in the December 2024 Order); and prior to that, she also that she understood the purpose of the September 2021 hearing and the steps she was required to take to clarify her claims. (77) Secondly, the Claimant’s conduct since the preliminary hearing in April 2023 which is the principal focus of the Respondent’s application does not represent a series of isolated incidents of non-compliance but is part of the same pattern of wilful obstruction and obfuscation which characterised the Claimant’s previous conduct, in particular, the Claimant's conduct in relation to the September 2021 hearing and her conduct in relation to clarifying her claims, which culminated in the strike out of her protected disclosure detriment and automatic unfair dismissal claims and the unless order. As is also clear from the terms of the September 2021 Order and the May 2023 Judgment, the Claimant could be left in no doubt that successive judges had found that her impugned conduct had been deliberate, and in EJ Hodgson’s case that her conduct had been unreasonable (para 65), had undermined the Respondent’s right to a fair hearing (para 68), was contumelious (paras 98 and 117), arguably vexatious (para 117) and a conscious frustration of all attempts to make progress in the case (para 117). (78) Thirdly, in persisting with this conduct the Claimant failed to take heed of EJ Hodgson’s detailed guidance and criticisms of her prior conduct. (79) Fourthly, the Claimant provided no reasonable explanation for this conduct. (80) I am therefore satisfied that the threshold for rule 38(1)(b) is met because the Claimant’s unreasonable conduct has taken the form of deliberate and persistent disregard of the steps she has been required to take to cooperate with the Respondent and the Tribunal to progress her claims. (81) I am also satisfied that the threshold for rule 38(1)(c) is met because of the nature and extent of the Claimant’s failure to comply with the Tribunal’s orders and to act in accordance with the overriding objective, and the disruptive impact it has had on these proceedings. (82) I am also satisfied that the threshold for rule 38(1)(d) is met because I have found that the Claimant’s failure to engage with the Tribunal or the Respondent for the 17-month period between 5 June 2023 and 18 November 2024 was intentional and contumelious and it was also inordinate (both on its own and on top of the preceding delay arising from the Claimant’s deliberate refusal to clarify her claims) and inexcusable. (83) I consider that there is a significant risk that there cannot be a fair hearing of the case. I have no confidence in the reliability of the undertakings proffered by the claimant and Mr Yahaya (although I have no doubt that the latter was acting in 24 of 26 good faith) that the Claimant’s conduct will alter markedly were she to be given a second chance. (84) Firstly, as I have found, in persisting with this conduct the Claimant did not take heed of EJ Hodgson’s detailed guidance and trenchant criticisms concerning her conduct. (85) Secondly, it is notable that in her witness statement [C/6.1, 6.2, 8.2-8.9], the Claimant repeatedly complained about the Respondent’s representative’s “vexatious and scandalous behaviour” in relation to the bundle for this hearing, the bundle for the hearing on 20 November 2023 and to concerns raised previously at the April 2023 hearing, the latter which were addressed and rejected by EJ Hodgson. I am left in little doubt that the Claimant's evident enmity towards the Respondent’s representative’s conduct of these proceedings, which is not only misguided but which has impacted on her capacity to act in accordance with the overriding objective, will neither cease nor diminish were these claims to proceed. (86) Thirdly, the Claimant has continued to disregard the clear guidance and direction of successive judges in this case and has persisted in her view that, to the contrary, she has acted in compliance with the Tribunal’s order. Thus, it was troubling that the Claimant maintained the unsustainable assertion that she had not failed to engage with the Tribunal for the 17-month period in question, and, before conceding the point at this hearing, she maintained that she had complied with the terms of the unless order. Relatedly, of further concern is the Claimant’s repeated insistence that to the extent that there have been any deficiencies in her conduct this is because she is a litigant in person and / or that it is attributable to the Respondent’s alleged misconduct. As I have found, the Claimant has understood what has been required of her at all material times. Although the Claimant, and Mr Yahaya, referred to a second chance which infers a recognition that one is required because the first chance has been spurned, the Claimant’s intransigence, lack of insight, and failure to acknowledge the nature and effect of her own conduct do not suggest that there is any realistic likelihood that she will change course were she to be given a second chance. (87) Fourthly, I agree with Mr Baier that the Claimant’s conduct has had the effect of compounding the Claimant’s prior conduct on the ability of the Respondent and the Tribunal to make progress in this case. The result is that it is now more than seven years from the date of the index events relating to the equal pay claim (i.e. the remaining part of Claim 1) and more than five years from the index events relating to Claim 2, and it is more than four years since the Claimant’s dismissal which is the subject of Claim 3. It is evident that were these claims to proceed, taking account of the need to hold a preliminary hearing on like work, it is unlikely that the claims would not be finally heard for over 12 months. I accept that it is likely the passage of time has already impaired the memories of the Respondent’s witnesses and the delay in progressing the case has caused serious prejudice to the Respondent’s ability to prosecute its defence, and gives rise to a substantial risk that a fair hearing is no longer possible. This is particularly the case in relation to the claims in which the Claimant is complaining about omissions and there are no contemporaneous documents. 25 of 26 (88) Fifthly, I am also bound to have regard to the protracted and convoluted history of these proceedings, to the fact that there have already been 12 preliminary hearings in this case and with no immediate end in sight, to the need to avoid the undue expenditure of time and money, to the recognition of the demands of other litigants, as well as the finite resources of the Tribunal. (89) I have considered whether a less draconian sanction than strike out is warranted. In particular, I have given some consideration to whether it would be just to strike out Claims 1 and 2 only so that only Claim 3, which concerns the decision to dismiss the Claimant, which is less stale than the events of the other claims and in respect of which there is likely to be more documentary evidence available to the Respondent, could proceed. However, in the circumstances in which I have found that the Claimant has persistently and deliberately failed to comply with the Tribunal’s orders, and act in accordance with the overriding objective, and I have no confidence that the Claimant’s obstructive, disruptive and contumelious conduct will change, which is the principal basis for my conclusion that there is a significant risk that a fair hearing is no longer possible, no lesser sanction is appropriate. (90) For these reasons, the claims are struck out.