Employment Judge HendersonNot represented for claimantMr A Edge (instructed by Counsel) for respondentDate 8 April 2024
JUDGMENT
[1]The correct respondent is Colt Technology Services[2]The claims for disability discrimination; sexual orientation; arrears of pay and other payments and any other claims brought by the claimant in these proceedings are struck out under The Employment Tribunal Rules of Procedure Rules 2013, Rule 37 (1) (a) - on the ground that they have no reasonable prospect of success.
REASONS
[1]T his was a public preliminary hearing (PH) ordered by EJ Hodgson at a Case Management preliminary hearing held on 14 December 2024. The purpose of the PH was to consider the following: - any amendment application made by the cla imant; Case Number: 2215208/2023 2 of 10 - -to identify the claimsto identify the claims;; - -to consider whether any claims should be struck out and/orto consider whether any claims should be struck out and/or - -to consider whether there should be a deposit order.to consider whether there should be a deposit order.[2]In Schedule A of the Case Management Order of December 2024, EJ Hodgson In Schedule A of the Case Management Order of December 2024, EJ Hodgson summarised the claims as recorded insummarised the claims as recorded in the ET1 lodged on 3 October 2023 the ET1 lodged on 3 October 2023 (disability discrimination; discrimination on grounds of sexual orientation and (disability discrimination; discrimination on grounds of sexual orientation and outstanding sums owed) outstanding sums owed) and madeand made observations on the claims as expressed in observations on the claims as expressed in that ET1.that ET1.[3]EJ Hodgson notedEJ Hodgson noted (at paragraph 2.2 of that Schedule(at paragraph 2.2 of that Schedule AA)) ththat the claimant had at the claimant had failed to attendfailed to attend the Case Management hearing and that his late request for an the Case Management hearing and that his late request for an adjournment on grounds of illadjournment on grounds of ill--health health (n(namely constipation) amely constipation) had not been had not been supported by medical evidence and was accordingly refused. EJ Hodgson also supported by medical evidence and was accordingly refused. EJ Hodgson also statedstated (par(paragraph 2.11) agraph 2.11) that “that “I am not satisfied that the claimant haI am not satisfied that the claimant has presented s presented any arguable claims. I am not satisfied that the claimant is actively pursuing this any arguable claims. I am not satisfied that the claimant is actively pursuing this claim.”claim.”[4]As the claimant was not present at the Case Management hearing, EJ Hodgson As the claimant was not present at the Case Management hearing, EJ Hodgson very properly notedvery properly noted that there should be a public preliminary hearing at whicthat there should be a public preliminary hearing at which h the claimant could be heard both as to how his claims are presented and the claimant could be heard both as to how his claims are presented and expressed and expressed and hishis representations against any order for strikeout/deposit order. representations against any order for strikeout/deposit order.[5]EJ Hodgson also recommended that the claimEJ Hodgson also recommended that the claimant should consider answering ant should consider answering the respondent’s request forthe respondent’s request for further and better particulars, consider any further and better particulars, consider any amendment needed for his claim, filed any relevant medical amendment needed for his claim, filed any relevant medical evidence,evidence, and and provide details of his financial situation for the purposes of any potential deprovide details of his financial situation for the purposes of any potential deposit posit orderorder (paragraph 2.13).(paragraph 2.13).[6]The claimant did not attend The claimant did not attend the PH on 2 April and did not provide any the PH on 2 April and did not provide any explanation for his nonexplanation for his non--attendance, nor attendance, nor did he did he make any application for a make any application for a postponement. Given the situation at the December 2024 hearing, I had postponement. Given the situation at the December 2024 hearing, I had specificallyspecifically asked my clerk to carefully check the asked my clerk to carefully check the Tribunal’s inbox Tribunal’s inbox ffor or any such any such messages or communication from the claimant.messages or communication from the claimant. No communication from the No communication from the claimant was presented to me.claimant was presented to me.[7]The claimant did not comply with any of the orders made by EJ Hodgson in The claimant did not comply with any of the orders made by EJ Hodgson in December 2023December 2023 for provision of medical evidence, nor did the claimant for provision of medical evidence, nor did the claimant comcommunicate with the respondent’s solicitorsmunicate with the respondent’s solicitors concerning the responses to concerning the responses to further particulars. further particulars.[8]I was concerned that the claimant may have changed his email address (by I was concerned that the claimant may have changed his email address (by which the Tribunal correspondedwhich the Tribunal corresponded with him). I asked the respondent whether with him). I asked the respondent whether there had been anthere had been any communication with the claimant over the period December y communication with the claimant over the period December 2023 to date using that email address. At my request, the respondent provided 2023 to date using that email address. At my request, the respondent provided copies of email correspondence with the claimant at that emcopies of email correspondence with the claimant at that email addressail address:: the the latest being latest being as atas at 22 February 2024. February 2024. The claiThe claimant has not communicatedmant has not communicated at allat all with the respondent’s solicitors, although he was notified *by email on 13 with the respondent’s solicitors, although he was notified *by email on 13 Case Number: 2215208/2023 3 of 10 February 2024 February 2024 –– page 83) that the solicitor representing the respondent had page 83) that the solicitor representing the respondent had changed frochanged from Baker & Mckenzie to Lewis Silkin.m Baker & Mckenzie to Lewis Silkin.[9]I I also also noted that the claimant wnoted that the claimant would have received the Joining Instructions for ould have received the Joining Instructions for today’s video hearing at that email address. I am therefore satisfied that the today’s video hearing at that email address. I am therefore satisfied that the claimant would have had notice of the PHclaimant would have had notice of the PH and had been given aand had been given an opportunity to n opportunity to attend to make his representationsattend to make his representations or to indicate tor to indicate that he hat he ccould not attend and to ould not attend and to give reasons or to request a postponementgive reasons or to request a postponement. . The claimant had done this for the The claimant had done this for the Case Management Hearing in December 2023 and so is familiar with the Case Management Hearing in December 2023 and so is familiar with the process. Aprocess. Alternatively, the claimant could have made any representations lternatively, the claimant could have made any representations againagainst strike out/deposit orders in writing. st strike out/deposit orders in writing.[10]As there was no communication from the claimantAs there was no communication from the claimant, the , the PH PH hearing continued in hearing continued in the claimant’s absencethe claimant’s absence..[11]The Tribunal was presented with the followingThe Tribunal was presented with the following documents (in electronic form) at documents (in electronic form) at the PH: a bundle of 83 pages contthe PH: a bundle of 83 pages containing the pleadings, aining the pleadings, TTribunal ribunal correspondence and orders, contractual and policy correspondence and orders, contractual and policy documents,documents, and and correspondence between the parties. correspondence between the parties. Pages references in these reasons are to Pages references in these reasons are to that bundle. that bundle. ThThere were also witness statements from Janice Thomas (HR ere were also witness statements from Janice Thomas (HR manager of thmanager of the respondent) and Keri Gilder (e respondent) and Keri Gilder (CEO since May 2020CEO since May 2020). ). The The Tribunal dTribunal did not hear oral evideid not hear oral evidence from the witnence from the witnesses. sses. The The TTribunal was also ribunal was also sent during the course of the hearingsent during the course of the hearing, , copies of emaicopies of emails regarding the medical ls regarding the medical assessment of the claimant as part of the provision of payments under theassessment of the claimant as part of the provision of payments under the respondent’srespondent’s PHI policy with CPHI policy with Canada life.anada life. The Tribunal was also assisted by Mr The Tribunal was also assisted by Mr Edge’s written submissions and by a bundle of supporting legal authorities.Edge’s written submissions and by a bundle of supporting legal authorities.[12]NoNotete:: The bundle contained (pages 55 The bundle contained (pages 55 --65) the claimant’s contract of 65) the claimant’s contract of employment, which commenced on 16 July 2018. This was in the nemployment, which commenced on 16 July 2018. This was in the name of ame of Malcom James, which is the name by which the claimant was formerly known. Malcom James, which is the name by which the claimant was formerly known. The respondent (at my request) provided copiesThe respondent (at my request) provided copies of emails from the claimant of emails from the claimant indicating that he wished to indicating that he wished to be be known as Nnaetoo Chukwu. I accept that this is known as Nnaetoo Chukwu. I accept that this is the contract of employmethe contract of employment applicable to the claimant.nt applicable to the claimant.[13]The hearing concluded at 3 The hearing concluded at 3 pmpm and I reserved my decision which I now give and I reserved my decision which I now give with written reasonwith written reasons.s. I shall consider each matter which was scheduled for I shall consider each matter which was scheduled for consideration at today’s PHconsideration at today’s PH Amendment application/Identify the claim Amendment application/Identify the claim[14]The claimant’s particulars of claim (page 8) The claimant’s particulars of claim (page 8) containcontain the totality of his claim.the totality of his claim. I set I set out the entire text below for clarity.out the entire text below for clarity. “1. Ow “1. Own music n music royalties’royalties’ payment since request to transfer to Keri Gilder for the payment since request to transfer to Keri Gilder for the amount of one amount of one hundred hundred million poundsmillion pounds.. 2. My return to work from sick leave started since 15/12/2021 and has been 2. My return to work from sick leave started since 15/12/2021 and has been faced faced with incessantwith incessant requests for the last 21 months. Two occurequests for the last 21 months. Two occupapational health tional health assessments completed with Colt partner AXA and fit note given by GP. assessments completed with Colt partner AXA and fit note given by GP. Recently asked to complete further health assessment as with earlier unlimited Recently asked to complete further health assessment as with earlier unlimited requests which seems unlawful.requests which seems unlawful. Case Number: 2215208/2023 4 of 10 3. Currently on income protection for less than fifty perc 3. Currently on income protection for less than fifty percenent of annual t of annual pay andpay and have faced multiple financial challenges this year.have faced multiple financial challenges this year. 4. I have been met with sexual advances by Keri Gilder (married 4. I have been met with sexual advances by Keri Gilder (married), `), ` Rosie Rosie Chambers and other female Chambers and other female colleagues which I ignored as unprofessional by colleagues which I ignored as unprofessional by my own ethics. Now faced with a my own ethics. Now faced with a form of vendetta by ignominy form of vendetta by ignominy on myon my return to return to work from sick leave work from sick leave and notand not in receipt of full pay (royalties, salary and in receipt of full pay (royalties, salary and benefits). My private relationships have now been tbenefits). My private relationships have now been threatened by these females hreatened by these females and they scare my partner away from dwelling safely by me.and they scare my partner away from dwelling safely by me. 5. Two years in Colt and my bodily phone was not activated, I was no.t advised 5. Two years in Colt and my bodily phone was not activated, I was no.t advised to be keyed(spin), and currently looking to be lit. My bodily phone is now active, to be keyed(spin), and currently looking to be lit. My bodily phone is now active, am am not yet keyed due to distractions by colt females employees and I am yet to not yet keyed due to distractions by colt females employees and I am yet to be lit. I wabe lit. I was cast away to a near death experience by Colt team members. This s cast away to a near death experience by Colt team members. This affected my mental health and resulted in my longaffected my mental health and resulted in my long term absence and sick leave term absence and sick leave from 30/08/2020 to 14/1from 30/08/2020 to 14/12/2C)21. Discharged from NHS care on 14/12/2021. 2/2C)21. Discharged from NHS care on 14/12/2021. Disappointed Colt confidently continueDisappointed Colt confidently continues to contact and act on recommendations s to contact and act on recommendations from `a phantom mother and family members detrimental to myself. Both my from `a phantom mother and family members detrimental to myself. Both my parents are deceased and I do not know any family memparents are deceased and I do not know any family members in UK and bers in UK and abroad.”abroad.”[15]II agree with EJ Hodgson’s observations agree with EJ Hodgson’s observations thatthat as expressed as expressed (above) (above) do not show do not show any arguable claims. The claimant does not specify the nature of his disability any arguable claims. The claimant does not specify the nature of his disability or identify the acts of discrimination he alleges. He makes no mention aor identify the acts of discrimination he alleges. He makes no mention at all of t all of his sexual his sexual orientation,orientation, or the acts of discrimination/less favourable treatment or the acts of discrimination/less favourable treatment allalleged. He refers to sexual advances from (two named) female employees of eged. He refers to sexual advances from (two named) female employees of the respondent but gives no further details of times; the exact nature of the the respondent but gives no further details of times; the exact nature of the advancesadvances etc. etc. FFurthermourthermorere, h, he has not included sex discrimination/harassment e has not included sex discrimination/harassment as part of his claim. This waas part of his claim. This was one of the areas in which EJ Hodgson suggested s one of the areas in which EJ Hodgson suggested that amendment should be considered. that amendment should be considered.[16]The claim for unpaid music royalties does not make any sense, given the nature The claim for unpaid music royalties does not make any sense, given the nature of the of the respondent’s respondent’s business and the claimant’s role within that business. The business and the claimant’s role within that business. The claimant apclaimant appears to be complaining that he has been receiving payments under pears to be complaining that he has been receiving payments under the respondent’s PHI Policy with Canada Life of 50% of his salary and to be the respondent’s PHI Policy with Canada Life of 50% of his salary and to be claiming the remaining 50%, thoclaiming the remaining 50%, though this is not specifically set out. ugh this is not specifically set out.[17]The Tribunal is encouraged to take a nonThe Tribunal is encouraged to take a non--tectechnical approach (especially where hnical approach (especially where the claimant is unrepresented) when assessing claims made in an ET1 and the claimant is unrepresented) when assessing claims made in an ET1 and giving them a broad interpretation. However, even when taking this giving them a broad interpretation. However, even when taking this approach,approach, the ET1 must include the basic elements of the cause of action being pursthe ET1 must include the basic elements of the cause of action being pursued ued in order for the claims to proceed. (in order for the claims to proceed. (Housing Corporation v Bryant [1998] ICR Housing Corporation v Bryant [1998] ICR 123123) )[18]The claimant did not respond to the request made in November 2023 for The claimant did not respond to the request made in November 2023 for Further ParticulaFurther Particulars (page 38rs (page 38-- 42). The claimant has made no request to amend 42). The claimant has made no request to amend this claim, despite bethis claim, despite being encouraged to do so by EJ Hodgson. Accordingly, the ing encouraged to do so by EJ Hodgson. Accordingly, the claims as expressed above must stand as the claims currently brought by the claims as expressed above must stand as the claims currently brought by the Case Number: 2215208/2023 5 of 10 claimant for discrimination on ground of d claimant for discrimination on ground of disability; sexual orientation and arrears isability; sexual orientation and arrears of pay and other sums owed. of pay and other sums owed. Respondent’ Respondent’s application for Strike Out s application for Strike Out[19]This application was brought under rule 37 of the ET Procedural Rules 2013 This application was brought under rule 37 of the ET Procedural Rules 2013 (The ET Rules): (The ET Rules):(1) At any stage of the proceedings, either on its own initiative or on the At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part application of a party, a Tribunal may strike out all or part of a claim or of a claim or response on any of the following groundsresponse on any of the following grounds—— (a) that it is scandalous or vexatious or has that it is scandalous or vexatious or has no reasonable pno reasonable prospect rospect of successof success; ; (b) that the manner in which the proceedings have been conducted that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the caby or on behalf of the claimant or the respondent (as the case se may be) has been scandalous, unreasonable or vexatious; may be) has been scandalous, unreasonable or vexatious; (c) for nonfor non--compliance with any of these Rules ocompliance with any of these Rules or with an order of r with an order of the Tribunal; the Tribunal; (d) that it has not been actively pursuedthat it has not been actively pursued; ; (e) that the Tribunal considers that it is no longer possible to have a that the Tribunal considers that it is no longer possible to have a fair hearifair hearing in respect of the claim or response (or the part to be ng in respect of the claim or response (or the part to be struck out). struck out).(2) A claim or responsA claim or response may not be struck out unless the party in question e may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either has been given a reasonable opportunity to make representations, either in writing or, if requested by the party,in writing or, if requested by the party, at a hearing. at a hearing.(3) Where a response is struck out, the effect shall be as if no response Where a response is struck out, the effect shall be as if no response had had been presented, as set out in rule 21 above. been presented, as set out in rule 21 above.[20]The respondent’s application was made on the grounds underlined above The respondent’s application was made on the grounds underlined above –– I I shall deal with each in turn.shall deal with each in turn. No reasonable pr No reasonable prospect of successospect of success The case law The case law[21]The Tribunal’s power to strike out on this basis was considered in The Tribunal’s power to strike out on this basis was considered in Ezsias v Ezsias v North Glamorgan NHS Trust [2007] IRLR 603North Glamorgan NHS Trust [2007] IRLR 603. This held that only in . This held that only in exceptional cases involving “core” disputes of fact should strike out be exceptional cases involving “core” disputes of fact should strike out be considereconsidered on this ground. Further, extrad on this ground. Further, extra caution should be exercised in cases caution should be exercised in cases involving discrimination claims (involving discrimination claims (Anyanwu v Southbank Student Union [2001] Anyanwu v Southbank Student Union [2001] ICR 391 HLICR 391 HL). ).[22]Tribunals should not strike out claims easily or without careful consideration. Tribunals should not strike out claims easily or without careful consideration. Recently cases Recently cases (Me(Mechkarov v Citibank NA [2016] ICRchkarov v Citibank NA [2016] ICR 1121 and Cox v 1121 and Cox v Addecco UKEAT/0339/19Addecco UKEAT/0339/19) have said that the Tribunal should take the ) have said that the Tribunal should take the claimant’s case at its highest and only where the case is conclusively disproved claimant’s case at its highest and only where the case is conclusively disproved (for example by inexplicable inconsistency with contemporane(for example by inexplicable inconsistency with contemporaneous documents) ous documents) Case Number: 2215208/2023 6 of 10 should the power should the power to strike out be exercised. Also, particularly in cases involving to strike out be exercised. Also, particularly in cases involving a litigant in person, the Tribunal should carefully consider the claim as pleaded a litigant in person, the Tribunal should carefully consider the claim as pleaded (and taking into account any relevant documents) and consider allowing the (and taking into account any relevant documents) and consider allowing the cclaim to be amended (applying thelaim to be amended (applying the usual principles) before striking out. usual principles) before striking out. I shalI shall l deal deal with each of the cwith each of the clalaims as set out in the ET1ims as set out in the ET1.. Music Royalties Music Royalties[23]TThe claim for the £100m of music royalties appears to be misguided given the he claim for the £100m of music royalties appears to be misguided given the context of the claimant’s empcontext of the claimant’s employment relationship with the respondloyment relationship with the respondent. Ms ent. Ms Gilder confirmed in Gilder confirmed in herher witness statement that no part of the respondent’s witness statement that no part of the respondent’s business was conbusiness was concerned cerned with music or music with music or music royalties,royalties, and she had never and she had never made any request for Mr Chukwu to transfer any such royalties tomade any request for Mr Chukwu to transfer any such royalties to her nor had her nor had she knowingly received ashe knowingly received any such royalties. ny such royalties.[24]The claimant (despite being given opportunities to do so) has failed to explain The claimant (despite being given opportunities to do so) has failed to explain or provide any further details of this element of his claim. or provide any further details of this element of his claim.[25]Further it is not clear on exactly what basis this claim Further it is not clear on exactly what basis this claim would be made in the would be made in the Tribunal. Tribunal. The clThe claimant’s contract (pages 55aimant’s contract (pages 55--65) makes no reference to music 65) makes no reference to music royalties, so this cannot be a claim for unlawful deduction of wages.royalties, so this cannot be a claim for unlawful deduction of wages. The The definition of wages at section 27 (2) e of the Employment Rights Act 1996 definition of wages at section 27 (2) e of the Employment Rights Act 1996 excludes anexcludes any payment which is made other than iny payment which is made other than in the worker’s capacity as a the worker’s capacity as a worker. This wouldworker. This would, , thereforetherefore, , excludeexclude a payment relating to royaltiesa payment relating to royalties as no part as no part oof the cf the claimantlaimant’’s employment related to muss employment related to music. ic. If this was If this was intended to be intended to be a a breach of contract claim, the clbreach of contract claim, the claimant remains employed and so cannot bring a aimant remains employed and so cannot bring a claim in the Tribunal until the contract has been claim in the Tribunal until the contract has been terminated. terminated.[26]If thIf the claim is based on other causes of actione claim is based on other causes of action, it should not be brought in the , it should not be brought in the Employment Tribunal. Accordingly, this claim must be struck out asEmployment Tribunal. Accordingly, this claim must be struck out as having no having no reasonable prospect of success. reasonable prospect of success. Sick Pay Sick Pay[27]The claimant’s contract contains no The claimant’s contract contains no entitlement to sick pay other than under the entitlement to sick pay other than under the Statutory Sick Pay Scheme. Any payments areStatutory Sick Pay Scheme. Any payments are mademade at the respondent’s at the respondent’s discretion. The claimant is covered by the PHI Schemediscretion. The claimant is covered by the PHI Scheme with Canada Life.with Canada Life.[28]The claimant commenced his longThe claimant commenced his long--term sickness absence on term sickness absence on 66 August 2020. In August 2020. In June 2021 the claimant June 2021 the claimant himself himself made an application under the PHI policy; had a made an application under the PHI policy; had a medical assessment andmedical assessment and hashas received payments under the PHI policy (of 50% received payments under the PHI policy (of 50% of his of his sasalarylary) from 1 July 2021. The) from 1 July 2021. The claimant was paid his full salary (at the claimant was paid his full salary (at the respondent’s discretion) from respondent’s discretion) from 66 August 2020August 2020--30 June 2021.30 June 2021.[29]The claimant appears to The claimant appears to saysay in his ET1 that he has been fit to return to work in his ET1 that he has been fit to return to work since 14 December 2021. The respondent said that ssince 14 December 2021. The respondent said that since then it has been ince then it has been attemattempting to pting to arrange for arrange for the claimant to attend the claimant to attend an independent medical an independent medical assessment to confirm his fitness to return to work, but that the claimant was assessment to confirm his fitness to return to work, but that the claimant was not conot co--operating with this.operating with this. Case Number: 2215208/2023 7 of 10[30]However, the claimant did attend However, the claimant did attend ((on 19 March 2024on 19 March 2024) an) an examination with an examination with an IndepenIndependent Psychiatrist appointed by Canada Life. The full report was not dent Psychiatrist appointed by Canada Life. The full report was not available at today’s PH, howeveravailable at today’s PH, however,, at my requestat my request,, the respondent provided a the respondent provided a copy of an email (dated 21 March 2024) from Canada Life copy of an email (dated 21 March 2024) from Canada Life to Msto Ms Thomas Thomas ((respondent’s respondent’s HR HR manager) which said that tmanager) which said that the Psychiatrist had “indicated” that he Psychiatrist had “indicated” that the claimant is “unwell and unfit for work”. the claimant is “unwell and unfit for work”. This was confirmed by a further This was confirmed by a further witness statement from Ms Thomas. witness statement from Ms Thomas. Whilst this is not conclusive evidence, it Whilst this is not conclusive evidence, it shows (on a balance of probabilities) tshows (on a balance of probabilities) that the claimant would not be hat the claimant would not be immediately available for work and therefore immediately available for work and therefore he he does not have a vdoes not have a viable claim for iable claim for unlawful deduction of wages for sick pay. unlawful deduction of wages for sick pay.[31]This claim is struck out as having no reasonable prospect of success. As the This claim is struck out as having no reasonable prospect of success. As the claimant is still employeclaimant is still employedd,, if his health situation changes, it would be open to if his health situation changes, it would be open to him to him to bring a fresh claim for unlawfulbring a fresh claim for unlawful deduction of wages at that stage.deduction of wages at that stage. Sexual Advances Sexual Advances[32]The claimant has not provided any further details of his claims against Ms The claimant has not provided any further details of his claims against Ms Gilder and Ms ChambersGilder and Ms Chambers, despite bei, despite being requested to so in November 2023ng requested to so in November 2023. . The questions asked by the respondent’s solicitors were couched in The questions asked by the respondent’s solicitors were couched in straightforward and nonstraightforward and non--legal language.legal language.[33]In her witness statement Ms Gilder said that she had never met the claimant. In her witness statement Ms Gilder said that she had never met the claimant. Ms Chambers left the respondent’s eMs Chambers left the respondent’s employment in March 2023 and there ismployment in March 2023 and there is no no information information available available from her. from her. Mr Edge noted that the claimant has been on Mr Edge noted that the claimant has been on sick leave since August 2020, which may well mean that any such claims would sick leave since August 2020, which may well mean that any such claims would be out of time in any event. be out of time in any event.[34]I also note that the claimant haI also note that the claimant has not brought a claim for sex discris not brought a claim for sex discrimination (to mination (to include harassment). As EJ Hodgson properly pointed out in his Case include harassment). As EJ Hodgson properly pointed out in his Case Management Order of December 2023, this claim would require an amendment Management Order of December 2023, this claim would require an amendment to proceed. The claimant has been offered to proceed. The claimant has been offered butbut has not taken the ophas not taken the opportunity to portunity to make such an amendment.make such an amendment.[35]I raised with Mr Edge the possibility of asking the claimant (with the sanction of I raised with Mr Edge the possibility of asking the claimant (with the sanction of an Unless Order) to providean Unless Order) to provide thethe further details of his allegations of sexual further details of his allegations of sexual harassment. Mr Edge said that to do so would simply prolonharassment. Mr Edge said that to do so would simply prolong this case (and g this case (and increase costs for increase costs for the respondent and the Tribunal). The claimant’s conduct to the respondent and the Tribunal). The claimant’s conduct to date showed that he would be unlikely to comply with such an date showed that he would be unlikely to comply with such an order ororder or may do may do so in a manner which would raise further complication and would necessitate so in a manner which would raise further complication and would necessitate furtherfurther hearings. I accept that the claimanhearings. I accept that the claimant has been given opportunities to t has been given opportunities to explain his claims andexplain his claims and to maketo make representations against strike outrepresentations against strike out. . I agree that I agree that an Unless Order wouan Unless Order would notld not necessarilnecessarily be a useful step in these circumstancesy be a useful step in these circumstances..[36]As it currently stanAs it currently stands, I ds, I find that this claim has no reasonablefind that this claim has no reasonable prospect of prospect of success,success, and it is struck out.and it is struck out. Sexual Orientation Sexual Orientation[37]There is no mention whatsoever in the ET1 of any allegations which may form There is no mention whatsoever in the ET1 of any allegations which may form part of this claim. Again, the claimant has been given the opportunity to provpart of this claim. Again, the claimant has been given the opportunity to provide ide Case Number: 2215208/2023 8 of 10 further details/amend his claim. H further details/amend his claim. He has not done so. This claim is struck out as e has not done so. This claim is struck out as disclosing no reasonable prospect of success. disclosing no reasonable prospect of success. Disability Discrimination Disability Discrimination[38]The claimant does not specify the nature of the alleged disability in the ET1. The claimant does not specify the nature of the alleged disability in the ET1. The Grounds of RespThe Grounds of Response refer to diagnoses relating to thonse refer to diagnoses relating to the claimant’s mental e claimant’s mental health made by the respondent’s Occupational Health health made by the respondent’s Occupational Health provider,provider, but the Tribunal but the Tribunal was not presented with any copies of these and so can make no findings on this was not presented with any copies of these and so can make no findings on this matter. matter.[39]The claimant haThe claimant hass not identifiednot identified the acts of discrimination which he althe acts of discrimination which he alleges as leges as being on the grounds of any disability. He does not identify the nature of being on the grounds of any disability. He does not identify the nature of the the claims ie direct, indirect discrimination, reasonable adjustments etc. This is claims ie direct, indirect discrimination, reasonable adjustments etc. This is despite being given the opportunity to do so. The despite being given the opportunity to do so. The claim as currently pleaded by claim as currently pleaded by the claimant the claimant gives no indication as to even the most basic elements of the gives no indication as to even the most basic elements of the cause of action. As currently pleaded (given that the claimant has not provided cause of action. As currently pleaded (given that the claimant has not provided any further and better particulars and has made no contact whatsoever wany further and better particulars and has made no contact whatsoever with the ith the Tribunal)Tribunal) the cthe claimlaim cannot properly proceed. cannot properly proceed.[40]This claim is struck out as disclosing no reasonable prospect of success. This claim is struck out as disclosing no reasonable prospect of success.[41]In striking out these last three claims, I bear in mind the principles expressed in In striking out these last three claims, I bear in mind the principles expressed in the cases listed above. the cases listed above. Ezsias Ezsias and and AnyanwuAnyanwu say that only exceptional cases say that only exceptional cases should be struck out. I find that this is such a case, in that no feasible facts have should be struck out. I find that this is such a case, in that no feasible facts have been pleaded by the claimant to justify the claims continuing. been pleaded by the claimant to justify the claims continuing.[42]I also take on board I also take on board Mechkarov Mechkarov and and CoCox. x. However, even taking the claimant’However, even taking the claimant’s s case at its highest, there appears to be no reasonable case put forward. The case at its highest, there appears to be no reasonable case put forward. The claimant has been given the opportunities to explain his case and to make claimant has been given the opportunities to explain his case and to make amendments but has chosen not to do so and has also failed to engage with amendments but has chosen not to do so and has also failed to engage with the Tribunal and/or the respothe Tribunal and/or the respondent’s solicitors. ndent’s solicitors. Other Claims at paragraph 5 of the Particulars of Claim Other Claims at paragraph 5 of the Particulars of Claim[43]I accept Mr Edge’s submissions I accept Mr Edge’s submissions (and EJ Hodgson(and EJ Hodgson’’s observations) s observations) that these that these claims/allegations make no sense. The claimant has not explained his claims/allegations make no sense. The claimant has not explained his references to his “bodily phone”. Treferences to his “bodily phone”. There do not appear to be any arghere do not appear to be any arguable claims uable claims put forward which can be pursued. put forward which can be pursued. Failure to actively pursue the claim Failure to actively pursue the claim[44]As I have struck out all the claims on the other ground, I do not need to As I have struck out all the claims on the other ground, I do not need to consider the alternative ground in any consider the alternative ground in any detail,detail, and I do not striand I do not strike out the claims ke out the claims on this ground.on this ground.[45]I note Mr Edge’s submissions and his reference to the case of I note Mr Edge’s submissions and his reference to the case of Khan v LB of Khan v LB of Barnet EAT 0002/18Barnet EAT 0002/18 where the EAT upheld a decision to strike out a claim after where the EAT upheld a decision to strike out a claim after just under seven months since its presentation. He maintained that tjust under seven months since its presentation. He maintained that there was here was no need for the “inordinno need for the “inordinate and inexcusable delay” giving rise to the substantial ate and inexcusable delay” giving rise to the substantial risk that a fair hearing would be impossible as set out in the more established risk that a fair hearing would be impossible as set out in the more established Case Number: 2215208/2023 9 of 10 cases of cases of Evans v Commissioner of Police of the Metropolis [1993] ICR 151 Evans v Commissioner of Police of the Metropolis [1993] ICR 151 and and Birkett Birkett v James [1978] AC 297. v James [1978] AC 297.[46]I accept I accept that the claimant has not engaged in the process of providing further that the claimant has not engaged in the process of providing further particulars; applying to amend his claim nor has he communicated with the particulars; applying to amend his claim nor has he communicated with the Tribunal or the respondent’s solicitors. I note that he has been able to Tribunal or the respondent’s solicitors. I note that he has been able to commucommunicate with the respondent itselfnicate with the respondent itself as regards receiving his 50% salary and as regards receiving his 50% salary and eventually as regards attending a medical assessment as requested by Canada eventually as regards attending a medical assessment as requested by Canada Life. This suggests that he is able to undertake such communication when he Life. This suggests that he is able to undertake such communication when he chooses to do so. chooses to do so. Deposit Ord Deposit Ordersers[47]As I have struck out the claAs I have struck out the claims, I do not need to consider the application for a ims, I do not need to consider the application for a Deposit Order. Deposit Order. Capacity Capacity[48]I asked Mr Edge to make submissions on the issue of lack of capacity in a I asked Mr Edge to make submissions on the issue of lack of capacity in a claimant to bring or pursue claims. He helpfully made reference in the claimant to bring or pursue claims. He helpfully made reference in the authorities bundle to authorities bundle to Jhuti v Royal Mail Group Ltd [2018] ICR 1077 Jhuti v Royal Mail Group Ltd [2018] ICR 1077 and the and the relevant section from the IDS Brief relevant section from the IDS Brief of 2024.of 2024.[49]Mr Edge also made clear at the outset that Mr Edge also made clear at the outset that the respondent was not raising any the respondent was not raising any issue with regard to the claimant’s capacity in this case.issue with regard to the claimant’s capacity in this case. From the Tribunal’s From the Tribunal’s point of view, I was presented with no medical evidence of the claimant’s point of view, I was presented with no medical evidence of the claimant’s medical conditiomedical condition (other than the reference to the independent psychiatrist’s n (other than the reference to the independent psychiatrist’s indication that he was unfit to return to work). I accept that the claimant has indication that he was unfit to return to work). I accept that the claimant has beebeen diagnosed with mental health issues. As the claimant has not attended n diagnosed with mental health issues. As the claimant has not attended any of the Tribunal hearings, I am unabany of the Tribunal hearings, I am unable to make any observation as to le to make any observation as to whether any mental health issues he may have meanwhether any mental health issues he may have meanss that he appears to be that he appears to be having difficulty understanding the prohaving difficulty understanding the process. He has made minimal (and no cess. He has made minimal (and no recent) communication with the Tribunal so I cannot observe whether he recent) communication with the Tribunal so I cannot observe whether he appearsappears to have any problems with communication. to have any problems with communication.[50]Therefore, in accordance with the guidance given by Simler J (as she then was) Therefore, in accordance with the guidance given by Simler J (as she then was) in Jhin Jhutiuti, I must assum, I must assume that the claimant has mental capacity to proceed as I e that the claimant has mental capacity to proceed as I have no evidence to make an assessment that he does not have no evidence to make an assessment that he does not have such capacity. have such capacity.[51]I note the case of I note the case of Royal Bank of Scotland v AB (EAT 0266/18),Royal Bank of Scotland v AB (EAT 0266/18), which said which said that there are circumstances in which an employmenthat there are circumstances in which an employment tribunal must order an t tribunal must order an assessment of a claimant’s mental capacity; however, the facts before the assessment of a claimant’s mental capacity; however, the facts before the tribunal in ttribunal in that case were very different to those before me. In that case, there hat case were very different to those before me. In that case, there was extensive medical evidence was extensive medical evidence available,available, but the question related to the tbut the question related to the timing iming of the various medical assessments of capacity. That is simply not the case of the various medical assessments of capacity. That is simply not the case here. here. Case Number: 2215208/2023 10 of 10 Employment Judge Henderson