Mr D Manickchand v Rendall and Rittner Ltd: 2216286/2023

EMPLOYMENT TRIBUNALS

Case No 2216286/2023

Between

Mr D ManickchandClaimant

Rendall and Rittner LtdRespondent

Before

Employment Judge P Klimov

In person for claimant

Date 11 September 2024

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The claimant’s application to postpone the hearing fails and is dismissed;

[2]The claim is struck out because:a. the manner in which the proceedings have been conducted by the claimant has been unreasonable (Rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013), and

b. it is no longer possible to have a fair hearing in respect of it (Rule 37(1) (e) of the Employment Tribunals Rules of Procedure 2013).

REASONS

JUDGMENT having been sent to the parties on 17 September 2024 and written reasons having been requested by the claimant on 26 September 2024, in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

Introduction

[1]By a claim form dated 6 November 2023 the claimant presented complaints of unfair dismissal, race discrimination and harassment, victimisation and for breach of contract (notice pay).

[2]On 19 December 2023, the respondent presented a response contesting all the complaints in the claim.

[3]On 26 January 2024, there was a case management preliminary hearing before Employment Judge Joffe. EJ Joffe listed the claim for a final hearing over 5 days, starting on 11 September 2024, by video. The usual case management orders were given, including for the claimant to present a schedule of loss, and for the parties to exchange documents, prepare a hearing bundle, and exchange witness statements. A list of issues was settled. The claimant’s claim for breach of contract (notice pay) was dismissed upon withdrawal. Additionally, the claimant was ordered to provide by 1 March 2024 further information about additional allegations he sought to add to his claim.

[4]EJ Joffe noted in her orders at [5]: “5. The claimant was having difficulties due to mental health problems at the case management hearing. The Tribunal will consider at the outset of the hearing what adjustments to the hearing he may require. I encouraged the claimant to speak to his GP about adjustments.”

[5]On 19 March 2024, EJ Goodman ordered the claimant to provide further information about additional allegations he sought to add to his claim by way of filling in a template table prepared by the respondent (Scott Schedule). The time for compliance was extended to 23 March 2024.

[6]On 21 June 2024, the respondent wrote to the Tribunal, asking to list another preliminary hearing to deal with outstanding matters and stating that the claimant had failed to comply with the case management orders to provide a schedule of loss, disclose his documents, and to provide further information about additional allegations he sought to add to his claim.

[7]On 31 July 2024, EJ Nash declined to list a further preliminary hearing for lack of judicial resources, meaning that it was not possible to fit in a preliminary hearing before the start of the final hearing. EJ Nash made the following orders: “1. In respect of any application by the claimant to amend his claim, the claimant has failed to comply with the order of EJ Goodman of 19 March 2024. He was ordered to set out briefly the matters he wishes to add to his claim form no later than 23 March 2024. He was advised to do so in the convenient form of a table provided by the respondent. The claimant has failed to comply with this tribunal order for over four months. If the claimant does wish to apply to add matters to his claim form, he must comply with this order by 10 August. Failing this, no application to amend will be considered by the tribunal. 2. In respect of the schedule of loss the respondent must forthwith provide the claimant with a pro forma schedule of loss for him to complete. The claimant must complete this within 7 days of receipt and return it to the respondent and tribunal. 3. In respect of disclosure of documents, EJ Nash amends the tribunal orders as follows.a. The parties must disclose any remaining documents to each other no later than 10 August 2024.

b. The respondent must prepare the bundle and provide a copy to the claimant no later than 21 August 2024.

c. The parties must exchange witness statements no later than 4 September 2024. 4. If the claimant fails to provide his documents to the respondent by 10 August, the respondent may proceed to complete the bundle using the documents in their possession. The claimant should understand that if he discloses documents after this date, he may not be permitted to rely on these documents at the final hearing.

The Judge also noted that:

[8]“…if the necessary preparation work is not done forthwith, the hearing date may be in danger. The parties will have to ensure that this matter is ready to be heard by 11 September”.

[9]There were further emails between the parties copied to the Tribunal and from the claimant to the Tribunal, prompting EJ Snelson, on 13 August 2024, to write to the parties as follows: “The Tribunal simply does not have the resources which would be required for it to engage in sustaining detailed dialogue with parties and providing close supervision of their attempts to implement the Tribunal's direction, as Mr Manickchand appears to envisage. The Tribunal is a forum, not an advice agency. The parties are left with Employment Judge Nash's directions and her further guidance in the letter of 31 July. They are strongly urged to co-operate in a pragmatic way and common-sense way to give effect to her directions aimed at achieving a just and orderly hearing in September.”

[10]On 14 August 2024, EJ Nash issued further case management orders as follows: “Case management resources are, unfortunately, very limited at the tribunal. It is not possible to have a short case management hearing to assist the parties with preparation. The parties must co-operate in order for this case to go ahead on 11 September. If the 11 September hearing has to be postponed because the parties are not ready, there is every chance that it will not be re-listed until the second half of 2025. The claimant contends that he has complied with the tribunal order of 19 March 2024 to apply to amend his claim. The tribunal will have to determine whether he has in fact complied with the order, and whether any application to amend will be granted, at the start of the full merits hearing. If the claimant has not complied with the order of EJ Goodman and the further tribunal order of 31 July, his application to amend will be refused. The parties must be ready to make their case on this point and that the tribunal may refuse or grant the application to amend. The claimant's application for specific disclosure is refused as it is unfocused and disproportionate. The parties are reminded of their ongoing duty to disclose all documents relevant to the list of issues whether or not they are helpful to their own case. If the claimant needs adjustments to tribunal procedure which have not already been agreed, he should write to the tribunal (copied to the respondent) setting out what adjustments he seeks. He is referred to paragraph 5 of the order of EJ Joffe of 26 January 2024 in this respect.”

[11]On 4 September 2024, the respondent applied to the Tribunal to strike out the claimant’s claim for non-compliance with the Tribunal orders, for the claimant’s unreasonable conduct of the proceedings, and as having no reasonable prospect of success.

[12]On 7 September 2024, the claimant submitted a detailed reply in opposition to the strike out application.

[13]On 10 September 2024, EJ Keogh ordered that the strike out application should be considered at the start of the final hearing.

The hearing

[14]The hearing started at 10am on 11 September 2024, by video. The claimant appeared in person. The respondent was represented by Ms Omotosho. The Tribunal was presented with a 609-page bundle of document introduced by the parties in evidence. The Tribunal had access to additional documents from the electronic case file. The respondent submitted witness statements of its five witnesses. The claimant did not submit a witness statement for himself or any other witnesses for the claimant.

[15]During the initial discussion at the start of the hearing it became apparent that the claimant was not ready to proceed with the hearing. He had not produced a witness statement. He said that he did not know that he needed to produce a witness statement. When I took him to EJ Joffe’s order for him to prepare a witness statement, the claimant said that he had not read EJ Joffe’s case management orders or only read some of them. He said that he had not read the respondent’s witnesses’ witness statements.

[16]The claimant said that he was confused by the Tribunal process and wanted to postpone the hearing, so that he could get some professional help and prepare for the next hearing better. He said that his difficulties in preparing for this hearing were due to his poor mental health and recent eviction from his property in London.

[17]I asked the claimant why he did not apply earlier to postpone the hearing if he felt he would not be ready to proceed with it. The claimant said that he did not know he could do that. The claimant then complained that the Tribunal process was bureaucratic and unfair and that too many judges were involved in his case.

[18]Ms Omotosho said that the respondent was opposing the claimant’s very late postponement application.

[19]The Tribunal decided to hear the respondent’s strike out application and then deal with both applications together.

[20]After a short break for the Tribunal to read the papers, Ms Omotosho made her submissions on the respondent’s strike out application, taking the Tribunal through the history of these proceedings and emphasising the claimant’s persistent non-compliance with the case management orders and his failure to engage with his claim and properly prepare it for the final hearing.

[21]During Ms Omotosho making her submissions the claimant persistently interrupted her, raising his voice and becoming more and more agitated and aggressive in his interruptions. I asked the claimant to stop this and explained that he would be given an opportunity to respond to Ms Omotosho’s submissions after she had finished making them. I also explained that he must conduct himself with due respect to the Tribunal and all participants in the proceedings.

[22]Despite my warning and explanations, the claimant persisted with interrupting Ms Omotosho, speaking over her and raising his voice and not heeding to my attempts to intervene and stop his interruptions. His conduct made it impossible for the Tribunal to proceed with hearing the respondent’s application. To enable Ms Omotosho to finish her submissions, I muted the claimant and explained to him that his microphone was muted because he had been behaving disruptively and disrespectfully, and that he would be given an opportunity to speak once Ms Omotosho had finished her submissions.

[23]Before the claimant started his submissions in opposition to the strike out application, Ms Omotosho asked if the claimant could confirm if he was joining the hearing from a place in the UK, as the respondent’s representatives noticed that he had plugged in his laptop using what appeared to be a European plug. The claimant said that he was joining the hearing from a friend’s place in France.

[24]I explained to the claimant that the Tribunal would not be able to hear his oral evidence, as no permission to give oral evidence from abroad was granted or sought by him. I further explained that, as the claimant had not prepared a witness statement, pursuant to EJ Joffe’s orders, he would not be able to give oral evidence unless permission to give oral evidence without a witness statement was sought and granted, which the claimant was not seeking.

[25]In his reply to the respondent’s application the claimant said that he had not been listening “too much” to what Ms Omotosho was saying. He said that he had mental health issues, which affected his cognitive abilities. He again asked for the hearing to be postponed to enable him to have a lawyer to help him. He disputed that he had not complied with the Tribunal’s orders. He complained about the Tribunal’s system and process. He said that he had been evicted from his property and did not have a place to live.

[26]The claimant repeated that he was not ready to proceed with this hearing, because of his mental health, which, he said, made him incapable of representing himself and he needed a lawyer to represent him.

[27]The claimant said that he was sorry for the way he behaved and that he was “a really nice guy” and should be given another chance to get things right.

[28]In a short reply, Ms Omotosho said that the claimant’s explanations for his failures to comply with the orders and for his unreasonable conduct were not convincing, because he is an eloquent young man, as his oral submissions evince, and the alleged mental health impairment was not supported by the medical evidence the claimant had presented for the hearing.

[29]The Tribunal adjourned the hearing to deliberate. When the hearing resumed after lunch, the Tribunal gave its unanimous decisions to refuse the claimant’s application to postpone the hearing and to strike out his claim for unreasonable manner, in which he had been conducting the proceedings, and because a fair trial was no longer possible. The reasons for these decisions are set out in the Analysis and Conclusions section below. The Law Postponement

The Law

[30]Rule 30A of the Employment Tribunals Rules of Procedure 2013 (“the ET Rules”) states: “Postponements 30A.(1) An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known.

(2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances.

(3) Where a Tribunal has ordered two or more postponements of a hearing in the same proceedings on the application of the same party and that party makes an application for a further postponement, the Tribunal may only order a postponement on that application where— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances.

(4) For the purposes of this rule— (a) references to postponement of a hearing include any adjournment which causes the hearing to be held or continued on a later date; (b) “exceptional circumstances” may include ill health relating to an existing long term health condition or disability.”

[31]The key legal principles for the Tribunal to apply when considering whether to postpone a hearing on medical grounds were summarised in the Court of Appeal judgment in Teinaz v London Borough of Wandsworth

[2002] IRLR 721

at [20-22 and 39] as follows: “20. […] Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun

[1928] 1 KB 645

at page 653 on adjournments in ordinary civil actions: "I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under

Article 6 of the European Convention on Human Rights

demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.

22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.” […]

[39]I agree with Peter Gibson LJ that applications for adjournment may raise difficult problems requiring practical solution. While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose. I am not, of course, saying that that course would necessarily have assisted in this case, but it may be helpful to advocates and tribunals to bear this point in mind in a future case.” 32. Shortly after Teinaz, the Court of Appeal considered this question in another case of Andreou v Lord Chancellor's Department

[2002] IRLR 728

. At [46] Peter Gibson LJ said: "The Tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course, an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that complaints such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The Tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs Andreou either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial. Viewing the case in the round and considering all the circumstances referred to by the Tribunal, I cannot see how it could be said that in refusing the application the Tribunal was perverse or otherwise plainly wrong in refusing a further adjournment." 33. In the same judgment, Arden LJ, agreeing with Peter Gibson LJ, said at [65]: "65. Finally, I would add this. Stress and anxiety are generic terms. Mr John Cavanagh QC, who has appeared for the appellant, has not suggested that stress and anxiety cannot constitute an illness. However, as I see it those terms are likely to cover a range of symptoms differing widely in their severity. Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the Tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources." 34. In Iqbal v Metropolitan Police Service and anor EAT 0186/12, HHJ Richardson, considering this question in light of Teinaz gave further guidance to the tribunals: “18. As Teinaz shows, if there is medical evidence that the party is not fit to participate in the hearing, an adjournment will generally have to be granted whatever the inconvenience to other parties. Often, however, there is no direct evidence that the party is not fit to participate in the hearing; it will be his or her say-so. The Tribunal will then have a difficult decision to make: is it right to allow a short adjournment of the kind that is suggested in Teinaz for medical evidence to be obtained? 19. When a Tribunal makes that decision it is highly material to bring into account any information there is concerning the health of the person in question. If the person says that he is stressed but there is no significant history of depression or stress or treatment for it, the Tribunal may more easily reach the conclusion that fairness does not require any investigation of the medical position. 20. If, however, there is a significant history of depression or stress requiring medical treatment, the Tribunal will be more circumspect. A general practitioner with notes available to him may be well placed to give a view on the litigant's ability to cope. It will often be appropriate to apply the guidance in Teinaz by adjourning the case to enable the Claimant to make an urgent appointment to see the practice that is treating him. The Tribunal is entitled to ask the litigant to take with him a short letter drafted by the Tribunal explaining the assistance that the Tribunal can give to litigants in person and explaining what assistance and opinion it is that is required from the medical practitioner. Of course, time is limited, and the medical practitioner's opinion will inevitably be a short one, but in a case such as this it may be of critical importance to the fairness of a decision that the Tribunal makes.” 35. In Phelan v Richardson Rogers Ltd and anor

2021 ICR 1164

, EAT, HHJ Auerbach, having reviewed case law on this subject set out “important guiding principles” for the tribunals as follows: “75. First, where the application is to postpone a trial or other Hearing, the outcome of which may dispose of the claim, or some other material substantive issue in the case, the applicant's Article 6 and common law rights to a fair trial will be engaged. Because of the serious consequences of refusing a postponement, it should, in such cases "usually" be granted. If what sits on the other side of the scales is simply the inconvenience and cost to the other party of the matter going off, then any Tribunal properly carrying out the balancing exercise would be bound to grant the application, and a decision not to do so is liable to be overturned, applying Wednesbury principles. That is the point of Peter Gibson LJ's dictum in Teinaz. Because of what is stake for the applicant in such cases, a failure properly and fairly to appraise the medical evidence with due care will also vitiate the exercise of the discretion, as was found to have occurred in both Teinaz and Solanki.76. However, as the foregoing authorities also plainly establish, the potential impact on the other party's fair trial rights, and the wider public interest, do also fall to be placed in the scales on the other side, and, if sufficiently weighty in the given case, may be properly found to tip the balance against the grant of the application. That is the point of Mummery LJ's observations in O'Cathail, especially at [47], and Longmore LJ's closing observation in Riley.

77. In most cases, such as those involving a sudden accident or short-term illness, the balance will clearly and obviously point in favour of granting the application, and it may, indeed, not be opposed. With many illnesses or injuries, the likely timescale for recovery can also be stated, and assessed, with some confidence; and the decision for the Tribunal is, again, unlikely to be a difficult or controversial one. But cases concerning mental ill health, by way of prolonged or recurring stress, anxiety, and/or depression (often associated with the litigation or its subject matter, itself), perhaps tend to dominate the authorities, because they often involve (or are said to involve) features that potentially have weightier implications for the other party's rights to a fair trial within a reasonable time scale, and/or wider public interest considerations.

78. There is one other aspect worth noting. In principle, the question of whether to C postpone a trial on grounds of medical unfitness, and that of what adjustments may be necessary to enable fair participation in litigation or a trial, arise from different scenarios. But in practice there may sometimes be features of both present, or the situation may otherwise require some careful scrutiny, to enable the Tribunal to see clearly what is truly at issue.” 36. Presidential Guidance – Seeking a Postponement of a Hearing of 4 December 2013 says that when a party is seeking a postponement because the party or a witness is unable for medical reasons “[a]ll medical certificates and supporting medical evidence should be provided, in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied, it should include a statement from the medical practitioner that, in his or her opinion, the applicant is unfit to attend the hearing, the prognosis of the condition, and an indication of when that state of affairs may cease”. Striking out powers 37. Rule 37 of the Employment Tribunals Rules of Procedure 2013 (the “ET Rules”) provides: “37.— Striking out (1) 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 of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (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; […] (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).” 38. In Bolch v Chipman

[2004] IRLR 140

, the EAT set out the test that the Tribunal should apply when considering whether a claim or response should be struck out under the Rule 37(1)(b). The test was affirmed by the Court of Appeal in Abergaze v Shrewsbury College of Arts & Technology

[2009] EWCA Civ 96

and summarised by Elias LJ at [15]: ”In the case of a strike out application brought under [r 37(1)(b)] it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed.” 39. The rule requires the Tribunal to find that the conduct of the proceedings was scandalous, vexatious or unreasonable. The purpose of the rule was set out in Bennett v Southwark LBC

[2002] EWCA Civ 223

by Sedley LJ at [26]: “What the rule is directed to… is the conduct of proceedings in a way which amounts to an abuse of the tribunal’s process: abuse is the genus of which the three epithets scandalous, frivolous and vexatious are species.”

[40]The meaning of “vexatious” was considered in Attorney General v Barker

[2000] EWHC 453

where Bingham LJ held (at paragraph 19): “The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”

[41]“Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ (Dyer v Secretary of State for Employment EAT 183/83.

[42]In Emuemukoro v Croma Vigilant (Scotland) Ltd

2022 ICR 327

, EAT, considering the question in the context of the employment tribunal’s decision to strike out the respondent’s response for non-compliance with Tribunal’s orders, the EAT held that the question of whether a fair trial was possible must be determined not in absolute term, that is to say, by considering whether a fair trial is possible at all, but, whether a fair trial is possible within the allocated trial window. At [18,19], Choudhury J said: “18. In my judgment, Ms Hunt's submissions are to be preferred. There is nothing in any of the authorities providing support for Mr Kohanzad's proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party's unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike-out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so. 19. I do not accept Mr Kohanzad's proposition that the power can only be triggered where a D fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad's proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.”

[43]When considering whether the claim or response should be struck out for noncompliance with a Tribunal order, the Tribunal must consider:a. the magnitude of the non-compliance,

b. whether the default was the responsibility of the party or his or her representative,

c. what disruption, unfairness or prejudice has been caused,

d. whether a fair hearing would still be possible, and

e. whether striking out or some lesser remedy would be an appropriate response to the disobedience — see Weir Valves and Controls (UK) Ltd v Armitage

2004 ICR 371

, EAT.

[44]In Leeks v University College London Hospitals NHS Foundation Trust

2024 EAT 134

, Tayler J, having considered the interaction between rule 37(1)(e) and the other grounds of strike-out said at [20 - 24], “20. It is long established, and well known, that the question of whether a fair trial remains possible is generally relevant to an application for strike out pursuant to Rule 38(1)(b)(c) and (d) ETR as well as being expressly provided for by Rule 37(1)(e) ETR. That begs the question of why the rule provides specific grounds for strike out if a claim will generally not be struck out if a fair trial is possible – why not only have rule 37(1)(e) ETR? The answer may be that where there is conduct that falls within Rule 38(1)(b)(c) and/or (d) ETR the likelihood of recurrence is relevant to the possibility of a fair trial. A claim could be struck out under Rule 37(1)(e) ETR even where the party against whom the application is made has done nothing wrong. The ill health of a party could mean that "it is no longer possible to have a fair hearing in respect of the claim or response" although a party cannot be criticised for being unwell. 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. 21. It is also important to note how the possibility of a fair trial has been analysed after a determination that there has been default of the type provided for by Rule 38(1)(b)(c) and/or (d) ETR. In considering the issue of fair trial in the Employment Tribunal the EAT and Court of Appeal have often referred to the decision of the Court of Appeal, on appeal from the Chancery Division of the High Court, in Arrow Nominees v Blackledge

[2000] 2 BCLC 167

CA, a case in which the question was whether the disclosure of forged documents should result in strike out of the claim. Chadwick LJ, stated that the test to be applied was that of whether there was a significant risk that a fair trial could not take place. 22. Chadwick LJ went on to hold: … where a litigant's conduct puts the fairness of the trial in jeopardy , where it is such that any judgment in favour of the litigant would have to be regarded as unsafe , or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue b proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. 23. This might be thought to be a lesser test than that provided for by Rule 37(1)(e) which requires that "it is no longer possible to have a fair hearing in respect of the claim or response". It might be said that strike out under Rule 38(1)(b)(c) and/or (d) ETR generally only requires that there is a "significant risk" that a fair trial could not take place whereas Rule 37(1)(e) ETR requires that has been established that it is not "possible" to have a fair hearing. There would be some logic to having a lower threshold for the impact of default on the possibility of a fair trial under Rule 38(1)(b)(c) and/or (d) ETR than under Rule 37(1)(e) ETR because the former provisions require that serious default has been established which diminishes any unfairness in the claim or response being struck out. However, the questions of whether a fair trial is impossible and whether there is a significant risk that a fair trial could not take place appear to be treated as interchangeable in many of the authorities. The point does not arise for final determination in this appeal because the Employment Tribunal struck out under Rule 38(1)(d) ETR so that on any view it was sufficient for the Employment Tribunal to determine that there was a significant risk that a fair trial could not take place before exercising the discretion to strike out. 24. A fair trial must take place within a reasonable period. As HHJ McMullen QC noted in Peixoto v British Telecommunications PLC

UKEAT/0222/07/CEA

: In our judgment the principal finding by the Tribunal is firmly rooted in Article 6. This Tribunal held that it could not find any point in the foreseeable or even the distant future, when a trial might be likely. The requirement of Article 6 is that a trial must take place within a reasonable time. On that basis the Tribunal was correct. If it could not in 2007 see any time in the future when this case arising in 2003 could be tried, then it was correct to form the view that a fair trial was not possible and to strike it out. 25. In Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] I.C.R. 327 , Choudhury J considered the relevant authorities including Arrow Nominees : 17. Ms Hunt submits that it was common ground in this case that a fair trial would not be possible at any point during the five-day allocation (see para 6 of the judgment). That is enough, she submits, to satisfy the second of Sedley LJ's cardinal conditions. She submits that it is quite clear from what he said in Blockbuster itself at para 21 that it is a highly relevant question that strike-out is considered on the first day of the trial and that it is obvious that whether or not a fair trial was possible includes the consideration of more than merely whether a trial can be held after an adjournment to allow any procedural defects to be remedied. She referred me to the following passage in Arrow Nominees Inc v Blackledge

[2000] 2 BCLC 167

: "55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was 'hijacked' by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts(i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and

(ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners' case occupied far more of the court's time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court. "56. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents—and in the interests of the administration of justice generally—to allow the trial to continue. If he had considered that *335 question, then—as it seems to me—he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise." Burden of Proof

[45]S.136 of the Equality Act 2010 states: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[46]This means that the initial burden of proof is on the claimant to establish (on the balance of probabilities) facts from which the Tribunal could (as opposed to definitely would) conclude that the treatment complained of was discriminatory on the ground of one of the protected characteristics (race in the present case) or because of alleged protected acts (victimisation). Only if the claimant meets this initial burden, often referred to as establishing a prima facie case, the burden then shifts to the respondent to show that the treatment complained of was “in no sense whatsoever” because of protected characteristic/protected act - Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

, Madarassy v Nomura International plc

[2007] IRLR 246

, CA.

[47]With respect to the unfair dismissal complaint, the burden of establishing a potentially fair reason for the dismissal (under s.98 of Employment Rights Act 1996 (“the ERA”)) is on the employer. If the employer proves that the employee was dismissed for one of the five potentially fair reasons, the burden of showing that the dismissal was fair or unfair (under s.98(4) ERA) is neutral.

[48]The burden of establishing a fact relied upon is on the party that relies on that fact. The standard of proof is on the balance of probabilities. Hearing evidence from abroad

[49]In the decision of the Upper Tribunal (Immigration and Asylum Chamber) in Agbabiaka (Evidence from Abroad, Nare Guidance) UK UT 2861, the Upper Tribunal held at [12, 19 and 23] “There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State. Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country … In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom's diplomatic relationship with the other country. … it is not for this (or any other) tribunal to form its own view of what may, or may not, damage the United Kingdom's relations with a foreign State.”

[50]The Presidential Guidance on Taking Oral Evidence by Video or Telephone from Persons Located Abroad of 25 July 2022 states: “7. The decision records – and treats as determinative – the stance of the FCDO that only the giving of oral evidence from a nation state requires the permission of that state. Permission is not required for written evidence, or for submissions (whether oral or written). 8. While Agbabiaka is an administrative law decision, the position with regard to the requirement for permission is no different in civil or commercial disputes, such as those dealt with in the vast majority of Employment Tribunal cases, whether or not the foreign state is a signatory to the Hague Convention. 13. In any case where a party wishes to rely on oral evidence by video or telephone from a person located abroad (including evidence from the party personally), that party or their representative must notify the Employment Tribunal office which is dealing with the case of the following:(a) the case number;

(b) confirmation that the party wishes to rely on evidence from a person located abroad;

(c) the dates of any listed hearing(s) in respect of which the request for the person to give evidence from abroad is being made; and

(d) the state from whose territory that person would, if permitted, be giving oral evidence. There is no need for the party to provide either the name of the person located abroad or any summary of what their oral evidence, if given, will be about.”

[51]At the date of the hearing the FCDO website contained the following entry for France: “France The UK Government has not been able to obtain the agreement of the Government of France to allow citizens or residents of France to voluntarily give evidence from France by video link in UK civil, commercial or administrative tribunals (either as a witness or when appealing a case). This is not to be interpreted as permission to proceed with the taking of video evidence.” Analysis and Conclusions Should the claimant’s application to postpone the final hearing be granted?

[52]The claimant asked to postpone the hearing only at the start of the hearing. At no time during the entire history of these proceedings leading up to the final hearing, did he say that he would not be ready to proceed with the hearing for medical or other reasons. We do not accept the claimant’s explanation that he did not know that he could ask to postpone the hearing earlier. He asked for a postponement at the start of the hearing. Before the hearing he had been corresponding with the Tribunal extensively, including asking for an extension of time to comply with the Tribunal’s orders, making an application for a specific disclosure order, seeking guidance, etc. All his emails were detailed and wellargued. It is inconceivable that if the claimant thought that he would not be ready for the final hearing due to his medical condition or for other reasons he would not have asked to adjourn the hearing earlier.

[53]The medical condition, due to which the claimant says he is unable to proceed with the hearing, is not a sudden and unexpected illness, but a history of workrelated stress and low mood going back (based on the medical evidence presented by the claimant) at least to 14 July 2023, that is four months before the claimant commenced these proceedings.

[54]The claimant was prescribed 28-day course of Sertraline 50mg tablets on 17 October 2023, 30 January 2024 and 10 April 2024. The dosage was not increased or re-prescribed after 10 April 2024. The most recent GP entry in the medical evidence of 7 August 2024 states: “Was previously on sertraline intemittently - last issued in April 24 for 1/12 only” Was on SSRIs - recapped their use, delayed benefit and dose titration - unlikely he was on medication for long enough to assess this. He will reconsider this in itnerim and wants ot discuss with his family.”

[55]The GP recoded in the history section of the medical record: “• No thoughts of deliberate self harm• Spoke to patient

• Hx anxiety and depression

• Worsening mood recently due to multiple stressors

• Has few stressors recently: being evicted, undergoing tribunal case

• Was previously on sertraline intemittently - last issued in April 24 for 1/12 only

• Previously completed IAPT course and did find it helpful

• No drug use of etOh use

• Poor appetite

• Poor sleep in the last week especially

• Was having support from his sister and parents however feels affecting his relationship with them as can get easily upset and irritable with them

• Recent bereavement of grandmother in Dec 23

• Lives alone currently - has a friend who is helping out.”

[56]The GP diagnosed the problem as “mixed anxiety and depressive disorder”, commenting that they “Discussed mood and recent stressful triggers which will inevitably contribute to his mood” and recommending using sleeping pills in short term and “Safetynetted for rv if worsening mood/DSH for urgent rv - has crisis number.”

[57]Notably, knowing that the claimant was going through the Tribunal proceedings and describing it as a “stressor” contributing to the claimant’s worsening mood and sleep problems, the GP does not say or otherwise indicate that the claimant’s mental health is such that in his (GP’s) opining the claimant would not be fit to prepare or attend the trial.

[58]Furthermore, this issue was specifically raised at the preliminary hearing on 26 January 2024, when EJ Joffe noted that the claimant was having difficulties due to mental health problems at the case management hearing and encouraged him to speak to his GP about adjustments for the final hearing.

[59]On 7 February 2024, the Tribunal sent to the parties Notice of the final hearing, which contained the following paragraph: “If you or anyone coming with you to the Hearing has a disability that makes coming to the Hearing or communicating difficult, please tell the Tribunal office dealing with your case as soon as possible. We will make reasonable adjustments to the way we deliver our service where we can.”

[60]In the same Notice, the claimant was referred to further information available on the government website – booklet t424, which states: “Can I ask for the hearing to be postponed? If you have a good reason to ask for the hearing to be postponed, you must make your request in writing as soon as possible giving full reasons for your request. You should also send a copy of your request to the respondent so that they are aware of it. An Employment Judge will decide whether it is in the interests of justice to grant a postponement and they may want the views of the respondent before reaching a decision. You should not assume that your request has been granted. We will inform you if it has. If you or the respondent (or somebody else acting for you or the respondent) fail to appear at a hearing, the tribunal may decide the case in your or their absence. Disability or special needs If you or anyone coming to a tribunal with you has a disability or a particular need, you should contact the tribunal office dealing with your case to discuss the matter. Examples of the help we can provide include converting documents to Braille or larger print, and paying for foreign – or sign language interpreters. We can also provide hearing-induction loops in the room where the hearing is held if you need them. Please contact us as soon as possible so that suitable arrangements can be made.”

[61]On 19 August 2024, EJ Nash invited the claimant to send to the Tribunal what reasonable adjustments he needed for the final hearing, referring him back to what EJ Joffe said in her orders of 26 January 2024. The claimant did not write to the Tribunal asking for to postpone the hearing or otherwise indicating that he would not be able to proceed.

[62]With respect to the claimant’s eviction, which appears has happened some weeks ago, and of which the claimant would have aware for some time, at no time until this morning did the claimant apply to postpone the hearing because of his eviction or to convert it to in-person hearing, if he had no place from which to join the hearing by video. The most recent GP record says that the claimant has support of parents and sister and his friend helping him too. In his email to the Tribunal of 7 September 2024 the claimant confirmed that his friends and family were helping him. In any event, the claimant was able to join the hearing today, albeit he did that from France. There was no evidence before the Tribunal that the claimant would not have been able to join the hearing from a place in the UK or attend the Tribunal in person.

[63]Finally, as recently as 7 September 2024 the claimant himself wrote to the Tribunal resisting the respondent’s strike out application and stating that: “The matter can still proceed to a fair hearing without prejudice to either party. Striking out my claim would be a disproportionate response to these minor delays, especially as I am willing to continue complying with the Tribunal’s orders.” […] The Respondent has suffered no real prejudice, and striking out my claim would be an excessive response that would deny me the right to a fair hearing. Instead, I ask the Tribunal to provide direction to ensure compliance, allowing the matter to proceed to a full hearing.”

[64]As noted above, pursuant to Rule 30A when an application to adjourn the hearing is made “less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where— […] (c) there are exceptional circumstances.”

[65]We find that the claimant has failed to present sufficient evidence to show that such “exceptional circumstances” are present. As explained above, neither his medical condition, nor his eviction come anywhere close to show that the claimant was unable to properly prepare for the hearing or to attend and participate in the hearing, which, in fact, he did, albeit from France.

[66]That is enough to dispose with the postponement application, however, the Tribunal also noted that the claimant did not say when he would be ready for the hearing. Essentially, he was asking to be given another opportunity to rerun his preparation for the trial with assistance of a lawyer, whom he yet to find and instruct. In his email of 7 September 2024, the claimant said that he had no financial means to secure legal representation.

[67]On 20 August 2024, the respondent sent to the claimant information on possible sources of free legal advice. The claimant did not present any evidence as to his attempts to secure free legal advice or representation (if any were made). In any event, many litigants represent themselves before employment tribunals, and the overriding objective requires that in so far as practicable the Tribunal must ensure that the parties are on an equal footing, meaning that litigants in persons should not be unduly disadvantaged due to lack of legal knowledge and trial experience. In short, the lack of legal representation cannot be a valid ground to postpone the hearing under the “exceptional circumstances” ground.

[68]The respondent is ready for the final hearing. It has spent considerable time and, likely, money preparing the case for this trial. It has all its witnesses ready to proceed with their evidence. The respondent and its witnesses are understandably anxious to defend themselves against serious allegations of discrimination, victimisation and unfairness the claimant brings against them. We find that postponing the hearing to allow the claimant to have “a second bite of the cherry” will be prejudicial and very unfair on the respondent.

[69]For all these reasons, the claimant’s application to postpone the hearing is refused. Should the claimant claim be struck out?

[70]The respondent advanced their application to strike out the claim on three alternative grounds:(i) Non-compliance with the Tribunal’s orders (Rule 37(1)(c);

(ii) Unreasonable conduct (Rule 37(1)(b)); and

(iii) No reasonable prospect of success (Rule 37(1)(a)). Non-compliance with the Tribunal’s orders

[71]Ms Omotosho accepts that the claimant has submitted his schedule of loss and therefore there is no issue with the claimant’s compliance with that order.

[72]With respect to the disclosure of documents order, Ms Omotosho accepts that the claimant has submitted his documents on 2 and 9 August 2024, pursuant to EJ Nash’s orders of 31 July 2024. She, however, argued that in deciding whether to strike out the claimant’s claim for non-compliance with the Tribunal’s orders, we must take into account his previous non-compliance with the disclosure order made by EJ Joffe on 26 January 2024.

[73]We disagree. The claimant’s previous non-compliance had been considered by EJ Nash, when she granted him an extension of time to comply with the disclosure order, which he did. In doing so, EJ Nash exercised her powers under Rule 6 of the ET Rules by varying the previous disclosure order. Therefore, in our view, taking his previous non-compliance with the original disclosure order as a material factor in deciding whether to strike out his claim would be tantamount to penalising the claimant for the default that EJ Nash had decided to waive, instead giving the claimant more time to comply.

[74]The claimant is clearly in default of the order to produce a witness statement. There relevant orders made by EJ Joffe read: “21. The claimant and the respondent must prepare witness statements for use at the hearing. Everybody who is going to be a witness at the hearing, including the claimant, needs a witness statement.22. A witness statement is a document containing everything relevant the witness can tell the Tribunal. Witnesses will not be allowed to add to their statements unless the Tribunal agrees.

23. Witness statements should be typed if possible. They must have paragraph numbers and page numbers. They must set out events, usually in the order they happened. They must also include any evidence about financial losses and any other remedy the claimant is asking for. If the witness statement refers to a document in the file it should give the page number.

24. At the hearing, the Tribunal will read the witness statements. Witnesses may be asked questions about their statements by the other side and the Tribunal.

25. The claimant and the respondent must send each other copies of all their witness statements by 4 pm on 12 July 2024.

26. The claimant and the respondent must both bring copies of all the witness statements to the hearing for their own use.”

[75]However, the difficulty for the respondent with this ground is that there is no rule of law or a mandatory procedural requirement in employment tribunals that claimants (or, for that matter, respondents) must give oral evidence at trial. Both parties are free to call such witnesses as they consider necessary to present their respective cases in the most effective way.

[76]Certainly, the claimant choosing not to submit a witness statement and not applying to be allowed to give oral evidence without a witness statement, and not calling any other witnesses to prove his case, makes it very hard for the claimant to establish the necessary facts to make good his claim. This, however, is a different matter.

[77]We do not accept Ms Omotosho’s argument that the claimant choosing not to give evidence but being allowed to cross-examined the respondent’s witnesses means that it would not be a fair trial. Firstly, the respondent is free to call or not to call its witnesses. Secondly, the respondent may submit that in the light of the claimant not putting forward any positive evidential case, there is no case to answer for the respondent. Thirdly, it is hard to see how the respondent could be prejudiced by not having an opportunity to disprove or otherwise damage the claimant’s positive evidential case, when the claimant does not put any such case before the Tribunal. Finally, if the respondent considered that the claimant giving oral evidence was necessary for the fair determination of the claim, the respondent was free to apply for a witness order to compel the claimant to give oral evidence. No such order was sought by the respondent before or at this hearing.

[78]For these reasons, we find that the respondent’s application to strike out the claim for non-compliance with the Tribunal orders (Rule 37(1)(c) of the ET Rules) must fail. Unreasonable conduct

[79]We accept Ms Omotosho’s submission that the manner, in which these proceedings have been conducted by the claimant has been unreasonable. The claimant has failed to properly engage with his claim. He said at this hearing that his case contains a lot of matters that he wanted the Tribunal to examine, and yet he comes to the hearing completely unprepared. Not only the scope of his intended claim (and any application to amend that it might require) remains unclear, but the claimant has failed to put forward any positive evidential case in support of his original case (as recorded in the list of issues in the case management orders of 26 January 2024). How he then proposes that the Tribunal examines those matters is not clear.

[80]He told the Tribunal that he did not know he needed to prepare a witness statement, because he had not read (or had not read in full) EJ Joffe’s case management orders from 26 January 2024. We find there are no good reasons for the claimant to ignore the Tribunal’s orders or not to read them properly.

[81]The claimant is an intelligent person, who, judging by his extensive and detailed correspondence with the respondent and the Tribunal and his oral submissions at this hearing, is perfectly capable understanding what is being asked of him and articulating his arguments.

[82]The claimant did not present any cogent evidence to show that his mental health issues impeded his ability to read and understand the orders or otherwise prepare his case for the hearing. As noted above, his medical records do not show that the claimant has been suffering from a mental impairment seriously affecting his reading, writing or understanding abilities.

[83]The claimant had not read the respondent’s witnesses’ witness statements in advance of the hearing, despite their combined length being 17 pages of double-spaced typed up text. Knowing about the forthcoming hearing he took himself outside the territorial jurisdiction of the Tribunal, thus further complicating the matter and essentially foreclosing any possibility to hear his oral evidence (with or without a written witness statement).

[84]In short, the claimant’s conduct of the proceedings had the overall effect of frustrating the final hearing. We find that this was unreasonable manner to conduct the proceedings.

[85]The next question we need to consider is one of proportionality. Strike out is certainly the most severe of the sanctions we can apply, and in ordinary circumstances a lesser sanction (such as a costs order) might be a more proportionate response. However, the circumstances of this case are quite unique.

[86]The claimant submits that he is not ready to proceed with the hearing. He is completely unprepared, and his unpreparedness is a direct and immediate result of his unreasonable conduct. As we have found earlier, there are no proper grounds for adjourning the hearing. Therefore, there appear to be two options before the Tribunal:(i) to push ahead with the hearing regardless; or

(ii) strike out the claim. We find that the first option is not appropriate for the following reasons.

[87]The claimant’s complaints of discrimination and victimisation are bound to fail, because the claimant, not putting forward any positive evidential case, would not be able to establish facts from which the Tribunal could conclude that the impugned conduct was because of his race or the alleged protected acts. Therefore, the burden of proof will not shift to the respondent. In essence, there is no case to answer for the respondent with respect to the discrimination and victimisation complaints.

[88]With respect to his unfair dismissal complaint, although it is for the respondent to show that the reason (or if more than one, the principal reason) for the claimant’s dismissal was his misconduct, and the claimant could put the respondent to proof on this issue, the claimant did not say that he wished to proceed with the hearing in that way. He said that he was not ready and did not want to go ahead with the hearing at all.

[89]Furthermore, considering that the claimant is a litigant in person and judging by how he was making his submissions at this hearing on his and the respondent’s applications, it would be unwise for the Tribunal to proceed on the assumed basis that the claimant would be able to cross-examine the respondent’s witnesses (whose witnesses statements he had not read) and make legal submissions, without straying into giving evidence himself, for which no permission to hear his evidence from France was obtained or sought by him.

[90]Finally, having observed how the claimant was conducting himself during Ms Omotosho’s submissions this morning, if we were to allow the hearing to go ahead and allow the claimant to cross-examine the respondent’s witnesses, we find that it is very likely that the hearing would descent into the claimant mounting a personal attack on the respondent’s witnesses. It will not the Tribunal trying his claim but giving the claimant an opportunity to ventilate his anger at the respondent’s witnesses. It will not be a fair trial.

[91]We, therefore, conclude that in the circumstances it is no longer possible to have a fair trial of the claimant’s claim, and striking it out for his unreasonable conduct is proportionate.

[92]For the same reasons, we find that the claim is liable to be struck out under Rule 37(1)(e), as it is no longer possible to have a fair trial in the allocated trial window.

[93]Given our conclusions on these grounds, there is no need for us to deal with the third alternative ground advanced by the respondent (no reasonable prospect of success). This ground was not fully developed in Ms Omotosho’s submissions. It does not appear that the respondent suggests that the claimant’s claim, taken at its highest, had no reasonable prospect of success from the start, but rather that, considering that the claimant came to the hearing unprepared to support his pleaded case by his evidence, it had no reasonable prospect of success on that basis, which matter we have already addressed when considering whether it would be proportionate to strike out the claimant’s claim for unreasonable conduct.