Mr A Beyaz v AP Security Ltd and Group (Employment) Services Ltd: 2216432/2023 and 2219710/2024
EMPLOYMENT TRIBUNALS
Case No 2216432/2023, 2219710/2024
Between
Mr A BeyazClaimantAP Security Limited (1) Group (Employment) Services Limited (2)RespondentDate 16 July 2025
JUDGMENT
[1]The first respondent’s responses to the claimant’s claims under case numbers 2216432/2023 and 2219710/2024 are struck out under Employment Tribunal Rule 38(1)(b) because the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious.[2]The first respondent’s responses to the claimant’s claims under case numbers 2216432/2023 and 2219710/2024 are struck out struck out under Employment Tribunal Rule 38(1)(c) because the respondent has not complied with a Tribunal order.[3]As a consequence Employment Tribunal Rule 21 applies. The claimant’s claims against the first respondent succeed. A Remedy Hearing will be listed.[4]The first respondent is entitled to participate in the hearing related to Remedy. CORRECTED REASONS[1]The hearing was to consider the applications of the second respondent (dated 23 April 2025) and the claimant (dated 22 April 2025) to strike out the response of the first respondent on the grounds that the proceedings had been conducted unreasonably and that the second respondent had failed to comply with tribunal orders. The hearing was listed for 1 day. The hearing finished at 4.25pm. I reserved my decision.[2]I have set out below the history of the case based on the documents which were before me at the hearing and on the tribunal’s own files. There are references to documents which were not before me and I conclude that these are not relevant to my deliberations. History of proceedings[3]On 16 November 2023, the claimant brought proceedings against the first respondent under case number 2216432/2023 for unfair dismissal and disability discrimination. The claim arose from an incident on 23 October 2023 when the claimant was on duty as a security guard at the Royal Albert Hall, where the first respondent had a contract to provide security services.[4]On 15 April 2024 the first respondent’s contract with the Royal Albert Hall was transferred to the second respondent, which constituted a TUPE transfer.[5]On 14 May 2024, the claimant brought a second claim under case number 2219710/2024 against the first and second respondents. The claimant claimed disability discrimination and failure to inform and consult under TUPE against the first respondent and for failure to inform and consult under TUPE against the second respondent.[6]An amendment to the claim against the second respondent to include a claim for unfair dismissal and automatic unfair dismissal under TUPE was permitted by EJ Shukla after a case management hearing on 10 October 2024. This decision is currently the subject of an appeal to the EAT.[7]There are proceedings issued in the Glasgow Employment Tribunal under case number 4107342/2024 between the second respondent (claimant in that claim) and the first respondent (respondent in that claim) arising out of the TUPE transfer. This case is in the process of being transferred to London Central but does not form part of the issues for today’s hearing. Summary of hearings and case management orders made[8]The first case management preliminary hearing took place on 16 February 2024 before EJ Joffe. The claimant represented himself and the first respondent was represented by Mr Munro. At that hearing, the case was listed for a final hearing on 3, 4, and 5 July 2024. The case management orders included an order that the first respondent must prepare a bundle of documents for the hearing and send a hard and electronic copy to the claimant by 10 May 2024. The order also included the standard provision that failure to comply with an order can lead to a strike out of the response.[9]On 12 June 2024, the claimant wrote to the tribunal confirming he had posted his bundle on 7 June 2024 in advance of the hearing listed to start on 3 July 2024 and informing the tribunal that he had not received any disclosure from the first respondent.[10]At the hearing on 3 July 2024, which was due to be a final hearing before EJ Galbraith-Marten with members, the first respondent applied for the hearing to be postponed. By this time, the claimant had lodged the second claim and this was one of the reasons for the first respondent’s postponement request. There were also problems with the format of the hearing (CVP or in person) and the documents (bundle and witness statements).[11]It was noted that the claimant asserted that the respondent had failed to comply with the tribunal’s previous order regarding bundles and that he had only been supplied with two witness statements and three emails on 1 July 2024, two days before the hearing. The first respondent’s representative disagreed and told the tribunal that he had sent the claimant the documents the first respondent wished to include in the bundle and had subsequently repaginated the bundle and sent it to the claimant and prepared an index for the tribunal. The claimant denied receiving a bundle. The claimant’s documents were before the tribunal. The case management order does not record what documents from the first respondent were before the tribunal.[12]The postponement application was granted and a further case management preliminary hearing was listed for 10 September 2024.[13]EJ Galbraith-Marten made case management orders including combining the claim with the second claim, which brought in the second respondent. The claimant complained about the first respondent’s conduct of the hearing, which was noted by the Employment Judge. The decision to postpone the hearing was based on the fact that the new claim had been lodged which EJ GalbraithMarten decided could not be dealt with separately from the existing claim.[14]The first respondent sent the claimant a bundle for the 10 September 2024 hearing at 22:33 hours on 9 September 2024. The claimant complained about this lateness in providing him with a bundle, particularly due to his disability of dyslexia.[15]The hearing on 10 September 2024 was listed to deal with the first claim and therefore the second respondent was not given notice of the hearing. The second respondent’s representative learned of the hearing the day before and asked if he could attend as an observer.[16]The case management preliminary hearing took place before EJ Shukla on 10 September 2024. She informed those present that the hearing would deal with both the first and second claims notwithstanding that the second respondent had not been given notice of the hearing. The final hearing was listed for 2, 3 and 4 April 2025. EJ Shukla made case management orders as follows: 16.1. By 1 October 2024, the parties must disclose documents relevant to the issues in the case; 16.2. By 22 October 2024, the parties must agree which documents are to be used at the hearing; 16.3. The first respondent must prepare a bundle of documents and send a hard copy and electronic copy to the other parties by 29 October 2024. EJ Shukla noted ‘In light of the claimant’s accepted disability of dyslexia it is particularly important that he receives the file in good time for the hearing’. 16.4. Witness statements to be exchanged by 19 November 2024.[17]The case management order also notes that, ‘in order to enable the claimant to participate on a more equal footing and to help the proceedings run more efficiently, the first respondent has agreed to provide written cross-examination points to the claimant 14 days before the hearing … to enable the claimant to prepare for the hearing’.[18]On 19 September 2024, the Notice of Final hearing was sent listing the hearing for 2, 3 and 4 April 2025 to take place by video. Unfortunately, the second respondent was not sent this Notice of Hearing.[19]On 10 October 2024, EJ Shukla wrote to the parties confirming that the tribunal had allowed the claimant’s application to amend his claim against the second respondent to include unfair dismissal and automatic unfair dismissal. Unfortunately, the letter was only addressed to and sent to the claimant and the first respondent. The second respondent was omitted and only became aware of this decision on 20 November 2024 when the tribunal’s letter was forwarded by lawyers acting on a limited basis for the claimant. This decision is now the subject of an appeal to the EAT and is not directly relevant for my considerations today.[20]On 27 January 2025, EJ Shukla sent her decision refusing the reconsideration request of the second respondent in relation to the decision to allow the claimant to amend his claim against the second respondent. The Order confirmed that witness statements should be exchanged on 21 February 2025 and noted that the first respondent had said it was ready on 14 January 2025 to send the final bundle of documents. All other dates in the case management order dated 14 September 2024 remained in place. The hearing remained listed for 2-4 April 2025.[21]On 11 February 2025, the tribunal sent revised case management dates on the instructions of EJ Shukla that the first respondent must agree hearing documents and provide a hearing file to the claimant and second respondent as soon as possible and in any event by 19 February 2025. The parties must exchange witness statements by 19 March 2025. This correspondence was not sent to the second respondent.[22]The final hearing was due to take place via CVP starting on 2 April 2025. The second respondent applied for it to be adjourned on the grounds that the first respondent only sent the bundle on 17 March 2025 and the bundle contained over 600 pages, not all of which were legible. The second respondent’s representative had booked annual leave from 21 to 31 March 2025, leaving him less than 5 days in which to prepare. The claimant also complained that his disability made it impossible for him to prepare for a final hearing to take place two weeks later. On 19 March 2025 the postponement application was granted and the hearing was vacated and converted to a case management preliminary hearing. This was conducted by EJ Freshwater. Mr Hoyle for the second respondent pointed out that he had not been sent a Notice of Hearing for that hearing but attended when subsequently given joining instructions after requesting these.[23]EJ Freshwater directed that a preliminary hearing in public be listed for 1 July 2025 to hear any applications for strike out of the first respondent’s response. There were time limits given for making any application by 23 April 2025 and for the first respondent to respond by 14 May 2025. The second respondent was ordered to prepare a file of documents for the public preliminary hearing.[24]Again the second respondent was not sent the Notice of Hearing, nor was it sent the joining instructions for today’s hearing until Mr Hoyle chased for these. Correspondence regarding the bundle for the April 2025 hearing[25]On 30 September 2024, the second respondent sent its disclosure to the first respondent and the claimant. On 1 October 2024, Mr Hoyle chased Mr Munro for the first respondent’s disclosure. Mr Munro sent this on 4 October 2024.[26]On 30 October 2024, Mr Hoyle reminded Mr Munro that the bundle had been due the previous day.[27]On 5 November 2024, Mr Hoyle wrote to the tribunal complaining of the lack of response from the first respondent, requesting an Unless Order. Mr Munro informed Mr Hoyle that he was unable to take instructions at that time.[28]On 10 January 2025, Mr Hoyle wrote to Mr Munro, asking for an update and whether he was still instructed.[29]On 13 January 2025, Mr Hoyle wrote to the tribunal complaining about the way the first respondent’s representatives were conducting the litigation.[30]On 14 January 2025, Mr Munro told the other parties and the tribunal that the bundle of documents had been collated and he would send what he understood would be the final agreed bundle.[31]There was then correspondence between the parties regarding the bundle but no bundle was produced. Mr Hoyle wrote to the tribunal on 29 January 2025, referencing the earlier request for an Unless Order and seeking a strike out of the first respondent under Rule 38.[32]On 11 February 2025, the first respondent’s representative informed the tribunal that full disclosure had taken place and that the final bundle was ‘imminent’. The first respondent stated that it had acted reasonably at all times and objected to the strike out application. On the same date, the claimant took issue with the first respondent’s representative and alleged that he was misleading the tribunal and the other parties. The second respondent’s representative made representations in a similar vein to those of the claimant.[33]On 11 February 2025, EJ Shukla wrote to the parties confirming that there was no order to provide written cross-examination points but reminding the first respondent that it had agreed to do so. The revised case management dates were set out as follows: the first respondent to agree hearing documents and provide a bundle to the other parties as soon as possible and in any event by 19 February 2025; the date for exchange of witness statements was varied to 19 March 2025.[34]On 19 February 2025, the claimant complained that the first respondent’s representative had failed to provide the updated bundle by post or email and had not replied to any correspondence.[35]In response to the claimant’s allegation of a failure to comply with tribunal orders, by letter dated 7 March 2025 EJ Glennie directed that the first respondent send any response to those allegations to the claimant and the second respondent by 12 March 2025.[36]On 17 March 2025, the first respondent sent a bundle to the claimant and the second respondent together with witness statements. The claimant complained that the bundle was numbered but had no contents page, it was not indexed or paginated and a considerable number of pages were illegible. He said that due to his disability he would not be able to be prepared for the hearing in the time available. The second respondent’s representative said that he had pre-booked leave for 11 of the remaining 15 days before the hearing and, with his other workload, would not be able to consider the bundle, take instructions and draft witness statements in the period before the hearing.[37]The first respondent suggested it was an exaggeration to say that the bundle was 5 months overdue, relying on the revised case management timetable of EJ Shukla. The first respondent also maintained that it was against the interests of justice to postpone the hearing due to the annual leave of the second respondent’s representative. In response the second respondent’s representative pointed out the original dates for compliance in October 2024 and alleged that the bundle now produced was not agreed, had been sent in electronic format only and that it contained redactions and illegible documents and there were documents missing.[38]On 21 March 2025, the first respondent sent a cast list, chronology and cross examination points for the claimant.[39]The claimant received the hard copy of the bundle on 24 March 2025.[40]In accordance with the case management orders of EJ Freshwater sent to the parties on 14 April 2025, On 23 April 2025, the second respondent made an application to strike out the first respondent’s response under Rule 38 of the Employment Tribunal Rules of Procedure 2024.[41]The claimant also made an application dated 22 April 2025 to strike out the first respondent’s response on the grounds that the late provision of the bundle prevented him from being able to read and seek the help of free advice services in preparing for the final hearing. He also complained about the state of the bundle and blamed the late bundle for a second final hearing being vacated.[42]In line with the case management orders of EJ Freshwater, the respondent replied to the applications on 1 May 2025. He blamed the second respondent’s representative for the delay. He also contended that ‘all parties were in a position to agree on the exchange of witness evidence and final preparation of the last postponed hearing was complete’. Points arising from the evidence of Mr Munro, the first respondent’s representative[43]Mr Munro had not prepared a witness statement for today’s hearing but answered questions from the second respondent’s representative, Mr Hoyle, and the claimant.[44]Mr Munro confirmed that he had prepared the bundle himself and it had taken a long time to sort out the disclosure documents to reduce duplicates and to make better copies of some documents which were illegible. He said that he had spent three hours trying to make the second respondent’s documents readable. He confirmed that he had not requested more legible copies of documents from the other parties at any stage.[45]He conceded that he had ‘taken his foot off the pedal’ in the Autumn of 2024 as his client was having financial difficulties and he was having trouble getting instructions.[46]He accepted that he was in breach of the Order to provide bundles by October 2024. On 5 November 2024 he requested a further 7 days for the list and bundle and a further 14 days for exchange. This was in response to an application by the second respondent for an Unless Order.[47]The second respondent applied for the first respondent’s response to be struck out by email dated 29 January 2025 to which Mr Munro told the tribunal that the final bundle was imminent. He referred to the date for exchange of witness statements as 21 February 2025. He accepts that he was in breach of the order to paginate and index the bundle but considers that the parties were not prejudiced because they had had sight of the underlying documents.[48]Mr Munro maintained that there was no need to vacate the hearing on 2 April 2025 when he had produced a bundle on 17 March 2025. He accepted that this was not an agreed bundle and that it was not indexed or paginated but he disputed that documents were illegible. In correspondence with the tribunal objecting to the postponement request for the April hearing, he had suggested that it would be highly prejudicial to the claimant and first respondent to postpone the hearing due to the second respondent’s representative’s annual leave. In cross examination, he said that he did not blame the second representative’s holiday for the delay but he explained that as the reason for the second respondent requesting (and being granted) the postponement.[49]Mr Munro did accept that the bundle could be in better order and that he had not put the documents in chronological order to make it easier for the claimant to navigate. The Law[50]Rule 38 of the Employment Tribunal Rules of Procedure 2024 provide that the tribunal may strike out all or part of a response on any of the following grounds: 50.1. that it is scandalous or vexatious or has no reasonable prospect of success; 50.2. 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; 50.3. for non-compliance with any of these Rules or with an order of the Tribunal; 50.4. that it has not been actively pursued; 50.5. that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).[51]This is a draconian power, not to be readily exercised. The tribunal must consider that the party has conducted the proceedings unreasonably in the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If those conditions are fulfilled, the tribunal must consider whether striking out is a proportionate response (Blockbuster Entertainment v James [2006] IRLR 630).[52]The issue of whether a fair trial can take place can be looked at as whether a fair trial is possible within the trial window, rather than at all. Whether it is appropriate to strike out in such circumstances is an issue of proportionality. Emuemukoro v Croma Vigilant (Scotland) Limited and others UKEAT/0014/20/JOJ.[53]Before striking out a response, the tribunal must consider all the relevant facts including the magnitude of the non-compliance, whether the default was the responsibility of the party or his or her representative, what disruption, unfairness or prejudice has been caused, whether a fair hearing would still be possible and whether some less remedy would be an appropriate response (Weir Valves and Controls (UK) Limited v JB Armitage EAT/0296/03MA). Determination of the issue[54]I find that the first respondent has repeatedly failed to comply with tribunal orders. The first respondent’s representative has also conducted the proceedings in an unreasonable manner, repeatedly promising delivery of the bundle without doing so and failing to engage with the other parties in producing a bundle for the hearing. This had a knock-on effect on the ability of the parties to draft witness statements and prepare for the hearing.[55]There was an order for the parties to agree which documents are going to be used at the hearing. As it was the first respondent’s responsibility to produce the bundle, the first respondent should have prepared a first draft index for the other parties to review. This should have been done in time for that review to be done by 22 October 2024.[56]The original order in respect of the second claim required the bundle to be produced by 29 October 2024. Although the date was then revised to 19 February 2025, the first respondent still did not comply by that date.[57]The first respondent claims to have complied by 17 March 2025. I have not had sight of the bundle so I cannot form a view whether it is in an acceptable form or not but I note the criticisms of the final form bundle from both the second respondent and the claimant, which the first respondent does not deny with any conviction.[58]I disagree with the first respondent that it is possible to have a fair trial when the final bundle is sent within three weeks of the first day of the final hearing. Even if the documents were not new to the parties, the reason that tribunals order bundles to be disclosed well in advance of hearing dates is to enable the other parties to see how the documentation looks when part of a single bundle and to assist them in drafting the witness statements, using the chronological sequence of events and cross-referring to page numbers. In addition, the bundle which was sent was not in accordance with the original order which required the bundle to have an index and page numbers and for the substantive documents to be put in date order.[59]These matters are even more important where the claimant has a learning disability, which the first respondent had acknowledged. Even if there were no surprises in the actual documents (which should never be the case on receiving a bundle), the claimant was entitled to expect an indexed and paginated bundle in good time so that he had something to show a potential legal adviser if he had sought professional (or lay) legal advice.[60]The second respondent was also entitled to expect an indexed and paginated bundle in good time to consider what evidence would be before the tribunal, what witnesses needed to called and what evidence they needed to give.[61]Both the second respondent and the claimant expressed surprise that the bundle which was produced ran to 600 pages whereas an earlier bundle had only been about 300 pages.[62]In my view, the postponement of the April 2025 hearing was entirely due to the first respondent’s failure to comply with tribunal orders. Mr Hoyle is entitled to book holiday. He ensured that his holiday did not coincide with a date on which he had to comply with any orders or on the date of a hearing. He was entitled to expect that he would have had time to prepare his case based on the bundle being provided in good time and it is wholly unreasonable to suggest his holiday is the reason for the postponement. Even if he did not have annual leave in the period between the bundle being provided and the hearing, he would not have had sufficient time to prepare his client’s case properly for a final merits hearing.[63]Although not a direct issue before me, it does not help the first respondent’s case that it had not provided the claimant with a bundle at the April 2024 hearing, which was then postponed. Although it was postponed due to the second claim being brought, it is unlikely that it could have gone ahead in any event due to the first respondent’s failure to provide the bundle in time, and in breach of a case management order of the tribunal.[64]In addition, despite acknowledging the claimant’s learning disability and agreeing to take that into account in the conduct of these proceedings, the first respondent disclosed documents to the claimant a few hours before the start of the hearing on 10 September 2024, again putting the claimant at a disadvantage.[65]I find that much of the delay in Autumn 2024 can be explained by the first respondent’s financial difficulties. This had the effect of making Mr Munro unsure whether his client would survive and whether it was a good use of his resources spending time preparing a case in which it was a party. It also possible had the effect of making it difficult for Mr Munro to take instructions.[66]While these factors may be an explanation for the delay, in my mind they are not an excuse. Mr Munro owes a duty to the tribunal and the other parties to keep them informed and, if necessary, to seek extensions of time proactively, not when only faced with an application for an Unless Order.[67]Mr Monro has failed to explain why he told the tribunal in January 2025 that the bundles were collated and in February 2025 that the bundle was ‘imminent’ when the bundle was only sent on 17 March 2025 in imperfect form. The hard copy was only received by the claimant on 24 March 2025. The step of seeking to agree the contents of the final bundle was missed out entirely by Mr Munro.[68]The first respondent was given the opportunity by EJ Freshwater to make any representations regarding the strike out application by 14 May 2025. Mr Munro confirmed that his representations were set out in his email of 1 May 2025, namely that it is the second respondent who is liable for any delay and that all parties were in a position to agree on the exchange of witness evidence and final preparation of the last hearing. He does not rely on any other written representations. In oral submissions, Mr Munro added that a strike out would be a draconian response and unfair to the first respondent who had prepared the bundle. He denied that there had been any lack of cooperation or communication and contended that there was no prejudice to any party.[69]I have considered whether it is proportionate to strike out the first respondent’s response and I find that it is. The repeated failure to comply with tribunal orders, the lack of transparency and misleading communication with the other parties and the tribunal lead me to conclude that the first respondent’s representatives disregard of tribunal orders has been deliberate and persistent. It has had the effect of disadvantaging the claimant in relation to three different hearings, in April 2024, September 2024 and April 2025. Any claimant would have been prejudiced by the late production of documents but particularly a claimant with a learning disability, which has been acknowledged by the first respondent and the tribunal.[70]The repeated disappointments for a claimant of not having his case come to trial through repeated adjournments takes its toll and ultimately affects the ability to have a fair trial. Although the memory of witnesses and recollection of events is not the only factor, the proceedings against the first respondent arise from a single event in October 2023 and the ability of the parties to bring cogent evidence of this event will inevitably reduce over time.[71]The tribunal has indulged the first respondent on a number of occasions by varying the dates for compliance but this has not resulted in the first respondent preparing the case in good time for all parties to be able to participate in a fair hearing.[72]I have considered the magnitude of non-compliance and find that it is significant. At best, the first respondent is woefully late in producing the bundle but did finally produce a bundle. However, he did not seek to agree the contents (as required by the order) and the bundle was not in a form acceptable to the other parties.[73]I cannot say whether the fault is that of the first respondent or their representatives. It is clear that the delays in the Autumn of 2024 were at least partly due to Mr Munro not being able to take instructions. He has not told the tribunal of any ongoing issues in obtaining instructions. If the first respondent is blameless, it has a remedy against its representatives.[74]I have considered whether a lesser sanction would be appropriate and proportionate. I find that it would not. The claimant wishes to complain about an incident which took place in October 2023. He presented his claim in November 2023. There was a TUPE transfer in April 2024 which was the basis of a claim brought in May 2024. There is no adequate explanation why his claim has not yet been heard, other than the first respondent’s failure to engage in the process of producing documents to ensure parties are ready for a hearing. The case management orders to agree bundles and produce bundles in good time are fundamental to the preparation of the case and ensuring all parties are on an equal footing and able to put forward their best case. The claimant and the second respondent were prevented from doing so by the first respondent’s failures to comply. This meant that the hearing window in April 2025 was lost as it would not have been possible to have a fair trial in that window. London Central Tribunal is now listing multiday cases towards the end of 2026 and into 2027. I find that costs would not be an adequate remedy in this situation. The claimant is entitled to expect that his claim will be heard and that he will have a fair trial.[75]I therefore strike out the first respondent’s responses in case no 2216432/2023 and 2219719/2024.[76]In accordance with Rule 38(3), where a response is struck out, the effect is as if no response had been presented as set out in Rule 22. Under Rule 22 (2) the tribunal must decide whether on the available material, a determination can properly be made of the claim and either issue a judgment or fix a hearing. At any hearing, the party whose response has been struck out can only participate in proceedings to the extent permitted by a Judge.[77]I consider that it is appropriate to have a 1 day remedy hearing to deal with the claimant’s remedy against the first respondent, to hear the claimant’s claim against the second respondent and to deal with any costs applications. The parties are, of course, encouraged to resolve outstanding matters privately.