Mrs M McCulloch-James v Sponsors for Educational Opportunities Ltd: 2301081/2023
EMPLOYMENT TRIBUNALS
Case No 2301081/2023
Between
Mrs M McCulloch-JamesClaimantSponsors for Educational Opportunities LtdRespondent
Before
Employment Judge HeathIn person for claimantMs H Bell (instructed by Counsel) for respondentDate 16 March 2026
JUDGMENT
[1]The claimant’s claims are not struck out.[2]The claimant is ordered to make a payment of the sum of £3,505.30 to the respondent in respect of the costs it has incurred for the adjourned hearing of 12 November 2025.
REASONS
[1]These reasons relate to decisions made at a public preliminary hearing listed to deal with a number of issues. The matter has had a complex procedural history, some of which will be set out below.[2]The matter had come before me on 12 November 2025 at a public preliminary hearing. This had initially been listed as a private preliminary hearing for case management, but had been converted to a public preliminary hearing following the respondent’s application on 5 November 2025 to strike out the claims. I told the parties at that hearing that I had concerns that sufficient notice of the issues to be decided at that hearing had not been given pursuant to Rule 53(2) Employment Tribunals Rules of Procedure 2024 (“ET Rules”), but both parties told me they wished me to consider the strike out application notwithstanding. Some issues then arose concerning medical evidence presented to the hearing which meant that I adjourned the hearing until today to be listed before me if I was available.[3]I set out the purpose of today’s hearing in my Record of Preliminary Hearing dated 13 November 2025 as follows:(1) To determine the Respondent’s application dated 5 November 2025 to strike out the claim. If the claim is not struck out:(2) To review the Claimant’s fitness for the Final Hearing commencing on 1 February 2027 (or earlier hearing date if applicable)(3) To discuss whether any further preliminary hearings are needed (such as a preliminary hearing to determine whether the Claimant’s work was “like work” to Mr Chang Tan’s)(4) To review trial readiness generally, including matters concerning disclosure and provision of witness statements and/or whether to amend the directions and orders of the tribunal dated 2 October 2024 which have been stayed(5) To deal with any further matters or applications which have been made by the parties in writing by no later than 11 February 2025[4]The respondent made an application for its costs of the adjournment on 11 February 2026. The respondent sent in a letter to the tribunal on 20 February 2026 headed “Application for strike out of the claimant’s claim – supplemental information” in which it added supplemental information to its strike out application of 5 November 2025 relating to the claimant’s conduct of the hearing on 11 November 2025 which, it asserted, provided grounds for striking out the claim under Rule 38(1)(b) ET Rules.[5]There was discussion about whether the supplemental information of 20 February 2026 could be considered as it had not been made prior to 11 February 2026 as provided for in my earlier order. The respondent said that it was not a fresh application, but was adding detail to its previous application. In any event the claimant agreed that the strike out relating to conduct at the 12 November 2025 hearing should be dealt with at this hearing.[6]Accordingly, the hearing considered, and this decision deals with the following, in summary form: 6.1. The respondent’s application to strike out the claims under Rule 38(1)(d) and (e) (not actively pursued, and fair hearing not possible) relating to issues of the claimant’s health; 6.2. The respondent’s application to strike out the claims under Rule 38(1)(b) and (c) (manner in which proceedings conducted unreasonable etc., and non-compliance with order) relating to general conduct of proceedings; 6.3. The respondent’s application to strike out the claims under Rule 38(1)(b) (manner in which proceedings conducted unreasonable etc) relating to the conduct of the hearing on 12 November 2025); 6.4. The respondent’s application under Rules 74(3) and 74(2)(a) ET Rules for its costs relating to the adjournment of the 12 November 2025 hearing.
Procedure
[7]The following documents were before me: 7.1. The original bundle from the 12 November 2025 hearing (page number in this bundle will be referred to as [x]); 7.2. The claimant’s supplementary bundle for the 12 November 2025 hearing (page number in this bundle will be referred to as [x] SB1); 7.3. A further supplementary bundle prepared for this hearing (page number in this bundle will be referred to as [x] SB2). 7.4. The respondent’s counsel’s Written Submissions and an authorities bundle.[8]Reasonable adjustments had been made at the hearing on 12 November 2025 whereby there would be 10 minute breaks every 45 minutes and the claimant was offered a private waiting room. I confirmed with the claimant at the start of the hearing whether these adjustments continued to be appropriate, and she agreed. I told her that if she encountered any further difficulties during the hearing she should let me know and I could consider further adjustments. She raised nothing further in this regard during the[9]The respondent made oral submissions which ran into the afternoon. The claimant made oral submissions in response.[10]At the start of the afternoon session I raised with the parties that, given the length and detail of the submissions, and the importance of the issues to the parties, it was going to be highly unlikely that I would be in a position to give an oral decision on the day. There were some case management issues which would need to be dealt with if the case was not struck out. I proposed, and the parties agreed, that after the parties’ submissions on strike out and costs, I would deal with case management issues even though a decision on the strike out and costs applications would still be outstanding. I assured the parties that I was not pre-judging the strike out application, but that it was important while the parties were here, that we should be in a position to make decisions about the future conduct of the case if the case was to proceed. If the application to strike out was successful, then any case management orders made would fall away. As it happened, the parties did not conclude their submissions until after 4pm, and the hearing did not finish until 4.45pm.
Facts
[11]The claimant worked for the respondent, a charity providing educational, training and mentoring support to young people from under‑represented backgrounds, in the post of Senior Programme Manager responsible for the Careers Law Programme. Her employment ran from 19 July 2021 until her dismissal on 26 September 2022.[12]The claimant presented her claim form on 7 March 2023 following ACAS early conciliation between 3 and 6 March 2023. She advanced claims for unfair dismissal, pregnancy and maternity discrimination, race discrimination, victimisation and protected disclosure detriment and dismissal.[13]The respondent denied liability and stated that the claimant had been dismissed following a disciplinary investigation into alleged misconduct, particularly at a meeting on 24 February 2022, which it said demonstrated a breakdown in her relationship with colleagues.[14]Prior to the first preliminary hearing on 16 October 2023, the claimant sought a postponement relying on a GPs letter dated 18 August 2023 which said she had clinical depression due to work-related stress and a personal matter and been significantly unwell with severe fresh and had been prescribed medication and talking therapies. The hearing went ahead before EJ McLaren, and during the course of this hearing the claimant had a major mental health breakdown.[15]Nonetheless, some progress was made at hearing and orders made. Because the legal and factual basis of the remaining claims remained unclear, the Tribunal ordered the claimant to provide further information by 13 February 2024. A further preliminary hearing was listed.[16]A preliminary hearing took place before EJ Dyal on 15 April 2024. In purported compliance with EJ McLaren’s orders the claimant had served a 27 page dense document. The EJ held that the claimant had still not complied and ordered her to provide the required information, with directions concerning amendments and time‑limit evidence. EJ Dyal explored with the claimant why she had not complied with the previous order. She had prepared a witness statement 12 March 2024 in which she set out numerous symptoms of physical and mental ill-health. These included depression since 2007, panic attacks, anxiety, suicidal ideation, lack of self-care and fear of using computers and other devices.[17]EJ Dyal recorded in his Record of the hearing that the claimant did not appear to be well. The claimant was about to embark on a course of specialist treatment a clinical psychologist and there was scope for hope that the claimant’s health would improve. The judge noted that a difficult balance needed to be struck between the parties’ needs and interests. EJ Dyal vacated the final hearing which had been listed for October 2024, and relisted the matter for dates in May 2025 with a time estimate of eight days. The judge made a number of orders including ordering the claimant to provide, essentially, the information that EJ MacLaren had ordered. He listed a further preliminary hearing on 30 September and 1 October 2024 to determine applications to amend, to agree a list of issues, to determine time limits and give further case management directions for trial.[18]A preliminary hearing was listed on 30 September and 1 October 2024 before EJ Dyal. The Tribunal clarified the nature of the claim through discussion, set out the List of Issues, refused most amendments, granted extensions of time, and set case management directions leading towards hearings in 2025. In his Record of the hearing EJ Dyal observed that it was a difficult hearing and that the claimant continued to suffer from what appeared to be serious mental health problems including panic attacks. She had had a panic attack on the way to the hearing and the judge had real concerns as to whether she was fit to participate in the hearing. The claimant had said that she wanted to proceed with the hearing and that her treating doctor had advised she was able to do so. Generally she was composed but at one point in the hearing she had ran out of the room. The claimant was ordered to produce a schedule of loss by 12 December 2024 and the parties were ordered to exchange documents by 22 January 2025.[19]EJ Dyal listed a preliminary hearing on 3 April 2025 to review the claimant’s fitness for the final hearing, discuss what adjustments would be needed the final hearing and to review trial readiness. He ordered the claimant, if she anticipated being unfit on medical grounds for either the preliminary hearing or the final hearing, to serve medical evidence by 27 March 2025 explaining that and giving a prognosis fitness to resume litigation.[20]On 6 February 2025 the claimant applied to adjourn forthcoming hearings on medical grounds, including the final hearing. She said she was labouring under a mental impairment, and that although she had made some progress she had been struggling with suicidal and self-harm ideation.[21]On 21 February 2025 the claimant sent to the respondent and the tribunal a letter from her GP explaining that the claimant was significantly unwell with mental health problems related to PTSD for which he was undergoing therapy. The GP advised “she is medically unfit to undergo the stress of all that this process would involve at present. Her mental state is fragile and the looming proposed Court Case and required preparation for this had led to a resurgence of suicidal ideation, panic attacks and an inability to function – she is not sleeping or eating properly and I am concerned for her well-being”. She described that the claimant had commenced therapy in 2024 despite initial reluctance. However, she stopped her antidepressant medication and “the news that her case was to go to court shortly has led to a resurgence of panic and anxiety”. The claimant was barely leaving her house, her husband was scared to go to work because of the claimant’s suicidality and “every time the threat of court proceedings are raised her symptoms of PTSD recur – she becomes unable to eat or sleep and spirals into hopelessness”. The GP strongly advised against compelling the claimant to continue with the proceedings at present. The claimant was restarting antidepressant medication, but would not be well enough for some time. The GP urged that the proceedings be stopped immediately to allow the claimant a chance to work through her therapy and recover.[22]A letter dated 24 February 2025 was also produced from the claimant’s clinical psychologist. This letter detailed the claimant’s experience with depression and panic and complex PTSD. The psychologist had been impressed with how hard the claimant had worked with services to improve and maintain her functioning and had engaged in CBT to help manage panic anxiety and low mood. She noted that the claimant had made significant progress up until December 2024 “when the court timetable was established. The requirements to attend court in March, April and May 2025 and the corresponding preparation necessary represents a major strain on her, which I feel accounts for the temporary setback in her recovery. Her case records many events just following the loss of her baby, which triggered deeper and very painful loss issues and emotional flashbacks and there are still times when she becomes completely overwhelmed. She has had episodes of suicidal ideation since 2022 these had reduced over 2024 but have recently resurfaced again. I believe that the intensity of the symptoms is due to the current pressure of the court schedule. This has impacted on [the claimant’s] day-to-day functioning and has interrupted the progress she has already made. The stay of proceedings now will enable her to refocus on the therapeutic work so that her progress can continue and resume its previously positive trajectory towards a full recovery.”[23]At the preliminary hearing on 27 March 2025 before EJ Taylor, medical evidence provided by the claimant led the Tribunal to adjourn the DRA (which had been listed for 9 April 2025), vacate the final hearing, relist it for February 2027, and stay previous directions. EJ Taylor recorded in her Record of the preliminary hearing that the claimant had told her that she had almost been sectioned the previous week, and had only attended the hearing that day as she did not want to risk being found to be in contempt of court. The claimant said she was committed to engaging with her treatment and have made good progress. She needed six months to embed the coping mechanisms she had been practising and did not anticipate any further adjournments if she had a period without having to think about the tribunal case. EJ Taylor observed that “Given the history of this litigation, the claimant has not been able to comply with directions. The pinch points when the claimant is required to comply with directions or orders of the tribunal. The respondent is concerned that she might never be able to be fit enough to resume participate in the litigation or in a final hearing”.[24]EJ Taylor listed a further case management hearing to review the claimant’s fitness for the final hearing, to discuss whether any further preliminary hearings of needed, to review trial readiness and consider further case management orders. EJ Taylor made the following order: If applicable, by 9 October 2025 [this was amended to 29 October 2024] (that is 14 days before the case management hearing) the claimant to supply medical evidence as to her fitness to prepare for and participate in the final hearing. If the claimant remains substantially unwell the claimant must provide a prognosis of when the claimant may be fit enough to attend the hearings that have been listed in this case.[25]On 29 October 2025 the claimant provided a partial screenshot of the copy of a GP letter dated 24 October 2024. This showed only the first paragraph of the letter which confirmed that the claimant was registered at the practice and that it was understood that a GP’s letter was required confirming her fitness to attend the hearing in February 2027. The last word of the right hand side of the first line of the second paragraphs could partially be seen. It was the word “requiring”. The respondent requested a complete copy, which was not provided before the hearing of 12 November 2025.[26]On 5 November 2025 the respondent applied to strike out the claim for non‑compliance and on grounds that the claimant’s ill health meant she would not be fit to participate in the proceedings.[27]On 11 November 2025 the tribunal converted the hearing into a public preliminary hearing, but did not give notice of what issues were to be determined.[28]At the hearing before me on 12 November 2025 the claimant provided a hard copy of a GP letter the text of which is as follows: I am writing about the above person who is registered as a patient at our practice. I understand that you require a GP letter to confirm that she will be fit to attend a court hearing in February 2027. Melissa has made progress since the last hearing in March 25 (sic), and I have no reason to believe she would not be fit to appear in February 27 although would comment that this is a very long time away so it is not really possible to predict how anybody would be over that timeframe.[29]There is obviously no word “requiring” in the second paragraph.[30]The respondent’s counsel highlighted the apparent discrepancies between the screenshot and the hard copy letter supplied on the day.[31]In the supplementary bundle supplied for the hearing today the respondent produced a copy of the respondent’s solicitor’s note of hearing of 12 November 2025 .The notes correspond with my notes and recollection of the[32]The claimant was asked on a number of occasions by the respondent’s counsel and me about whether there was one or more copies of the letter from the GP. Originally the claimant said “there is only one letter” and “there is no other letter. This is the only copy of the letter I have”. It is also right to say that the claimant did not directly answer certain questions asked of her, leaving Miss Bell to suggest that the claimant was being “careful in what she says”. I asked the claimant specifically whether there were two copies of the letter; she responded “I have this from Dr Sutton. She gave me this letter in her office”. I suggested that this was not answering the question and asked whether there were two copies of the letter. Her response was that she did not have two copies. I asked “Were there two copies?”. The claimant answered “No”.[33]The claimant was taken to page 375 of the bundle which contained the screenshot she had sent the respondent’s solicitors and asked why this appeared to be slightly different from the hardcopy she had handed in that day. When this had been drawn to her attention she said that there were two letters, one in an envelope waiting for her at the GPs reception and one which the GP had handed her in her office. The claimant appeared to suggest that she had “always said there were two letters. I haven’t hidden that there were two letters”. The claimant described how she had gone home, taken a photograph of the letter that the GP had handed her and emailed that to the respondent’s solicitors.[34]I raised with the parties my concern that it now appeared there were two copies of the letter and the tribunal did not have full copies of both. Given that the respondent was seeking to strike out the claimant claims on the basis that she would not be medically fit for a hearing, I considered that it was important for the tribunal to proceed with solid medical evidence. Ms Bell took the view that the hearing could only proceed with a copy of both letters. There was discussion on how to proceed, with the claimant suggesting that she could make enquiries of her GP and even go home to find both letters. Neither of these proposals were satisfactory. I therefore adjourned the hearing and relisted it to today.[35]The Tribunal considered it necessary to obtain all copies and metadata of GP letters before addressing the respondent’s strike‑out application or the claimant’s fitness for the final hearing. I made disclosure orders under rule 33 requiring the GP surgery to supply all versions of the letters and relevant consultation notes. Disclosure was provided in stages during November 2025 and January 2026.[36]The claimant was ordered to disclose the original letter by 26 November 2025, which she did on 25 November 2025, and to respond to the strike‑out application by 25 February 2026.[37]Disclosure from the claimant and the GP surgery revealed the following: 37.1. At some point probably around 24 October 2025 a letter was created by the GP surgery and collected between 24 and 28 October 2025 by the claimant. The text of the letter (bearing the date 24 October 2025) was as follows: I am writing about the above person who is registered as a patient at our practice. I understand that you require a GP letter to confirm that she will be fit to attend a court hearing in February 2027. Melissa has made progress in her last hearing in March and is not requiring antidepressant medication any longer. I have no reason to believe she wouldn’t be fit to appear in February 2027 although would comment that this is a very long time away so it is not really possible to predict how anybody will be over that timeframe. I know of no medical reason why she should not be able to attend. 37.2. It would appear that this letter partially photographed by the claimant and sent as a screenshot to the respondent’s solicitors. 37.3. On or around 30 October 2025 the claimant appears to have left the above letter at the GP surgery for the attention of Dr Sutton. Handwritten at the bottom, and written by the claimant, was the following: “Dear Dr Sutton, please amend the above letter as a matter of urgency. I stopped the antidepressants because the consultant at the Royal Free queried whether the persistent increase in prolactin was due to my antidepressant medication. Thank you for your help. Regards Melissa.” The claimant had struck through certain wording which I will represent below in strikethrough: Melissa has made progress in her last hearing in March and is not requiring antidepressant medication any longer. I have no reason to believe she wouldn’t be fit to appear in February 2027 although would comment that this is a very long time away so it is not really possible to predict how anybody will be over that timeframe. I know of no medical reason why she should not be able to attend. 37.4. At some point after 30 October 2025 the GP surgery provided the letter with the proposed amendments. This was the copy of the letter brought by the claimant in hardcopy to the hearing of 12 November 2025.[38]On 11 February 2026 the respondent made a costs application. On 20 February 2026 it supplemented its strike‑out application to include an application to strike out under Rule 38(1)(b) based on the claimant’s scandalous, unreasonable or vexatious conduct at the hearing on 12 November 2025. The claimant opposed both applications in writing. The response was 21 pages long. The majority of those pages were, broadly speaking, observations about the merits of the substantive case. She also set out in detail about her medical history. In terms of responding to the applications, she commented that she had attended every scheduled hearing in these proceedings and never ignored an order of the court. She said that. She said she had attended hearings despite herself being dire. She said she had done everything she promised to get health back on track. She pointed out that her brother had died shortly before the hearing on 12 November 2025, and she had been served with a vast number of documents shortly before. She had not sought to adjourn the hearing, but did everything in her power to ensure it went ahead. The law Strike out
The law
[39]Rule 38 ET Rules provides: 38. Striking out (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (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; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).[40]In respect of applications under Rules 38(1) (b) or (c) the Court of Appeal held in Blockbuster Entertainment Limited v James [2006] EWCA Civ 684 that the power to strike out is a draconian power not to be exercised lightly. In paragraph 5 Sedley LJ observed: “The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of the required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.”[41]In Bharaj v(1) Santander UK PLC(2) Alison Simmons [2023] EAT 152 the EAT further observed: “…it is clear from the authorities: Blockbuster, Emeumukoro and Baber that under both common law and Article 6 principles, because it is a terminating ruling, a claim or response can only be struck out if it is a proportionate measure. The scope of the discretion in a strike out application is thus considerably circumscribed. Proportionality means that, save in exceptional circumstances, if there are less drastic responses to the unreasonable conduct or breach of tribunal order that will enable a fair trial to take place within the listing, strike out will not be a proportionate response. Similarly, if there are no less drastic measures that will enable a fair trial to proceed, then save in exceptional circumstances, it will be proportionate to strike out the claim or response…”[42]Claims may be struck out under Rules 38(1) (d) and/or (e) in circumstances where there is substantial delay because of a party’s ill-health. The Presidential Guidance – General Case Management Guidance Note 8 provides at paragraph 10 provides: “The fact that it is no longer possible to have a fair hearing is also ground for striking out. In some cases the progress of the claim to hearing is delayed over a lengthy period. Ill health may be a reason why this happened. This means that the evidence becomes more distant from the events in the case. Eventually a point may be reached where a fair hearing is no longer possible.”[43]The respondent cited two cases in which strike out of claims where the tribunal had concluded that a fair trial was no longer possible for medical reasons was upheld. In Peixoto v British Telecommunications plc UKEAT/0222/07 the EAT observed at paragraph 54: “This Tribunal held that it could not find any point in the foreseeable or even 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.”[44]Similarly, at paragraph 28 of Riley v Crown Prosecution Service [2013] EWCA Civ 951 the Court of Appeal stated: “It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant’s medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal…”[45]The respondent also brought to my attention to the case of Nancy Mukoro v Independent Workers’ Union of Great Britain & others UKEAT/0128/19 in which the EAT commented that in considering an application to strike out in the circumstances the tribunal is not to factor into its consideration whether or not it considers that it would be in the party’s best interest to pursue the proceedings.[46]Striking out a claim is a case management order to be exercised having regard to the overriding objective which provides: 3. Overriding objective(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing, (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c) avoiding unnecessary formality and seeking flexibility in the proceedings, (d) avoiding delay, so far as compatible with proper consideration of the issues, and (e) saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction.(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal. Costs[47]The Rules relating to costs in the ET Rules include the following: 74. When a costs order or a preparation time order may or must be made(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. 76. The amount of a costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— i. in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; ii. in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. 82. Ability to pay In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[48]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[49]Costs orders are compensatory in nature rather than punitive (Lodwick v Southwark London Borough Council [2004] ICR 884).[50]Such awards can be made against unrepresented litigants, including where there is no deposit order in place all costs warning (Vaughan v London Borough of Lewisham UKEAT/0533/120). However, whether a party is professionally represented is a factor to be taken into account (AQ Ltd v Holden [2012] IRLR 648).[51]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[52]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing unreasonable conduct: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”.[53]The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).[54]The discretion to award costs under Rule 74(3) is separate and distinct from its discretion under Rule 74(2)(a). Conclusions Strike out on ill-health grounds Rules 38(1) (d) and/or (e)
Conclusions
[55]The above facts make it clear that the claimant has experienced significant mental ill-health for a substantial amount of time during the currency of these proceedings. There is also evidence to suggest that the proceedings themselves have fed into the claimant’s ill-health. There is medical evidence to suggest that the prospect of hearings and the required preparation for them cause the symptoms to recur when she is obliged to engage with the case. The respondent rightly points out that there has not been a great deal of procedural progress with this case. The final hearing has been postponed on more than one occasion.[56]The respondent also submits that the medical evidence provided in October 2025 fails to set out details of the progress that the claimant has made. It says the evidence does not explain what mental health symptoms the claimant continues to experience what affects the symptoms have on her. The respondent says that neither the original nor the amended letter from the GP provides an unequivocal confirmation that the claimant would be fit to attend the final hearing in February 2027. The letters do no more than say that there is no reason to believe that she would not be fit, but that it was impossible to predict how anyone would be over that timeframe. The respondent also comments that no evidence has been put forward by anyone other than the GP in contrast with at earlier times when the claimant provided evidence from a clinical psychologist and other treating specialist. In short, the respondent says there is insufficient evidence available to enable the tribunal to conclude that the claimant would be fit enough to conduct this litigation or that she would be fit to attend the final hearing in early 2027. The respondent suggest that the pattern of previous non-compliance with case management orders will continue and a further application to adjourn the final hearing on medical grounds is likely. The respondent says that a fair trial is no longer possible.[57]For her part, the claimant asserted that she had not had mental health difficulties during the hearing since 2024. EJ Dyal’s reference to her leaving the hearing of 30 September – 1 October 2025 related only to a five-minute pause in the hearing. There had been no adjournment relating to mental health since 2024. When EJ Taylor had postponed the final hearing at the hearing of 27 March 2025 she was to start treatment to embed her coping mechanisms. She told me she had made good progress since then. She has not applied for any further adjournments since then as she had promised the judge. She had not sought to adjourn the hearing before me on 12 November 2025 despite the fact that inadequate notice had been given of the issues to be determined and the fact that numerous documents had been provided late. She also agreed to deal with the additional grounds of added by the respondent after the deadline for applications of 11 February 2026, and again had not sought to postpone these applications. She drew a contrast between Peixoto and Riley and her own case. In those two cases there was no evidence of any prospect of a sufficient recovery to hold a final hearing within any timescale. In the claimant’s case there is a date set for the final hearing – February 2027.[58]On balance, I accept the claimant’s submissions. Given the undoubted and significant issues the claimant has had with her mental health and the history of this litigation, the possibility of the claimant not at some stage being in a fit state to conduct litigation and the possibility of her not being fit to attend the final hearing in February 2027 is a real one. Preparing for the case obliges her to engage with issues which clearly cause genuine psychological difficulty. I specifically asked the claimant about observations made by EJ Taylor about the “pinch points” in this case, and the observation by medical professionals that preparing the case causes her significant difficulty. Her response was that since spring 2025 she had been tested by a number of issues and she had not “broken”. She had coped with the death of her brother shortly before the 12 November 2025 hearing and dealt with other significant difficult issues in her life and yet had prepared for and attended hearings. She said she had not done anything to jeopardise her health and was making improvements.[59]Peixoto was a case struck out by the Employment Tribunal when the tribunal could not foresee “any point in the foreseeable or even the distant future” when the case might be ready for a final hearing. In Riley the Employment Tribunal had struck out the case when on the “totality of the medical evidence the claimant will not be fit enough to attend the hearing in 12 months, and on the balance of probabilities, not before the expiry of 2 years, having regard to the severity of her condition”.[60]Here, the claimant’s GP has set out her opinion that she had “no reason to believe [the claimant] would not be fit to appear in February 2027 although would comment that this is a very long time away so it is not really possible to predict how anybody will be over that timeframe”. Although this view expresses an understandable caveat, the medical evidence before the tribunal is that there is no reason to believe the claimant would not be fit final hearing. This is an entirely different character to the evidence before the tribunals in Peixoto and Riley. There is also the significant difference that there actually is a date in the diary for the final hearing.[61]It is right to say that to be ready for the final hearing the claimant will have to engage in focused case preparation. It is also right to say that case preparation has caused her difficulty in the past and led to setbacks in her mental health. However, I accept what the claimant said that since spring 2025 she has engaged in treatment and made improvements in her health. Perhaps as a result of these improvements, she has found herself able to prepare for hearings on 12 November 2025 and the hearing today. These, and especially the hearing today, have been intense and fairly difficult hearings. Nonetheless, the claimant has at both hearings appeared composed and has engaged well with the hearings. History might have suggested that the claimant would not have prepared these hearings and would have sought some sort of adjournment or otherwise that they would not have gone ahead. This is not proved to be the case, even though she has had other significant difficulties in her personal life including a bereavement.[62]While it has not been plain sailing, it cannot be said that the claimant has not actively pursued her claim. I also do not consider that a fair hearing is not possible in February 2027. I do not strike out the claims on these grounds. Strike out for non-compliance with case management orders – Rules 38(1) (b) and/or (c)[63]The respondent relies on the claimant’s failure to provide a schedule of loss, originally ordered to be prepared by 12 December 2024. It also points to a backdrop of further failures to comply with case management orders, including relating to the provision of further information. The claimant was ordered by EJ MacLaren to provide further particulars of claim on 20 October 2023 and by EJ Dyal on 18 April 2024. It also points to the claimant’s failure to provide medical evidence regarding her fitness to attend the final hearing by 29 October 2025 in accordance with the order of EJ Taylor on 31 March 2025.[64]In virtually all of these instances the failure is not an outright failure (i.e. simply doing nothing), but a suggestion that what the claimant did in fact provide was inadequate or insufficient. The claimant did provide schedules of loss, but they contained gaps. She did provide further particulars but they were unfocused and discursive. She did provide a screenshot of a GPs letter on 29 October 2025, but it was partial. The respondent appears to accept that the claimant’s mental health difficulties were a factor in at least a part of this pattern of non-compliance. It suggests that this pattern is unlikely to change, meaning that this was an exceptional case where strike out would be proportionate.[65]I accept that there has been some non-compliance with orders, largely characterised by partial or inadequate rather than more a complete failure to comply. As I have pointed out above, there is evidence to suggest that the claimant has engaged with treatment and that there are some signs of improvement in her health. I do not share the respondent’s view that this is an exceptional case, and I do not consider that it would be proportionate to strike out the claims based on an admitted history of inadequate compliance with case management orders which has largely been driven by the claimant’s ill health.[66]I do not strike out the claims on these grounds. Strike out on grounds of conduct of the 12 November 2025 hearing – Rules 38(1)(b)[67]I conclude that the claimant took a deliberate decision to disclose a screenshot showing just the first paragraph of the original letter. I conclude that when she received the original letter she was of the view that she would seek some minor amendment. She presented a partial screenshot to the respondent’s solicitors in order to comply with the order to produce medical evidence.[68]I also conclude that the claimant was wilfully evasive and that she wilfully misrepresented to the tribunal that there was only one GPs letter. She knew that there was more than one. I conclude that she pivoted and accepted that there were two letters when evidence was presented which strongly suggested that there were two letters. I conclude that the claimant was not candid about the circumstances of her dealings with the GP when she addressed the tribunal on 12 November 2025. She knew that she had sought an amendment of the letter but did not bring this to the tribunal’s attention. Instead, she presented a hard-to-follow account of it being left in reception and another one being printed in a consultation with the GP. I do not find that this is what actually happened.[69]I conclude that this evasion, misrepresentation and lack of candour is unreasonable.[70]However, in order to strike out the claims on the basis of this unreasonable conduct I must be satisfied that a fair trial is thereby not possible and that strikeout is proportionate.[71]I consider that neither side has significantly addressed this issue in their submissions. I note that the respondent in its written application raised the case of Sud v The Mayor and Burgesses of the London Borough of Hounslow UKEATPA/0156/14, and I raised this with Ms Bell during the hearing, as the case was not in the authorities bundle. Ms Bell said that this case did not take matters further than Blockbuster.[72]In respect of the claimant’s arguments, she did not really address the facts relating to the hearing of 12 November 2025, but she did suggest that if she was looking to suppress evidence there was nothing of real significance in the difference between the two letters.[73]As can be seen above, what the claimant sought to amend from the original letter was “Melissa has made progress in her last hearing in March and is not requiring antidepressant medication any longer. I have no reason to believe she wouldn’t be fit to appear in February 2027 although would comment that this is a very long time away so it is not really possible to predict how anybody will be over that timeframe. I know of no medical reason why she should not be able to attend.”[74]While I have indicated that I consider that the claimant’s conduct was evasive, and lacking in candour and misrepresented the position, in the circumstances I do not consider that she was trying to “bury” a “smoking gun”. She told me that at the time she was being investigated for an endocrinal condition which might have resulted from 1) her use of antidepressants, 2) stress or 3) a brain tumour. Part of the investigation involved her stopping taking antidepressants. At the point where she proposed her amendments to the GP letter, she wanted to delete reference to antidepressants and to there being no medical reason why she should not be able to attend. She said at the point she was in with her endocrinal investigations, “medical reasons” why she might not be able to attend a final hearing was still at large. She might have a brain tumour (reassuringly this has subsequently been ruled out).[75]All in all, I do not find that the claimant’s unreasonable evasiveness, lack of candour and misrepresenting the medical position has cast such a doubt in the fairness of the process that it is not possible to have a fair trial. I have given this application considerable thought. I have also considered the interrelation between it and the other application based on medical grounds. This is a case with a complex procedural history largely due to the claimant’s ill health and evidence about her health has become relevant to how this case proceeds. The tribunal has seen fit to order medical evidence so that it can be satisfied that the claimant is fit to participate in litigation and attend the final hearing. The fact that the claimant has acted unreasonably in the provision of this medical evidence is a cause for concern. Ultimately I have concluded that it is not of such a concern as to make it proportionate to strike out the claim. Costs[76]There are three stages in determining whether or not to award costs under the ET Rules; first, whether the applicant has reached the threshold within Rule 74. Second, if the threshold has been reached, the tribunal will go on to consider whether it is appropriate to make an order for costs. Finally, if it is appropriate to make an order for costs tribunal will go on to consider the amount. Threshold[77]In respect of Rule 74(3) I repeat some of my observations in my Record of the Preliminary Hearing of 12 November 2025: Para 16. “Given that one vital issue both concerning the application to strike out, and, even if the matter is not struck out, the further conduct of the case, is the claimant’s prognosis and her future fitness to conduct litigation, I agreed that it was vital that the respondent and the tribunal sees what letters the GP has produced on the question of fitness to conduct litigation…The effect of this discussion was that it was not possible to consider the strike out application today.” Para 20: The effect of this discussion was that it was not possible to consider the strike out application today. The matter was relisted for 11 March 2026 preferably reserved to me (though this cannot be guaranteed). Orders were made concerning further preparation for the hearing (see below).[78]One of the key issues for the hearing on 12 November 2025 was for the tribunal to consider the claimant’s fitness to conduct litigation and to attend the final hearing in February 2027. EJ Taylor had made orders for the provision of medical evidence. The claimant’s purported compliance with this order was to send (I find) a deliberately partial copy of a letter that the claimant was proposing amendments to. She was evasive and misleading about whether there was more than one letter in existence. The tribunal could not be satisfied that it possessed all the relevant evidence necessary in order properly to consider matters it needed to consider.[79]I conclude that the hearing was adjourned as a result of the claimant’s conduct. Rule 74(3) is engaged.[80]The claimant’s conduct was unreasonable, as set out above. Rule 74(2)(a) is separately engaged. Appropriateness of order[81]Both as a result of the claimant’s conduct, and the unreasonableness of he conduct, the hearing could not go ahead. The tribunal needed to be satisfied that it had all of the relevant medical evidence in order to determine the issue of whether the claimant would be medically fit to conduct proceedings and attend the final hearing. The costs of the 12 November 2025 hearing were effectively wasted. The claimant had agreed for the 12 November 2025 hearing to go ahead before she had confirmed, misleadingly, that there was only one GP letter. The lack of transparency meant that the hearing needed to be adjourned. This could have been avoided if the claimant had complied with EJ Taylor’s order and not been evasive and misleading. It is appropriate to make an order for costs under the applications put on both bases. I stress that I consider it appropriate to make the order for costs (subject to the amount) to compensate the respondent for incurring the costs of a hearing that could not go ahead, rather than to punish the claimant for her conduct. Amount of award[82]The respondent’s schedule of costs was at [129] SB2. They are broken down as follows: 82.1. Counsel’s brief fee for the 12 November 2025 hearing £5,500; 82.2. Solicitor’s time attending the 12 November 2025 hearing £507.50; 82.3. Solicitor’s travel costs for the 12 November 2025 hearing £83.10; 82.4. Costs incurred re-instructing/updating counsel £250; 82.5. Grand total £7,010.60.[83]The claimant did not set out any details of her means in her response to the various applications dated 11 February 2026. I asked her some questions about her finances at the hearing today. She told me she had not worked since 2022. She had not claimed benefits in that period. She had a jointly owned home with her husband which was subject to a mortgage. She had no source of income. She did not have any significant debts. I did not inquire about her husband’s means.[84]The claimant is a qualified barrister who has in the past practiced as such. In her ET1 she set out her income as £4,800 pcm gross, £3,298 net.[85]I find that the claimant’s own means are such that she has no income, but has no debts. I conclude that there is a probability that, given the claimant’s qualifications and experience, she could at some stage get work that provides her with an income that would allow her to pay, perhaps in instalments, a costs award set at an appropriate level. This has not been an easy determination to make, as the claimant did not address means in her response to the costs (and other) applications, and I had to make inquiries about the issue “on the hoof” in a hearing that was short of time. The picture is further complicated by the history of ill-health, which may have an impact of the claimant’s earning potential. I am, however, prepared to accept that the claimant has some earning potential that would allow for the repayment of an appropriately set award. Doing the best I can in difficult circumstances I would set the level at 50% of the respondent’s claimed costs.[86]In the circumstances, I make an award of costs in the sum of £3,505.30. This would represent a sum that could be repayable in monthly instalments of under £300 pcm over one year. Even if the claimant were to gain employment remunerated at half the amount of her role with the respondent, this would equate to 20% of her net income. Approved by: