Mr K Adjei v Fedex Express UK Transportation Ltd: 2302871/2023
EMPLOYMENT TRIBUNALS
Case No 2302871/2023
Between
Mr K AdjeiClaimantFedex Express UK Transportation LimitedRespondent
Before
Employment Judge Truscott KCIn person for claimantMr C Adjei barrister for respondentDate 11 March 2025
REASONS
[1]This hearing was listed to determine the claimant’s application for interim relief.[2]The claimant represented himself and made written and oral submissions to the Tribunal. He was assisted by a Twi interpreter. The respondent was represented by Mr C Adjei barrister who is no relation of the claimant. He made written and oral submissions. The Tribunal had available to it: A claimant’s bundle part 1 [C1] which has an index and 3 pages of narrative described as a chronology as unnumbered pages at the beginning which are set out on page 4 hereof. A claimant’s bundle part 2 [C2] A witness statement of the claimant An attachment to ET1 Additional emails bundle part 1 Additional emails bundle part 2 An audio tape A skeleton argument for the claimant A witness statement of K Bhalsod An index to respondent’s bundle A respondent’s bundle [R] A skeleton argument for the respondent A respondent’s bundle of authorities[3]The references in the judgment are to pages in the electronic bundles.
Background
[4]The claimant was employed by the respondent from 3 April 2017 to 13 June 2023. On 30 September 2017, he was appointed ESP co-ordinator [R55 para 1]. On 4 October 2017, he signed the contract appointing him as ESP co-ordinator, starting on 1 October 2017 [R 92].[5]ESP stands for Enhanced Security Programme role. This was originally a TNT cross functional process for handling and protecting high value technology shipments within Europe. TNT was acquired by the respondent on 25 May 2016. Since that date the companies have been going through an integration process. As the two companies have become more integrated, there have been several site closures and redundancies [R37 para 17].[6]The ESP operation was based in the TNT International Hub in Northampton until its closure in 2017, when the operation moved to the respondent’s Dartford Hub. At this point, to replicate the ESP team at Northampton, the respondent recruited a supervisor and 2 co-ordinators. The claimant was recruited as one of the two co-ordinators [R37 para18].[7]As the integration of TNT with the respondent continued, the role of the ESP team became redundant, as it was not a role required by the respondent. The ESP supervisor, Mr Pombal applied for the Operations Supervisor position at Dartford in February 2021 and was successful. Mr Stephen Darg, the other ESP coordinator had been working within the clearance team on a temporary basis for around 2 years. Mr Darg applied for a permanent position as a Clearance Broker and was appointed to the team in July 2022. The ESP co-ordinators within Europe returned to the specialist roles that they were in before undertaking ESP work. As the ESP was no longer used within the FedEx network, the role of ESP co-ordinator was no longer required, in the UK and Europe. The claimant was the final ESP co-ordinator in the UK and Europe.[8]On 14 September 2020, Ruth Whitman emailed the claimant to tell him that there was no ESP position in Operations in the respondent’s integrated organisation [C1 8h]. The claimant raised a number of grievances which were heard on 30 September 2020. One of the grievances was the claimant’s allegation that he was placed in the ESP co-ordinator’s role in the knowledge that he would be made redundant. This was rejected by Mr Clarke the grievance manager in a letter dated 22 October 2020 [C2 52h] on the basis that his manager was unaware that the ESP was not an integrated role.[9]In the process of integration, initially, the role of ESP co-ordinator was mapped to a handler position. However, Matthew Walsom, Station Manager at Dartford Hub considered that the role was more akin to an Operations Support Agent, which is at a higher level than a handler role. Mr Walsom was successful in presenting a business case to the FedEx leadership team for the role to be mapped to Operations Support Agent. The claimant says he was integrated around October 2020. The respondent says he was never integrated.[10]At some early stage in his employment, the claimant complained to the information Commissioner [C16 para 5s] (potential disclosure 1). In May 2021, the claimant complained about a breach of his privacy [C1 6 para 5t] (potential disclosure 2). In August 2021, the claimant issued claim 2302322/2021 (claim 1). In October 2021, the claimant issued claim 2302647/2021 (claim 2). On 9 March 2022, the claimant issued claim 2300917/2022 (claim 3).[11]On 6 April 2022, the claimant was invited to attend a meeting with Mr Walsom and Cyndy King, HR Specialist, to start the process of integration. The meeting took place on 7 April 2022. An illustration was pre-prepared for the claimant to show him the benefits of moving into the integrated position of Operations Support Agent. The claimant did not engage with either Mr Walsom or Ms King. He refused to discuss the integrated position. Ms King tried to encourage the claimant to take the documents away to review them in his own time, but he refused. Ms King told the claimant that if he was not integrated in any role he may be considered for redundancy. The claimant complained about the meeting. The claimant’s claim dated 8 August 2022 under the claim number 2302703/2022 relates to that meeting (claim 4).[12]On 16 April 2022, the claimant emailed Ms Slootmaker [C1 18-18b] making potential disclosures (3-5) and also complained to Ms King and Mr Walsom (potential disclosure 6). In April/May 2022, the claimant complained to HR [C1 5 para 5n (potential disclosure 7). In May 2022, he complained to Ms Julie Bluanch [C1 para 5 l and m] (potential disclosures 8 and 9). In August 2022, he complained to Mr Rock, Ms King and Mr Walsom and the Employment Tribunal [C1 5 para 5i, j and k] (potential disclosures 10, 11 and 12).[13]On 23 January 2023, the claimant was invited to a consultation meeting on 7 February 2023 by Kish Bhalsod, senior operations manager [R141]. A detailed letter dated 30 January 2023 was sent by email explaining that his post was not required [R 93-94]. The meeting took place on 27 February 2023 [R97-101]. In the meeting, the claimant is recorded as stating he trusts Mr Bhalsod [R101].[14]In early 2023, the claimant complained to Mr Peto [C1 4 para 5b] (potential disclosure 13), In March 2023, he complained to Ms S Foster [C14 para 5e and 10h para c] (potential disclosure 14) and in March/April 2023 he complained to Fedex Integrity [C1 5 para 5f] (potential disclosure 15).[15]On 20 March 2023, the claimant was invited to a second consultation meeting on 30 March 2023 [R103-04]. On 30 March 2023, the claimant attended the second consultation meeting [R105-114]. He accepted that there were three in his department, now he works in ESP on his own [R105].[16]A third consultation meeting was arranged for 5 April 2023 which the claimant declined to attend [R118]. This meeting was to discuss the claimant being mapped to the OSA role, apply for other roles and, if necessary, discuss redundancy. On 5 April 2023, the claimant was invited to a third consultation meeting on 13 April 2023 [R115-116] [C2-2b]. The claimant declined to attend the meetings. On 15 May 2023, the claimant was invited to a meeting on 22 May 2023 [C1 5- 5a, C1 14-14a] which he again declined. In a letter dated 13 June 2023, he was dismissed on the grounds of redundancy with pay in lieu of notice [R117-119 C1 2-2b].[17]In April 2023, the claimant complained to Ms Woodward and Mr Walsom, to Mr Bhalsod, and to HR [C1 5 paras 5g h and e] (potential disclosures 16, 17 and 18). In May 2023, he complained to Mr Hawkins, HR and Ms Woodward [C1 4 para 5c 10g para b 4 para 5d and 10g para a] (potential disclosures 19 and 20). On 13 June, he complained to the Employment Tribunal (potential disclosure 21) and on 19 June submitted his interim relief application (Claim 6).[18]The claimant raised two internal appeals. On 7 August 2023, there was the first appeal meeting before Alun Cornish [R121-124][C13-13c]. On 29 September 2023, the outcome was delivered [R125-127] [C12d-f]. On 5 October 2023, the claimant appealed Alun Cornish’s decision [C10g, 13d]. On 28 October 2023, the claimant issued claim 2305979/2023 (claim 5). On 17 November 2023, the second appeal meeting before Daniel Vines took place [R129-133]. On 8 December 2023, the outcome was produced [R134-136].
The claim
[19]The claim related to dismissal is to be found in a number of documents but was summarised by the claimant in the three-page chronology to the front of volume 1 of his bundle. The Tribunal also took into account the ET1 and its attachment, his witness statement, an email of 23 September 2023 from the claimant to the Tribunal [C1 28-28b] and the skeleton argument as well as the documents in the bundles and the recording.[20]The summary of the claim is: “1. I reasonably believe I was dismissed on 13 June 2023 as a direct result of the fact that I asserted my Statutory Right under section 104 and/or 47 Employment Right Act (ERA) 1996; by making the following complaints (Protected Act) in good faith - to foster Health and Safety compliance at work. 2. On 20 May 2022, Ms Cyndy King (HR) sent me email, that she will make me redundant because on 7 April 2022, I said to her three (3) times during a “force labour” meeting; I will raise a complaint against them to infringe my statutory right; to force me attend a formal grievance meeting without a companion. 3. On 30 March 2023, Mr. Kish Bhalsod (dismissal manager) angrily said to me that Jose (Caucasian previous ESP colleagues) won’t want to work outside UK, I should go outside UK to look for jobs if I want to be treated as Mr Jose Pombal and Mr. Stephen Darg. 4. On 17 February 2021, Mr Ryan Bennett (Deputy Manager) said to me “no one will support my personal development because I Speak Up against Matt” (Senior Operations Manager). 5. Notwithstanding the above documented facts, below are events I have asserted my right in good faith.a. I exercised my rights in respect of H&S cases under Section 44, ERA 1996. (Namely: I complaint to Tribunal on 13 June 2023 that my H&S is at eminent risk, I was summary dismissed the same day contrary to s105 ERA 1996).b. I exercise my rights in respect of H&S cases under S44, ERA 1996 and s 26 EqA 2010. (Namely: I complaint to Mr Peto (VP) in 2023. That Mr Bhalsod has infringed my relevant statutory right; which had impacted my health recovery).c. I exercise my rights in respect of Health and Safety under Section 44, ERA 1996. (Namely: I complaint to Mr Hawkins (MD) in May 2023. That my H&S is being put at risk by Mr Bhalsod because of unreasonable stress at work).d. Protection for making a protected disclosure (whistleblowing) - Part IVA, ERA 1996. (Namely: I complaint to HR about MAY 2023, that Mr Kish Bhalsod is infringing my statutory rights with unnecessary engagenent and work stress, as a result of unreasonable request and unexplainable series of stressful meeting invites).e. I exercise my rights in respect of Health and Safety (H&S) cases - Section 44, ERA 1996. (Namely: I complaint to HR in about March and April 2023 that my H&S is at risk from detrimental treatment by Mr Walsom, Ms King and Mr Bennett).f. I exercise my rights in respect of Health and Safety cases under Section 44, ERA 1996. (Namely: I complaint to FedEx Integrity in March- April 2023 that my safety is at risk by regular harassment. I need movement to a different department as a matter of reasonable adjustment).g. I exercise my rights in respect of Health and Safety cases – Section 44, ERA 1996. (Namely: I complaint to Ms Woodward and Mr Walsom about April 2023 that my H&S is at risk, they should implement OH recommendations as a reasonable adjustment for me to manage the stressful unfair demands by Mr Bhalsod).h. I exercise my rights in respect of Health and Safety cases – Section 44, ERA 1996. (Namely: I complaint to Mr Bhalsod in April 2023 that my health is at eminent risk, because of his stressful demands and unreasonable pressures against my person, they should implement Occupation Health (OH) recommendations).i. Protection against unlawful deduction from wages – Section 13, ERA 1996. (Namely: I complaint to Mr Rock (VP) in August 2022 that my rights was infringed by the failure to provide me pay improvement and yearly bonus like other employees in the workplace benefiting from Corroborative Labour Agreement (CLA) since 2020.j. Protection against unlawful deduction from wages – Section 13, ERA 1996. (Namely: I complaint to Employment Tribunal in August 2022 that Ms. King and Mr Walsom refused me pay improvement contrary to CLA agreement).k. Right to be accompanied at a disciplinary or grievance hearing under Section 10, Employment Relations Act 1999. (Namely: I complaint to Employment Tribunal in August 2022 that, Ms Cyndy King (HR) and Mr Matthew Walsom infringed my right by the failure to afford me the right to attend a grievance meeting with a companion on 7 April 2022 causing me to be diagnosed of panic attack).l. Right to be accompanied at a disciplinary or grievance hearing under Section 10, Employment Relations Act 1999. (Namely: I complaint to Ms Julie Bluanch (MD) in May 2022 that Ms Cyndy King (HR) and Mr Matthew Walsom refused me the right to attend a grievance meeting with a companion on 7 April 2022).m. Protection against unlawful deduction from wages under Section 13, ERA 1996. (Namely: I complaint to Julie (MD) in May 2022 that my rights was infringed by the failure to provide me pay improvement since CLA implementation in 2020).n. Protection against unlawful deduction from wages under Section 13, ERA 1996. (Namely: I complaint to HR in April or May 2022 that I did not get pay improvement in accordance with the implementation of Collaboration Labour Agreement (CLA).o. Exercise my rights in respect of Health & Safety (H&S) cases under Section 44, ERA 1996. (Namely: I raised Dangerous Goods processing and storage Safety concerns to Ms Delphine Slootmaker (MD. DG- Europe) in April 2022.)p. Exercise my right in respect of Health and Safety cases under Health and Safety Act 1974. (Namely: I raised warehouse employees Health Safety and Welfare concerns to Ms Slootmaker (MD DG and Welfare EUROPE) in April 2022 to help improve warehouse safety in the location).q. Exercise my rights in respect of acting as an employee representative – Section 47, ERA 1996 (Namely: I raised concerns against damaged Dangerous Goods processing and storage to Ms Delphine Slootmaker (MD for DGEurope) in April 2022; as a FedEx Express Quality Driven Management (QDM) Expert).r. Right to be accompanied at a disciplinary or grievance hearing under Section 10, Employment Relations Act 1999. (Namely: I complaint to Ms Cyndy King (HR) and Mr Matthew Walsom in April 2022 that they have infringed my right to attend a formal grievance meeting without a companion or reasonable adjustment).s. Protection under the Data Protection Act 2018, (Namely: I complaint to Information Commissions Office (ICO) that my employment Data privacy has been infringed by my Mr Walsom and Mr Bennett contrary rights under that Act).t. Protection under the Data Protection Act 2018 (GDPR 2018). (Namely; I complaint to FedEx Privacy about May 2021 that my employment history records has been altered contrary to my right under the Data Protection Act 2018). 6. Until I raised concerns against regular poor Health, Safety and Welfare practices, non- compliance culture practice at FedEx Dartford Road Transport Hub; No management complaint against me nor targeted me, to supressed my personal development in the integrated FedEx Express Europe business. 7. After raising my concerns and criticising the poor non-compliance culture and anti- discriminatory law breaches; I was regular targeted and subjected to detriments from all angles; by the location senior management – Mr Matthew Walsom, Ms Cyndy King (HR) and Mr Ryan Bennett (Deputy Manager). 8. To the extent that a false disciplinary letter was planted into my employment records at the time I have never exhibited unlawful conducts contrary to business rules at work. Mr Ryan Bennett (Deputy Manager) said to me on 17 February 2021 that, “no one will support my development because I Speak Up against Matt”. And he will destroy my life if when he wants to. He seized prize items delivered to me. 9. By virtue of the submissions listed above, I reasonably believe I was summary dismissed on 13 June 2023, by Mr Kish Bhalsod because I asserted my statory right under s104. 10. I reasonably believe the dismissal was unfair, contrary to section 105 of the Employment Right Act 1996 (ERA). Alternatively, Section 47 Employment Right Act 1996. 11. I reasonably believe the Respondents is in breach of section 105 Employment Right Act 1996 and/or section 47 ERA 1996, and guilty for Automatic Unfair Dismissal against me. (For asserting my statutory right in good faith against location management). Law Interim relief[21]The claimant’s application for interim relief is pursued pursuant to section 128(1)(a)(i) Employment Rights Act 1996 (‘ERA') in alleging his dismissal was automatically unfair pursuant to section 103A ERA.[22]Section 128 provides: 128 Interim relief pending determination of complaint (1) An employee who presents a complaint to an [employment tribunal]— (a) that he has been unfairly dismissed by his employer, and (b) that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in section 100(1)(a) and (b), [101A(d),] 102(1)[, 103 or 103A] [or in paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992], may apply to the tribunal for interim relief. ---[23]Interim relief can only be granted if the tribunal thinks that the claimant is "likely" to establish at full hearing that the protected disclosure was the reason (or principal reason) for dismissal (section 129(1)). In Ministry of Justice v Sarfraz [2011] IRLR 262 EAT, the Employment Appeal Tribunal pointed out that section 129(1), read in conjunction with the definition of "qualifying disclosure" contained in section 43C of the ERA 1996, means that it must be likely that a tribunal will find that: The claimant has made a disclosure to his employer. He believed that the disclosure tended to show one or more of the matters itemised at (a) to (f) under section 43B of the ERA 1996. The belief was reasonable. If made before 25 June 2013, the disclosure was made in good faith. The disclosure was the principal reason for the dismissal.[24]In Bombardier Aerospace v McConnell [2008] IRLR 51 (NICA), at paragraph 15), the Court said: “The question remains, what does ‘likely’ mean in these provisions? As a matter of principle, the word is capable of a range of meanings. It may be compared with the word ‘probable’. ‘Probable’ is a flexible word, but in law it is apt to mean ‘on a balance of probabilities’; that is, ‘more likely than not’. ‘Likely’ is an even more flexible word. Depending on its context, ‘likely’ may mean the same as ‘probable’, or something more, or something less. The alternative meaning of "likely" in the Disability Discrimination Act 1995 and the Equality Act 2010 (denoting something that "could well happen" even if the probability is less than 50/50 (Cream Holdings Ltd v Banerjee [2005] 1 AC 253 HL at para 12; Boyle v SCA Packaging Ltd [2009] ICR 1056 HL). was not applicable here (see Dandpat above). The question is: what does ‘likely’ mean in the present context? The authorities say that it imports that the claimant needs to show that he has ‘a pretty good chance’ of success, and ‘a pretty good chance’ is something more than ‘on the balance of probabilities’; something more than a 51 per cent chance. In the trade union case of Taplin v. C Shippam Ltd [1978] ICR 1068 EAT, the Employment Appeal Tribunal formulated the test to be applied in these terms:- “The Tribunal should ask itself whether the applicant has established that he has a ‘pretty good’ chance of succeeding in the final application to the Tribunal.”[25]The Taplin test was approved in Raja v The Secretary of State for Justice UKEAT/0364/09 and applied by the tribunal in Chowdhury v Ealing Hospital NHS Trust ET/3302168/10; 3301557/10.[26]The Employment Appeal Tribunal reaffirmed the proposition that a claimant for interim relief must demonstrate a ‘pretty good chance’ of success at trial, the Employment Appeal Tribunal remarked in Dandpat v University of Bath UKEAT/0408/09 (10 November 2009, unreported), at para 20).: ‘We do in fact see good reasons of policy for setting the test comparatively high in the case of applications for interim relief. If relief is granted the [employer] is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the [employee], until the conclusion of proceedings: that is not consequence that should be imposed lightly’. An application for leave to appeal on this point to the Court of Appeal was made in Dandpat and was refused by Arden LJ ([2010] EWCA Civ 305, para 17). Dismissal Reason for dismissal[27]What is in issue is the employer’s reason for dismissing the claimant. It is trite to say that the ‘reason’ for a dismissal is a set of facts known to the employer or a set of beliefs held by him which causes him to dismiss (Abernethy v. Mott Hay and Anderson [1974] ICR 323 CA per Cairns LJ; W Devis & Sons Ltd v. Atkins [1977] AC 931 HL). The issue is causation. Disclosure[28]The statutory provisions are contained in the Employment Rights Act: [103A Protected disclosure] [An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.] [43A Meaning of “protected disclosure”] [In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.] [43B Disclosures qualifying for protection] [(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— …(a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, .. (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[29]In Chesterton Global Ltd. and Anr. v Nurmohamed [2017] IRLR 832 CA, Lord Justice Underhill said, at para 37: “Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under s.43B(1) where the interest in question is personal in character5), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker… Although disclosures tending to show breaches of the worker's own contract are the paradigm of disclosures of a 'private' or 'personal' character, they need not be the only kind: see the Minister's reference to disclosures 'of minor breaches of health and safety legislation … of no interest to the wider public.' Was the whistleblowing the reason for the dismissal?[30]Under section 103A, a dismissal is automatically unfair if “the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”. Whether the dismissal flows from the disclosure is a question of causation. In the case of a dismissal, the EAT in Trustees of Mama East African Women’s Group v. Dobson UKEAT/0219/05 said: The legal principles to be applied appear to us to be as follows:-16. A reason for dismissal is a set of facts known to the employer or at least held by it which causes it to dismiss the employee: Abernethy v Mott Hay and Anderson [1974] IRLR 213 (CA).17. This calls for examination of the decision making in the mind of the dismissing officer, see the speech of Lord Nicholls in Khan at paragraph 29 which provides as follows: “29 3) ‘by reason that’ Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the ‘operative’ cause, or the ‘effective’ cause. Sometimes it may apply a ‘but for’ approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572, 575-576, a causation exercise of this type is not required either by a 1(1)(a) or s.2. The phrases ‘on racial grounds’ and ‘by reason that’ denotes a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”[31]The Employment Appeal Tribunal in Dobson held that the tribunal should consider the decision-making processes of the employer, or the relevant manager. DISCUSSION AND DECISION[32]Strictly speaking, the Tribunal should confine itself to the claims made in the ET1 claiming dismissal for making protected disclosures, any other claims or additions must be made by an application for amendment. This process has not been followed in the claims made by the claimant. For the purposes of this claim only, the Tribunal has taken a wide view of the claims from whatever source whilst still confining itself to the reason for the dismissal.[33]The claim made by the claimant and the documents provided by him to this hearing do not follow a date order sequence. In some instances, a date is not provided for the action complained of. In order to understand the reasoning of the employer for dismissal, the date order sequence was examined as the Tribunal is well aware from its experience that dismissal following a protected disclosure can often be disguised as redundancy.[34]The Tribunal noted that in the reply to his 2020 grievance [C2 58h], he complained that his employment was from the start potentially redundant. While his grievance was rejected because of the lack of knowledge of his manager, it does appear that there were no plans to integrate his post. This means that a potential redundancy situation applied to his post from the commencement of his employment in the position of ESP co-ordinator.[35]From as far back as 2019, the claimant made complaints to his employer which he describes as disclosures. The Tribunal did not consider that these impacted any decision making by the respondent going forward.[36]At C6 para 5 s and t, the claimant complains of breaches of the Data Protection Act 1988 which are not within the jurisdiction of the Tribunal but these (potential disclosures 1 and 2) were considered to ascertain whether they impacted any decision making by the respondent going forward. They did not.[37]The respondent states that the claimant was not, and has never been, in an integrated role and he consistently refused to engage in integration discussions. Up to the time his employment was terminated, he was still working under his original terms and conditions from 2017. The claimant says that he was integrated as a handler. There is no documentary support for his contention and if a handler was an integrated post, there would have been no redundancy situation.[38]As the claimant became the final person in the ESP department, the respondent applied its redundancy procedure to him. The procedure involved consultation meetings and attempts to find alternative employment and after the decision was made appeals. The respondent took a relatively long time to carry out the redundancy. It appeared that when the employer took a step in the procedure, the claimant would launch a number of complaints which mostly related to his own circumstances. Potential disclosures 3-5 were made after the meeting on 7 April 2022 to discuss integration. Potential disclosures 6-12 were also made at that time. The Tribunal considered these to be a reaction to the meeting. There was a consultation meeting on 7 February 2023, after which the claimant made potential disclosures 13-15. After he declined to attend the meeting in May 2023, he made potential disclosures 16-21.[39]The claimant says [C1 4para 5a-t] he made 21 disclosures from 2021 to 13 June 2023. The potential disclosures relied upon by claimant range from one related to the storage of dangerous goods which would be likely to have a public interest to more often being about his own circumstances which would not.[40]The Tribunal reminded itself that to amount to a qualifying disclosure of information, there must be a disclosure with sufficient factual content and specificity to be capable of tending to show one of the matters in the sub-sections of Section 43B(1). The worker must reasonably believe that the disclosure is made in the public interest. The Tribunal first has to ask whether the worker believed that the disclosure was in the public interest and secondly whether that belief was reasonable. In considering whether it is reasonable to regard a disclosure as being in the public interest, the following factors are likely to be relevant: the numbers in the group whose interests the disclosure served; the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; the nature of the wrongdoing disclosed; and the identity of the alleged wrongdoer.[41]The Tribunal made no findings as to whether what the claimant described as disclosures were made in the public interest but sought to identify to whom the alleged disclosures were made for any impact on the dismissal decision making process. The respondent relies on the lack of knowledge of Mr Bhalsod, the dismissing manager, of the potential disclosures but potential disclosure 17 was made to him and it seems unlikely, given the number of complaints made to a number of people that he was unaware of the actions of the claimant. Nonetheless, the Tribunal finds that any knowledge Mr Bhalsod might have had about complaints did not affect his reasoning in dismissing the claimant for redundancy.[42]The claimant emphasised, particularly in submission, that he was a health and safety representative and was dismissed for health and safety reasons. The respondent pointed out that a claim for interim relief for health and safety reasons may only be made where the allegation is that the employee has been dismissed where the complaint is that the reason for dismissal falls within subsections 100(1)(a) and (b) Employment Rights Act 1996: “(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for dismissal is that –(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,(b) being a representative of workers on matters of health and safety at work or member of a health safety committee – (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee.” 41. The Tribunal did not have evidence that the claimant was either a representative of workers on matters of health and safety or a member of a health safety committee. 42. The Tribunal was aware that he had made a made a serious complaint in April 2022 about the storage of dangerous goods to Ms Slootmaker and considered his claim under section 43 B (1)(d) where it was not necessary for the claimant to be an elected representative. The Tribunal did not consider that his complaint under this head impacted the employer’s reason for dismissal.[43]The Tribunal considers that the actions of the respondent support the position that redundancy was the reason for dismissal. Looking to the nature and timing of the disclosures and other complaints, it is not likely that either separately or together the claimant would establish that they were the reason for dismissal. Accordingly, the claim for interim relief is refused.
The claim
[1]The Claimant has applied to strike out the responses to all claims.[2]At a case management discussion conducted by me on 15 April 2024 the Claimant had said he was applying for the response to Claim 4 to be struck out. I made various directions, including requiring the Claimant to set out the basis of any other applications to strike out responses.[3]At the start of the present hearing it was confirmed that the Claimant had made written applications to strike out the responses for Claims 4, 5 and 6. However, after the hearing had finished on day 1, late at night, the Claimant submitted an application to strike out claims 1, 2 and 3.[4]I deal firstly with the applications to strike out Claims 4, 5 and 6. The Claimant had made written applications and these were contained in the Bundle starting at pages 1361, 1166 and 1225 and were submitted on 25 June 2024, 26 June 2024 and 25 June 2024 respectively.[5]The Claimant’s written application runs to five pages. The Claimant also made oral comments about his application.[6]Within the written application he refers to the Respondents not complying with case management directions that I set on 15 April 2024.[7]At the time the Claimant made the application the rules in force were The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, and the reference to numbering refers to those rules. In January 2025 those rules were replaced by The Employment Tribunal Procedural Rules 2024. In the new rules the strike out provisions are now contained in rule 38, not rule 37.[8]The basis of the written application appears to be summarised at paragraph 5 of the written application, as copied below: “I respectfully request a Strike Out of the entirety of the Respondents Grounds of Resistance in respect with case numbers 2302703/2022. In that, particulars in all parts of the response are scandalous, vexatious and weak; with little or no reasonable prospect of success, The manner in which the proceedings have been conducted by or on behalf of the Respondent has been scandalous, unreasonably vexatious and the Respondents have persistently been noncompliance with CMO and Tribunal directive per Rule 6 of Tribunal Procedures. Plus had failed to comply with CMO of 15 April 2024, as always done.”[9]It is not proportionate to repeat the entire written application here, but it has been considered in full. The Claimant references a breach of paragraph 23 of the Case Management Order dated 24 November 2023 and says the Respondents replied to the direction on 19 January 2024, when the deadline was 11 January 2024. He refers to rule 6 of the then in force procedural rules.[10]In oral submissions the Claimant confirmed that he was seeking for the entire response to be struck out and alternatively, as set out in his written submissions “a deposit order of £1000 against each submission provide by the Respondents on 19 January 2024 against my issues of claims.”[11]The Claimant also refers to making an application under rules 37(1)(a-c). He says the Respondents have acted unreasonably and submitted a false defence and not provided him with information requested. He says the grounds of resistance contains a bare denial and no coherent statement of facts. However, in the next sentence he refers to coherent facts not being intelligible in law.[12]He says the grounds of resistance are weak and having little prospect of success and/or no reasonable prospect of success but goes on to say the grounds of resistance was insufficiently particularized and sets out a number of points at paragraph 17 of the application.[13]The Claimant also referred to the Respondent breaching order 18 of the Case Management Order from the hearing on 15 April 2024, sent to the parties on 25 April 2024.[14]In his oral submissions the Claimant said the Respondents had been wasting resources, that he had evidence to support his claim, the Respondents had the resources to do the right thing and all weak and no reasonable prospect of success.[15]The Respondent had not submitted any written response to the application. However, in oral submissions Counsel Adjei submitted that the Claimant had picked out three incidences of non-compliance with orders but that seemed to have been abandoned at which stage the Claimant clarified he was relying on the content of his written and oral applications.[16]Counsel Adjei commented on the alleged non-compliance with Tribunal orders. With reference to the CMO from the hearing on 24 November 2023 he said the CMO was revised and sent to the parties on 22 December 2023 and that time ran from the revised order and that the Respondents complied with the order on 19 January 2024, in time.[17]With reference to the CMO from the hearing on 15 April 2024 he submitted that the Respondents did comply and the document complying with the order is that at page 1064 of the bundle, dated 24 June 2024. He also commented that the Respondents chased the Claimant for information on 13 May 2024 (page 968) in order to comply with the order on it. He referred to the Respondent’s letter to the Tribunal on 16 December 2024 (page 977) which referred to them having not received the information required from the Claimant, and a letter on 24 June 2024 (page1096) giving the Tribunal an update and submitted the Respondents had engaged with the Tribunal orders.[18]Counsel Adjei said none of the grounds of the Claimant’s application affected the fairness of a trial and that the Claimant had not addressed me on the core matter of fairness of the trial. He said the responses are not just a series of bare denials and that the Claimant can’t simply assert that he has a good case and the Respondents have a bad one. He further submitted the Respondents have not wasted resources and there has been no criticism of the Respondents conduct.[19]In relation to Claim 5 the Claimant’s written application runs to six pages. The application repeated comments about the Respondent not complying with order 18 of the CMO from 15 April 2024 hearing and paragraph 23 of the CMO from 24 November 2023 hearing. He submitted it was scandalous and vexatious and had little/no reasonable prospect of success. He also says the Respondents conduct has been unreasonable and the response is unparticularized. The Claimant also says there has not been an ET3 acceptance letter sent.[20]The written application is very similar to that submitted for Claim 4, and I have therefore not repeated the same points but he seeks for the response to be struck out under rule 37(1)(a)(b) and (c) (now rule 38) and a deposit order in the alternative.[21]In oral submissions the Claimant made comments about it being a discrimination and whistleblowing case and that inferences will need to be looked at and said the grounds of resistance just denies the claim without any reasonable excuse and that the Respondents don’t lose anything.[22]Counsel Adjei noted the basis of the application was on the same grounds as Claim 4 and relied on the same submissions. He said that if the response was struck out the Respondents would lose the ability to defend the claim.[23]Counsel Adjei said he considered the response had been accepted, that an interim relief hearing had taken place.[24]I made enquiries about the acceptance process of Claim 5. There is handwritten note on the paper file for the response to be processed. However, it appears that a formal acceptance of response letter was not sent. It appears that the file got sent to listings for the arrangements for the interim relief hearing and that the acceptance letter not being sent was an oversight. All parties, including the Tribunal, have been working on the basis that the response has been accepted. I have requested an acceptance letter be sent to the parties.[25]The Claimant’s written application runs to six pages and is very similar to that for Claims 4 and 5 and therefore I have not repeated the written basis.[26]In oral submissions the Claimant said the Respondents uses procedures to waste internal resources and said the Respondents wouldn’t lose but would gain from the responses being struck out but would gain as they wouldn’t need to attend a hearing and the Tribunal could ask him questions.[27]Counsel Adjei noted the basis of the application was on the same grounds as Claim 4 and 5 and relied on the same submissions. Claims 1, 2 and 3[28]As set out above, the application to strike out the responses for Claims 1, 2 and 3 was made during the hearing.[29]In oral submissions the Claimant said he was applying for the responses to these claims to be struck out as there had been a pattern of behaviour and that I agree with him that the Respondent wasted public resources to mislead the Tribunal. He said the response was unreasonable so should be struck out. He referred to being told by the Tribunal that someone had said he should not be given the CMO until he the last minute and directed me to my CMO of 23 November 2023 and this is not a minor error. The Claimant also said there was a late response to his subject access request and that if the responses are struck out the Respondents won’t have to pay any more money to defend the claims and all that has to happen is the Tribunal ask him questions to make a decision. He said the responses for Claims 1 to 3 were unacceptable and had to be struck out or a deposit order made.[30]Counsel Adjei said that he understood the basis of the application was that sent on 23 January 2025 at 06:54 which referred to the Respondents saying that the Claimant has sought and secured legal advice in one of the grounds of resistance. He noted that at 08:28 the Respondents solicitor had written to the Tribunal explaining it was an error and apologizing. He said the Claimant has raised this matter previously and it had been addressed and the incorrect reference had been removed from the amended response as at page 182 of the bundle for this hearing. He submitted that there was no evidence this was deliberate, and even if was, would be far too draconian a sanction to strike out responses to Claims 1, 2 and 3 at this time.[31]Counsel Adjei said this was not a case where it was no longer possible for a fair hearing to take place and said the Claimant has not made any submissions in relation to this key component in any of his applications to strike out. The legal principles – strike out orders and deposit orders Deposit Orders Strike Out[32]Under Rule 38 a claim or part of a claim can be struck out on grounds that include it has no reasonable prospect of success and/or that the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. A claim cannot be struck out unless the party has been given a reasonable opportunity to make representations either in writing or, if requested by the party, at a hearing.[33]Rule 38 of The Employment Tribunal Procedural Rules 2024 states: Striking out 38.—(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). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[34]There are no changes from rule 27 of the 2013 Regulations that impact the Claimant’s application.[35]Operation of rule 38(1)(a) requires a two stage test.[36]Firstly, has the strike out ground been established on the facts.[37]If so, secondly is it just to proceed to a strike out in all the circumstances (which will include considering whether other lesser, measures might suffice).[38]When assessing whether a claim or a response has no reasonable prospect of success the Tribunal must be satisfied that the claim/response or allegation has no such prospect, not just that success is thought to be unlikely (Balls v Downham Market High School and College [2011] IRLR 217). The Tribunal must take the allegations in the at their highest. If there remain disputed facts, there should not be a strike out unless the allegations can be conclusively disproved as demonstrably untrue or the claim is fanciful or inherently implausible (Ukegheson v Haringey London Borough Council [2015] ICR 1285; Merchkarov v Citibank NA [2016] ICR 1121). In other words a strike out application has to be approached assuming, for the purposes of the application, that the facts are as pleaded. The determination of a strike out application does not require evidence or actual findings of fact.[39]In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a striking-out application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in Ezsias, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per Maurice Kay LJ).[40]A strike out application succeeds where it is found that, even if all the facts were as pleaded, the complaint, or response, would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways [2017] EWCA Civ 1392 that “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”[41]There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.[42]If a strike out application fails the argument about the overall merit of the claim/response is not decided in the favour of the other party. Both the claimant and the respondent argue their positions on the merits in full and afresh at the full hearing.[43]The EAT, in the case of Mechkarov v Citibank NA [2016] ICR 1121, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[44]Rule 38(1)(b) provides that a claim or response (or part) may be struck out if ‘the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent… has been scandalous, unreasonable or vexatious’. The terms ‘scandalous’ and ‘vexatious’ in this context are used in much the same way as they are in rule 38(1)(a). A claim or defence may also be struck out on this ground if a party has conducted the case in an ‘unreasonable’ manner, this can apply to representative’s conduct also. For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response.[45]Rule 38(1)(c ) provides that a claim can be struck out “for noncompliance with any of these Rules or with an order of the Tribunal.”[46]A key leading case on striking out for non-compliance with an order is Weir Valves and Controls (UK) Ltd v Armitage 2004 ICR 371, EAT.[47]In deciding whether to strike out a party’s case for non-compliance with an order under rule 38(1)(c), a tribunal must consider the overriding objective set out in rule 3 (of seeking to deal with cases fairly and justly. 1. This requires a tribunal to consider all relevant factors, 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 striking out or some lesser remedy would be an appropriate response to the disobedience. Deposit Orders[48]The power to make a deposit order is provided by rule 40 of The Employment Tribunal Procedural Rules 2024, as follows:(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b) the deposit must be paid to the other party (or, if there is more than oneto such other party or parties as the Tribunal orders), otherwise the deposit must be refunded.(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.[49]The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “ To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails” and it is“ emphatically not…to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.[50]As for the approach the Tribunal should take, in Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-UponThames and others [2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan that a mini-trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested.[51]The Claimant pursues the application as an alternative to part of their strike out application. The test is therefore one of “little reasonable prospect of success” as opposed to “no reasonable prospect of success” for a strike out application.[52]Rule 40 allows a tribunal to use a deposit order as a less draconian alternative to strike-out where a claim or response (or part) is perceived to be weak but could not necessarily be described as having no reasonable prospect of success.[53]In Jansen van Rensberg v Royal London Borough of Kingston-uponThames UKEAT/0096/07, the EAT observed: “27. … the test of little prospect of success … is plainly not as rigorous as the test that the claim has no reasonable prospect of success … It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.”[54]A deposit order application has a broader scope compared to a strike out application and gives the Tribunal a wide discretion not restricted to considering purely legal questions. The Tribunal can have regard to the likelihood of the party establishing the facts essential to their claim, not just the legal argument that would need to underpin it.[55]In a case where a Tribunal concludes that a claim or allegation has little reasonable prospect of success, it does not mean that a deposit order must be made. The Tribunal retains a discretion in the matter and the power to make such a deposit order has to be exercised in accordance with the overriding objective and with having regard to all of the circumstances of the particular case.
Conclusions
[56]I have dealt with each ground of the application.[57]I deal firstly with the alleged non-compliance with orders.[58]Paragraph 23 of the CMO from the hearing that took place on 24 November 2023 states: 23. In order to have as clear a position as possible on any applications that the respondent may have in advance of the next hearing, the respondent must, within 28 days of receipt of this Case Management Summary and Order, set out against each allegation the following: 1. Whether it says the allegation requires an application to amend and why; 2. Whether it will be making any other application in respect of the allegation, such as an application for strike out under rule 37 and/or an application for a deposit order under rule 39 under the Employment Tribunals (Constitution & Rules of Procedure Regulations) 2013 It may be sensible, for the respondent to add the comments against each allegation in the draft list of issues, or produce that in table form, so that the Tribunal and the parties can easily understand the respondent’s position.[59]The CMO was sent to the parties on 14 December 2023. The Respondent had 28 days to comply with the directions. However, the Case Management direction was revised on 13 December 2023 and sent to the parties on 22 December 2023. The Respondents considered the dates for compliance to run from the revised order.[60]The Respondent wrote to the Tribunal on 19 January 2024 setting out where it considered an allegation in the list of issues required an application to amend and that it sought to strike out the Claimant’s breach of contract complaint. I do not consider there to be non-compliance with the order. In the circumstances, I do not consider it unreasonable to respond by 19 January 2024.[61]Paragraph 18 of the CMO from the hearing that took place on 15 April 2024 states: 18. The Respondent must write to the Tribunal and the other side within 21 days of receipt of the further information from the Claimant with the following:a. The position on whether it says any allegations in Claims 4, 5 and 6 require and application to amend. Each allegation it says are not within the relevant ET1 must be specified.b. The basis of any application to strike out, and in the alternative a deposit order, in relation to claims 4, 5 and 6.[62]It is important to set out that paragraph 18 follows an order on the Claimant, as set out below 17. The Claimant must write to the Tribunal and the other side within 21 days of receipt of this Case Management Order & Summary setting out the further information required as highlighted in the draft list of issues below.[63]The CMO was sent to the parties on 25 April 2024. I have reviewed what has taken place in relation to this order following submissions from the parties.[64]I note that the on 15 May 2024 Claimant provided a table that he says provided the information required under order 17.[65]Order 18 required the Respondent to set out its position within 21 days of receipt, namely by 5 June 2024. The Respondent did not provide its position until 24 June 2024, therefore, technically, they did not comply with the deadline. However, the Respondents did write to the Tribunal on 16 May 2024, within which they stated the Claimant had not provided all the information which he was required to give, and requested that he do so.[66]In the letter on 24 June 2024 the Respondents set out they did not consider the Claimant had complied with order 17.[67]I have considered the relevant factors.[68]Dealing first with the magnitude of the non-compliance, I do not consider there was any significant non-compliance. The Respondent set out its position late, as it considered the Claimant had not given all the information he was ordered to provide.[69]It is not entirely clear whether the default was the responsibility of the party or representative, but the representatives are formally on record as acting and as set out above engaged with the Claimant in seeking to obtain the information needed and update the Tribunal.[70]I considered what disruption, unfairness or prejudice has been caused by the delay. I consider there to be minimal disruption, unfairness or prejudice. The Claimant then submitted lengthy applications to amend his claim on 24, 25 and 26 June 2024. These were due to be heard at the preliminary hearing on 3 to 5 July 2024 but this was postponed due to the Claimant’s ill-health. I do not consider there was any disruption, unfairness or prejudice caused by the Respondent’s late response to order 18.[71]I considered whether a fair hearing would still be possible. Two final hearing dates had been listed for December 2024 and January 2025. It was necessary to vacate those hearings as none of the Claimant’s claims were ready for a final hearing. This was in no way related to the short delay in responding to order 18. A fair hearing in relation to Claim 4 still remains possible.[72]I considered whether striking out or some lesser remedy would be an appropriate response to the disobedience. In considering this I took into account all the circumstances of the case, noting the efforts taken to clarify Claim 4 and move the claim forward. On balance, taking all of the above into account, I do not consider striking out the response to Claim 4 would to be a proportionate response. I do not consider any lesser sanction is necessary.[73]I have considered the Claimant’s other strike out grounds, firstly, whether there are no reasonable prospects of success.[74]It is important to note that the response was submitted on 29 November 2022. The response is not a bare denial, and sets out information about the meeting on 7 April 2022, which the Respondent understood to be the factual basis of the claim. The document submitted on 24 June 2024 was not the Respondents response, some wording in the application seemed to infer the Claimant considered the document to a response that he wished to strike out.[75]Further, it is important to note that the allegations in Claim 4 were not entirely clear and required clarification at preliminary hearings. When the continuing claims are all clear, the Respondent may, or may not, be permitted leave to amend the grounds of resistance.[76]The Claimant does not specify which particular part of the grounds of resistance to be weak, but makes general comments about it not being properly particularized and also makes reference to the Respondent failing to provide evidence that the Tribunal does not have jurisdiction to hear certain complaints.[77]I have considered the response, and cannot conclude there is no reasonable prospect of success or little prospect of success. The information set out in the response to Claim 4 may or may not be supported by documentary and/or witness evidence, but the point is that the Respondents response to the allegations needs to be considered in full before a determination can be made on whether or not it succeeds.[78]Accordingly, it is not appropriate to strike out the response for Claim 4 or make a deposit order.[79]The Claimant also appears to be making an application under rule 38(1)(b) – that the manner in which the proceedings have been conducted by or on behalf of the Respondents has been scandalous, unreasonable or vexatious.[80]This application remains vague. Claim 4 has been brought against three respondents. The Claimant has not specified who is alleged to have acted in a scandalous, unreasonable or vexatious manner, when or how. He makes general assertions that the Respondents have acted unreasonably. At paragraph 13 he says “They have submitted false defence with inconsistence Grounds of Resistance for all the claims in the table. They have categorically refused to provide to me requested for information.” The written application also refers to the Respondents seeking to re-litigate matters already determined with regard consolidation. Claims 1 – 3 have been consolidated. As I have explained at several hearings, no decision has yet been made in relation to consolidation of Claims 4, 5 and 6 and I do not consider it to be scandalous, unreasonable or vexatious for a party to request consolidation where it considers claims are linked or would be best heard together.[81]I do not consider the Claimant has identified any way in his application, written or oral, in which the Respondents or their representative has acted scandalously or vexatiously in Claim 4. I do not consider the Respondents or their representative to have acted scandalously or vexatiously in relation to Claim 4.[82]I am not satisfied that there has been any unreasonable conduct by the Respondents or their representatives in relation to Claim 4. I have not been directed to any deliberate or persistent disregard and further, as noted above, a fair trial is still possible in relation to Claim 4.[83]The response to Claim 4 is not struck out. As noted above, I have not determined that the response has little prospects of success, and therefore no deposit order is made.[84]As noted in the summary of the application above. The application to strike out Claim 5 is made on the same basis as the application for Claim 4.[85]The response was submitted on 5 February 2024 and contains factual information.[86]For brevity, I will not repeat the same analysis and conclusions as set out above, but I have reached the same conclusions. The response to Claim 5 is not struck out. I have not determined that the response has little prospects of success, and therefore no deposit order is made.[87]As noted in the summary of the application above. The application to strike out Claim 5 is made on the same basis as the applications for Claims 4 and 5.[88]The response was submitted on 29 December 2023 and contains factual information.[89]For brevity, I will not repeat the same analysis and conclusions as set out above, but I have reached the same conclusions. The response to Claim 6 is not struck out. I have not determined that the response has little prospects of success, and therefore no deposit order is made. Claims 1, 2 and 3[90]The application to strike out Claims 1, 2 and 3 appears to be on under rule 38(1)(b) – that the manner in which the proceedings have been conducted by or on behalf of the Respondents has been scandalous, unreasonable or vexatious.[91]In relation to the assertion that the Claimant was told by the Tribunal that someone had said he should not be given the CMO until he the last minute I note that this was discussed at the hearing on 24 November 2023. I set out the comments below in my order.16. During the hearing the claimant stated that he was concerned that Employment Judge Corrigan had prevented an order from 2022 being sent to him promptly.17. Following the hearing, I undertook a review of the electronic case files and it appears that Employment Judge Corrigan undertook a hearing on 16 September 2022 and completed the order on 21 October 2022. The order was then sent to the parties on 18 November 2022.18. A further preliminary hearing took place on 23 November 2022, before Employment Judge Wright. The late receipt of the order was specifically discussed at that hearing, and Employment Judge Wrights’ order states: “After hearing from the parties (the respondents’ position was that the hearing could go ahead) it was decided that it was not in the interests of justice or in accordance with the overriding objective, for the hearing to go ahead today. The reason was that following the preliminary hearing on 16/9/2022, the Order from that hearing was not sent to the parties until 18/11/2022 at 3:18pm. That left two working days before this preliminary hearing. This was despite an express instruction from Employment Judge Corrigan that it be sent as soon as possible and without delay. Judge Corrigan had amended some dates due to the delay in her finalising her Order and also said in the covering note (in which she apologised for the delay) that the parties should read the Order carefully as it ‘contains important information, some of which was not discussed at the hearing’.”[92]I do not see how this matter can be considered to be conduct by or on behalf of the Respondents has been scandalous, unreasonable or vexatious.[93]The Claimant referenced a delay in receiving a response to his subject access request. The subject access request falls outside these hearings.[94]The Claimant made a general assertion that the Respondents have attempted to mislead the Tribunal. In relation to the response in which stated that the Claimant had received legal advice, as set out in my separate Record of Hearing, this appears to have been an error made by the Respondent’s solicitor, and an apology has been given. The incorrect reference has been removed.19. I do not consider the Claimant has identified any way in his application, written or oral, in which the Respondents or their representative has acted scandalously or vexatiously in Claims 1, 2 or 3 I do not consider the Respondents or their representative to have acted scandalously or vexatiously in relation to Claim 4.20. I am not satisfied that there has been any unreasonable conduct by the Respondents or their representatives in relation to Claims 1, 2 and 3. I have not been directed to any deliberate or persistent disregard and further, as noted above, a fair trial is still possible in relation to Claims 1, 2 and 3. Approved by: JUDGMENT having been sent to the parties on 7 March 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
Conclusions
[1]During the course of this hearing the Claimant withdrew a number of allegations whilst discussing his application to amend.[2]The Claimant had a considerable period of time to prepare and consider his applications to amend. The Claimant was under no pressure whatsoever to withdraw any complaints. During the hearing the Respondents’ Counsel made submissions on why the Claimant’s applications to amend his claims should be refused.[3]Each claim was discussed in turn, and each element of the claim that the Respondents said were not within the original ET1s was discussed, and a methodical approach of working through the list of issues was undertaken.[4]At several points the Claimant said he was withdrawing certain allegations.[5]When the Claimant said he wished to withdraw an allegation, I wrote down the precise number of the allegations that the Claimant said he was withdrawing. There were clear withdrawals.
The Law
[6]Rules 50 and 51 of The Employment Tribunal Procedural Rules 2024 deal with withdrawal and are set out below. “End of claim 50. Where a party advancing a claim informs the Tribunal, either in writing or in the course of a hearing, that their claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the party responding or replying to the claim may make for a costs order, preparation time order or wasted costs order Dismissal following withdrawal 51. Where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it (which means that the party advancing it may not commence a further claim against the party responding or replying to it raising the same, or substantially the same, complaint) unless—(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.”
Conclusion
[7]No decision was made by me, or anyone else, to dismiss the allegations.[8]The Claimant specified which claims he was withdrawing. He was clear in this respect.[10]The rule are clear, when a claim or part is withdrawn, it comes to and end and the Tribunal must issue a dismissal judgment. I did not consider there to be anything rendering the issuing of a dismissal judgment to not be in the interests of justice in the circumstances of a clear withdrawal. Accordingly, a separate dismissal judgment was issued. Approved by: