Mr J Murphy v Secretary of State for Work and Pensions: 2400194/2024
EMPLOYMENT TRIBUNALS
Case No 2400194/2024
Between
Mr J MurphyClaimantSecretary of State for Work & PensionsRespondent
Before
Judge ShotterMr R Ryan (instructed by counsel) for respondentDate 30 December 2025
JUDGMENT
[1]The claims of sexual harassment and discrimination on the grounds of protected belief dated 12 May 2022 and set out alleged incidents 1 to 18 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[2]The claims of sexual harassment and discrimination on the grounds of protected belief dated 24 March 2023 and set out alleged incidents 19 to 24 “Modified Particulars of Claim” are not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered per separate allegation because they have little reasonable prospect of success.[3]The claims of sexual harassment and discrimination on the grounds of protected belief dated 26 May 2023 and set out alleged incidents 27, 28, 30 and 31 in the “Modified Particulars of Claim” are not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered per separate allegation because they have little reasonable prospect of success.[4]The claims of sexual harassment and discrimination on the grounds of protected belief dated 26 May 2023 set out alleged incidents 19, 32, 33, 34, 35 and 36 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[5]The claims of sexual harassment and discrimination on the grounds of protected belief dated 7 July 2023 and set out alleged incidents 37, 38 and 39 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[6]The claims of sexual harassment and discrimination on the grounds of protected belief dated 8 August 2023 and set out alleged incidents 40, 41 and 42 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[7]The claimant’s complaints of direct sex discrimination brough under section 13 of the Equality Act 2010 are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[8]The claimant’s complaints of direct discrimination on the grounds of a protected belief is not struck out under Employment Tribunal Rule 38(1)(a). Taking into account the claimant’s ability to pay, a deposit order has been ordered as the claims have little reasonable prospect of success.[9]The claimant’s application to amend his claim out of time and add new discrimination allegations 45, 46, 47 and 48 set out in the “Modified Particulars of Claim” has little reasonable prospect of success, and a deposit has been ordered.[10]The claim of constructive unfair dismissal is not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered because it has little reasonable prospect of success.[11]A private preliminary hearing to discuss case management and the remaining issues in the case was listed to take place on 13 March 2026 starting at 10:00am or as soon as possible afterwards. The hearing will be a video hearing held remotely. The time estimate for the hearing is half a day. The parties will be sent separate notices of hearing and dial in detail.[12]Having considered the Practice Direction issued by the Senior President of Tribunals on 29 October 2024, and the accompanying Presidential Guidance, this preliminary hearing will be heard by an
REASONS
[1]This is a public preliminary hearing that follows the preliminary hearings which took place on 21 November 2024, 7 January 2025, 8 May 2025 and 18 July 2025. A Record of Preliminary Hearing approved by me on the 18 July 2025 was sent to the parties on the 15 October 2025 set out a number of issues, agreed case management orders and the list of issues which reflects the claimant’s claims as they stand today without the amendments he seeks.[2]In the preliminary hearing I have consider the issue of whether all or any of the claimant’s claims should be struck out for having no reasonable prospect of success, or if any claim has some but little reasonable prospect of success and if a deposit order should be made. As the parties had not been provided with the required notice I as unable to deal with the claimant’s application to amend, however, in light of my conclusions set out below, a deposit order has been made as set out in a separate Order on the basis that the application has little reasonable prospects of success and is unlikely to succeed with the likely result that the claimant is ordered to pay the claimant’s costs of defending the application. Reasonable adjustments – Equal Treatment Bench Book[3]The claimant explained that he experiences anxiety, which is unsurprising as he is a litigant in person dealing with a complicated case. We discussed whether any reasonable adjustments were needed under the Equal Treatment Bench Book, and the claimant confirmed none was needed. Nevertheless, I made it clear that the claimant could ask for breaks whenever he wanted, and time to think about his case. We had breaks at my instigation, and the claimant may wish to consider whether he can be assisted in any way by the Tribunal at the final hearing. This can be discussed at the preliminary hearing listed on the 13 March 2026. I refer the claimant to the Equal Treatment Bench Book again.[4]The claimant may also wish to be assisted by a friend/family during this litigation and at the final hearing. I have attached a list of possible legal advisors/organisations that may be able to assist. It would be a good idea for the claimant to discuss this Judgment and Deposit Order with someone as he is at risk of a substantial cost order that may wipe out savings and impact on the claimant’s intention to make a new life for himself. I have dealt with the oral evidence given by the claimant on his means below. The agreed bundle.[5]I have before me an updated agreed bundle consisting of 307-pages. I have considered the respondent’s written application dated 23 September 2025, a number of written communications from the claimant and the claimant’s objections dated 15 September 2025. I have also heard oral submissions from both parties, having offered the claimant a break after Mr Ryan had made his submissions, which the claimant indicated he did not need before making oral submissions in response.[6]My findings below have been reached following information provided to me by the claimant and the documents to which I was referred to in the bundle. They are not formal findings of fact and do not bind a Tribunal at the final hearing. The claim and litigation history[7]The claimant took part in ACAS early conciliation between the 3 November and 15 December 2023. The claim form was presented on the 14 January 2024.[8]The claimant is bringing a complaint of constructive unfair dismissal relying on the respondent breaching the implied term of trust and confidence between the 12 May 2022 through to 18 August 2023, when the claimant alleges several colleagues were “glassing him.” The claimant’s allegations are set out in a “Summary of Incidents” provided by the claimant clarifying and adding to his claims.[9]The claimant prepared what he describes as a “Modified Particulars of Claim” dated 29 August 2025 setting out the allegations of race, sexual harassment and discrimination on the grounds of religion and belief under sections 13, 26 and 27 of the Equality Act 2010.[10]The claimant, with the assistance of AI, has provide a number of documents attempting to clarify and expand on his claims, which is confusing as there are many pages of information, together with a document that appears to be an attempt at some form of Scott Schedule. I have concentrated on the pleaded case set out in the “Summary of Incidents” and “Case Incidents” set out in the “Modified Particulars of Claim.”[11]In this Judgment all references are to the “Modified Particulars of Claim” sent to the Tribunal by email on the 29 August 2024, which included “Declared Additional Incidents” that are number of new claims including two separate incidents both confusingly numbered 43. The claimant seeks to amend his claims to include allegations 43, 44, 45, 46, 47 and 48. The claimant’s application to amend has yet to be heard, however, I take the view that is has little reasonable prospect of succeeding and in tandem with the claimant’s application to strike out the defence and his most recent application for a anonymity/restricted reporting order, may very well amount to the scandalous, unreasonable and vexatious manner in which the claimant has approached this litigation. As a result of the vast amount of information provided by the claimant, his various applications and the confusion caused by what the claimant terms clarifications of his claims, my deliberations have taken in excess of 2 days, with some of the time spent was during non-working days given the pressures of the Employment Tribunal The claimant would do well to think about his future conduct in this litigation and take legal advice before firing off AI generated documents and applications which do not assist him and undermine his obligation to meet the overriding objective. Employment Tribunals can and do make costs orders against parties and will strike out claims due to the manner in which proceedings are being conducted under rule 38(1)(b) and the claimant should keep this in mind.[12]In short, the claimant had held the position of administration officer who moved from one department to another as a reasonable adjustment with the result that his work colleagues changed. The claimant alleges that his work colleagues discriminated against him because his facial features resembled that of someone with German ethnicity and his colleagues “perceived him as being German…and considered him as particularly attractive” when the claimant was of English and Irish heritage. The race discrimination claim was dismissed on withdrawal at the preliminary hearing held on 7 January 2025.[13]The respondent has conceded that the claimant had a protected philosophical belief at the material time.[14]The claimant also alleges that he was discriminated against on the grounds of his political belief because he was actively engaged with the British National Party and shares ideologies with the Conservative Party, UKIP and Reform. The claimant believes his young left-wing colleagues labelled him as a “Nazi, racist, antisemitic and Islamophobic” and because of this he was harassed and was subjected to direct discrimination which managers took part in and allowed the conduct to take place.[15]The claimant relies on what he described as “group bullying” from 2 November 2020 to 25 January 2021 and Mid-April 2022 to the claimant’s resignation on the 18 August 2023 following an unsuccessful grievance. At this preliminary hearing the claimant explained he had worked in a large open plan office where more than 100 staff worked (up to 200) who he did not know except for the people who sat on the same table as he did. Unknown to his colleagues the claimant covertly recorded their conversations, and his recordings reflect a cacophony of the voices and laughter as people went about their daily working lives in what the claimant described as “snippets.” Time limit for allegations that took place in the “old office” the last act being 26 May 2023.[16]At the end of May/beginning of June 2023 the claimant moved to a new office as a reasonable adjustment, and he confirmed the final incident in the “old office” took place on the 26 May 2023. Is notable that the people working in the new open plan office were different from those working in the old office, and not known to the claimant, and I concluded the claimant has little reasonable prospect of satisfying a Tribunal that hundreds of people were involved in a conspiracy against him, including managers, and there was a continuing act. of discrimination extending over a period of time with the leading case Barclays Bank plc v Kapur and ors 1991 ICR 208, HL in mind. I also take the view that in relation to the constructive unfair dismissal claim relying on all the allegations relating to colleagues and managers in the old office, the claimant has little reasonable prospect of satisfying a Tribunal that that he had not waited too long after the alleged breach of contract before resigning and is taken to have affirmed the contract: the leading cases of Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, and Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, CA.[17]The claimant alleges the bulling then started in the “new office” immediately he moved there by people the claimant was unable to name or knew except for the managers who sat on the same table as he did. The move to another floor was made as a reasonable adjustment to the claimant, who was experiencing mental health issues which the claimant puts down to the “mobbing campaign” that had taken place in his old office. The allegations in the new office from 26 May 2023.[18]The claimant alleges that his new work colleagues immediately on him moving to the new office, “slanderous accusations” across the workplace, and he reported this to management. The claimant continued to covertly record hours and days of conversations between colleagues.[19]At today’s hearing the claimant explained that he had produced hundreds of hours of recordings evidencing the bullying and sexual harassment which he had transcribed selectively as there were too many to produce. The claimant recorded as he carried out his duties, and a number of his complaints are the claimant’s interpretation of the words allegedly said which he did not hear at the time and has attempted to make sense of at a later date for this litigation by listening to recordings interpreted by the claimant in a way that was favourable to establishing his claims in this litigation. I find that if the Tribunal listened to recordings that were not selective it would be unable to make out any cogent evidence and many hours, if not days, would be taken up in hearing time if the claimant had his way. Such a state of affairs would not be in accordance with the overriding objective, the respondent would be prejudiced, and the claimant would not because the recordings do not reflect his selective interpretation of them. The claimant has no reasonable prospect of shifting the burden of proof by his use of the recordings in a case where the “facts” relied on by the claimant are contested by the respondent: Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931, CA.[20]In an email sent to the Tribunal on the 25 February 2025 the claimant emphasised that the recordings he referred to as “snippets…are crucial elements of my evidence…the snippets are audible and I estimate their overall accuracy at 95% with no discrepancies that would materially affect my case…it is not my responsibility to optimize the recordings for the respondent…to definitively resolve this issue I propose…I play a selection of snippets to the Tribunal for them to assess both the audibility and accuracy of the recordings.” I find that the claimant’s observations are misplaced and entirely incorrect.[21]In an email dated 15 April 2025 to the Tribunal the claimant wrote “I intend to provide the final recordings …once the materials have been reviewed and formatted to ensure they are relevant and complaint with the Tribunal’s expectations.”[22]In an email to the Tribunal dated 16 July 2025 the claimant made a strike out application of the defence for the respondent’s “false blanket denials…if the Tribunal finds audible content supporting my claims the respondent cannot reasonably sustain their defence.” Costs against the respondent was requested. This application was later withdrawn. The claimant has since indicated he used Artificial Intelligence (“AI”) to prepare his case and in respect of the strike out/deposit order applications he accepted the authorities cited by the respondent pointing out that they do “not permit a mini trial where evidence is disputed and key evidence has not been heard” and a “strike out or deposit order applications cannot be fairly be determined until the DAP playback has taken place”. I took the view that the claimant’s application to strike out the defence on the basis that the respondent refused to agree with him as to the meaning attributed to recordings was scandalous and vexatious and it had no prospect of success. The preliminary hearing on 18 July 2025[23]At the preliminary hearing held on the 18 July 2025 we listened to a number of recordings produced by the claimant who described them as “snippets.” The transcript produced by the claimant could not be agreed, and on hearing the recordings as they were played and re-played, it became clear that the recordings selected by the claimant out of the hundreds he had covertly taken, were not reflected in the “transcripts” produced by the claimant. I have set out in some detail my observations when listening to the recordings that include the following, starting at paragraph 10 in the Case Management Order: “Dispute concerning the claimant’s recordings (10) There is an issue with the recordings provided by the claimant, who describes them as “snippets.” The claimant recorded covertly his colleagues on a daily basis and has produced hundreds of recordings. We listened to the recordings referenced in a document provided by the claimant described as “Transcript” on numerous occasions to see if their meaning could be understood. These recordings were produced by the claimant in support of his application to strike out the response and were supposedly the clearest recordings he had. (11) We started by listening to “Snippet folder” – covering the dates 7, 8 and 18 August 2023. These are the most recent recordings. With the exception of snippet 1 under the 18 August 2023 date where the words “Bet, his girlfriend’s gagging for a fuck” could be heard, the remaining recordings could not be made out despite listening to them repeatedly. I do not intend to go through each and every recording line by line and it is sufficient to say that the recordings were very difficult to understand. The words attributed to a number of unknown speakers could not be made out, and there was not even a suggestion of the words the claimant believes he has heard. (12) In the snippet folder 7 August 2023, snippet 5, possibly the word “racist” could be made out, but not the words “Balogun can fuck him instead, and you’re not being racist there” cannot be made out at all. The remaining recordings were impossible to make out against the cacophony of noise in the open plan office recorded on the claimant’s phone and MP3 player. (13) The selection of snippets set out in Section B 1 June 2023 were impossible to make out, save for picking up the possible odd work. In relation to incident 34 the claimant corrected the word from “fuck” to “bum” and both these words could not be heard. Snippet 8 recorded people speaking at the same time, and the words could not be made out. (14) In the 26 May 2023 snippet, the name “Brad Pitt” could possibly be made out, and “they risk” in relation to different recordings. The words attributed by the claimant were not heard and a number of the words allegedly used do not make sense. The claimant explained this was due to the context not being understood, and he is correct as it is not possible to comprehend the evidence provided without context, even if the words could be made out. The claimant has provided snippets only, and even those which the claimant states he can give direct evidence of, have no context. An example of this is in section C “Quick selection of DAP snippets” with a recording date of 24 March 2023 and not 2022 as set out by the claimant. The background noise in the recording muffles the words used, and the claimant explained he sat 2 to 3 meters away from Rebecca Dunn, manager, when she described him as “Cupid” to another colleague. The claimant explained that describing him as Cupid in this was an act of sexual harassment. The word “Cupid” may have been used; the recording is not entirely clear. “ 3 November 2023 preliminary hearing[24]At the 3 November 2025 hearing the claimant produced different transcripts, recordings and play back equipment, which he described as “even clearer” than the recordings played back at the 18 July 2025 hearing. We listened to the recording in two stages; first without reading the claimant’s transcript followed by reading the transcripts and listening to the recording at least twice if not more, moving the equipment around the room to improve sound, to no avail. The claimant explained that some of the transcripts were not fully covered by the recording. I do not intend to comment on each and every recording and transcript produced by the claimant, other than to note that there was a great deal of office background noise, general murmuring and muffled sound. The claimant explained in 2022 and 2023 he largely worked on administration duties but also had to go on the phones. The transcripts relied on the claimant are largely produced because they “caught my attention” and the claimant did not experience firsthand who had said the alleged words used, but he believed it was about him because “plenty of times my name is used.” It is notable that only one of the transcripts or recordings refer to the claimant by his full name.[25]After the claimant moved offices as a reasonable adjustment in June 2023, the claimant explained that he had never seen anybody he worked with before, it was a large open plan office of 100 -200 staff (the claimant was vague as to the number of staff working when he took the recordings) explaining the people who shouted comments about him were working within a 10–15-meter radius of where the claimant was sitting. The claimant acknowledged that “collective mumbling” was recorded. I noted that the recordings of alleged incident 33, 35 had a great deal of office background noise and laughter which made it difficult to hear anything, and I cannot see how the claimant has come up with the transcript and allegations, especially those he did not witness first hand. I concluded that the claimant had no prospect, let alone a reasonable prosect of establishing the central facts that are in dispute relating to unknown people acting in a discriminatory manner towards him on the basis that the recordings and transcripts are totally inconsistent with the pleaded claims, and the claimant’s interpretation of the recordings inexplicable. In coming to this conclusion, I had in mind Anyanwu and anor v South Bank Student Union and anor (Commission for Racial Equality intervening) 2001 ICR 391, HL, that discrimination cases are generally fact-sensitive and any issues should usually only be decided after all the evidence has been heard.[26]We listened to the recording of alleged incident 20 that took place on 24 March 2023, which the claimant maintains involved his manager Rebecca Donne and Team leader, Andrew Fairbrother who both sat 2 to 3 meters away from him and whilst the claimant had no exchange with them, he heard the words being used including Rebessa Donne allegedly describing the claimant as “Hitler Youth” without naming him. The offensive language referenced by the claimant in incident 20 cannot be made out despite the recording being played back three times. The claimant was unable to name the colleagues involved in the alleged exchange which appeared disjointed and did not make sense.[27]I concluded that the recordings covertly taken when the claimant worked in the “old office” until 1 June 2023 are unlikely to provide contemporaneous evidence of discrimination and the claimant’s claims where he did not witness the words being used and by whom, had no reasonable prospect of success even had they the discrimination complaints been lodged in time, which they were not. I have commented further below on the time limits and effect of the “first group bullying campaign” claims being out of time in any event.[28]Turning to the alleged comment by Rebecca Dunn on the 24 March 2023 “He’s Hitler youth” and instructing a colleague to “go left and you’re most close to Cupid” this was allegedly witnessed by the claimant, who relies on the words as the basis for discrimination on the grounds of his political belief due to the reference to “Hitler Youth” and sexual harassment due to the description of the claimant as “Cupid,” I find the claimant is unlikely be assisted by the recording and the claims will be determined by assessing the oral evidence on the balance of probabilities.[29]We heard a recording of incident 23 which the claimant confirmed took place on the 23 April 2023, and whilst the claimant stated he could clearly hear the words set out in incident 23, for example, “Heil Hitler” and “hey Jew” neither myself nor Mr Ryan could hear any such language being used. The claimant confirmed that he did not witness this abuse first hand and relied on the recording. It is notable that incident 23 follows a similar pattern to all the other incidents relied on. All that can be heard is a disjointed jumble of words and phrases which do not hang together in any logical order, make no sense and cannot be understood in any context let alone as acts of discrimination against the claimant.[30]The same observations apply to incident 27 and 28 that allegedly took place on the 26 May 2023. The words in the recording are muffled, there are a lot of voices talking over one another, laughter and not one single coherent conversation could be made out. In relation to incident 28 the claimant confirmed he had a “good idea” who the male colleague’s name was but did not want to name him as he “struggled with his voice.” This underlines another problem with the claimant’s evidence which is that if he is unable to state with any certainty who the alleged discriminators were in May 2023 the respondent will be prejudiced. I have commented further below about the balance of prejudice.[31]The claimant confirmed that the last discriminatory act in the “old office” was 26 May 2023, and the discrimination by a completely different cohort of people started on the first day he moved to a new floor on 1 June 2023 working with people he did not know. Recordings 1 June 2023 onwards[32]Concentrating on the allegations of discrimination after the 1 June 2023 move, we listened to incident 35 on 1 June 2023. The claimant explained at this hearing that he did not know the names of the people, or where the words came from as computers on the desks blocked the view. The transcript makes no sense as it is disjoined selection of words allegedly used, which could not be heard on the recording, and it cannot be discovered who the different unnamed male and female colleagues were.[33]The claimant has produced what he described as the best of his recordings and indicated that he did not wish to play the remaining recordings given both myself and Mr Ryan will say they are muffled and cannot hear the same words used by the claimant.[34]The fundamental problem with the recordings and the difference between how they are interpreted by the claimant has been in issue since the claimant was ordered to provide a copy of the recordings and a transcript at the 21 May 2024 preliminary hearing. As a result of that order the claimant produced “Additional Information” (pages 85-113 in the bundle) setting out his transcripts and other matters including a claim for aggravated damages. As a result of the respondent’s objections to and comments about the USB sticks that contained the “snippets” the claimant applied for a strike out/deposit order in an email dated 28 March 2025. The claimant’s response in an email dated 3 April 2025 was to seek permission to “play a short selection of targeted recordings…to help assess admissibility and relevance of the evidence [my emphasis].” The claimant has sent the respondent the transcripts and recordings and has been given the opportunity in both hearings to share his recordings using his own playback equipment and has not manged to produce one coherent recording that supports his selective transcripts produced out of context and the allegations in his case.[35]At the hearing on 19 July 2025 the claimant did not mention seeking leave to instruct an expert to transcribe/clean up the recordings. When it became apparent to the claimant that his best selection of recordings could not be interpreted as he wished them to be, i.e. providing corroborative evidence for the allegations set out by the claimant in alleged incidents 1 through to 48, he indicated that a professional should be instructed to decipher the recordings, without naming who the professional would be or explaining why he had left it so late before suggesting this. The claimant was refused leave to adduce expert evidence on the basis that as he had recorded at least one hundred people talking over one another it is not in accordance with the overriding objective for an expert to be instructed, taking into account the fact that even if the words attributed by the claimant to the recording could be heard, on the claimant’s own admission, his name was not referenced for the vast majority and he could not the name many of the persons involved. The claimant’s grievance dated 15 July 2022[36]I was referred to the claimant’s grievance dated 15 July 2022 at page 256 in the bundle from which it is apparent that the claimant when referring to a “mob mentality present in the office” the complaint involves “the two main issues are claims I keep looking at people or ignoring people…I feel it is an attempt to wind me up and play negative office politics…With Rebecca Dunn she keeps passing comments and spreading untrue claims around the office about myself”. The claimant referred to “subtly button pushing” and being “subtlety abused.” At no stage did he raise any allegations relating to race, sex or political belief and it appears the claimant’s complaints centre around conversations and comments unconnected to the claimant which reflect, in the claimant’s view, poor management. The grievance is totally silent on the allegations raised before this Tribunal, including Rebecca Dunn and John Dunn commenting over 200 times in one day to the claimant allegedly ignoring people, and the claimant being described as “arrogant” and the “highest performer…I hate him” by unknown colleagues.[37]Mr Ryan referred to the notes of the claimant’s grievance meeting on 6 September 2022 when Jacque Edgar was asked about the claimant’s allegations and explained they were day to day conversations with people and nothing specific about the claimant “obviously listening into private conversations between work colleagues and keeping records of these…he seems to be picking up certain words when he is listening into private conversations and assuming it is about him…some of it is gobbledygook and some just wrong…these were just normal conversations between friends and nothing to do with him.” Jacque Edgar’s observations could legitimately be applied to all of the recordings produced by the claimant.[38]In an email on the 28 September 2022 the claimant referred to “quite a lot of buttons pushing…it was subtly…they twice tried to get stuck in by constantly filling their sentences up with sized related words such as little and small. Can you have a word with them?” There was no reference to discrimination, this undermines the claimant’s claims of discrimination and I concluded the events giving rise to the 15 July 2022 grievance have no reasonable prospects of success given the claimant’s contemporaneous report in his grievance and he will not succeed in discharging the reverse burden of proof or persuading a Tribunal that they form a cumulative breach of contract to be taken into account from the alleged last straw incident.[39]I concluded that the recordings covertly taken when the claimant worked in the “old office” until 1 June 2023 are unlikely to provide contemporaneous evidence of discrimination and the claimant’s claims where he did not allegedly witness the words being used and by whom, had no reasonable prospect of success even had the discrimination complaints been lodged in time, which they were not. I have commented further below on the time limits and effect of the “first group bullying campaign” claims being well out of time in any event.[40]The grievance outcome dated 30 September 2022 did not uphold the claimant’s grievance and the basis of the decision was that the claimant’s many conversations cited “were either only partially overheard, and/or not always attributed to individuals. Many of the examples highlighted were usual conversational topic and were disputed in context by those who were named.” This is a problem for the claimant, not only in relation to time limits and establishing he had not delayed resigning but also all the recordings he has produced, which make no coherent sense and cannot be understood as there is no context.
The law
[41]The respondent’s application is made under Rules 38 and 40 of the ET Rules of Procedure for the claims to be: 1. Struck out as having no reasonable prospect of success (Rule 38(1)(a)) Struck out as being scandalous or vexatious (Rule 38(1)(a)) 2. Struck out due to the manner in which they have been conducted, which is scandalous, unreasonable or vexatious (Rule 38(1)(b)) 3. Struck out as it is no longer possible to have a fair hearing (Rule 38(1)(e) 4. Be subject to a deposit order as they have little reasonable prospect of success (Rule 40)[42]Rule 38 sets put the following: 38. Striking out – Rule 40(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).[43]The respondent reminded the Tribunal that it should not be deterred from striking out claims that involve disputes of fact, even if they are discrimination claims, if they are satisfied that there is no reasonable prospect of success (Ahir v British Airways plc 2017 EWCA Civ 1392). Also, as per Ezsias v North Glamorgan NHS Trust [2007] IRLR 603 (at para 4) the ET should be alerted to provide protection in the face of a claim that has little or no reasonable prospect of success. The claimant submitted that as his claims involve discrimination involving disputes of fact, evidence should be heard, and the claims cannot be dismissed. I did not agree with the claimant on the basis that whilst the Tribunal should be slow to strike out discrimination claims where the central facts are in dispute, if a case is taken at its highest and there is still no reasonable prospect of success with the balance of prejudice being in favour of the defending party who has no option but to take part in the proceedings, striking out the claims falls under the Tribunal’s discretion when applying the overriding objective.[44]The Respondent also relies upon the rule as set out in Bennett v Southwark LBC [2002] EWCA Civ 223 by Sedley LJ at [26]: “What the rule is directed to… is the conduct of proceedings in a way which amounts to an abuse of the tribunal’s process: abuse is the genus of which the three epithets scandalous, frivolous and vexatious are species.”[45]The meaning of “vexatious” was considered in Attorney General v Barker [2000] EWHC 453 and “Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ Dyer v Secretary of State for Employment EAT 183/83.[46]In considering the issue of fair trial, the respondent refers to Arrow Nominees v Blackledge [2000] 2 BCLC 167 CA; the test to be applied was that of whether there was a significant risk that a fair trial could not take place; “… where a litigant's conduct puts the fairness of the trial in jeopardy , where it is such that any judgment in favour of the litigant would have to be regarded as unsafe , or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him” [my emphasis].[47]In HM Prison Service v Dolby [2003] IRLR, 694 and Hassan v Tesco Stores Ltd UKEAT/0098/16 the EAT held that the striking out process requires a two-stage test. The first stage involves a finding that one of the specified grounds for striking out has been established; and if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is “a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit.”[48]In A V B and anor 2011 ICR, D9 the Court of Appeal considered whether there was a “more than fanciful” prospect of proving the case.[49]The House of Lords in Anyanwu and anor v South Bank Student Union and anor 2001 ICR, 391 said that discrimination claims should not be struck out except in the most obvious cases as they are generally fact sensitive and require a full examination to make a proper determination. I am particularly mindful that the claimant, a graduate who is preparing his case with the assistance of artificial intelligence, is a litigant in person, and yet he is unable to grasp the hopelessness of his reliance on the hundreds of covert recordings which do not support his claims.[50]In Mbuisa v Cygnet Healthcare Ltd EAT/0119/18 the EAT notes that strikeout is a draconian step that should be taken only in exceptional cases. Particular caution should be exercised if a case is badly pleaded, for example, by a litigant in person. In Cox v Adecco and ors 2021 ICR 1,307 the EAT spoke about cases where the claimant was a litigant in person and there were facts in dispute. It stated that “the claimant’s case must ordinarily be taken at its highest and the tribunal must consider, in reasonable detail, what the claims and issues are. There has to be a reasonable attempt at identifying the claim and the issues before considering strike out or making a deposit order” [my emphasis].[51]In Ahir v British Airways plc 2017 EWCA, Civ. 1392, the Court of Appeal asserted that the tribunals should not be deterred from striking out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored. It went on to say that the test in s37(1)(a) of “no reasonable prospect of success” was lower than the test in previous versions of the strike out rule, which referred to “no prospect of success”. I took the view that the claimant’s claims largely fell under the definition of having no reasonable prospects of success.[52]In Kaur v Leeds Teaching Hospitals NHS Trust 2019 TCR 1, Lord Justice Underhill in the Court of Appeal observed (in concluding that an Employment Judge had correctly struck out a constructive dismissal claim) that “Whether [striking out] is appropriate in a particular case involves a consideration of the nature of the issues and the facts that can realistically be disputed.” I took the view that realistically the claimant will not be in a position to discharge the reverse burden of proof and establish any primary facts to support his discrimination claims with the possible but unlikely exception of those involving his manager referring to him as “Cupid” although even if the burden of proof is shifted, there are time limit issues and the claimant will need to establish that referring to him as “Cupid” was an act of sex discrimination.[53]The Tribunal is required to have regard to the overriding objective, which is set out in Rule 2. The most relevant parts provide that: the overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by these Rules.[54]40. Deposit orders(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 nonpresentation 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—[55](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[56](b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), 57. otherwise, the deposit must be refunded.[58](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.[59]I had in mind throughout my deliberations that a deposit order cannot be a barrier to justice.[60]On the issue of whether or not to order a deposit order, Mr Ryan reminded the Tribunal that, deposit orders have a valuable role to play in discouraging claims that have little reasonable prospects of success. The deposit order affords a paying party the opportunity for reflection; see Garcia v the Leadership Factor Limited (2022) EAT 19., and if the Tribunal considers that an allegation has little reasonable prospects of success the making of a deposit order does not follow automatically, but involves discretion which is to be exercised in accordance with the overriding objective having regard to all the circumstances of the particular case. In North Glamorgan NHS Trust v Ezsias (2007) IRLR 603 it was held that “a tribunal has a greater leeway when considering whether 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….”
Conclusion
[61]Mr Ryan submitted that the claimant was picking up selected words in dayto-day conversations of a general nature amongst colleagues that were not about him at best, and he relies on “snippets” of transcribed recordings where either the words attributed by the claimant cannot be identified, and do not lead to any obvious claim. I agree, and during the hearing expressed my concern that the transcripts have been taken out of context, a number do not make sense giving the words their commonsense ordinary meaning and reflect the claimant’s scattergun approach to covertly recording the conversations between people to which he was not a party, that took place in an open plan office inhabited by many employees working and talking as they were working in the first office, and over one hundred employees working and talking in the second office.[62]I agree with Mr Ryan that the way the claimant’s puts his case and the less than satisfactory evidence he intends to rely on to establish his claims, causes the respondent prejudice on a number of levels, not least that it can never know the claims it has to meet because of the passage of time, lack of cogency in the alleged contemporaneous evidence and the fact that the claimant cannot point to any individuals with a limited number of exceptions.[63]I do not accept Mr Ryan’s description of the claimant as “paranoia” and take the view that without expert medical evidence this condition cannot be attributed to the claimant. I have concluded that it suits the claimant to present his case in the way he has, building the groundwork over a number of years/months through covert recordings with a view to establishing a claim of constructive unfair dismissal based on the fundamental breach of contract, namely, discriminatory conduct.[64]I agree with Mr Ryan that at the time when the claimant was covertly recording the conversations between colleagues at no stage did he provide the respondent with a copy of the recording or a transcript, leaving it until after he had resigned on the 18 August 2023 to set out detailed allegations referred to as incidents referring at paragraph 27 as a “selected range of audio recordings.” The claimant accepted he did not inform or provide the respondent with the recordings at time, and he has selected those recordings which he believes assist his case. There are hundreds of recordings, and he describes the short transcript as a “snippet” for good reason; they are a few lines of dialogue the claimant believes took place from his interpretation of a recording which is inadequate and does not appear to assist the claimant’s case is any way. The claimant has acknowledged this by his request for expert evidence to be ordered in order that the recordings can be cleaned up and transcribed. This I have refused in accordance with the overriding objective. The claimant has had two opportunities to play back his clearest recordings supporting the discrimination claims, which he has done.[65]It is unsurprising the recordings are poor given the way the conversations between colleagues, sometimes across the room, took place. Even if the recordings were cleaned up in such a way that some of the words could be clearly heard and understood, this would not assist the claimant because the conversations on his own account took place between colleagues, and given he is not named, the context in which the words were used is key. Context could only be understood if the full recording of the conversation was understood, and as there are hundreds of recorded conversations, this is unlikely. As matters stand at present the words cannot be identified, the context cannot be understood and the claimant’s case at its highest is that he suspects the words were about him and/or aimed at him without any understanding as to what had really transpired three or so years ago, going back to 2022. By the time this case gets to trial in 2026/2027 the cogency of the evidence will be reduced even further and given the differences between the claimant’s grievance referred to above, and his Tribunal claim, I cannot see how the alleged discriminators will be in a position to recall what they spoke about whilst working in an open plan office years ago.[66]I also take the view that the stark differences between the claimant’s discrimination claim and constructive unfair dismissal relying on a cumulative breach of the implied term of trust and confidence going back to 2022. The claimant’s grievance will undermine his claim given the claimant’s focus was not on any discrimination but the “subtle pressing of buttons” and inadequacy of management, a far cry from serious allegations of discrimination on the grounds of sex and belief.[67]Mr Ryan submitted the recordings were front and centre to the claimant’s claims, and they show nothing. I agree. The claimant himself cannot attribute some of the words to a specific individual, which further undermines the strength of his case.[68]Mr Ryan referred to the claimant’s application to strike out the defence (which he withdrew later) on the basis that it was not reasonable for the respondent to have adopted the position it did when it could not identify the words the claimant said he could hear. It was apparent to me that the claimant was unable to concede that his interpretation may be wrong, suggesting instead expert evidence would support his case when it would not given the way the recordings took place and the inadequacy of the evidence even if they could be made out.[69]I accept Mr Ryan’s view that even taken at its highest, without any satisfactory recordings, his claims are “entirely hopeless.” Discounting the recordings and concentrating on what evidence was not captured in the recording i.e. what incidents the claimant allegedly directly experienced that was referrable to named individuals, there appears to be very little. Taking the incidents individually and the claimant’s case at its highest I have found the following will be struck out on the basis that the claimant has no reasonable prospect of satisfying a Tribunal that hundreds of people were involved in a conspiracy against him, including managers, and there was a continuing act. of discrimination extending over a period of time: Barclays Bank plc (referred to above).[70]For the avoidance of doubt not one of the allegations set out below is captured in any of the recordings relied on by the claimant. 18 Incidents alleged 12 May 2022 – all of which are out of time and the claimant has no reasonable prospect of establishing that there is a continuing act on the basis of a large-scale conspiracy against him.[71]Incident 1 involved Rebecca Dunn allegedly saying on the 12 May 2022 “he is making me jealous” and “He’s ignoring too many people, he’s ignoring us” has no context and it is unlikely that it will amount to sexual harassment as alleged by the claimant.[72]Incident 2 involved Yasmin Abdali stating, “he’s not” and John Dunn stating “I feel peculiar” has no context and is unlikely to amount to any finding of discrimination. The claimant does not say what the act of discrimination was.[73]Incident 3 also on 12 May 2022 involves Jogn Dunn stating “I’ll get some good reasons, David Harley stating, “and then we will glass the fuck” and Yasmin Abdali “You need to be more careful.” The claimant relies on this incident as a basis for a victimisation claim, and no reference is made to any protected act. The claimant had yet to submit his grievance. The words have no context, and it is unlikely that it will amount to victimisation. In any event there is no protected act, act the claimant relies on 6 September 2022 grievance which post-dated this allegation.[74]Incident 4 – no named party.[75]Incident 5 – Rebecca Dunn stating, “get him glassed.” The claimant is not named, there is no context, and it is unlikely the words will amount to harassment and sexual harassment.[76]Incident 6 - Yasmin Abdali stating, “sack him though” and “he’ll talk” and John Dunn stating, “with people who look like top class, they’re beautiful looking, smash him over the head.” The claimant is not named, there is no protected act, there is no context, and it is unlikely the words will amount to sexual harassment and victimisation.[77]Incident 7 - Yasmin Abdail stating, “he’s looking around at people, and David Harley stating, “You know he turns; he is the most beautiful pervert.” The claimant is not named, there is no context, and it is unlikely the words will amount to sexual harassment.[78]Incident 8 - Rebecca Dunn stating, “don’t give your reasons, we’ll execute the move,” John Dunn responding, “did you say it’s in preview” and Rebecca Dunn following up with “You’ve got more than enough experience, its been approved by Josh, you know that he accused everyone that was in the queue.” The claimant is not named, there is no protected act, there is no context, and it is unlikely the words will amount to sexual harassment and victimisation.[79]Incident 9 - Rebecca Dunn stating, “even if he did accuse us of that, to be honest, decision for a work coach, he’s going to be working for Jacque” and “it’s ridiculous if he doesn’t start crying” with Danielle Timms responding “He just isn’t scared of you. I was talking to Naomi.” The claimant is not named, there is no context, and it is unlikely the words will amount to sexual harassment[80]Incident 10 - David Hartley stating, “if he gets missed, we’ll get Tony onto him, it makes no difference” and Yasmin Abdali “we know he’s, he’s lived in there” David Hartley responding, “You’ll get famous for that.” Daniel Timms “yea maybe” and Davie Harley “you’ll get marked for that definitely.” The claimant is not named, there is no protected act, there is no context, and it is unlikely the words will amount to sex discrimination and victimisation.[81]Incident 11 - Kieron Hughes stating “Jonothan, you know you won’t be back, “David Hartley responding “He’s going to get bombed.” John Dunn “ehm what you are talking about” and “Pick BN.” With Yasmin Abdali finishing the conversation saying, “yeah his attachment, that’s not natural.” The claimant is named by Kieron Hughes; however, he was not party to the conversation and relies on the recording as evidence. The claimant appears to be relying on this allegation as a complaint of harassment and discrimination on the grounds of protected belief.[82]Incident 12 – no defined persons.[83]Incident 13 - Yasmin Abdali stating, “the hidden cameras are on him” and David Harley responding, “He is going to get bombed.” The claimant relies on this as a claim of sexual harassment and victimisation. The claimant is not named, there is no protected act, there is no context, and it is unlikely the words will amount to sex discrimination and victimisation.[84]Incident 14 – There is an issue with this incident and the way the claimant describes it as he has inserted his own interpretation by adding comments to the words. Davie Hartly stating, “The whole room wants Mr Murph…get Mike to set him up.” The claimant relies on this as a claim of sexual harassment and victimisation, and it is clear from his description that he did not directly witness the exchange and has tried to interpret the recording and guess at the sound of voices who were talking. The alleged reference to Mr Murph could be to the claimant.[85]Incident 15- makes no sense even if the comments allegedly made by unknown colleagues are taken into account. John Dunn stated “…you don’t dare do this” and Davie Harley “fetch the bomb. “The claimant relies on this as a claim of harassment on the grounds of sex and protected belief, and victimisation. There is no protected act.[86]Incident 16 - also makes no sense taking into account the claimant’s narration that Danielle Timms was trying to “prosecute” the claimant whilst provoking him to look at people. The claimant is not named, there is no protected act, there is no context, and it is unlikely the words will amount to sexual harassment.[87]Incident 17- allegedly committed by Davie Hartley, Yasmin Abdali and Kieran Hughes also makes no sense, particularly the reference to “You look like an elephant fuck.” The claimant asserts this was jealousy by Kieran Hughes aimed at the claimant because he (being the claimant) was attractive to the opposite sex. The claimant is not named, there is no context, and it is unlikely the words will amount to sexual harassment.[88]Incident 18- allegedly committed by John Dunn and Danielle Timms, the claimant is not named, there is no context, and it is unlikely the words will amount to sexual harassment.[89]Incidents 1 to 18 all allegedly took place on the 12 May 2022. There are no other alleged incidents until 24 March 2023. The 15 July 2022 grievance made no mention of any discrimination allegations, and the respondent was unaware that the claimant considered the acts relied on amounted to unlawful discrimination until they received the ET1 (which was far from clear), and the claimant’s document titled “Modified Particulars of Claim” submitted after the 17 May 2023 preliminary hearing. This has caused the respondent considerable prejudice in defending the claim, and when considering the balance of prejudice, I find it falls on the respondent given the scandalous and vexatious nature of the claimant’s claims, which have no reasonable prospects of success, and it is not possible to have a fair trial given the claimant’s unreasonable reliance on the “snippets” of recordings. Alleged incidents 24 March 2023.[90]The following incidents allegedly took place on the 24 March 2023. The claimant’s case is that he overheard the comment being made, and the snippets of recordings confirms this to be the case. The recordings do not, however, I am mindful of the fact that the claimant is a litigant in person, and this is a discrimination claim concluding that the 24 March 2023 allegations have little reasonable prospect of success. It will be the claimant’s word against that of the managers he was sitting on the same table with, and on the issue of the balance of prejudice, I take the view that there is prejudice on both sides if these complaints go forward to a trial and accept the claimant’s submission that as there is a dispute on the facts, the claims should not be struck out without evidence being heard and tested. I am satisfied that the claimant has little reasonable prospect of succeeding in his individual claims and/or persuading a Tribunal that there is a continuing act and/or it is just and equitable to extend the time limit from 24 March 2023 to 14 January 2024, when the claim form was presented or a later date when the claimant clarified his claim. I have ordered a deposit set out in a separate order for incidents 19, 20, 21, 22, 23, 24. 25 and 26 in relation to the sexual harassment and discrimination on the grounds of a protected belief individually, taking into account the claimant’s means, the fact he has a monthly disposable income and savings in excess of £12,000.[91]I find that all the claims of victimisation on the basis of the 15 July 2022 grievance have little reasonable prospect of success. Baroness Hale in Derbyshire and ors v St Helens Metropolitan Borough Council and ors 2007 ICR 841, HL, and Lord Nicholls in Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL, endorsed a three-stage test for establishing victimisation under the pre-EqA discrimination legislation. Their approach called for answers to the following questions which the claimant has little reasonable prospect of successfully establishing: 1. did the employer discriminate against the claimant in any of the circumstances covered by discrimination legislation? 2. In doing so, did the employer treat the claimant less favourably than others in those circumstances? 3. Was the reason for the less favourable treatment the fact that the claimant had done a protected act or that the employer knew that the claimant intended to do a protected act, or suspected that the claimant had done, or intended to do, a protected act?[92]With reference to the victimisation provisions are set out in S.27(2) of the Equality Act 2010 (EqA), they are: - bringing proceedings under the EqA — S.27(2)(a) - giving evidence or information in connection with proceedings under the EqA — S.27(2)(b) - doing any other thing for the purposes of or in connection with the EqA — S.27(2)(c). - making an allegation (whether or not express) that A or another person has contravened the EqA — S.27(2)(d). This claimant relies on the 15 July 2022 grievance which makes no reference to any allegation to the effect that he did not at the time complaint that his treatment was on the grounds of sex, race or political belief.[93]I have ordered a separate deposit order in relation to each allegation of victimisation.[94]Incident 19 - involving Rebecca Dunn and Andrew Fairbrother, the claimant is not named, there is no context, and it is unlikely the words will amount to harassment on the grounds of protected belief and “continued victimisation.” The claimant relies on the 15 July 2022 grievance as the protected act for the victimisation claim.[95]Incident 20- involves Rebecca Dunn instructing a colleague to go left “and you’re most close to cupid.” The claimant’s case is that he overheard the instruction and the reference to Cupid was to him. The claimant relies on sexual harassment for the Cupid comment, and the comments allegedly made by Andrew Fairbrother as discrimination on the grounds of protected belief and harassment. The words allegedly used by Andrew Fairbrother have no context, there is no reference to the claimant, and they are unlikely to amount to any discrimination on the grounds of belief. The claimant does not refer to a protected act and given the claimant had not complained about discrimination at all, and this remained the case until his resignation, it will be difficult for the claimant to satisfy the burden of proof in connection with a section 27 claim. In the list of issues, the claimant relies on the 21 July 2022 grievance as the protected act, and yet in the grievance the claimant confirmed he was alleging bullying on several occasions, and he was seeking as the outcome “a more positive working environment.” The claimant did not use the word discrimination and made no reference to sexual harassment, or harassment on the grounds of his political beliefs.[96]Incident 21 - involves Rebecca Dunn and Andrew Fairbrother in a disjoined conversation that makes no sense. The sexual harassment element of the claim is Rebecca Dunn saying, “and he’s watching, giving me the eye.” The claimant was not named and there is no context to the comment. The claimant claims Rebecca Dunn sat meters away from him and he relies on the comment “when I speak to him, I’ll pump him” by an unknown colleague as an act of harassment and discrimination on the grounds of his political beliefs. There is no reference to this in the conversation, and no mention of the claimant’s name let alone his beliefs. It is notable the claimant was unsure whether the alleged comment made by an unknown female colleague was about the claimant or someone else, underlining the difficulty the claimant has with relying on the recordings to establish his case.[97]Incident 22 - involves Andrew Fairbrother and Davie Hartley in a conversation which makes no sense. The claimant relies on this as sexual harassment and discrimination based on race (this has been withdrawn). The claimant in his narration refers to 100 to 200 colleagues being involved in the sexual harassment and the recording not capturing “far away people.” The claimant’s observation underlines the difficulties he has in relying on a recording involving up to 200 unnamed individuals in an open plan office. The claimant is not named, there is no context, and it is unlikely the words “You know Germany” and “he’s a block head” will amount to sexual harassment.[98]Incident 23- involves Rebecca Dunn in an alleged conversation with various unnamed colleagues which does not hang together. The claimant is not named, and his case is that Rebecca Dunn stating “He isn’t racist” and “It’s Jews” is harassment and discrimination on the grounds of protected belief which makes no sense and the claimant is unlikely to succeed in shifting the burden of proof even if the recording reflected Rebecca Dumm used these words, which it is unlikely to do for the reasons explored above. The claimant is not named, there is no context, and it is unlikely the words will amount to discriminatory conduct even if Rebecca Dunn was speaking about the claimant behind his back, unaware he was covertly recording her.[99]Incident 24- makes no sense and the conversation that allegedly took place between Rebecca Dunn and unnamed colleagues, one of who allegedly made the comment “he stinks of her” relied on by the claimant as an act of sexual harassment. The exchange taken as a whole has no context and does not hang together. The claimant is not named, and it is unlikely the words will amount to discriminatory conduct, namely harassment and discrimination on the grounds of the claimant’s political belief and sexual harassment/sex discrimination.[100]There is no incident 25 or 26, and the claimant jumps to incident 27.[101]The alleged incidents 19 to 26 took place on the 24 March 2023 the contemporaneous evidence for which rest mainly on inadequate recordings, and it is notable the claimant did not raise a grievance at the time, thus preventing the respondent from investigating his allegations in good time. The claimant did not directly hear all of the words being used, and has at a later date, for the purpose of these proceedings, played back the covert recordings producing “snippets” of unrelated conversations that make no sense and are likely to undermine his discrimination complaints with the result that he has little reasonable prospects of satisfying the shifting burden of proof, even taking the claimant’s case at its highest and theoretically assuming the words the claimant attributes to his named colleagues were in fact said, which is an unlikely state of affairs given the poor recording and the claimant’s fabrication of the transcripts to enhance this litigation. The same point applies to the alleged incident that took place on the 26 May 2023 with the exception of the protected act. Alleged incidents that took place on the 26 May 2023 are as follows:[102]Incident 27- involving Yasmin Abdali, Danielle Timms who allegedly referred to the claimant as “Brad Pitt” relied on by the claimant as an act of sexual harassment, and Davie Harley. In the narration that claimant relies on Yasmin Abdali wanting to use cameras to “entrap” him when she allegedly asked “where’s the camera? Turn the camera on him. Where’s the camera gone?” The claimant is not named, there is no context, for example the words “the power over Brad Pitt” come from nowhere and are nonsensical. It is unlikely the words allegedly used in the exchange will amount to sexual harassment even if Yasmin Abdali, Danielle Timms and Davie Harley were speaking about the claimant behind his back, unaware he was covertly recording all their conversations. The claimant also claims victimisation relying on the 2022 grievance, which I have dealt with above.[103]Incident 28- involves Yasmin Abdali and Davie Harley allegedly discussing the claimant being dismissed and taking pictures of the claimant on the phone “for the judge.” Taking the alleged exchange, the conversation makes little sense. The claimant has not suggested the respondent had taken steps to dismiss him in any way, and it is uncontroversial that the claimant resigned and was not dismissed. In the narration that relies on harassment, discrimination and victimisation the claimant is uncertain as to what act of discrimination he is relying on and it “could be on the grounds of race, protected belief and sexual harassment.” There is no hint of any race discrimination, and the fact the claimant was claiming this on the basis that his colleagues perceived him to be of German descent emphasises the extent to which the claimant’s claims are misconceived.[104]Incident 29 - does not exist[105]Incident 30 and 31 allegedly involves Yasmin Abdali and Davie Harley who allegedly said “I’m going to get a manager to mark his face” relied on by the claimant as a “violent threat” made in a room which held over 100 staff with more than half involved in the bulling. In the narrative the claimant relies on harassment and discrimination based on race, a claim he subsequently withdrew. The claimant also maintains the “calls to sack the claimant are victimisation” and I repeat my observations above. The claimant has no reasonable prospect of success in relation to either alleged incident.[106]Incident 32, 33, 34, 35 and 36- involves several colleagues the claimant cannot identify by name or description.[107]It is notable in the narrative the claimant relies on a widespread conspiracy against him involving hundreds of employees working on separate floors whose aim was to “drive the claimant from the workplace.” I have dismissed allegations 32, 33, 34, 25 and 36 on the basis that the balance of prejudice falls squarely with the respondent given the passage of time and the fact that the claimant is unable to name the alleged discriminators. The respondent was unaware that the claimant considered the acts relied on amounted to unlawful discrimination until it received the ET1 (and the claimant’s document titled “Modified Particulars of Claim” submitted after the 17 May 2023 preliminary hearing. This has caused the respondent considerable prejudice in defending the claim, and when considering the balance of prejudice, I find it falls on the respondent given the scandalous and vexatious nature of the claimant’s claims.[108]The respondent was unaware that the claimant considered the acts relied on amounted to unlawful discrimination until they received the ET1 (which was far from clear), and the claimant’s document titled “Modified Particulars of Claim” submitted after the 17 May 2023 preliminary hearing. This has caused the respondent considerable prejudice in defending the claim, and when considering the balance of prejudice, I find it falls on the respondent given the scandalous and vexatious nature of the claimant’s claims, which have no reasonable prospects of success, and it is not possible to have a fair trial given the claimant’s unreasonable reliance on the “snippets” of recordings. The claims are struck out.[109]The claimant did not raise a grievance about the alleged 26 May 2023, and at no stage did he report to the respondent the alleged bullying he had recorded on his phone. In the narrative the claimant alleges his family was being targeted outside the office, and people “who the claimant does not know” were aware of where he lived, for example, in incident 36 the reference “so we’re taking on his family at home.” Even if the claimant could identify the colleagues, he has allegedly recorded using words such as” Nazi fuck” and “yeah dry Murph” the exchange makes no sense and the reason for this is that the recording relied on by the claimant cannot be made out, and he has “transcribed” a fabricated version of events that suit the purpose of this litigation at a later date. The alleged incidents that took place on the 7 July 2023 are as follows.[110]Incidents 37, 38 and 39 - allegedly involve unamend colleagues. In the narrative the claimant describes his isolation and how few people spoke to him, which fits in with the information given by the claimant during this preliminary hearing, who confirmed he directly heard the alleged comments made by managers sharing the same table, with all other conversations taking place as he was working and recording them covertly.[111]It is notable that all the alleged incidents which took place on the 7 July 2023 involved unknown colleagues, the recording is front and centre of the claimant’s allegations. I repeat my findings above, and take the view that incidents 37, 38 and 29 causes the respondent considerable prejudice in defending the claim, and when considering the balance of prejudice, I find it falls on the respondent given the scandalous and vexatious nature of the claimant’s claims, which have no reasonable prospects of success, and it is not possible to have a fair trial given the claimant’s unreasonable reliance on the “snippets” of recordings. The alleged incidents that took place on the 8 August 2023 giving rise to a last straw and cumulative breach of the implied term of trust and confidence are as follows:[112]Incidents 40, 41 and 42 - involved unknown and unnamed colleagues. The claimant’s narrative makes no sense, he appears to be alleging the respondent intended to turn the claimant’s family against him, was corrupt, had hidden cameras and there was a “plot to push a civil tort onto him.”[113]I repeat my findings above, and take the view that incidents 40, 41 and 42 caused the respondent considerable prejudice in defending the claim, and when considering the balance of prejudice, I find it falls on the respondent given the scandalous and vexatious nature of the claimant’s claims, which have no reasonable prospects of success, and it is not possible to have a fair trial given the claimant’s unreasonable reliance on the “snippets” of recordings. The claims are struck out. Additional allegations not previously pleaded – incidents numbered 45, 46, 47 and 48 which are new claims lodged well outside the statutory time limit.[114]The claimant relies on “additional incident 43” which allegedly occurred on the 17 March 2023, a second additional incident also numbered 43 (incorrectly) which allegedly occurred on the 7 July 2023, additional incident 44, 45, 46 and 47 which allegedly occurred on the 10 July 2023 involving unnamed colleagues only, and additional incident 48 which allegedly took place on 10 July 2023 also involving unnamed colleagues only. The claimant did not raise a grievance about the unamend colleagues and the respondent was not given the opportunity to investigate his allegations.[115]In an email dated 17 June 2025 the claimant made an application to amend to include the incidents referred to above, described by the claimant as “integral to the case” maintaining it was “sexually motivated” and “connected to belief.” The claimant also includes a further incident numbered incident 48 involving unknown colleagues. As referenced previously, the claimant raised no grievance at the time with the result that the respondent became aware of the additional allegations on the 17 June 2025, approximately three years after the March 2023 incident and just under two years after the 10 July 2023 alleged incident. The respondent is prejudiced two-fold, not only is it facing allegations involving unnamed persons the evidence for which is in transcripts which are not reflected in the recordings, the exchange between colleagues cannot be understood in context as the claimant has produced “snippets” only and there was no opportunity early on for the respondent to investigate given the claimant raised no complaints at the time.[116]Mr Ryan submitted that the claimant’s claims based on covert recordings which do not contain the words attributed by the claimant in the transcript are scandalous and vexatious and have no reasonable prospect of success. I agree, and taking into account my observations above, I am satisfied that the claimant’s conduct of this litigation is scandalous, unreasonable and vexatious and that includes his application to amend in order to bring yet more complaints out of time based on the “snippets.” In relation to the unnamed perpetrators referenced throughout the allegations I am also satisfied that it is not possible to have a fair hearing because the allegations are based on a misconception by the claimant as to the words used in the covert recording, unreasonably by the claimant fitting in the words to support his claims after covertly recording the conversations between colleagues over a number of years and generating hundreds of recordings from which the claimant has selected “snippets” which suit his case. It is notable that the claimant conceded at least once, the snippets did not include relevant information which he had cut off and then attempted to add to, and he incorrectly recorded words in the transcript and dates.[117]In conclusion, the claimant is a graduate and experienced in IT issues who has some knowledge of recording equipment by which recordings can be played back. The recordings produced by the claimant at two hearings included his 10 best recordings (which became 12 at the claimant’s request) did not reflect the “transcripts” produced by the claimant. Two days has been spent in part on listening to the recordings, and if this matter went to trial and the claimant was invited to produce a coherent lengthy recording (if that is possible) and not merely “snippets” of alleged conversations selected by the claimant with a view to supporting his case, the trial would be lengthy and costly for the respondent, a public body who is legally represented and has no choice but to be a party to these proceedings. The claimant has used AI to produce his claims, responses to the respondent’s correspondences and various applications, and does not appear to understand and/ or has chosen to ignore, the impact of the covert recordings and he interpretation of them, on credibility and the likelihood that he will lose his case.[118]The claim form was received on the 16 January 2024, and we are nowhere near a trial date given the difficulties caused to the respondent because of the recordings that are the key to the claimant’s claims. The Tribunal file is lengthy, consisting of 113 documents to date that includes extensive correspondence from the claimant, amended draft pleadings, an application to strike out the response an application to amend and whilst finalising this reserved Judgment and Reasons, I was forwarded yet another application made by the claimant, this time for an anonymity/ restricted reporting order that appears not to have been copied to the respondent and cannot be dealt with. The claimant would do well to consider whether he wishes to proceed with this application, which on the face of it appears hopeless given the principle of open justice, the way he puts his complaint of sex discrimination (see above) and the fact that there is no disabilities in this case, and I urge him to take legal advice.[119]Having heard the recordings over a period of two days I am satisfied that they are unlikely to assist the claimant at a final hearing, and are more likely to undermine the complaints given the gulf between the claimant’s version of what was allegedly said on the recording and the limited number of words and phrases that could only be guessed at with a transcript in front of me. The recordings and transcripts give every appearance of a claimant indiscriminately recording over at least one hundred employees working in an open plan office without their knowledge and it is unsurprising the context and language used cannot easily be made out, if at all. This state of affairs is unlikely to change at a final hearing which will take considerably longer if the claimant was given his way and played back the recordings with the same result as that reached in this preliminary hearing when both myself and Mr Ryan, having listened to the recordings selected by the claimant as his best, numerous times, playing them back and looking at the transcript, agreed that the recordings in no way reflected the claimant’s so called selective “transcripts” to which he had clearly added comments and narrative undermining the possibility that they could ever amount to a transcript.[120]The upshot of the difficulties with the recordings and transcripts is this; because of the discrepancy between the poor recordings and the claimant’s interpreting them in favour of his litigation claims, they are incapable of(a) being made any coherent sense of, and(b) being agreed. This has consequences in that the respondent is put at a serious disadvantage understanding the case it has to meet as the claimant’s allegations in the main give every appearance of being fabricated and wholly unsupported by contemporaneous evidence. The claimant, who had raised a grievance in 2022 allegedly relying on the recordings, made no reference to them or to the fact that he believed at the time work colleagues were discriminating against him on the grounds of his sex, race and political belief. Instead, the claimant relied on allegations of bullying and general criticism of management who he believed to be inadequate.[121]I have spent some time reading through the grievance and outcome. Whilst I agree with the claimant that a mini-trial should not take place at a preliminary hearing when no evidence is being heard or tested, the claimant’s grievance (which is an undisputed document) can be taken into account and it casts light on three matters; the first is that the claimant chose to continue covertly recording hundreds of hours of conversations between colleagues which he was not involved in, secondly, the claimant did this because he believed discrimination was taking place and wanted to gather supporting evidence for any claim he may have, and thirdly, he kept his recordings secret presumably with a view to catching his colleagues out which in itself undermines the implied term of trust and confidence and gives rise to credibility issues. This is not a case of an employee attending a meeting and covertly recording it, but an employee systematically recording whilst he carried out contractual duties in an attempt to catch colleagues “in the act” and when the claimant believed discrimination had taken place, failing to raise a grievance about it in order to keep the evidence to himself with a view to persuading a Tribunal that the respondent’s defence should be struck out and/or his claims will succeed at trial.[122]Turning to the recordings and transcripts it is apparent from the breakdown above that the claimant has failed to identify many of the individuals involved because he is relying on recordings only and has to “guess” who said what in a room of over a hundred people talking and shouting over one another as they are carrying out their business. The difficulty the claimant has is reflected in the nonsense of his “transcripts” which make no logical sense and rarely refer to the claimant by name. The claimant points to people talking about sexual matters, as they sometimes do in the workplace, but it does not necessarily follow that they were talking about him. The discussion did not take place directly with the claimant and nor was he party to it, and he cannot say whether they were talking generally about matters totally unconnected to him. The fact that the claimant refers to unknown people causes the respondent great prejudice, coupled with the delay in the claimant informing it of his allegations until after these proceedings were issued and the “snippets” produced for the first time and continued to be produced in an attempt to find at least one recording that could be relied on, when there are no recording that I make any sense other than a few odd words taken out of context with no reference to the claimant. I am satisfied that the position at a final hearing will be no different, and the claimant (who has had ample opportunity to present the best 12 recordings in addition to those relied on at the first preliminary hearing) is unlikely to be in a position to produce any supporting evidence by way of cogent logical contemporary recordings, which he maintains, are the key to establishing his claims.[123]In addition to being prejudiced by the “snippets” themselves and the way they have come about, the respondent is also prejudiced by what appears to be out of time claims. As recorded in the list of issues agreed at the 7 January 2025 preliminary hearing, any complaint about something that happened before 4 August 2024 may not have been brought in time. The last complaint involving named individuals took place on the 26 May 2023, thereafter all the incidents involve unknown colleagues. ACAS early conciliation started on 3 November 2023, approximately five and a half months after, and some 18 months after the last alleged incident on 12 May 2022. The claimant’s case is that there was a conspiracy against him from 12 May 2022 involving more than 100 colleagues in the old office (the number is vague) until the last act that allegedly took place in the old office on 26 May 2023. Nothing took place between 26 May 2023 until the first day the claimant moved to a new office working on another floor on 1 June 2023 when the conspiracy involving people he had never met before started up again. In respect of the new office the claimant relies on the alleged incidents that took place on the 7 July 2023 and 8 August 2023 involving unknown and unnamed colleagues. Given the inadequacy of the evidence and expiry of the primary time limit which has resulted in prejudice to the respondent, I find the claimant has no little reasonable prospect of establishing(a) that there was a continuing act,(b) that it would be just and equitable to extend the time limit to 14 January 2024 and(c) succeed in his claim of constructive unfair dismissal by relying on a cumulative breach at a final hearing.[124]There is no reference in the Particulars of Claim to a last straw resulting in the claimant’s resignation on the 18 August 2023. The claimant relies on the allegations 12 May 2922 onwards through to 18 August 2023. The last straw is set out in the List of Issues, namely, the 18 August 2023 comments allegedly made by unknown colleagues that had not been captured on any recording which can be made sense of. The claimant has little reasonable prospect of succeeding in his constructive unfair dismissal claim. The claimant’s actual comparator[125]Turning to the direct discrimination complaint the claimant relies on an actual comparator, Dave Jones, who has the same English and Irish ethnicity as the claimant but is not as “good looking” as the claimant who believes he has an East German appearance. There is no reasonable prospect of the claimant establishing direct discrimination in the grounds of sex on the basis of his male comparator, and I have struck out the complaint.[126]Turning to the claim of direct discrimination on the grounds of protected belief, the claimant relies on Dave Jones as a comparator on the basis that he was socialist and a member of the Labour Party, and not subjected to the unfavourable treatment experienced by the claimant who was “made to feel unwelcome in the business, as a leper, and led him to believe his days with the organisation are numbered.” Both the claimant and the comparator are educated to degree level, however, the claimant does not say whether David Jones worked in the old or new office, and whether he was moved to another office working with colleagues he had never met before as a reasonable adjustment.[127]On the limited information before me I have concluded that the claimant has little reasonable prospect of establishing a prima facie case of direct discrimination by showing that he has been treated less favourably than Dave Jones based on political belief taking into account how he puts the actual comparator and the paucity of evidence, particularly inadequate recordings.[128]In Laing v Manchester City Council and anor 2006 ICR 1519, EAT, Mr Justice Elias (then President of the EAT) suggested that a claimant can establish a prima facie case of direct discrimination by showing that he has been less favourably treated than an appropriate comparator. He considered that at the first stage ‘the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn’. That would entail a consideration of ‘all material facts as opposed to any explanation”. He then went on to say that ‘it is only if the claimant succeeds in establishing that less favourable treatment that the onus switches to the employer to show an adequate, in the sense of non-discriminatory, reason for the difference in treatment’. I find the claimant is unlikely to discharge the burden of proving that the comparator, Dave Jones, is — aside from the relevant protected characteristic of political belief— in the same, or not materially different, circumstances, and have ordered a deposit order taking into account the claimant’s ability to pay in relation to the direct discrimination claim on the grounds of protected belief. The Deposit Orders[129]The claimant has produced a statement of means and I am satisfied that the amount of deposit ordered is not a barrier to justice and will go some way to covering the respondent’s costs if the claimant proceeds to a trial and loses.[130]The claimant earns £358 per week out of which he pays his father £50 per week, £30 for his share of the utilities and £5 for food, vaping, phone and toiletries. The rest of the money is spent on travel and entertainment from which the claimant saves approximately £69 per week. He has savings more than £12,000 and stocks and shares of £2,800.00. The claimant can afford to pay the deposit order, and I urge him to seek legal advice from a specialist employment lawyer rather than rely on AI as he is at risk of losing his savings on the respondent’s legal costs.[131]The claimant will find the Deposit Order sets out the information he needs about the amount of deposit per allegation, the consequences of failing to prove his case and lose, and how the payment is to be made. I have given the claimant enough time from the date the parties are sent this Judgment and Reasons and Deposit Order to make the payment before the preliminary hearing listed on the 13 March 2026. This will give the claimant enough time to take legal advice before he decides whether to pay the deposit.[132]In conclusion, the claims of sexual harassment and discrimination on the grounds of protected belief dated 12 May 2022 and set out alleged incidents 1 to 18 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[133]The claims of sexual harassment and discrimination on the grounds of protected belief dated 24 March 2023 and set out alleged incidents 19 to 24 “Modified Particulars of Claim” are not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered per separate allegation because they have little reasonable prospect of success.[134]The claims of sexual harassment and discrimination on the grounds of protected belief dated 26 May 2023 and set out alleged incidents 27, 28, 30 and 31 in the “Modified Particulars of Claim” are not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered per separate allegation because they have little reasonable prospect of success.[135]The claims of sexual harassment and discrimination on the grounds of protected belief dated 26 May 2023 set out alleged incidents 19, 32, 33, 34, 35 and 36 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[136]The claims of sexual harassment and discrimination on the grounds of protected belief dated 7 July 2023 and set out alleged incidents 37, 38 and 39 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[137]The claims of sexual harassment and discrimination on the grounds of protected belief dated 8 August 2023 and set out alleged incidents 40, 41 and 42 in the “Modified Particulars of Claim” are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[138]The claimant’s complaints of direct sex discrimination brough under section 13 of the Equality Act 2010 are struck out under Employment Tribunal Rule 38(1)(a) because it is scandalous or vexatious and because they have no reasonable prospect of success.[139]The claimant’s complaints of direct discrimination on the grounds of a protected belief is not struck out under Employment Tribunal Rule 38(1)(a). Taking into account the claimant’s ability to pay, a deposit order is ordered as the claims have little reasonable prospect of success.[140]The claimant’s application to amend his claim out of time and add new discrimination allegations 45, 46, 47 and 48 set out in the “Modified Particulars of Claim” has little reasonable prospect of success, and a deposit has been ordered.[141]The claim of constructive unfair dismissal is not struck out under Employment Tribunal Rule 38(1)(a). A Deposit Order has been ordered because it has little reasonable prospect of success. Approved by: