Mr W Khan v Manchester Airport plc and Ms N Mughal: 2400496/2024

EMPLOYMENT TRIBUNALS

Case No 2400496/2024

Between

Mr W KhanClaimant

Manchester Airport plc and Ms N MughalRespondent

Before

Employment Judge Barker

In person for claimant

Mr Jenkins (instructed by counsel) for respondent

Date 2 May 2025

JUDGMENT

The claimant’s claims are struck out as a result of the claimant’s conduct in the proceedings (rule 38(1)(a) Employment Tribunals Rules of Procedure 2024.) The claims are hereby dismissed. JUDGMENT having been handed down to the parties at the conclusion of the hearing on 31 March 2025 and written reasons having been requested by the claimant in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS

Preliminary Matters and Issues for the Tribunal to decide

[1]The respondents applied for a strike out of the claims in a letter to the Tribunal dated 5 September 2024, on the basis that the claims have no reasonable prospects of success and the manner in which the claims were being conducted by the claimant Case Number: 2400496/2024 has been scandalous, unreasonable or vexatious. The respondents no longer pursue the application on the basis of the prospects of success.

[2]Therefore, the matters for the Tribunal to decide today were whether the claimant’s claims should be struck out on the basis that his conduct of these proceedings has been scandalous, unreasonable or vexatious contrary to Rule 38(1)(b) of the Employment Tribunals Rules of Procedure 2024.

[3]Additionally the claimant has applied to amend his claims. The claimant’s claims were discussed at the start of the hearing. He wrote to the Tribunal on 29 April 2025 with a document that appeared to add direct discrimination, failure to make reasonable adjustments and complaints of victimisation claims to his existing complaints of harassment. He was asked whether this was the final statement of his complaints and he said that it was. However, subsequently he said that he also wished to add whistleblowing complaints. The Tribunal told the claimant that if the claims continued at the end of this hearing, he could make a written application to amend his claims and he would be given instructions as to how to do so.

[4]The Tribunal had the benefit of a bundle of documents which ran to 205 pages. The claimant had submitted additional documents which the Tribunal has seen. The respondents’ counsel provided written submissions. Both parties addressed the Tribunal on the respondents’ application. The claimant did not give answers to cross-examination questions from the respondents’ counsel, as the evidence that the respondents relied on was exclusively documentary. The claimant was given time to consider whether to make a closing statement after the respondent’s arguments had been heard. He said he wanted to do so. He was given guidance as to what would be helpful to the Tribunal, and an adjournment in the hearing so he could think about what he wanted to say. Background to the application

[5]The background to this application is the claimant's claim to the tribunal for disability discrimination. The claimant was employed by Manchester Airport PLC from 31 May 2023 as an aviation security officer. The claimant has a health condition that causes him ongoing pain and disrupted sleep, and at the time he started work with the respondent a report from occupational health indicated that the claimant was using medicinal cannabis as a pain management tool. Occupational health declared the claimant fit for work with certain adjustments and restrictions. In July 2023 the claimant was suspended to allow the respondent to investigate his use of medicinal cannabis and, as directed by occupational health, to monitor the effects that the claimant's medication had on his fitness for work so that the first respondent could consider whether there were any risks concerning health and safety. The claimant’s medical records from around that time report mental health issues including sleeplessness and anxiety. The claimant does not rely on his physical disability for the purpose of his claims, but his mental health issues.

[6]Following further investigations, the claimant’s suspension was eventually lifted on 22 September 2023. However, the first respondent considered that further investigation was necessary in order to discover whether the claimant was impaired by his cannabis use while working and so his duties were restricted. The first respondent’s occupational health advisor recommended that the claimant be given limited duties and monitored Case Number: 2400496/2024 in work , as this would be the most effective way of assessing if his cannabis use was limiting his ability to carry out his duties.

[7]On 26 September 2023 the second respondent, who was the claimant’s line manager, asked the claimant in work about his medication. The respondents’ evidence is that the claimant conducted himself aggressively towards the second respondent to such an extent that she escalated the matter to her line manager. There is a dispute between the parties about what was said by each person during that meeting.

[8]The claimant was suspended again while the first respondent investigated his behaviour towards the second respondent, and at the same time the claimant raised a grievance. That grievance was investigated and rejected. The claimant appealed and the appeal was also rejected on 1 November 2023.

[9]The claimant began ACAS Early Conciliation on 21 November 2023 until 2 January 2024. The claimant did not return to work but resigned with immediate effect on 24 January 2024. He began Tribunal proceedings on 25 January 2024.

[10]It is the claimant’s claim before this tribunal that the respondents’ conduct has caused the collapse of his entire life. He says that it has caused his homelessness, financial instability, his divorce and his mental health issues, which he says he did not have before. This does not accord with the medical evidence in the bundle. He told the tribunal this claim must go ahead because of the “damage” that has been done to him by the respondents and the fact that he is entitled to “closure” from particularly the second respondent which he has not received and to which he considers himself entitled because he says her behaviour towards him was “unnecessary and detrimental”. The documentary evidence of the claimant’s behaviour

[11]The claimant’s behaviour became particularly problematic, on the evidence before me, after the preliminary hearing in this case, on 22 July 2024. However, there is an e-mail in the bundle dated 5 June 2024 from the claimant directly to the second respondent at her work address at which it is clear that he blames her for the difficulties he has had with his mental health since leaving the first respondent. He writes “my family are disappointed with the person I've become and I can't be the man I was to my wife and I've honestly had gone through a few attempts of overdosing a couple of months ago... I really am going to get justice in court I promise you and I won't need a solicitor to help me a surely people in court won't be blind and have a conscience.”

[12]He was told by the respondents’ solicitor not to contact her directly and to contact the solicitor instead in relation to these proceedings. The claimant's reply was simply “it's not intended to you so why would I be saying it to you?”. Therefore, I find that from even before the preliminary hearing on 22 July 2024 the claimant consciously sought to target the second respondent, choosing to blame her for what had happened to him.

[13]Following the preliminary hearing on 22 July 2024, the claimant’s behaviour became significantly worse. Case Number: 2400496/2024

[14]On 26 July 2024 the claimant contacted the tribunal directly requesting support, but the tribunal replied the same day that it was not able to provide that support. The claimant replied “I just wanted to also get it out there that illegal activities is my only resort right now! I am taking my own approach by doing illegal activities to get by and for justice against M AG”. He also said in that e-mail that he intended to ruin the reputations of both respondents.

[15]The same day, the claimant emailed the first respondent asking for a settlement to a personal injury claim he was about to make.

[16]The claimant then attended the first respondent’s premises at the Airport on 30 July 2024 and asked to speak to HR. The claimant's behaviour was raised as a potential security risk as he was carrying bags with no intent to travel and he was asked to leave the first respondent’s premises. The claimant sent an e-mail to the tribunal that day copying in the first respondent in which he said “I am actually OK with going to prison.” The claimant sent another e-mail also on 30 July which said the following “if you haven't come up with an immediate settlement by tonight then don't be surprised to see me in Terminal 3 again! You can place trespassing charges all you want, it won't faze me as I will just be placed in custody where I can have something to eat and have somewhere to piss and shit. And if I end up in prison then even better I guess as I would have people around me, better facilities in given multiple ways to develop myself. And at the end of it I'll find a way to damage Manchester airport's reputation.”

[17]The following day, 31 July 2024, the claimant sent another e-mail to the first respondent where he said “one more day for you to come up with an immediate settlement before you start seeing trouble! And I'm really going to hurt Manchester Airport in as many ways as possible”.

[18]The next day, in the early hours of 1 August 2024, the claimant sent another e-mail to the first respondent in which he said he would be coming to Terminal 3 later that night and said he was going to get his “revenge”. Less than an hour later, on 1 August 2024 at 3:53am, the claimant sent an e-mail to the second respondent directly in which he said the following: “when I get hold of you Manchester Airport won't be able to save you, nor will your brother or father, trust me! I have nothing to lose which you should consider as scary x”.

[19]Later the same day, the claimant sent two further emails to the first respondent which said “expect me soon and for me to be fucking about in the airport”.

[20]The claimant sent his fifth e-mail of 1 August 2024 directly to the second respondent. as follows: “See you in Rochdale once I’ve dealt with Manchester Airport’ I still don’t know what I’m going to do with you! I’m probably just going to shave your head, Case Number: 2400496/2024 eyebrows and eyelashes and come back to you again when I have something new in mind… I’m going to destroy your entire life, just as you destroyed mine! I legit want to see your partner leave you and you to fall mental ill harder than I did (to the point of suicide)! […] Call me by tonight and you might be able to resolve what’s go on between me and you. Don’t think silence is going to save you or Manchester Airport or you solicitor. I’m taking my own approach with this case, and it may end me up in prison; but at least I’ll be fed, have clean clothes, shower and develop into a career! Wallah I have nowhere to go and don’t even care where you put me; I just want avenge.”

[21]On 4 August 2024 the claimant sent two further emails to the second respondent. stating, “I’m going to get someone from Rochdale to inject you with heroine and wax your eyes and head”. The second email stated, “This is how I want you to be looking by the end of this year” and attached a picture of the character Dobby from the Harry Potter films.

[22]On 5 August 2024 the claimant carried through on his threats to the first respondent and attended Manchester Airport with a knife and damaged a glass door. He was arrested and was charged with criminal damage, possession of a knife and sending malicious communications.

[23]On 13 October 2024 he received what the respondents understood to be a suspended prison sentence. The claimant’s submission to the tribunal was that he received a £2000 fine and a community service order. The respondents’ submissions on the facts

[24]The respondents noted that the claimant’s emails to both respondents are unquestionably aggressive and threatening. I accept that submission. The respondents’ submission is that the tone of the fifth e-mail from the claimant of 1 August 2024, send to the second respondent, is highly distressing and disturbing. It is the respondents’ counsel’s submission that this is likely to be the worst conduct that tribunal has seen in cases of this nature. I would agree with the respondents’ submission that this is an extremely serious email with extremely serious consequences. The respondents’ counsel characterised this e-mail as “absolutely horrifying and utterly vile”. I agree with the respondents’ counsel’s characterisation of that e-mail.

[25]The respondents’ evidence to the tribunal is that the claimant’s conduct towards the second respondent has had a highly damaging effect on her. They have taken the decision that for the purposes of her mental health that she will not be called as a witness in these proceedings on the first respondent’s account and she has separately refused to attend to give evidence on her own account.

[26]An occupational health report for the second respondent notes that when discussing the claimant’s conduct with the occupational health advisor, she became distressed. She has been diagnosed in a separate medical assessment as having a post-traumatic stress reaction with intrusive thoughts and emotional distress when reminded of the claimant's behaviour. The occupational health report therefore concluded, unsurprisingly, that cross examination by the claimant is likely to precipitate more Case Number: 2400496/2024 emotional distress. The occupational health adviser also noted that the claimant had expressed intention to harm the second respondent and that allowing her to be cross examined by him provides an opportunity for him to carry out his threat of doing her harm. The occupational health adviser also noted that the second respondent “was emotionally distressed at times during a lengthy consultation, notably when discussing previous traumatic experiences attributed to the claimant’s intimidatory behaviour.”

[27]I accept the submissions that the second respondent has been significantly affected by the claimant’s conduct which is properly characterised as horrifying. It reaches, unquestioningly, the threshold for criminal behaviour and he has been convicted for it. It is also “in the conduct of the proceedings” as it refers to settlement and the Tribunal.

[28]It is the respondents’ application that the claimant’s claims should be struck out because of the totality of his conduct and in particular because a fair hearing is not possible due to the second respondent’s non-attendance to give evidence. The claimant’s submissions

[29]When the respondents’ counsel was making his submissions to the tribunal, the claimant interjected with his own comments at regular points. I allowed him to do this with the respondents’ counsel’s agreement, to allow him a full opportunity to respond to what was being said. At the conclusion of the respondents’ submissions, we took a ten minute break for the claimant to consider what else he may wish to say. When we returned, he was given the opportunity to make any further comments he wished to make.

[30]In response to the respondents’ review of the claimant’s behaviour, the claimant said “I've been suffering I've got no resources I'm financially unstable and it's not fair on me. I understand what I've done is not right and I regret it but it's only right for this to go forward. I've suffered more than they have. I'm going through a divorce.”

[31]When the respondents’ counsel told the tribunal that the claimant's behaviour was likely to be the worst conduct the tribunal has seen in cases of this nature, the claimant’s reply was “the conduct of the respondent was very unprofessional of itself and very concerning, do you not agree?”. He also said that he was going through a manic episode at the time and went to the NHS to try to prevent this happening. The claimant’s medical records do not indicate that this “manic” episode was diagnosed by a medical professional but is the claimant’s self-reporting of the situation.

[32]I note that he had indicated to the employment tribunal that he was going to do something “illegal” at various points during the worst of his behaviour in July and August 2024.

[33]The claimant’s submissions to me about his mental health were that he was going through a “manic” episode in July and August 2024 and that he was desperate, and homeless. Even taking the claimant’s mitigation points into account, I am troubled by the claimant’s lack of remorse and understanding, as evidenced by his comments during the hearing today. Although he said he regrets his actions, equally he has said how he considers his actions to be equivalent to the respondents’. When I noted that there was a clear difference in that his actions resulted in a criminal conviction, he told me that this was because he accepted responsibility for himself. I do not agree with Case Number: 2400496/2024 him. I do not consider that the claimant understands that he has a duty to behave properly in this litigation, and that pursuing a claim for the primary reason of revenge and to attempt to ruin the respondents’ reputations is unacceptable and an improper use of Tribunal time and resources.

[34]The respondents’ counsel also made the point that it was apparent from the claimant's comments that he was not able to distinguish between his behaviour and the respondents’ conduct. The respondents’ counsel said the claimant’s threatening behaviour was entirely connected with his attempts to obtain money from the first respondent for a settlement of the claims and that it therefore amounted to extortion. The claimant interjected “I wanted an eye for an eye and a tooth for a tooth I just wanted revenge - how is that extortion?” The claimant also said that his behaviour was a cry out for help and that in relation to arriving at the first respondent’s premises with a knife and smashing a glass door he said “I could have done a lot more damage. I chose not to I had considered this carefully I was crying out for help. I didn't hurt anyone and I could have done a lot more.” I do not accept that acting in a violent manner that caused criminal damage is not excused by the submission that the criminal damage and violence could have been much worse.

[35]The respondents’ counsel noted that the claimant's threats to the second respondent were made worse because he had threatened the first respondent and followed through with it. There is therefore no way for the second respondent to know that the claimant’s threats are idle. In relation to that the claimant replied “I've reconsidered my actions. She might be a mother. I don't want to inflict pain on those other innocent people.”

The Law

[36]The Tribunal may strike out a party’s case under Rule 38 of the ET Rules of Procedure 2024. Rule 38(1)(a) allows the Tribunal a discretion to strike out where the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious.

[37]The test to be applied by the Tribunal is from Bolch v Chipman

UKEAT/1149/02

, which is:a. the Tribunal must find that a party has behaved scandalously, unreasonably or vexatiously in conducting proceedings;

b. the Tribunal must consider whether a fair trial is possible because, unless there are exceptional circumstances, strike out is not regarded as a punishment. If possible, the case should continue; and

c. even if a fair trial cannot be achieved, the Tribunal will need to consider the appropriate remedy. It may be that an alternative remedy is available rather than strike out of the claim.

[38]In Force One Utilities v Hatfield

UKEAT/0048/08

, the Tribunal found that the conduct complained of sufficiently intimidated the claimant so as to affect his ability to give evidence without fear of consequences and barred the respondent from participating in the trial. The EAT upheld that decision, stating the following at §37: Case Number: 2400496/2024 “In our judgment, once a tribunal finds that a party is sufficiently intimidated as to affect his or her ability to give evidence without fear of consequences, the only proportionate response can be to bar the other party from participating in the trial.”

[39]Similarly, in Gainford Care Homes v Tipple and Roe

[2016] EWCA Civ 382

, a witness was threatened by the respondent during a break in her evidence, and a representative from the respondent later drove at the witness at speed, causing her to take evasive action. The tribunal’s decision to bar the respondent from taking part in the trial was upheld on appeal, with Moore-Bick LJ noting the tribunal’s findings at §9 that the witness “expressed great reservations about being able to give evidence and the tribunal found that she would have the greatest difficulty being cross examined.” The Decision to Strike Out

[40]Considering the information before the tribunal as a whole, it is clear that the claimant’s behaviour meets the test for scandalous and unreasonable conduct. The claimant’s conduct is unacceptable and reaches the criminal threshold of harm, as evidenced by his conviction.

[41]I also find that his conduct is “conduct in the proceedings”, as many of his threats directly reference the proceedings and settlement of them.

[42]The next question is to consider whether a fair trial is still possible. As the respondents’ counsel pointed out, if a case can continue fairly, it should. Strike out is not to be a punishment, unless there are what is described in Bolch v Chipman as “exceptional circumstances”. It was suggested by the respondents’ counsel that the conduct here is so serious that these may be exceptional circumstances such that strike out could be justified as a punishment.

[43]I have considered this submission very carefully. I am deeply troubled by some of the claimant’s responses to the respondents’ submissions during the hearing this morning, for example, he considers it to be a mitigating factor that he could have done a lot more damage at the first respondent’s premises and could have injured more people but deliberately chose not to. It is also disturbing to me that one of the reasons he gave for regretting his behaviour against the second respondent was that she may now be or become a mother and that he did not want to injure “innocent” people. This suggests to me that were such so-called innocent people not involved he may have far fewer qualms about injuring the second respondent. He also demands closure and insists that he is entitled to it. He repeatedly says that his behaviour was not his fault.

[44]Although it may be the case that the claimant's behaviour has turned a corner since his conviction, there is no evidence before me that he understands that starting employment tribunal proceedings and then threatening both parties with serious acts of violence is completely unacceptable conduct. It is entirely irrelevant for the purpose of this decision, what the respondents may or may not have done to the claimant during his employment.

[45]The proper functioning of society requires that the law and due process be properly followed. Parties who consider themselves to have been unlawfully treated at work, such as the claimant, are able to complain to the employment tribunal and have their Case Number: 2400496/2024 case heard at the public expense and without the need for a lawyer , for the purpose of deciding whether or not their treatment was unlawful. The purpose of Tribunal litigation is not, however, to extract “revenge” or to “ruin their reputation”. That is an improper purpose.

[46]The tribunal will assist litigants in person in formulating their claims and will provide them with guidance as to what the legal tests are and what the procedural steps are that they need to take. But access to justice in this way depends on the parties themselves behaving in accordance with the law. If a party brings tribunal proceedings but then threatens and commits acts of violence against the parties in an attempt to force a settlement or, as the claimant has indicated out of a desire for revenge, then their access to justice through the employment tribunal may well be barred as a result of that behaviour.

[47]Therefore, the claimant’s behaviour in this case may well fall within the definition of “exceptional circumstances”. Such circumstances are likely to apply as it is not in the interests of justice for parties who behave in a criminally violent and threatening manner in the conduct of that litigation to be allowed to have their cases decided by an employment tribunal. However, there is so little case law and guidance on when circumstances may be “exceptional” that I will also consider whether, if possible, the case can continue, and a fair trial can take place.

[48]The second respondent will not attend to give evidence. The first respondent will not compel her to attend as a witness for them. Separately she is not willing to attend to give evidence on her own account as the second respondent.

[49]These are very similar circumstances to those in the case Force One Utilities, whereby the EAT said “In our judgment, once a tribunal finds that a party is sufficiently intimidated as to affect his or her ability to give evidence without fear of consequences, the only proportionate response can be to bar the other party from participating in the trial.”

[50]In the case of Gainford Care Homes, the Tribunal found the witness expressed great reservations about being able to give evidence and the tribunal found that she would have great difficulty being cross-examined. I find that to be the case here. Given the claimant’s expressed desire for revenge and closure and his equating of his conduct towards the second respondent and her conduct towards him, I find that the second respondent would have great difficulty being cross-examined by him. Therefore, her refusal to attend is a reasonable response to the circumstances.

[51]However, the inability of the respondents to defend themselves without their main witness giving evidence would put them at a significant disadvantage and the claimant at a significant advantage, caused by his own improper conduct. This would not result in a fair trial.

[52]Even if a fair trial cannot be achieved, is an alternative remedy available rather than the strike out of the claim? Given the importance of the second respondent to the claims, I do not consider that there is. I agree with the respondents that the tribunal cannot mitigate against the damage done to the trial by the claimant’s actions in July and August 2024. The only proportionate response to the injustice of an unfair trial is to strike out the claims. Case Number: 2400496/2024

[53]The claimant demands “closure” and that the case go ahead. He has no absolute entitlement to either thing. In any event, the case cannot proceed as he has behaved in such a damaging manner that parties are intimidated and cannot participate. He has lost his right to a hearing in the Employment Tribunal as a result of his conduct. The claims are struck out. The claimant’s comments following the oral judgment

[54]During the delivery of this judgment, the claimant interrupted me several times to object to what I was saying despite me asking him to wait until the end to address the Tribunal. He complained at length about the fairness and the correctness of this decision. He said “that’s really unfair, what am I supposed to do now?”.

[55]He asked how to appeal, and I told him about the process for appealing to the Employment Appeal Tribunal. He asked for this decision to be given to him in writing. He has been provided with these written reasons.

[56]As part of his complaint that the decision was “unfair”, he asked me whether I knew that the second respondent was still working at Manchester Airport and asked me how that was fair given that she had “committed misconduct”, but he had no job. I note that the claimant still considers his conduct to be excusable and equivalent to the respondent’s conduct.

[57]Having been told that the written reasons would be published in the online register of judgments, the claimant asked how he could publish this judgment in full himself. I asked him why he wished to publish it in full himself, and he told me that it was because “I want to ruin Manchester Airport’s reputation”.

[58]Given that by this stage, I had given the judgment to the parties and given the claimant advice about how to ask for written reasons and how to appeal against this decision, I did not consider that any further discussion would be productive or appropriate and therefore I concluded the hearing. Approved by