Mr S Sallah v UOB Security Services Ltd: 2402728/2024

EMPLOYMENT TRIBUNALS

Case No 2402728/2024

Between

Mr Sering SallahClaimant

UOB Security Services LtdRespondent

Before

Employment Judge Dennehy

In person for claimant

Mr J Raizon, (instructed by Counsel) for respondent

Date 23 December 2025

JUDGMENT

[1]It is just and equitable to extend the time to allow the claimant’s complaints of race related harassment and victimisation to proceed to the final hearing listed for 21-24 July 2026.

[2]The respondent’s application to strike out the claimant’s complaints for noncompliance with case management orders and failing to actively pursue his case under rule 38(1) (c ) and 38 (1) (d) are refused.

[3]No deposit order is made.

REASONS

[1]The hearing today is to deal with time limits and strike out as set out in the case management order from the preliminary hearing on 6 October 2025. I dealt with the time limit issue first, because if I decided against the claimant this would mean that the Tribunal had no jurisdiction to consider his claim or Page 1 of 15 the application to strike out and/or deposit order. I have to consider whether it is just and equitable to extend the time.

[2]There has been confusion caused by a lack of clarity with the claimant’s claim and this is the fourth preliminary hearing in this matter. The claimant became upset during today’s hearing, so we had a short break to give him time to compose himself.

[3]The first preliminary hearing was on 25 November 2024, where the claimant’s unfair dismissal claim was struck out as the claimant did not have two years’ service. Employment Judge Tobin identified two allegations of harassment, case management orders for disclosure, bundle of documents and witness statements.

[4]The second preliminary hearing took place on 9 April 2025. The time limits hearing was converted to a case management hearing as Employment Judge Ross identified that the claimant also had a victimisation claim, as he had been subjected to a disciplinary process, after raising his grievance. Case management orders for amended grounds of response, the substitution of respondent to UOB Security Limited, final hearing date set for 21-24 July 2026, exchange of documents, witness statements including the claimant’s reasons for why his claim was presented out of time 9 days out of time and directions for mediation hearing in November 2025.

[5]The third preliminary hearing took place on 6 October 2025 before me, which was adjourned as the claimant could not open the bundle of documents and had joined the hearing via his mobile phone whilst in his stationary car. There had been no compliance by the claimant with the previous case management orders. Case management orders were given re email disclosure, claimants witness statement, bundle of documents and unless order if the claimant did not file his witness statement before the fourth preliminary hearing.

[6]The claimant had been given notice of the time limits issue at all the previous preliminary hearings. The Respondent in its amended grounds of resistance first raised the issue of jurisdiction on the basis that the claims were out of time.

[7]I heard oral evidence form the claimant and the respondent had prepared a bundle of 617 pages. The claimant was cross examined by Mr Raizon and answered my questions. No reasonable adjustments were requested by either party. Findings of fact Chronology 14-19 June Alleged racist comments made 18 August First grievance 21 September Second grievance 06 October Disciplinary process started 17 November Both grievances are heard together Page 2 of 15 18 January Outcome letter of grievances - partially upheld 29 January Claimant resigns with immediate effect 30 January Disciplinary meeting scheduled 30 April Claimant contacts ACAS 01 May ACAS conciliation certificate issued 07 May ET1 filed

Findings of fact

[8]The claimant is making complaints re:(i) two allegations of harassment because of his race, made by a fellow employee, Wayne Driscoll, that happened sometime between 14 June 2023 and the 19 June 2023; and

(ii) victimization because he was subject to a disciplinary process which began on 6 October 2023 on the grounds of misconduct, after he made his grievance, which the claimant believes was because the respondent did not like that he had raised a grievance. The claimant’s case is that as soon as he raised a grievance the respondent wanted to get rid of him.

[9]In respect of the two allegations the claimant raised a grievance on 18 August 2023 alleging bullying, unfair treatment and race discrimination, and then a second grievance on 21 September 2023.

[10]The respondent instigated a disciplinary process against the claimant which began on 6 October 2023 on the grounds of misconduct. A disciplinary meeting was scheduled for 30 January 2024.

[11]Both claims were heard together on 17 November 2023. The outcome letter was dated 18 January 2024 which partially upheld the claimant’s allegations. The claimant did not appeal.

[12]The claimant was unfit for work due to anxiety for 6 October 2023-05 December 2023 and for the whole of January. The fit notes covering these periods were in the bundle of documents.

[13]The claimant resigned on 29 January 2024 with immediate effect.

[14]The respondent’s case is that the claimant is inconsistent in his harassment and victimisation complaints and is trying to expand his claim at each preliminary hearing. The respondent dealt with the grievance. It also investigated misconduct allegations against the claimant which were referred for formal disciplinary action. That disciplinary meeting was due to take place on 30 January 2024, but the claimant resigned on 29 January 2024 and did not attend. No appeal was ever received regarding the grievance. The respondent avers that the June 2023 incident was an isolated act and after June 2023 there were no other acts of discrimination. The claimant has delayed and the claim is substantially out of time, there are no allegations or indications of any conduct extending over a period of time and it would not be just and equitable to entertain the claim. Page 3 of 15 The Law – Time Limits

[15]The relevant time-limit for claims under the Equality Act 2010 is at section 123 of the Equality Act 2010. According to section 123(1)(a) the Tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.

[16]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B of the Equality Act.

[17]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary. A person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.

[18]An Employment Tribunal applying section 123 has a broad discretion. A useful summary of the case law and multifactorial approach was given by the EAT in Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

per HHJ Peter Clark:” “A useful starting point is the judgment of Smith J in British Coal Corpn v Keeble

[1997] IRLR 336

. That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim. Smith J, sitting with members, in allowing the employers' appeal and remitting the just and equitable extension question to the employment tribunal, suggested that in exercising its discretion the tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases. The first of those factors, is the length of and reasons for the delay in bringing that claim. However, as the Court of Appeal made clear in Southwark London Borough Council v Afolabi

[2003] ICR 800

, in deciding the just and equitable extension question, a tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act 1980, provided that no significant factor is omitted. That principle was more recently reinforced in a different context by the Court of Appeal in Neary v Governing Body of St Albans Girls' School

[2010] ICR 473

, where the leading judgment was given by Smith LJ. There, it was held that a line of appeal tribunal authority requiring a tribunal to consider the factors in the CPR, rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following non-compliance with an unless order, was incorrect. Following Afolabi it is sufficient that all relevant factors are considered. Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time. However, Smith J referred to the balance of prejudice in Keeble, and is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corpn, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff's (claimant's) Page 4 of 15 prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd

[1977] ICR 279

) involves a multi-factoral approach. No single factor is determinative. Returning to the balance of prejudice, this concept arises elsewhere in our jurisdiction. For example, in deciding applications to amend the form ET1, the Selkent principle: Selkent Bus Co Ltd v Moore

[1996] ICR 836

.”

[19]There is no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 343

CA, per Auld LJ: “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […]”

[20]The Court of Appeal considered the exercise of this discretion again in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, per Leggatt LJ: “First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble

[1997] IRLR 336

), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi

[2003] EWCA Civ 15

;

[2003] ICR 800

, para 33. […] and at 19.That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”.

[21]The question of what amounts to a “continuing act” was considered by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, per Mummery LJ: “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. [...]Instead, the focus should be on the substance Page 5 of 15 of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.” Conclusion – Time Limits

[22]The first issue I considered “was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? and if not, was there conduct extending over a period”

[23]The alleged racist comments were made at the earliest on 14 June and the latest on 19 June 2023. Any claim should have been made to the Tribunal within three months from the date of the alleged act. As the alleged act took place between 14-19 June 2023, three months from then is September 2023.

[24]The claimant resigned on 29 January 2024. His claim should have been made to the Tribunal within three months from then which is 28 April 2024. The claimant did not contact ACAS until 30 April 2024, so there is no conciliation extension to take into account as the ACAS extension does not apply where the limitation period has already expired before early conciliation commences. The claimant made his claim to the Tribunal on 7 May 2024. The ET1 was therefore presented 9 days out of time and 11 months since the alleged act.

[25]I find that the claim was not made in time, so I then went on to consider whether there was any conduct extending over a period.

[26]The respondent’s case is that the allegations in June 2023 were an isolated act and that there have been no further incidents.

[27]The claimant’s case is that he raised his grievance two months after the alleged comments were made. The respondent did not provide an outcome letter until 18 January 2024 some 6 months later. The respondent had commenced a disciplinary process on 6 October 2023, and a disciplinary meeting was scheduled to be held on 30 January 2024. The claimant resigned on 29 January 2024. It is the claimant’s case that these events are linked and are examples of the continual bullying he suffered. The claimant told me that there has been a continuing series of acts “serial bullying by telling me off at any opportunity”. He is consistent in his evidence that he believes that the events are connected, but the claimant failed to provide any evidence of how the disciplinary process was linked in any way to the harassment allegations.

[28]Regardless of this, I do find in any event that there was a connection of acts extending over a period. I find this because the respondent did not send the claimant his outcome letter until 18 January 2024 and this kept the allegations alive as the claimant did not know what the outcome of his grievance was. The outcome was that the grievance was partially upheld. The claimant never appealed although he did confirm to me that he knew he could appeal. Page 6 of 15

[29]The claimant resigned on 29 January 2024 with immediate effect and mentions the harassment allegations in his resignation letter and I find that this is conduct connected to the harassment allegations, expanding over a period of time.

[30]The next issue was “ If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

[31]The claimant had three months from his resignation to present his claim to the Employment Tribunal. Three months from his resignation is 28 April 2024. The claimant contacted ACAS after the three month period for lodging his claim had expired, so there is no early conciliation extension to be taken into consideration. The claimant presented his ET1 to the Tribunal on 7 May 2024, which is nine days late.

[32]The next issue I considered was “If not, were the claims made within such further period as the Tribunal thinks is just and equitable? “

[33]In considering why were the complaints were not made to the Tribunal in time, case law supports that a multi-factorial approach should be taken. Bearing this in mind the factors I considered were:

[34]The prejudice which each party would suffer and the merits of their case. The respondent suffers prejudice because:(i) they will have to deal with a claim that would otherwise be time barred; and

(ii) they had to investigate events when documents may be lost, witness may no longer be employed and memories have faded. I noted that the alleged act has already been investigated by the respondent, so the forensic prejudice is minimal to the respondent.

[35]The claimant suffers prejudice because he would be denied continuing with his claim that may yet have some merit. Assessing the merits of the claimant’s case I noted that the alleged act has already been investigated by the respondent and partially upheld, and I find that the claimant’s complaint does have some merit.

[36]Explanation for the delay. I kept in mind that the purpose of the time bar is to promote finality and certainty and the exercise of discretion is the exception not the rule. I considered the following:

[37]Claimant’s ill health. The claimant told me his ill health (anxiety) prevented him from not making his claim earlier. He told me that he has never been treated the way the respondent treated him and because of this, he has suffered with anxiety, insomnia, flashbacks and suicidal thoughts. In the bundle of documents there were a series of Fit Notes that confirmed that the claimant was off work with anxiety covering the periods 06 October 2023 – 05 December 2023 and 03 January – 31 January 2024, which is a substantial period of time. He also told me that he was on medication and is still taking it as his symptoms persist. I accept that the claimant was suffering with anxiety up to his resignation, but no medical evidence to support his anxiety after his resignation was presented today to explain why he could not present his ET1 Page 7 of 15 claim in time. I accept that his anxiety did not automatically disappear when he resigned.

[38]Length of delay. The claimant did not present his Tribunal claim immediately after he resigned, he waited more than three months. He did not contact ACAS until after the three months had expired. After contacting ACAS his claim was not presented until 07 May 2024. The claimant told me that his anxiety made it difficult for him to get out of bed after he had resigned. The claimant told me that he also did not have access to the internet because he could not afford to have it at home. If he wanted to go on the internet he would have to go to the library. He had a limited data package on his mobile phone.

[39]Incorrect advice. The claimant’s told me that he was relying on his Trade Union Representative and the HR Department for advice whilst he was employed. He told the Tribunal that he was chasing them all the time. He says he was not given the respondent company handbook until November 2023, so did not know the details of the processes until then.I do not accept that the claimant was given any incorrect advice.

[40]The claimant was accompanied to the grievance meeting by a Trade Union Representative and the claimant’s case is that the representative never mentioned anything about ACAS or time limits to him. The claimant made a complaint about his union representative on 27 February 2024 and how disappointed he is with how he was supported. He does not claim that the advice was incorrect rather that the advice about ACAS and time limits was not given to him.

[41]Ignorance of rights. The claimant confirmed in his oral evidence that he had a university degree and was able to use email and Google, but didn’t know what to search for regarding his harassment complaints. The claimant told Mr Raizon that had the claimant known about the time limit rules then he would have complied with them.

[42]In his witness statement the claimant says ..”” I have done a hearing with the University of Bolton Human Resources on 17 November 2023 that’s when for the first time I heard about the ACAS code.”

[43]Later on his witness statement, he says “ .. before I start the process with ACAS” which is dated 27 February 2024.

[44]The claimant also told the Tribunal that a friend had told him about ACAS in January 2024 but he struggled to get through to ACAS on his mobile phone and did not make contact with them until April 2024. He confirmed to Mr Raizon that he did not visit the ACAS website at any time. He went on to tell me that he had phoned ACAS every Monday and sometimes on a Friday. He told me that he was desperate for help. He felt anxious every time he thought about how he had been treated by the respondent.

[45]When the claimant did eventually make contact with ACAS in April 2024, he told me that they warned him that his claim was out of time and an Employment Judge would have to make a decision on whether or not his claim could proceed. On his own admission the claimant was aware that ACAS Page 8 of 15 existed at the earliest in November 2023 and at the latest in February 2024. He does not make any contact with them at all until April 2024. The claimant’s reason for this he told me was his mental health and he found it difficult to get out of bed and thinking about the way the respondent had treated him caused him further anxiety. He told me he was having suicidal thoughts.

[46]He was accompanied at his grievance hearing by his Trade Union Representative and could have asked him where he could have got further advice or made further enquiries, but he did not think to do so. After his resignation the claimant did not make any further enquiries until April, which was three months after his resignation. I find that the claimant did not act promptly in making enquiries about his rights and time limits.

[47]I considered whether the claimant’s ignorance was reasonable and when could he reasonably have become aware of his right to make a claim to the Tribunal. I accept that the claimant is a litigant in person. He is educated to university standards and knows how to use the internet. Taking the latest date, February 2024 he appears to have become aware of the existence of ACAS but he did not make any further enquiries. The claimant was able to make two grievances and asked for help to do that from the respondent’s HR team and had access to a Trade Union Representative. I find that the claimant could have made further enquiries, as a quick internet search could have informed him of the possibility of bringing a complaint in the employment tribunal and any associated time limits. However, I accept that he did not easily have access to the internet and could not afford it on his mobile phone. I am satisfied that the claimant’s ignorance about bringing a claim in the employment tribunal was reasonable in these circumstances.

[48]Ongoing internal procedure. The claimant made his first grievance in August 2023 and a second in September 2023. They were heard together in November 2023 and the outcome given in January 2024. At this time the claimant’s case is that he was not aware of his legal rights and was relying on the respondent’s grievance procedure. I accept that this is at odds with his witness statement that he became aware of the ACAS code in November 2023. I find that it was reasonable for the claimant to try and resolve matters with the respondent by going through its grievance procedures.

[49]Co operation with requests for information. The claimant until today has not complied with the case management orders from the first and second preliminary hearings. The respondent says that the claimant has not engaged with him and caused unnecessary time and expense. The claimant told me that his claim meant everything to him, but his actions do not support that belief. At the previous preliminary hearing the claimant did assure me that he would do what was required for his claim and he has now completed his witness statement. I noted that he is now co operating with the respondent and Tribunal.

[50]The final issued I considered was “In any event, is it just and equitable in all the circumstances to extend time?

[51]Taking all of the above into consideration, I find that it would be just and equitable for me to extend the time for the filing of the claimant’s ET1. In Page 9 of 15 summary, I find this because of the claimant’s anxiety and because there is some merit to his claim as the respondent’s have partially upheld his grievance. The respondent has already investigated the allegations and I find that the prejudice to the claimant is greater than the prejudice to the respondent.

[52]Accordingly, I find that it is just and equitable to extend the time for the claimants complaints for harassment and victimisation. The final hearing is listed for 21- 24 July 2026. Strike out

[53]At the third preliminary hearing the respondents applied for strike out of the claimant’s claim under Rule 38 (c ) non compliance with the case management orders and 38 (d) not actively pursuing his claim. Issues 52. The Issues to be decided are: 2. Strike Out2.1 Should the complaint of harassment and victimisation be struck out because the claimant has not complied with Orders 1a , 2a and 2b, of the Order of the Tribunal dated 25 November 2024 ?

2.2 Should the complaint of harassment and victimisation be struck out because the claimant has not complied with Paragraph 20,21, 22, 24, 28,29,33 and 36 of the Order of the Tribunal dated 9 April 2025 ? 2.2 Should the claim or any part of it be struck out because the claimant has not actively pursued it? 3.Deposit Order

3.1 Does the claim or any part of it have little reasonable prospect of success?

3.2 If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it? The Law – Strike Out 53. Rule 38 of The Employment Tribunal Procedure Rules 2024 provides that: “(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;

(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)….” Page 10 of 15

Issues

[54]Strike out is a draconian sanction and not one to be used too easily. Establishing one of the specified grounds on which a response can be struck out is not in itself determinative of the respondent’s application. A two stage approach is required as confirmed in Hasan v Tesco Stores Ltd EAT 0098/16. The Tribunal must first decide whether one of the grounds has been made out and, if it is, must then decide whether to exercise its discretion and order strike out. Rule 38 gives the Tribunal the power to strike out, it does not mandate it to do so.

[55]Tribunals should be particularly cautious about exercising their power to strike out badly pleaded claims brought by litigants in person who are not familiar with articulating complex arguments in written form on the ground that they have no reasonable prospect of success (Mbuisa v Cygnet Healthcare Ltd EAT 0119/18).

[56]The Employment Appeal Tribunal, in Abertawe Bro Morgannwg University Health Board v Ferguson

[2013] ICR 1108

commented that whilst in some cases strike out may save time, expense and anxiety, in cases that are fact sensitive the circumstances in which a claim is likely to be struck out are rare.

[57]In Cox v Adecco and ors

[2021] ICR 1307

the Employment Appeal Tribunal gave guidance to Tribunals dealing with strike-out applications against litigants in person. It held that when considering strike out of claims brought against litigants in person, the claimant’s case should be taken at its highest and the Tribunal must consider, in reasonable detail, what the claims and issues are. A Tribunal should not strike out a claim where it does not know what the claim is. There should, therefore, be a reasonable attempt at identifying the claim and the issues before considering strike out. The EAT also said that, if the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual tests that apply to amendments.

[58]In Anyanwu and anor v South Bank Student Union and anor

[2001] ICR 391

the House of Lords stressed the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive and can only be determined after evidence has been heard.

[59]This approach was adopted also in Kwele-Siakam v Co-Operative Group Ltd EAT 0039/17 in which the EAT found that an Employment Judge was wrong to strike out claims for race discrimination and victimisation when the central issue in the case was the reason for the respondent’s behaviour towards the claimant, which would require a Tribunal to make findings of fact after a full hearing.

[60]The making of a deposit order is a less draconian sanction then a strikeout than a strike out. The test of “little reasonable prospect” is less rigorous than “no reasonable prospect” and a Tribunal therefore has a greater leeway to make such an order. It does not, however, follow that a Tribunal will necessarily make a deposit order in relation to an allegation with little reasonable prospect of success, it must exercise its discretion to do so in accordance with the Page 11 of 15 overriding objective to deal with cases fairly and justly (Hemdan v Ismail and another

2017 ICR 486

[61]In Hemdan, Simler P gave the following guidance: “The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation argument or response, in contrast to the test for a strike out which requires a Tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. The fact that a Tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis”.

[62]Before making any decision relating to the deposit order the Tribunal must make reasonable inquiries into the paying party's ability to pay the deposit and must take this into account in fixing the level of the deposit (Rule 39 (2)).

[63]In reaching my decision on the application for strike out I have taken account of the legal principles set out above, the overriding objective and the need for proportionality in litigation. Conclusions – Strike Out Non compliance with case management orders

[64]Taking the first stage of the test the claimant admitted that he had not complied with the case management orders of 25 November 2024 and 9 April 2025.

[65]The common orders to both was the requirement for the claimant to file a witness statement and disclosure. The purpose of these orders is so that both the claimant and respondent are aware of all of the evidence and witnesses each party has and can assess the strengths and weaknesses of their case.

[66]At the third preliminary hearing I made an unless order which the claimant complied with regarding the filing of his witness statement, and that has now been complied with in respect of the witness statement, there has also been disclosure. I noted it was unclear if the claimant has prepared his schedule of loss in line with the case management order.

[67]I find that there has been partial non compliance with the case management orders, and that the witness statement has now been completed by the claimant and exchanged. Not actively pursuing his case

[68]The respondent’s case is that the claimant has not replied to their correspondence, has not engaged with respondent, he has attended the preliminary hearings without being prepared, has not complied with case management orders. There have been long periods of inactivity from the Page 12 of 15 claimant where he has not engaged with the respondent. The claimant’s conduct has incurred substantial additional work and cost for the respondent.

[69]The claimant’s case is that his anxiety prevented him from pursuing his case. He has submitted fit notes but they only cover him for the period up to his resignation. He said he could not get out of bed and was on medication. I accept that if he was not working there would be no requirement for fit notes, but he did not provide any further medical evidence to support this reason for inactivity. The claimant told me that his case meant everything to him, but his actions do not support his passion. I find that the first stage of the test has been met and find that the claimant has not actively pursued his claim.

[70]I noted that at the third preliminary hearing before me, the claimant was not prepared for the hearing. I noted that he has now complied with the unless order and was prepared for today’s hearing.

[71]Cases need to be dealt with justly and fairly. Justice also requires that the Tribunals resources are allocated fairly between all parties whose cases need to be heard by the tribunal service. There needs to be some deterrent to having to allocate the tribunals resources to hearing weak claims.

[72]Having found that there had been partial non compliance with rule 38 (1)(c ) and the claimant was not actively pursuing his claim under rule 38 (1)(d) I went on to consider the second part of the test, is whether to exercise my discretion to strike out bearing in mind the overriding objective.

[73]In considering the overriding objective and dealing with cases fairly and justly, I took into account: 74. the magnitude of non-compliance .I noted that it was not until 25 November 2025 that the claimant complied with the requirement to complete a witness statement. This is twelve months since the first preliminary hearing. Whilst the claimant has now complied, and provided his witness statement, it is unclear if the schedule of loss is still outstanding. The respondent says the noncompliance has been serious due to the length of time and repeated case management orders and it was only the unless order that had prompted action from the claimant. The respondent has had to bear the cost of attending four preliminary hearings. The claimant’s case was that he didn’t know exactly what was required for his witness statement until the 6 October 2025 preliminary hearing. He says that he does not have any experience of dealing with the Employment Tribunal and did not know that it existed. Mr Raizon went through the requirements for the claimant’s witness statement during the 6 October preliminary hearing and I had explained to the claimant that he has the burden of proof and must provide evidence to the Tribunal. The claimant acknowledged this. The claimant has now provided his statement and complied.

[75]Whether the default was the fault of the claimant or his representative. The claimant is a litigant in person and he says that he was relying on this Trade Union Representative and has since made a complaint about him. The claimant is educated to university standard with a degree yet he appears to Page 13 of 15 have carried out no enquiries of his own. He did not do an internet search or get through to ACAS until April 2024, although he says he had been trying regularly to get through to him on his mobile phone. He was adamant that he was desperately seeking help and was ringing ACAS weekly. I accept the claimant’s evidence on this.

[76]What disruption, unfairness or prejudice has been caused. The claimants claim was not clearly set out in the ET1 and has been amended at the first and second preliminary hearings to include complaints of harassment and victiminisation. The respondent’s case is that it has been prejudiced by not having full details of all the allegations earlier. The respondent says that the events are now over two years old and memories fade. The respondent says that the claimant has not been consistent in his complaints and that only one of the allegations was mentioned at the grievance. The claimant’s case is that he had mentioned both allegations to HR but their notes only reference one. The allegations relate to the incidents that the respondent has already investigated as part of the claimant’s grievance, which they partially upheld. The respondent also commenced it’s disciplinary process, although the claimant resigned the day prior to the disciplinary meeting. The respondent has been put through the cost and time of four preliminary hearings.

[77]I considered the prejudice to the claimant, if his claim is struck out. I accept that the claimant is a litigant in person and may be unsure of the correct legal labels to attach to his complaints or be able to articulate his arguments in written format. Striking out a claim would mean denying the claimant continuing with his claim that may yet have some merit. As his grievance was partially upheld by the respondent, the claimant’s complaints do have some merit and it would not be treating his case fairly and justly to strike it out.

[78]Whether a fair hearing is still possible. I find that the fair trial is still possible. The claimant needs to comply with any outstanding case management orders. The final hearing is now only seven months away.

[79]Is strike out proportionate. The claimant has now provided his witness statement (05 pages and signed on 24 November) and appears to be now actively pursuing his claim. I considered whether a lesser sanction was appropriate. The respondent in his final submissions argued that the claimant’s claim has little prospect of success and asked me to consider making a deposit order if I did not strike out the claim. As I have found that the claimant succeeds on the time limits issues and that his grievance was partially upheld by the respondent I do not find that it has little reasonable prospects of success and do not make a deposit order.

[80]Taking all of the above into consideration, I refuse the application to strike out. Having taken the claimant’s case at its highest, I concluded that it would not be treating the claimant’s case fairly and justly to strike it out for non compliance with case management orders and not actively pursuing his case. Page 14 of 15 Employment Judge Dennehy On 23 December 2025 18 February 2026 All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Page 15 of 15