Employment Judge M ButlerSelf-representing for claimantDate 28 May 2025
REASONS
[5]The claimant presented a claim on 03 October 2023, and this was following ACAS Early Conciliation that took place between 19 august 2023 and 04 September 2023.[6]The case was case managed by Employment Judge Johnson at a Case Management Preliminary Hearing on 08 April 2024. A list of issues was appended to the back of the Case Management Orders. This decision uses the paragraphing number contained in that list of issues.[7]Certain allegations were recorded as covering a broad time period,[8]The respondent made an application to strike out 4 specific parts of the claim, or for a deposit order to be applied to those specific parts.[9]The claimant has been represented throughout these proceedings, and this representation continues. Although curiously, the claimant attended this hearing without her representative and conducted the hearing herself. The claimant’s representatives emailed the tribunal on 22 May 2025 to explain that they were not instructed to attend the hearing, but that the claimant would attend in person herself. Whilst the claimant explained at the hearing that her representative had told her that she not need them to attend and that the claimant could present her case adequately herself, as all that she was being asked to do was to attend and tell the tribunal what her claim was. However, this was not the case, as this hearing was listed to determine a strike out/deposit order application.[10]Furthermore, the claimant’s representative was aware that the tribunal would need evidence of the claimant’s financial means for the purposes of considering a deposit order. And they referenced this in their email to the tribunal on 18 February 2025. And yet, no such evidence was presented to the tribunal.[11]In order to ensure fairness to the claimant in this case, the tribunal did three things:a. It explained in simple terms to the claimant what the hearing was listed to determine. And used simple language, avoiding technical legal terms. This is because the claimant explained that she did not understand what was going to happen at the hearing. And it was important that the claimant understood from the outset the purpose of the hearing, and the procedure that was going to follow.b. The claimant was offered time to consider what she wanted to say in her submissions.c. The claimant was permitted to give oral evidence of her financial means.[12]The tribunal was assisted with a bundle of documents that ran to some 248 electronic pages. THE RESPONDENT’S APPLICATION FOR STRIKE OUT[13]The respondent applied to strike out part of the claimant’s claims by email dated 18 February 2025. This was limited to those parts of the claim that it submits had not been adequately particularised, namely paragraphs 6(c), 6(d), 6(m) and 28 of the list of issues that had been recorded by EJ Johnson following the case management hearing that took place on 08 April 2024.[14]The respondent relies on the claims having no reasonable prospects of success and/or a failure to comply with tribunal directions and/or unreasonable conduct.[15]In making its application, the respondent submitted, amongst other things, the following:a. The claimant has failed to comply with a tribunal order to provide details of allegation 6(m), in that the information provided was not that directed. The dates provided included dates on which the claimant did not work, dates when she was on leave and dates outside of the allegations.b. The respondent requested a further updated list on 11 September 2024, which was a request for particularisation of the allegations that are subject to this application. The respondent cannot understand or prepare for this case without these details. This was to comply with the direction of EJ Johnson, including for the parties to agree a list of issues.c. There were further attempts made by the respondent to clarify the claim, to no avail.d. The respondent sought a direction from the tribunal on 16 September 2024. The tribunal agreed to the variation to directions on 29 November 2024. In short, this required the claimant to provide details of the dates on which the claimant says she worked additional hours and is therefore relevant to each of the 4 issues subject to this application.e. Despite further attempts, the claimant, nor her representative has adequately particularised her claim.[16]In response, the claimant’s representative objected to strike out and/or the applying of deposits by email dated 18 February 2025. In objecting to the application, the claimant raised the following:a. That if the claimant did not come up to proof then she would fail at the final hearing. And it should be left to that stage.b. These allegations have no bearing on the remainder of the claimant’s claim (this submission was made despite the allegations in question, save for paragraph 28, forming part of the claimant’s constructive dismissal complaint).c. The tribunal would need to hear evidence of the claimant’s means before determining the application.d. That any such hearing could be heard on the same day as the DRA. THE RELEVANT RULES[17]Rule 3 of the Employment Tribunal Rules of Procedure 2024 expresses the Overriding Objective, which all parties must comply with, in the following terms: 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing, (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c)avoiding unnecessary formality and seeking flexibility in the proceedings, (d)avoiding delay, so far as compatible with proper consideration of the issues, and (e)saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a)exercises any power under these Rules, or (b)interprets any rule or practice direction. (4) The parties and their representatives must— (a)assist the Tribunal to further the overriding objective, and (b)co-operate generally with each other and with the Tribunal.[18]The power to strike out a clime, or part of it, is provided for by rule 38 of the Employment Tribunal Rules of Procedure 2024: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. THE RELEVANT PRINCIPLES[19]As noted by His Honour Judge Tayler, in Smith v Tesco Stores Ltd [2023] EAT 11 at paragraph 36: “it is important to remember that parties are not merely requested to assist the employment tribunal in furthering the overriding objective, they are required to do so.”[20]His Honour Judge Tayler also gave consideration in Smith as to when strike out was appropriate, at paragraph 47: “This judgment should not be seen as a green light for routinely striking out cases that are difficult to manage. It is nothing of the sort. We must remember that the ‘tribunals of this country are open to the difficult’. Strike out is the last resort, not a short cut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have been taken by the tribunal in seeking to bring the matter to trial is likely to have been as much as would have been required, if the parties had cooperated, to undertake the hearing. This case is exceptional because, after conspicuously careful, thoughtful and fair case management, the claimant demonstrated that he was not prepared to cooperate with the respondent and the employment tribunal to achieve a fair trial. He robbed himself of that opportunity.”[21]Strike out is a draconian measure. A tribunal should take great care before striking out a claim and should consider whether there is some proportionate less draconian sanction that could be applied.[22]When considering whether to strike out a claim because of scandalous, unreasonable or vexatious behaviour, the tribunal must ask itself three questions (as per Mr Justice Burton in Bolch v Chipman [2004] IRLR 140):(i) Whether there has been scandalous, unreasonable or vexatious conduct of the proceedings.(ii) If so, save in very limited circumstances where there has been wilful, deliberate or contumelious disobedience of an order of the tribunal, whether a fair trial is no longer possible.(iii) If so, whether strike out would be a proportionate response to the conduct in question.[23]The Bolch approach was approved by the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630, where Lord Justice Sedley stated at paragraph 5: “This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings, unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.”[24]And further, proportionality was considered at paragraph 18, where it was stated that: “The first object of any system of justice is to get triable cases tried. There can be no doubt among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either that Mr James has been difficult, querulous and uncooperative in many respects. Some of this may be attributable to the heavy artillery that has been deployed against him – though I hope that for the future he will be able to show the moderation and respect of others which he displayed in his oral submissions to this court. But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably.”[25]The Court of Appeal in Arrow Nominees v Blackledge [2000] 2 BCLC 167 held that test was not as to whether a fair trial was not possible in absolute terms, but rather whether there was a significant risk that a fair trial could not take place. Further, Lord Justice Chadwick went on to hold: “[54] …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. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. [55] Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money and with a proper regard to the demands of other litigants upon the finite resources of the court.”[26]Where, however, the ET is satisfied that a party is guilty of a deliberate and persistent failure to comply with a direction or order, the question whether a fair trial is still possible is likely to be of less weight (see the guidance provided in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 and Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190).[27]In Emuemukoro v Croma Vigilant (Scotland) Ltd 2022 ICR 327, EAT, the Appeal Tribunal considered the requirement for ‘deliberate and persistent disregard’ of the required procedural steps in a case where the respondent’s representative was alleged to be at fault. In the EAT’s view, the reference to the conduct being ‘deliberate’ would probably exclude mere oversight or negligence which was not the result of any intentional or deliberate failure to implement proper systems for managing case progress.[28]All the relevant circumstances should be considered when deciding on strike out. And the EAT in Weir Valves & Controls (UK) Ltd v Armitage [2004] ICR 371 identified that would include the following:a. The magnitude of the non-complianceb. Whether the default was the responsibility of the party or his or her representativec. What disruption, unfairness or prejudice has been causedd. Whether a fair hearing would still be possiblee. Whether striking out or some lesser remedy would be an appropriate response to the disobedience. In other words, is strike out proportionate in all circumstances?[29]The EAT in Harris v Academies Enterprise Trust [2015] IRLR 208, a case in which the respondent’s solicitor had failed to provide the respondent’s witness statements by the start of the final hearing, Mr Justice Langstaff noted that a tribunal may wish to consider why the party in breach has behaved as he has, and said, “A failure to comply with orders of a tribunal over some period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again. Tribunals must be cautious to avoid that. Equally, what has happened may be an aberration. Of their nature there may be circumstances that are unlikely to reoccur. This requires a careful judgement.” (paragraph 26). ORAL SUBMISSIONS AT THE HEARING[30]In addition to the written submissions, Ms Harty made the following oral submissions at the hearing, amongst others:a. The respondent pursued the application for strike out of allegations 6(c), 6(d), 6(m) and 28 based on them having no reasonable prospects of success and/or a failure to comply with case management orders and/or on unreasonable conduct on the part of the claimant and her representative.b. Employment Judge Johnson directed that the parties agree a list of issues by 15 July 2024. The initial draft of the list of issues was appended to the back of the case management orders and start at p.57 of the bundle. However, these were incomplete, and the respondent sought further information from the claimant to complete the list of issues, which could then be agreed in accordance with EJ Johnson’s direction. The information initially sought for allegation 6(c) is on p.58, whilst 6(m) is on p.59, and allegation 68 on p.61.c. In accordance with direction 2.2 (on p.50), the respondent sent to the claimant the relevant spreadsheets, as directed. This was to ensure that the claimant had access to the relevant data form which she could complete the particulars of her claim.d. Being in receipt of the relevant spreadsheets, at paragraph 2.3 of EJ Johnson’s ordered (on p.50) that the claimant was then required to provide by 17 June 2024 the particulars of when she worked and was unable to leave the office due to no staff being available to cover. In essence, this is allegation 6(m). Although, arguably, this also would provide details relating to 6(c) and 6(d), as this related to the hours the claimant was being required to work (albeit the direction only covered a part of the period that made up these allegations).e. The parties agreed extensions to the relevant case management orders of EJ Johnson. These affected the directions relating to the direction for the claimant to provide dates when she was unable to leave the office due to staff not being available to cover her, the agreed list of issues and any updated grounds of resistance (pp.89-90). The new date for the claimant to provide the relevant particulars was 23 August 2024.f. The claimant’s solicitors sent across three different documents, to try to comply with the tribunal’s direction.g. The first document is at p.93 and was not sent to the respondent until 28 August 2024 (see p.92). And appears to simply lists almost every date between January 2020 and May 2021. There is no attempt to provide particulars of the work undertaken on any of the days. There are 899 dates listed. This list is inaccurate, as it contained dates on when the claimant was recorded as having been on leave, and included shifts where the claimant was recorded as having not worked sufficient hours to be entitled to a 20-minute break. For example, the claimant lists 23-29 July 2020. When these are cross-reference to the spreadsheet at p.77, the claimant is recorded as being on leave (these dates are in yellow to indicate being on leave). Other offending dates are 05 July and 13 August 2020. On 05 July (see spreadsheet on p.76) and 13 August (see spreadsheet on p.78) the claimant only worked 4.25 hours in a shift. And therefore, was not entitled to a 20-minute break, and yet these are recorded as dates was prevented from taking breaks. And there are numerous other examples.h. The respondent wrote to the claimant’s representative on 11 September 2024 (see p.106) in the following terms: “Please can you confirm if the Claimant is saying she worked on every date in the spreadsheet as I note that some dates appear to be annual leave or days off?”i. The claimant’s representative replied on 11 September 2024 (see p.107) stating that “Yes she is. If there are some dates where she was on leave these can be removed.”j. The respondent replied to the claimant’s representative on that same day (see p.108) stating: “Thank you for confirming, please can you update the list to show the actual dates the Claimant worked and alleges there was no cover or breaks (minus dates the claimant took off as annual leave or took a day off as these dates shouldn’t be included in this list).”k. Following further correspondence, and the respondent wrote to the claimant’s representative on 16 September 2024 (see p.110), as follows: “We have reviewed the spreadsheet provided by the claimant and are concerned that it contains inaccurate information and fails to particularise the claim as required by the Tribunal order. As it stands, the spreadsheet is not factually correct, and appears to be speculative. For example: 1. The spreadsheet contains dates when the Claimant was not at work and therefore, by definition, cannot have been required to work additional time. The Respondent’s disclosure on 26 July contains the Claimant’s annual leave dates. These are highlighted in yellow (identified by the colour coded key in the document). Any hours on these days are hours that the Claimant would have worked if she wasn’t on annual leave. 2. In the list of issues, this same spreadsheet is referenced for multiple allegations. For example, at para 5 (c) of the list of issues, the Claimant alleges that that on every date in the spreadsheet she worked excessive hours. On some of the days in the spreadsheet the Claimant worked for only 4 hours and 25 minutes. Is the Claimant alleging that these shifts constituted excessive working hours? I note that the Claimant has disclosed her own time sheets containing shifts of only 4.25 hours. 3. In the list of issues (para 5 (m) the Claimant alleges that she could not leave the office due to no one else covering her shift. Again, the spreadsheet contains dates the Claimant didn’t actually work and the date ranges from 30 December 2019 to 14 June 2022, when the allegation is from January 2021 to May 2022. If the Claimant alleges that she had to stay past her shift, how much extra did she stay? Please can this information be provided, along with the correct dates. 4. In the list of issues at paragraph 28, it is alleged that the Respondent breached the WTR 12(1) on the days in the spreadsheet. 12(1) of the WTR states 'where a worker's daily working time is more than six hours, he is entitled to a break'. Again, the spreadsheet references dates that the Claimant didn’t work 6 hours. If the Claimant is making an allegation, the Respondent has the right to know when the allegation occurred and it’s not possible to know this based on a spreadsheet of 898 speculative dates. We are therefore going to make an application for an extension of time to submit our amended response, and for the spreadsheet of dates to be amended by the Claimant to be factually correct.l. In reply on 16 September 2024 (see p.111), the claimant’s representative wrote ‘Her case is every day save for the days she was on leave’.m. Consequent to this and after highlighting that it would be unreasonable for the respondent to respond to 898 speculative dates, the respondent wrote to the tribunal on 16 September 2024 (see p.112). First, the respondent sought a direction that the claimant included further information rather than just dates on which the claimant says she could not allegedly leave the office and sought an order that the claimant confirm the additional time she alleges she had to remain at work on those dates. Secondly, the respondent tried to be helpful by suggesting further variations to the dates to comply with orders.n. On 05 October 2024, the claimant’s representative sent across its second document (see p.114). This again was just a series of dates which the claimant says she had to work without cover and/or breaks. This again contained dates when the claimant was on holiday and therefore could not have been affected (including 27-29 July 2020 on p.117, recorded as leave on the spreadsheet at p.77) and dates where the claimant only worked 4.25 hours (including 01 July 2020). The claimant’s position was explained by her representative in an email of 07 October 2024 (see p.122), where he explained that: “Her position is that on each of the days she worked, she was not allowed or able to take a break due to her either working alone or being short staffed. She is also saying that on those days she was unable to leave shift on time and had to work beyond her hours due to their being no staff to cover.”o. On 17 December 2024, the respondent wrote to the claimant’s representative setting out what information was needed to complete the particulars of the claim (see p.128). This highlighted the need for the claimant to set out how much time the claimant was saying she needed to stay behind at work on the dates in the updated spreadsheet.p. On 10 February 2025, the claimant’s representative sent to the respondent timesheets, which he says showed the additional hours worked by the claimant, and which should be read in conjunction with the dates in the spreadsheet. He then says that any weeks where she worked in excess of 37 hours were hours when the claimant was required to stay behind. Ms Harty says that this was the claimant’s representative placing the responsibility to work out the claimant’s claim on the respondent when it rested with the claimant. The additional payment sheets were at pp.131- 142, there were further documents at pp.143-146, and further additional payment sheets at pp.147-162. There were no sheets for 2022, as these were never requested by the claimant, and not directed to be supplied by the tribunal. These sheets contained no narrative or summary as to what they showed. And they remain unclear as to how they clarify the claims brought by the claimant.q. The respondent made its application for strike out/deposit order on 18 February 2025 (p.163-165). With the claimant’s response to the application sent that same day (p.166). Details of which are referenced above. However, Ms Harty says that the response is indicative of the lax approach adopted by the claimant’s representative, and is encapsulated by the judge’s response in the tribunals letter (pp.174-175), where it is stated that: “In their email of 18 February 2025, the claimant’s solicitor notes as follows:- If the Claimant is unable to come up to proof on those 4 allegations, then they will fail. These 4 allegations have no bearing on the remainder of the Claimant’s claim. I am concerned that this may indicate an over relaxed approach. The 4 complaints appear to require the consideration of substantial documentation and argument over periods of time. If the complaints are not relevant to her constructive dismissal complaint (it is noted that she alleges there were 23 reasons that made her decide to resign) then they should not be part of the long list of reasons given for her resignation. If she and her solicitor consider there are little prospects of succeeding with the 4 complaints listed in the respondent’s application, then she should consider whether it is in her interests to continue with those complaints or whether her interests will be better served by focussing on the complaints that are regarded as strong.r. The claimant’s representative sent a third set of documents at pp.185-203. This is a series of spreadsheets with colour coding. First, the respondent says that this still includes a lot of dates and is a list that differs from the first and second list. And that the case keeps changing as the respondent keeps challenging the dates, on the basis that the claimant was either on leave or had not done enough hours. And further, it still includes dates n which the claimant is recorded as being on holiday (such as at p.192).s. On these new spreadsheets the claimant has shaded blue 07 March 2020, 24 March 2020, 16 June 2020, 01 July 2020, 04 and 05 July 2020. This is to suggest that the claimant did additional hours. And if that is right, they would be supported by the additional hour sheets that the claimant’s representative sent to the respondent on 10 February 2025 (already noted above, the email of which is at p.129). However, when cross comparing this spreadsheet with those documents the following is identified: i. The claimant worked no additional hours on 07 March 2020, see p.156. ii. The claimant worked no additional hours on 24 March 2020, see p.156. iii. The claimant worked no additional hours on 16 June 2020, see p.155. iv. The claimant worked no additional hours on 01 or 05 July 2020, see p.154.t. This is a laborious exercise which is the claimant’s responsibility, and an exercise that the claimant or her representative has failed to undertake. In short, the claimant has failed to set out her case.u. The claimant’s representative appears to be adopting an approach of simply highlighting as many dates as he can, with many not making any sense. This leaves the respondent unclear as to the case it has to address, and very difficult to take witness statement.v. For completeness, the particulars of claim are unclear on the specifics of the allegations.w. The respondent’s position is clear, at para 13 of its grounds of resistance (at p.38), that Support Workers worked in a self-regulating system, and if the claimant is alleging that it was no possible for her to take breaks then it needs the detail from the claimant.x. The respondent understands that the claimant may have had to put in some additional hours. And there is nothing in the claim form that suggests compulsion. If the claimant’s case is different, then it is still not being told what it is.y. The claimant has been professionally represented throughout. If the claimant is not able to clarify her claim a year after being asked to do so, it is difficult to understand how she will be able to do so come the trial. Especially as matter go back to 2020.z. If the claimant has not kept records, how is she going to prove her case. This also leads to the respondent submitting that these allegations have no reasonable prospects of success. aa. The respondent also says that the way the case has been conducted, particularly by the claimant’s representative is unreasonable conduct that justifies striking out these parts of the claim. bb. The claimant’s representative has demonstrated a lax approach in the manner the case has been conducted. He simply throws documents at the respondent and expects the respondent to go through it and make out what the claims are. However, that is the responsibility of the claimant, not the respondent. cc. The respondent has bent over backwards to try to help. It has agreed variations to directions and given prompts to the claimant and her representative. And further, this approach is in breach of tribunal directions. dd. It is hard to see how this approach by the claimant’s representative is not going to continue. And this has put the respondent in a difficult position as it is unable to collate the necessary evidence. And this makes a fair hearing no longer possible. ee. The respondent needs to know the claimant’s case. At present the respondent cannot address the allegations in witness evidence. And the respondent cannot be expected to cover all the speculative dates in the hope that it addresses everything. ff. In the alternative, the respondent seeks deposit orders for the 4 allegations that the application is focused on, at a level the tribunal considers appropriate. The claimant’s representative was aware that the claimant’s financial means would need to be evidenced at this hearing, and yet made no attempt to provide it. gg. It is simply not a fair burden on the respondent to try to come up with every explanation, when the claimant should have set it clearly what her claims were.[31]In reply, the claimant made the following oral submissions at the hearing:a. I would often book annual leave as she was exhausted. But she would sometimes be asked to work when she was down as being on leave.b. I could not leave half the time.c. At one stage I was working 37 hours, but my hours had been reduced to 30 hours.d. I understand that support workers sometimes must do additional hours, but there was one stage where I worked 72 hours without a break, apart from when I went to bed. And I was not given my allocated additional hours.e. I only sent the additional hours sheets where I could claim a third.f. If I tried to go home but there was nobody there to relieve me.g. The respondent did not have any staff apart from agency staff.h. I did not have appropriate training.i. Each year there was less and less staff.j. If I went to trial I could get the information.k. Put on a sicknote ‘burn out/overworked’. This was recorded by the doctor.l. The manager told me to make a Personal Injury claim.m. I tried to speak several times to people. But there was nobody in the office.n. My contact was 2 weekends a month. However, I worked a lot more than that.o. Those 4 parts should not be struck out, as those are time I actually worked. And I worked on my leave as well.p. I spoke to several managers. People were always running late. And I was told that they had not got any cover. I felt obliged to stay, as they would say that they did not want to use agency again.q. I bent over backwards for them. I did work them shifts. I worked a lit on my leave as well. ANALYSIS AND CONCLUSIONS[32]This decision has separated out the three different reasons on which the respondent’s strike out application is brought. However, the matters raised in each also have relevance to the others, and so cannot be read in isolation. As they are interlinked to a significant degree. Does the claimant’s claim subject to this application have no reasonable prospects of success (Rule 38(1)(a) ET Rules of Procedure 2024)?[33]The claim itself was presented on 03 October 2023. And for the entirety of these proceedings, the claimant has been represented by professional representatives. Oddly, those representing the claimant did not appear at this hearing, although they remain on record and have continued with their representation post-hearing.[34]The Case Management Order (‘CMO’) of EJ Johnson produced following the hearing on 08 April 2024 is an important as a starting point. During the hearing, the complaints and disputed issues were discussed, and this discussion was based on the claim as presented in the claim form. The identified claims are recorded in the list of issues appended to the back of the CMOs.[35]In respect of allegation 6(c) and 28, EJ Johnson recorded that ‘It was agreed that the claimant did not at this stage need to provide further information about these allegations, but this position may change when disclosure of shift records is provided by the respondent. And given that both allegations 6(c) and 28 referred to a time span of January 2020 to May 2023, the judge in this hearing considers that it would be obvious to the claimant’s representative that this would need clarifying. With respect allegation 6(c), this would need to be distilled down to the specific dates affected, who ‘required’ the claimant to work excessive hours, and what were the excess hours the claimant says. Whilst for allegation 28, this would need to be distilled down to the specific dates affected, who the claimant says refused to permit the claimant to take a rest break, and the length of the affected shifts. And this is what EJ Johnson was implying when he referenced that the position may change in respect of providing further information.[36]Furthermore, it is also clear that allegation 6(d) needed further particularisation, however, this would be satisfied by the information provided for allegation 6(c), as this appears to cover the same ground.[37]Whilst 6(m) clearly required further particularisation, given it was made subject to a direction at para 2.3 of the directions contained within the CMO (although with a typo, referring to January 2020 and May 2021 in error, whilst the allegation concerned January 2021 to May 2022).[38]As it currently stands, the claimant, nor the claimant’s representative, has produced a document that presents a self-contained list of the specific allegations on which the claimant brings allegations 6(c), 6(d), 6(m) or 28. Rather, it has sent a series of documents that contain a series of dates (without further information), or spreadsheets without any narrative, from which the claimant expected the respondent to decipher her claim. On the three occasions the claimant’s representative has sent such documents, the specifics of the allegations seems to change. And appears to include dates and working hours that do not support the allegations.[39]The claimant, nor her representative, has been able to identify specifically what dates have been affected, who was at fault, and the extent that the claimant was affected. And these are all important pieces of information. The allegations remain general and span across a significant period.[40]The burden of proof will rest on the claimant to establish that there were specific dates on which:a. For allegation 6(c) and 6(d), the claimant was required by a specific individual to work hours in excess of her contractual hours, and the number of hours she worked in excess of her contracted hours.b. For allegation 6(m), where the claimant reached the end of her shift she was compelled to continue working due to a failure to provide cover.c. For allegation 28, that the claimant worked sufficient hours to give her an entitlement to a break, and a named person refused to permit her to take a break.[41]The claimant has been unable to provide the specific details required in relation to each of these allegations, and this is despite the claim having been presented over 2 years before this hearing, and over 12 months since the hearing before EJ Johnson. And this is despite several prompts and requests from the respondent, and the direction/indication of the tribunal.[42]In the circumstances outlined above, where the claimant and her representative has been incapable of identifying the specifics of their claim which is necessary, the tribunal is satisfied that the claimant’s allegations in respect of allegations 6(c), 6(d), 6(m) and 28 therefore have no reasonable prospects of success. Is the claimant in non-compliance with any of the rules or with any order of the Tribunal (Rule 38(1)(c) ET Rules of Procedure 2024)?[43]In the CMOs of EJ Johnson, the parties were reminded of their obligations under Rule 2 (now Rule 3) to assist the Tribunal to further the overriding objective of dealing with the case fairly and justly, and in particular to co-operate generally with other parties and with the Tribunal (see para 29 on p.49).[44]The claimant was directed to provide the particulars of the complaint recorded as allegation 6(m) in the list of issues appended to the back of the CMO (see para 2.2 on p.50).[45]And the parties were directed to agree a final list of issues by 15 July 2024 (see para 2.4 on p.50).[46]It is clear, and would be clear to any professional representative, that a list of issues would require specific details of the complaints that made up allegations 6(c), 6(d), 6(m) and 28. Each of these would clearly require detailed. And particularly the specific dates, a breakdown of what hours the claimant was required to work, and details of who was preventing the claimant from taking breaks. Without his detail, the tribunal nor the respondent would be able to understand the specifics of the complaints being brought, and nor would the parties be able to agree a list of issues, as directed by EJ Johnson.[47]There were at least 2 occasions where the respondent suggested varying the directions to enable the claimant to undertake this exercise, and at least 3 occasions (11 September 2024, 16 September 2024 and 17 December 2024, as highlighted by Ms Harty) where the respondent tried to direct the claimant’s representative to provide the necessary particulars of the allegations, failing which a list of issues could not be agreed. On each occasion, the claimant’s representative failed to provide the necessary information in any clear and concise format, and rather expected the respondent to make out the claimant’s allegations from a series of documents, which had no meaningful narrative attached to them. This was a task that had to be undertaken by the claimant, and not one that could be delegated to the respondent. It is the claimant’s case and it is for her to explain the specifics of her complaint.[48]The claimant was required to co-operate with the respondent and provide a document which explained all necessary particulars of the allegations, from which a list of issues could be agreed. This was simply not done. And this continues to be the case almost 14 months since the case management hearing, and some 3 months before the start of the final hearing. This is in breach of the specific direction of EJ Johnson that related to allegation 6(m) but is also in breach of the duty to co-operate as required under Rule 3 of the ET Rules of procedure (previously contained in Rule 2), and was the cause of a failure to comply with the direction for the parties to agree a list of issues.[49]The magnitude of non-compliance is significant. This means that the respondent currently does not understand the specifics of these allegations. And this puts the respondent at significant prejudice.[50]The tribunal is satisfied that this is non-compliance with Rule 3 of the ET Rules of Procedure 2024, and paragraph 2.3 and 2.5 of EJ Johnson’s Directions such as to support striking out these specific allegations. Has the manner in which these proceedings been conducted by or on behalf of the claimant been scandalous, unreasonable or vexatious (Rule 38(1)(b) ET Rules of Procedure 2024)?[51]To a large degree, this mirrors that recorded above. The failure to properly engage with the directions of the tribunal, the failure to co-operate with the respondent to provide the particulars of the allegations in question, and the failure to produce the necessary particulars at this stage of the proceedings, have led this tribunal to conclude that the claimant’s representative has conducted this proceedings in an unreasonable manner on behalf of the claimant, such as to support striking out these specific allegations.[52]The tribunal considers that the approach taken by the claimant’s representative is a deliberate and persistent disregard of the required procedural steps necessary for these matters to be able to be tested before the Employment Tribunal. The claimant’s representative has elected not to engage properly with the respondent and co-operate to produce the necessary particulars of these specific complaints, and this has been repeated time and time again. Is a fair trial no longer possible?[53]Given the tribunal has concluded that the unreasonable conduct in this case was deliberate and persistent by the claimant’s representatives, whether a fair trial was still possible carries less weight in the analysis of whether to strike out the claim. However, in any event, the tribunal reaches the following conclusions on this.[54]The tribunal reminded itself that it was not assessing whether a fair trial was still possible in absolute terms. But rather it was asking whether there was a significant risk that a fair trial could not take place. And this was being assessed against the specific trial window in this case, which is 15-22 September 2025.[55]And in circumstances where the respondent has sought the necessary particulars of the allegations on several occasions to enable it to prepare the case, and these have not been forthcoming by the clamant or her representative, this tribunal must conclude that there was a significant risk that a fair trial could not take place on these specific issues in the trial window. Allowing these issues to proceed to trial runs a substantial risk of injustice. The respondent does not know or understand the specific allegations being pursued, therefore does not know what evidence it needs to bring, nor what witness evidence it requires to call to meet the claimant’s specific case in respect these 4 allegations. It would be faced with either having to second guess the claimant’s case, which would run the risk of injustice should it not have second-guessed correctly, or it would have to bring evidence to deal with every day of the claimant’s employment, which would be wholly disproportionate and not in line with the overriding objective. Is strike out proportionate response?[56]The claimant and her professional representative have had sufficient time to present the specific allegations that make up allegations 6(c), (6(d), 6(m) and 28. However, they have failed to do so. And this is despite the direction of the tribunal, and several prompts and requests by the respondent.[57]This avoidance of providing such details has been repeated throughout the history of these proceedings. The claimant’s representative has shown that they are not prepared to co-operate with the respondent to provide a document that explains the particulars of these specific allegations, nor to abide by their obligation to assist both the tribunal and the respondent in achieving the overriding objective. This approach is likely to be repeated in the future, as it appears that neither the claimant nor her representative is able to identify the specific particulars in question. And therefore, this tribunal concludes that striking out these 4 allegations is the only proportionate response in the circumstances.[58]In conclusion, this tribunal is satisfied that allegations 6(c), 6(d), 6(m) and 28 should be struck out and orders that they are, for the reasons explained above. Approved by: