Employment Judge MillnsIn person for claimantMr Matthew Bignell (instructed by counsel) for respondentDate 18 November 2025
JUDGMENT
[1]The claim of unpaid holiday pay is dismissed upon withdrawal by the Claimant.[2]The claim of breach of contract in respect of failure to pay an enhanced redundancy payment is dismissed upon withdrawal by the Claimant. It is recorded that the Claimant has withdrawn this claim because she intends to pursue it in another jurisdiction.[3]The following allegations about the fairness of the Claimant’s dismissal are dismissed upon withdrawal by the Claimant:3.1 that a failure to consult the Claimant regarding the handover of work rendered her dismissal unfair;3.2 that the failure to consult with HMPO about the timing of the Claimant's termination date rendered her dismissal unfair;3.3 that the failure to allow the Claimant to be accompanied at her redundancy consultation meetings rendered her dismissal unfair;3.4 that failure to consider the Claimant for a TUPE transfer rendered her dismissal unfair. 1 of 13[4]The following allegations about the fairness of the Claimant’s dismissal are struck out because they have no reasonable prospects of success:4.1 Not disclosing critical information to the Claimant during the consultation period;4.2 Failure to provide information to the Claimant as soon as issues were identified, which deprived the Claimant of the opportunity to raise concerns with management and employee representatives.[5]The remainer of the Respondent’s application to strike out/for deposits is refused.
REASONS
[1]The Claimant lodged her ET1 and original Particulars of Claim on 26 October 2023 bringing claims for unfair dismissal, statutory redundancy payment and ‘other payments’. The Respondent submitted its Grounds of Resistance on 4 December 2023 and within those grounds requested that the Tribunal order the Claimant to provide further particulars of: 1.1 For the purpose of the unfair dismissal claim:1.1.1 the information which was allegedly not disclosed during the redundancy consultation process;1.1.2 the terms which were allegedly stated as having been agreed during the redundancy consultation process, but which had not been consulted upon;[2]For the purpose of the ‘other payments’ claim:2.1.1 the sum that the Claimant claimed as loss of wages; and2.1.2 the basis upon which the Claimant alleged that any such wages were owed.[3]The Tribunal listed a Case Management Preliminary Hearing which, after three postponements, eventually took place on 2 April 2025, heard by Employment Judge Buzzard. At that hearing it was confirmed that the claims which were pursued by the Claimant are:3.1 unfair dismissal;3.2 breach of contract:3.2.1 an enhanced redundancy payment;3.2.2 payment for time off in lieu undertaken on termination of employment;3.2.3 unpaid notice pay; and3.3 unlawful deduction from wages, namely: payment for holiday that would have been accrued if her notice period had been worked. 2 of 13[4]Following that case management hearing the parties were provided with an order from EJ Buzzard dated 17 April 2025. The order required the Claimant to provide specific information and documentation in respect of her claims; those orders are detailed at paragraph 1.1-1.12 of the order of EJ Buzzard.[5]On 2 May 2025 the Claimant provided a document entitled ‘Further and Better Particulars’ which sought to answer the orders of EJ Buzzard.[6]The Respondent filed its Amended Grounds of Resistance on 30 May 2025; they set out the basis on which the claim is resisted and detailed the Respondent’s position in respect of the Claimant’s Further and Better Particulars.[7]On 15 September 2025 the Respondent made an application for strike out/or deposit orders. The application was made pursuant to rule 38 (1)(a) Schedule 1 to the Employment Tribunal's (Constitution and Rules of Procedure) 2024 i.e. that the claims enjoyed no reasonable prospects of success and pursuant to rule 38 (1)(c) i.e. that they should be struck out on the basis that there was noncompliance with the orders of EJ Buzzard in respect of the provision of further information.[8]This hearing was originally listed as a private preliminary hearing. By letter dated 14 October 2025 Employment Judge Slater converted it to a public preliminary hearing, so that if the Tribunal considered it appropriate, it could determine the Respondent’s application to strike out the claim or make deposit orders. EJ Slater also directed the parties to guidance note 8 attached to the Presidential Guidance on General Case Management and provided further explanation as to the strike out application process, as well information about the potential orders that could be made, including an explanation of deposit orders.[9]A bundle of relevant documents (82 pages) had been prepared for this hearing by the Respondent and provided to the Claimant and Tribunal.[10]At the start of the hearing the Tribunal took some time to clarify the Claimant’s claim which involved the withdrawal of several allegations as follows:10.1 As set out within paragraph 1.12 of the Claimant’s Further and Better Particulars the Claimant confirmed that her claim of holiday pay was withdrawn; an order was therefore made dismissing that claim upon withdrawal.10.2 It was clear from the Claimant’s Further and Better Particulars that some of the allegations of unfairness in respect of the claim of unfair dismissal were no longer pursued by the Claimant. Those clear concessions/withdrawals are set out at paragraph 1.2, 1.3 and 1.6; the Tribunal made orders dismissing those allegations upon withdrawal by the Claimant.10.3 In further discussion during the Claimant’s submissions in response to the application, the Claimant withdrew the allegation at paragraph 1.1 (a) of her Further and Better Particulars; the Tribunal made an order that this allegation is dismissed upon withdrawal by the Claimant. 3 of 1310.4 In respect of the Claimant’s complaint of failure to pay an enhanced redundancy payment, the Claimant’s Further and Better Particulars stated that the Claimant was seeking further legal advice as to whether she ought to withdraw this aspect of the breach of contract claim and pursue it in another jurisdiction. That answer was given in reply to an order of EJ Buzzard. EJ Buzzard pointed out that as the Claimant valued the redundancy enhancement at approximately £180,000, if successful, only £25,000 of this could be recovered in the employment tribunal. At this hearing it was the Claimant's position that she wished to withdraw the complaint in the employment tribunal so that it could be pursued in another jurisdiction; an order was therefore made to that effect.[11]Mr Bignell made submissions on behalf the Respondent to supplement the Respondent's written application. Following that there was a short break before the Claimant responded to those submissions. During the Claimant’s submissions it was necessary for the Tribunal to ask further questions regarding the clarification of the legal issues.[12]There was insufficient time for the Tribunal to deliberate and announce a decision at the conclusion of the hearing. The short remaining time was used to finalise general case management orders to get the parties ready for a final hearing, which are set out in separate case management orders. The Tribunal also questioned the Claimant about her financial means in order to prepare for the possibility that a deposit order might be made.[13]The Respondents’ written application to strike out sought to strike out the following eleven allegations (alternatively that deposit orders be made): 1. In respect of the claim of unfair dismissal, nine allegations set out at paragraph: 1 (b), (c), (d), (e) (f) (g) and (h) and paragraph: 1.4 and 1.5 which are separate allegations of unfairness. 2. The allegation at paragraph 1.10 that the Claimant was entitled to be paid for accrued TOIL on termination of employment. 3. The allegation of paragraph 1.11 that the Claimant was owed notice pay.[14]It is unnecessary for the Tribunal to make specific factual findings given that no final determination is being made on any matters. The Tribunal is entitled to take the Claimant’s case at its highest to decide whether in relation to any allegation there is no or little reasonable prospect of the claim succeeding. Relevant legal principles Strike out[15]The relevant part of Rule 38 Employment Tribunal Rules of Procedure says: - “38(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success ... 4 of 13 (c) for non-compliance with any of these Rules or with an order of the Tribunal … (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[16]The relevant legal principles to consider under rule 38(1)(a) are that the threshold for striking out a claim or response for having no reasonable prospect of success is high. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, the Court of Appeal held that where there are facts in dispute, it would only be "very exceptionally" that a case should be struck out without the evidence being tested. In Balls v Downham Market High School & College UKEAT/0343/10, the EAT held that it is a power that should be exercised only after a careful consideration of all the available material, including the evidence put forward by the parties and the documentation on the employment tribunal's file. In Balls, the EAT stressed that, "no reasonable prospect of success" does not mean the claimant's claim is likely to fail, or it is possible the claim will fail, and it is not a test that can be determined by considering whether the other party's version of disputed events is more likely to be believed. It is a high test: there must be no reasonable prospects of success.[17]In Cox v Adecco UKEAT/0339/29[2021] ICR 1307 HHJ Tayler gave important guidance for when considering potential strike out (para 28):(1) No one gains by truly hopeless cases being pursued to a hearing.(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.(4) The claimant’s case must ordinarily be taken at its highest.(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer. 5 of 13(9) 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 test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.[18]HHJ Tayler also emphasized (at 29-31), when considering litigants in person that strike out is not to be viewed as an easy way out of dealing with badly pleaded of confusing facts. However, he also stated (at 32) that:(1) LIPs should, so far as they can, seek to explain their claims clearly even though they may not know the correct legal terms, focusing on their core claims;(2) LIPs are subject to the overriding objective too, and should do all they can to assist the tribunal, which can only be expected to take reasonable steps to identify the issues;(3) Respondents and Tribunals should make requests for additional information as limited and clearly focused as possible.[19]In respect of strike out under rule 38(1)(c) for non-compliance with any of the rules or with an order in Weir Valves & Control (UK) Ltd v Armitage [2004] ICR 371 the EAT set out the principles for Tribunals to apply when considering whether to strike out a claim on this ground:(1) If the unreasonable conduct does not involve breach of an order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible.(2) Even if a fair trial as a whole is not possible, the question of remedy must still be considered to ensure that the effect of a strike-out is not disproportionate. For example, it may still be just to allow a defaulting party to take some part in the remedies hearing.(3) When an order has been breached, the tribunal must be able to apply a sanction in response to wilful disobedience of an order. However, it does not always follow that disobedience should mean a strike-out. The guiding consideration is the overriding objective to do justice between the parties. A tribunal should therefore consider all the circumstances when deciding whether to strike out or whether a lesser remedy would be an appropriate sanction. Relevant factors will include:a. the magnitude of default;b. whether the default is that of a party or their representative;c. what disruption, unfairness or prejudice has been caused; andd. whether a fair hearing is still possible.(4) The Tribunal must always guard against allowing its indignation to lead to a miscarriage of justice. Deposit orders[20]The power to make a deposit order is found at Rule 40 Employment Tribunals Rules of Procedure 2013. That rule provides:- “40.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable 6 of 13 prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[21]The making of a deposit order is intended to highlight that a preliminary view indicates that an allegation has little reasonable prospect of success. It also serves as a warning to a party that cost consequences may follow if they go on to lose an argument which has been made subject to a deposit order. However, at the same time, the intention is not to achieve a strike out ‘by the back door’ by setting an amount for the deposit which a party cannot afford or which serves to dissuade them from continuing a claim because the deposit is set at too high a level.[22]The test is not as rigorous as the "no reasonable prospect of success" test in rule 38(1)(a) under which the tribunal can strike out a party's case. In Van Rensburg v Royal Borough of Kingston-Upon-Thames and others UKEAT/0096/07; UKEAT/0095/07, Mr Justice Elias concluded that "a tribunal has a greater leeway when considering whether or not to order a deposit" than when deciding whether or not to strike out and, following Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, it was not wrong for a tribunal to make a provisional assessment of the credibility of a party's case when deciding whether to make a deposit order.[23]In Amber v West Yorkshire Fire and Rescue Service [2024] EAT 146 the EAT held that the last seven of the nine principles set out in Cox v Adecco and others 7 of 13 UKEAT/0339/19 in relation to strike-out, applied equally in relation to deposit orders. The EAT held that taking the case at its highest requires the Tribunal to test the factual account and examine it "through the prism of reality". This would include examining the case against basic logic, internal inconsistency or any contradiction by contemporaneous documentary evidence. Dismissing fairly for redundancy[24]For a dismissal for redundancy to be fair the employer must establish that redundancy was the real reason for the dismissal (section 98(1), Employment Right Act 1996 (ERA)). Further, the Tribunal must find that the employer acted reasonably, in all the circumstances of the case, in treating redundancy as the reason for dismissing the employee (section 98(4), ERA 1996). In practice, this means an employer must follow the "procedural fairness" guidelines set out in Polkey v A E Dayton Services Ltd [1987] IRLR 503.[25]In De Bank Haycocks v ADP RPO UK Ltd [2023] EAT 129 the EAT reviewed the key case law on reasonableness and summarised the guiding principles as follows:• An employer will normally warn and consult either the employees affected or their representative(s).• Fair consultation occurs when proposals are at a formative stage and where adequate information, and adequate time in which to respond, is given along with conscientious consideration to the response.• Whether consultation is individual or collective, its purpose is to avoid dismissal or ameliorate the impact• A redundancy process must be viewed as a whole, so an appeal may correct an earlier failing, making the process reasonable as a whole• A tribunal should consider the whole process, including the reason for dismissal, when deciding whether it was reasonable to dismiss• Whether consultation is adequate is a question of fact and degree, and it is not automatically unfair that there is a lack of consultation in a particular respect Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process• The use of a scoring system does not automatically make a process fair, and the relevance or otherwise of individual scores will relate to the specific complaints raised in the case Although the Court of Appeal overturned the EAT's substantive decision in De Bank Haycocks, it confirmed that it broadly agreed with the EAT's summary of the key principles on reasonableness. Conclusions on the Respondent’s application Allegations at paragraph 1 (b)(c) (d) and (e) of the Claimant’s FBP’s Allegations at paragraph 1.4 Allegation at paragraph 1 (g) 8 of 13[26]Mr Bignell addressed the Tribunal on the above four allegations together as he explained that the subject matter – the calculation of the Claimant’s redundancy payment – was the same. For the same reason the Tribunal also considers it appropriate to deal with the allegation at paragraph 1.4, as it is about the calculation of the redundancy payment. Also, the allegation at paragraph 1 (g) relating to alleged delays with providing a settlement agreement appears to the Tribunal to relate to the same or similar issues. In summary, the Respondent’s submission was that the calculation of the redundancy payment was a side issue to the redundancy process, which had no reasonable prospect of rendering the dismissal unfair because the Claimant was provided with a redundancy pay calculation on 6 January 2023 which never changed. However, the Respondent accepted that part of the redundancy payment included the enhanced pension entitlement and that the enhanced figure did change throughout the consultation period.[27]The Tribunal took the view that the allegations were not necessarily clear and bearing in mind the comments in Cox v Adecco about the necessity to consider, in reasonable detail, what the claims and issues are before considering strike out, the Tribunal took some time to clarify those with the Claimant. Following that clarification the Tribunal gave Mr Bignell a right of reply.[28]During that clarification process, the Claimant explained that the estimated total pension figure that she was given at the start of the consultation process in January 2023 was £256,000 and it is this figure she expected to form part of a settlement agreement following discussion at a meeting on 17 February 2023 (which is what allegation 1(g) is about). The Claimant explained that what ended up being the true figure for the redundancy payment was substantially less - £118,000 – which she alleges she was told only two working days before she originally understood that her employment would come to an end on 30 April 2023. The Claimant explained that had she known that the lower figure of £118,000 was the correct figure at the outset or at an earlier stage of the consultation, she would have taken a different approach to consultation as a whole including, looking for an alternative role within the Respondent’s business. In essence the Claimant says the alleged delays and failures by the Respondent to provide information in a full or timely manner infected the fairness of the redundancy consultation process.[29]Taking the Claimant’s case at its highest, the Tribunal does not agree that these allegations have no reasonable prospects of the rendering the dismissal unfair under section 98(4) Employment Rights Act 1996. Further, the Tribunal cannot say that there are little reasonable prospects of success in these allegations being successful and the application for a deposit order also fails. In essence, if the Claimant establishes that the Respondent failed to furnish the Claimant with information that would allow her to fully participate in the consultation process, then this has the potential to infect fairness under section 98(4) Employment Rights Act 1996. Whether there is a fair consultation is a question of fact and degree, and those matters are issues that should be left to the final Tribunal. 9 of 13[30]For the avoidance of doubt the Tribunal also refuses the application to strike out these allegations on the basis that the Claimant has not complied with the order of EJ Buzzard. The Claimant did provide further information, and the substance of those allegations was within the Further and Better Particulars. Whilst those allegations required further particularisation to get to the heart of the complaint, any prejudice caused by this clarification can be dealt with by the Respondent in an amendment to its response, if so advised. A fair trial is eminently possible, and it would be disproportionate to strike out in these circumstances. Allegations at paragraph 1.5[31]The allegation at paragraph 1.5 is about an alleged unfair appeal process. In essence, as set out in her Further and Better Particulars of Claim, and explained by the Claimant in her oral submissions at this hearing, she alleges that by the time she received the letter giving her a right to appeal the period in which she had to appeal had expired. The Claimant states that others in the process whose employment terminated earlier on 30 April 2023, were provided with a right of appeal.[32]The Respondent states that the allegation has no reasonable prospects of success because the Claimant was told of her right to appeal both verbally and in writing and made no attempt to appeal either way. The Tribunal does not agree that this allegation has no reasonable prospect of success or little a reasonable prospect of success, this aspect might render the dismissal unfair, either as an individual allegation of unfairness or when taken together with other allegations; those are fact sensitive matters for the final Tribunal.[33]The Tribunal also refuses the application to strike out these allegations on the basis that the Claimant has not complied with the order of EJ Buzzard. In respect of these allegations the Claimant did provide further information about the basis of her complaint. Allegations at paragraph 1(f) and (h)[34]These allegations are about failure to provide information during the consultation process: “1(f) not disclosing critical information to the Claimant during the consultation period” & 1 (h) Failure to provide information to the Claimant as soon as issues were identified, which deprived the Claimant of the opportunity to raise concerns with management and employee representatives.”[35]The Tribunal notes that in 1(f) the phrase critical information has replaced the phrase from the pleaded case which stated important information, though nothing turns on that. At the preliminary hearing before EJ Buzzard, it was recorded that the Claimant has not set out what information she was referring to and as such the Respondent was not able to confirm if it accepted that relevant important information was not disclosed to the Claimant. It was agreed that the Claimant 10 of 13 would provide a list of this information and an order to this effect was made. The order stated as follows: 1.1 a list of each and every item of “important information” that the claimant claims was not disclosed to her as part of her redundancy consultation and should have been. The claimant should provide brief details of each item of information sufficient to clearly identify the information referred to.[36]During this hearing, the Tribunal sought clarification from the Claimant as to whether the whole of paragraph 1.1 of her Further and Better Particulars i.e. Paragraphs (a) -(h) inclusive was itself the detailed breakdown of the critical or important information she was alleged had not been provided during the consultation period. The reason for this question was that paragraph 1.1 of those Further and Better Particulars started with the following sentence ‘important information which ought to have been disclosed to the claimant but was not:’ and then went on to list paragraphs (a) - (h) inclusive. Further, as paragraph 1.1 (f) contained a similar phrase to the introductory phrase, clarification was needed from the Claimant.[37]At this hearing the Claimant explained that she did wish to rely on further information of alleged critical information that was not disclosed to her during the consultation period. When asked by the Tribunal why she had not complied with the EJ Buzzard’s order to provide that information the Claimant initially stated that she was told by EJ Buzzard not to provide detail of those allegations but to provide high level headings only. The Tribunal took the Claimant to the wording of the EJ Buzzard’s order which did not say that. The Claimant then stated that she was not in a position to provide that further information today because it was contained within a heavily redacted response to a subject access request received from the Respondent in June 2023. The Tribunal enquired as to when the Claimant thought she would be able to provide that further information, the Claimant was not able to provide an answer, because she said it was not information she had in her possession, the implication being it was ‘hidden’ within the redacted DSAR responses.[38]The Tribunal reminded itself that strike out is not to be viewed as an easy way out of dealing with badly pleaded or confusing facts. However, the Tribunal also kept in mind that a detailed and clear request for additional information was set out by EJ Buzzard in April 2025, some seven months ago, and had not been complied with. The Tribunal considered whether it ought to provide the Claimant with a further opportunity to provide that detail. However, that approach had no real prospect of moving the case forward, because the Claimant was simply unable to say when that information might be available. The litigation has been ongoing since October 2023. It is not in the interests of justice to delay a final hearing any longer waiting for further information that might not be forthcoming at all.[39]In the circumstances, taking the Claimant’s pleaded allegations at their highest, the lack of specificity of those allegations means that the allegations have no reasonable prospect of success of establishing that the dismissal was unfair. The allegations at paragraph 1.1 (f) and (h) of the Claimant’s Further and Better 11 of 13 Particulars are therefore struck out. For the avoidance of doubt that strike out does not undermine the Claimant’s specific allegations concerning alleged lack of information at paragraphs 1.1 (b) (c), (d), (e) and (g) which for the reasons already set out, have not been struck out. Allegation at paragraph 1.10[40]This allegation is that the Claimant was entitled to be paid for accrued TOIL on termination of employment.[41]As set out by EJ Buzzard at paragraph 18(a) of his case management summary, there does not appear to be a dispute that the Claimant had accrued TOIL. The Respondent's position is that the Claimant’s contract clearly states that any outstanding TOIL will not be paid on termination of employment. The Claimant says that a variation to this contract was agreed. EJ Buzzard ordered the Claimant to provide a copy of the contract variation that the Claimant will say created the right to be paid for accrued TOIL on termination of employment and noted in the order that the Claimant must ensure that the source of the copy contract term provided is clear.[42]In the Claimant’s Further and Better Particulars of claim the Claimant set out at paragraph 1.10 three detailed paragraphs of information about a discussion that she says took place on 29 March 2023 with two named individuals when it was agreed that her TOIL would be ‘protected’ and would not be lost as a result of her redundancy.[43]In summary Mr Bignell’s submissions on strike out was that in order for the contractual variation to be binding there must be some consideration, because that variation was not executed as a deed. Mr Bignell further submitted that the Claimant’s Further and Better Particulars contained no trace of anything that could amount to consideration. However, Mr Bignell fairly accepted that one way of reading the Claimant’s Further and Better Particulars would be that the consideration for that variation of contract was the Claimant continuing to work beyond a termination date of April, and on the Respondent’s case she in fact worked until 16 May 2023.[44]In the circumstances, the Tribunal does not strike out this claim or order a deposit on condition of it proceeding. There is a real factual dispute about whether a variation occurred, and it cannot be said that the Claimant has little or no reasonable prospects of establishing that it did. The high bar for strike out has not been met, nor has the (slightly lower) bar for deposit.[45]The Tribunal also refuses the application to strike out this allegation on the basis that the Claimant has not complied with the order of EJ Buzzard. In respect of these allegations the Claimant did provide further information about the basis of her complaint and the reason why she says variation occurred is now clear. The allegation of paragraph 1.11 that the Claimant was owed notice pay. 12 of 13[46]EJ Buzzard ordered the Claimant to provide a copy of the agreement that the Claimant will say documented the extension of her notice period beyond the date that she last worked for the respondent. The Claimant did not provide a copy of an agreement, though in her Further and Better Particulars, she did set out that there was an oral agreement regarding her notice made in various conversations with Carol Botham of HR (and sets out the date of those alleged conversations).[47]The Claimant said that her last day of work was not 16 May 2023, but that she worked beyond that date. However, bearing in mind the decision in Cox v Adecco, clarification was required about those Further and Better Particulars at this hearing, as it was not set out how much notice pay the Claimant say she is owed and when she says her notice expired. Upon questioning from the Tribunal the Claimant said that she was provided with notice of her redundancy on 3 March 2023, and that notice ought to have expired on 26 May 2023 and she was only paid until 16 May 2023. The claim is therefore for failure to pay notice pay from 16 May 2023 to 26 May 2023.[48]The Tribunal cannot strike out this claim because it seems that these are matters of factual dispute which need to be determined at the final hearing. The Tribunal does not conclude that this allegation has little or no reasonable prospect of success because it cannot and does not conduct a mini trial of the evidence.[49]The Tribunal also refuses the application to strike out this allegation on the basis that the Claimant has not complied with the order of EJ Buzzard. In respect of these allegations the Claimant did provide further information about the basis of her complaint and the reason why she says there was a contractual variation is now clear.