Ms A Squire v Mr S Gnanachandran T/a Dales Off Licence and News: 2414433/2021

EMPLOYMENT TRIBUNALS

Case No 2414433/2021

Between

Ms A SquireClaimant

Mr S Gnanachandran T/a Dales Off Licence and NewsRespondent

Before

Employment Judge Anderson

Date 30 September 2025

JUDGMENT

[1]Under Rule 37(1)(a) of the Employment Tribunal Rues 2013, the response of the Respondent in so far as it relates to a defence of a claim for unlawful deduction from wages regarding holiday pay is hereby struck out as it has no reasonable prospects of success.

[2]Two deposit orders are made. These are contained within a separate document.

[3]All other applications for strike out and/or deposit order are refused.

REASONS

Introduction

[1]The hearing today was listed as a public preliminary hearing.

[2]Throughout, the Respondent had the assistance of an interpreter. I sought to ensure that the Respondent was able to actively participate in proceedings to the extent that he wanted to

Procedure

[3]The notice of hearing referred to the Respondent making an application to strike out at the hearing today. No party corrected this error. Only one party is pursuing strike out and it is the Claimant. That was understood by all parties.

[4]There is a document dated 19th May 2023, which is said by the Claimant to be he basis for the strike out application. It also contains an application for a deposit order.

[5]I am critical of this document. It is capable of being read more than one way. It could be read broadly, relating to all claims or it could be read more restrictively relating to some specific claims. Where specific claims are mentioned, some of the reasoning in the application is limited.

[6]Through interactions with Ms Bayliss, the list of matters that were subject to the application were discussed at the outset. After much discussion, the list of claims was as follows:a. S.15 – Discrimination arising in consequence of disability

b. S.13 Equality Act – Direct discrimination

c. S.11 – Failure to provide a s.1 statement

d. Unlawful deduction from wages: i. Holday pay ii. SSP iii. Failure to pay National Minimum Wage

[7]Other claims not in the list are still pursued as claims, it is only that they are not subject to the application.

[8]Based upon the wording of Rules 37 and 39, I was content to proceed. I had regard to the overriding objective. This case needed progressing. There had been multiple prior applications, effective and ineffective case management hearings. Most importantly, whilst there were problems with the application, the Respondent was aware that it was here today to defend against a strike out.

[9]In respect of the law, I direct myself, that strike out is a high bar. It must be said that a contention, in this case a defence has no reasonable prospect of success. It is exceptional for a case to be struck out without evidence being Case No. 2414433/2021 heard: Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

is the most oft cited of many authorities on the point, all urging caution.

[10]I am conscious that I am summarily looking at matters rather than conducting a mini-trial. I will therefore provide some brief reasons for the decisions that I have made.

[11]Where I refer to a time point below, I am referring to the competing effective dates of termination in the ET 1 and ET 3. The ET 1 relies upon a communication from 28th June telling the Claimant not to return whereas the Respondent relies upon the Claimant submitting fit notes and states a date of the 30th May 2021.

[12]If the Respondent’s ET 3 is right then claims which rely on the edt as commencing time will be out of time.

[13]In respect of the s.15 claim, I decline to strike it out. There may be a time point, but that is only a secondary consideration in light of the other points in dispute. Knowledge is in issue as it’s the fact of dismissal. These are classic trial points in respect of which the Tribunal will hear evidence and make findings of fact. I don’t have a basis for strike out.

[14]IN terms of s.15 and a deposit order, applying the more liberal little reasonable prospects of success approach, it fair to say that I regard the Respondents contentions in respect of time limits, knowledge and dismissal with real caution. However, this is a discrimination case and I am not prepared to state that there is little reasonable prospect. Nothing within that should be taken to endorse the Respondents position. If the Claimant succeeds at the full hearing on this point I do not consider the fact that I have not made an order to be a barrier to a finding that the Respondent has acted unreasonably. That will depend on the facts found by the ET. In short, if I am being misled that will be taken seriously.

[15]In terms of the s.13 claim (direct discrimination), the facts advanced do appear to be more akin to a s.15 claim than a direct claim under s.13 Equality Act 2010. This is plainly a claim that can only be sensibly determined at a full hearing on consideration of all of the evidence. Even taking the Claimant’s case at its highest, I am not satisfied that s.13 is definitively made out.

[16]In terms of the failure to provide a s.1 statement, I decline to strike out the defence. There is a possibility of a time point. It is an agreed fact that the Claimant was not provided with a statement of terms and conditions that complies with s.1 Employment Rights Act 1996.

[17]I do however make a deposit order and have given my reasons in a separate document. Case No. 2414433/2021

[18]In respect of holiday pay, when framed as an unlawful deductions claim, time would run from the date of the failure to pay (ie the deduction). It is an agreed fact that the Claimant was paid monthly. Time would therefore run from the end of June on the Respondents own pleaded case. This claim is in time.

[19]It is an agreed fact that at no time did the Respondent pay the Claimant holiday pay. This is a situation whereby there is a wholesale failure to pay holiday pay c.f. Smith v Pimlico Plumbers

[2022] EWCA Civ 70

[20]The defence in relation to holiday pay has no reasonable prospect of success. It is a basic right contained within the Working Time Regulations. There is no time point. There is no defence available to the Respondent. It is not a defence to say that the Claimant did not request holiday and in any event it should still be paid when the relationship comes to an end.

[21]The value of the holiday pay claim and how far back the Claimant is permitted to go, having regard to Pimlico Plumbers (above) is a matter for a remedy hearing. It is a remedy not a liability point.

[22]In terms of SSP, it is again an agreed fact that the Claimant was not paid SSP whilst she was off sick. The min qualifying criteria are earning £123 per week, being ill for 4 days in a row and being employed.

[23]On the face of it, the Claimant meets all of these criteria. I have been shown payslips showing a 60 hour month. I have not performed a fully forensic analysis and nor am I supposed to for the purposes of strike out.

[24]I decline to strike out the defence to SSP because the Claimant does need to formally establish at trial the basic facts regarding her working pattern. There is an argument for the need of some scrutiny, even in the face of what appears to be relatively clear facts.

[25]However, I do make a deposit order and give my reasons in a separate document.

[26]In terms of the National Minimum Wage claim, the key contention is that the Respondent has consistently failed to engage with this claim beyond a flat denial.

[27]I consider this claim to squarely be a question of fact. The Claimant must prove her case. The Respondent has a legal duty to keep records of working time. The Claimant will need to give evidence as to the hours and conditions of work. The absence of documents or explanation from the Respondent will cause him problems at any hearing. However, I decline to strike out or make a deposit order on the basis that evidence must be heard. A strike out or deposit is premature when the basic facts regarding the Claimant’s working pattern are not established. Case No. 2414433/2021

[28]My reasons in respect of the Respondents means are contained within the deposit order reasons. Employment Judge Anderson 25th May 2023

[1]This was a hearing listed to consider the claimant’s application to strike out the response. It was initially listed to take place on 9 April 2024, but that hearing was postponed at the request of the respondent because he needed to care for his son who had been in a road traffic accident. On 21 and 30 April the respondent made applications to postpone this relisted hearing, the first because his son needed ongoing assistance, and the second because the respondent’s son was not well enough to represent him adequately and because the respondent objected to a video hearing (the hearing having been converted to a video hearing to facilitate the respondent’s attendance). Those requests were refused. The respondent did not attend this hearing. When telephoned by the clerk after the hearing had been due to start, the respondent was working in his shop and informed the clerk that he could not take part because he was at work. The hearing proceeded in the respondent’s absence.

[2]An interpreter had been arranged for the hearing to interpret for the respondent. She attended. She was released, as the respondent did not attend.

[3]The claimant made an application to strike out the response on 15 February 2024 after the respondent had failed to provide any witness statements (at least in a form which could be accessed).

[4]A bundle of documents and a written submission document were provided. The claimant’s counsel also provided copies of Weir Valves & Controls (UK) Ltd v Armitage

EAT/0296/03

and Essombe v Nandos Chickenland Ltd

UKEAT/0550/06

[5]The claimant was represented by Mr Pollitt, counsel, at the hearing. The respondent did not attend and was not represented. The hearing was conducted by CVP remote video technology. The claimant’s counsel made oral submissions to supplement his written submissions.

[6]I adjourned to consider my decision and returned and informed those who attended of my decision. As the respondent did not attend and I thought it was important that he was aware of the reasons for my decision, I confirmed that these written reasons would be provided even though neither party had made a request for them.

Facts

[7]The case has a long procedural history. There have been preliminary hearings on: 14 April 2022; 30 May 2022 (which the respondent did not attend for understandable reasons); 16 November 2022 (which the respondent did not attend); 6 March 2023; and 24 May 2023. The final hearing in the case is due to be heard on 10-13 June 2024 (it was also listed for 14 June).

[8]In the case management order made following the hearing on 24 May 2023, Employment Judge Anderson observed that the respondent’s engagement with the proceedings before him had been limited. In his orders he recorded that what was ordered was not a ‘fresh start’. He recorded that there was a history of non-compliance and if there were any further substantive breaches, the Tribunal would be entitled to consider strike out, costs or other sanctions seriously. Witness statements were ordered to be provided to the other party by 4pm on 27 October 2023. Order 5.3 recorded that any witness statements disclosed after that date may not be relied upon at the final hearing without the permission of the Tribunal.

[9]The claimant has not received any witness statements from the respondent. The claimant’s solicitors received an electronic file they could not open on 10 November 2023. I was shown numerous emails in which this was explained. The respondent had, on occasion, responded, but he had not provided his witness statement(s) again or in a format which could be accessed.

[10]In a letter sent on 14 January 2024, the Tribunal varied the date for (what was said to be) exchange of witness statements, to 2 February 2024. The respondent still did not provide his witness statement(s) to the claimant (or confirm that he was ready to do so). The claimant applied for the response to be struck out on 15 February

The Law

[11]I have the power to strike out the response under rules 37(1)(b), 37(1)(c) and 37(1)(d) of the Employment Tribunal Rules of Procedure 2013. I will not reproduce those provisions in this Judgment, but I took what was said into account. Even if those provisions applied, the claimant needed to persuade me to exercise my discretion to strike out the response. I need to be persuaded that striking out is a proportionate sanction.

[12]The claimant’s counsel emphasised the overriding objective. He also relied upon the two cases which I have already referred to and provided copies of them. Weir Valves and Controls (UK) Ltd v Armitage confirmed that I must consider all the circumstances, including the magnitude of the default, whether it is the responsibility of the party or his representative, what disruption, unfairness or prejudice had been caused, whether a fair hearing was still possible, and whether strike-out or some lesser remedy would be an appropriate response. The claimant’s counsel highlighted that the Judgment said that a Tribunal must be able to apply a sanction in response to wilful disobedience of an Order.

[13]The claimant’s counsel quoted from the Essombe case a passage which explained the public policy argument that Tribunal Orders are there to be obeyed. Conclusions – applying the Law to the Facts

[14]I have summarised what has occurred in this case. I will not recap the full history of the respondent’s lack of appropriate engagement in the proceedings and the steps required. That was set out in the application, the submission document, and the numerous case management orders.

[15]As I have explained, in his case management order made following a hearing on 24 May 2023 (almost a year ago), Employment Judge Anderson recorded that there was a history of non-compliance (by the respondent) and he said that if there were any further substantive breaches, the Tribunal would be entitled to seriously consider striking out the response.

[16]The respondent has breached the case management order made regarding the provision of his witness statement or statements. I noted that an unopenable or corrupted file had been sent to the claimant’s solicitors on one occasion, but I concluded that had that genuinely been a witness statement (or statements) it would have been very straightforward for the respondent to have provided another copy in response to the numerous requests made. It would certainly have been easier for the respondent to have provided a statement (if it had already been prepared), than it was to make the applications (including one lengthy email) which he sent seeking to postpone today’s hearing.

[17]The respondent is working in his shop today rather than attending this hearing. He could have attended and provided some explanation (or, indeed, his

[18]The claimant, in her application, relied upon rules 37(1)(b), (c) and (d). I was satisfied that (b) and (c) certainly applied. The manner in which the respondent has conducted the proceedings has been unreasonable and he has failed to comply with the Tribunal’s orders. The non-compliance has been deliberate and persistent. I also found that (d) applied because the respondent has not actively pursued his response to the claim, albeit I appreciated that it was less clear-cut where the respondent had paid the deposits he was ordered to, to pursue parts of his response. Nothing material turned upon whether only two subsections of rule 37 applied, or all three.

[19]I took into account the authorities/cases highlighted by the claimant’s representative.

[20]I could have struck out the response. The guiding consideration was the overriding objective. It requires justice to be done. I must ensure that the parties are on an equal footing. I must, as far as possible and as is compatible with the proper consideration of the issues, avoid delay. The respondent’s default, where we were approximately one month from the final hearing and witness statements were originally due to have been provided in October, was one of significant magnitude. I heard what the claimant’s counsel had said, that a fair hearing on the current dates will not be possible if the respondent only provides his witness statement(s) at the start of the hearing, or very late in the day. I had no indication that the respondent was about to, or intended to, provide his witness statement(s) (or, if he did, when that might be).

[21]I came very very close to striking out the response at this hearing. I certainly could have done so. I did not for one reason and one reason only. I must consider whether there is an alternative approach or lesser remedy available. I think that there is. The respondent has breached the case management orders and, as it currently stands, without the leave of the Tribunal he is not able to call any witnesses in response to the claim (order 5.3 of the previous case management orders). Ordering that the respondent will not be able to call any witnesses or rely upon the statements of any witnesses, is not as draconian a step as striking out the entire response, but it addresses the failure to comply with the case management orders which I have explained, and it means that a fair hearing can still take place on the dates currently listed.

[22]As a result, I refused to strike out the response, as I was requested to do. Instead, I made an order that the respondent is not able to call any witnesses at the final hearing and he is not able to rely upon any witness evidence/statements which he might wish to call. Employment Judge Phil Allen 2 May 2024