Employment Judge AndersonMr Richardson (Friend (instructed by the Claimant – present for few) for claimantDate 13 August 2025
JUDGMENT
[1]The claim of unfair dismissal is struck out under Rule 38(1)(b), Rule 38(1)(c) and Rule 38(1)(e) of the Employment Tribunal Procedure Rules 2024.
REASONS
[1]This matter came before me today for a full hearing in respect of a claim for unfair dismissal. The Claimant Ms Phillips is a Care Assistant, employed by the Respondent for a little over two years. She was dismissed for alleged gross misconduct.[2]However, the case did not proceed on its merits. It is necessary to rehearse a brief history of this matter.[3]The Claimant contacted ACAS on the 24th March 2025, with the ACAS Certificate being issued on the 31st March 2025. The Claimant commenced proceedings on the same day as the ACAS Certificate.[4]The ET 1 ticks the box indicating a claim of unfair dismissal but at box8.1 simply states “Used and abused and unfair dismissal.” At box8.2 it is stated that: “I am making this claim against perfect care for unfair dismissal and used and abused claim is again (sic) Kelly urwin manager Laura holmes Dale care manager Megan Ridley coordinator HR perfect care.”[5]At box 9.2 it is stated “£100000 I have worked this sum out for everything they have put me through and the way they have treat me (sic)”[6]Mr. Jamie Richardson is listed as the Claimant’s representative.[7]That claim form was accepted. I do not have any wider information before me as to the initial consideration given to the claim form.[8]Standard case management orders were made, which included orders in respect of bundles and witness statements.[9]The Claimant does appear to have provided some disclosure of documents and whilst there have been problems in getting the Claimant to engage with the bundle, it is right to say that they Claimant has been provided with an electronic and hard copy of the bundle well in advance of the hearing.[10]The Claimant has not provided a witness statement. The Respondent has provided two witness statements.[11]I do note that a schedule of loss, albeit an imperfect one was sent on the 5th June 2025. It includes the following “Used and abused bullying and harassment unfair dismissal medical reasons.”[12]On the 24th July 2025, the Respondent applied to the Tribunal for a strike out of the claim on the basis that :a. The claim has no reasonable prospect of successb. The Claimant has failed to comply with the Tribunal’s Case Management Ordersc. The claim is not being actively pursuedd. It is no longer possible to have a fair hearing in respect of the claim.[13]The Claimant’s representative was copied into this correspondence.[14]The Respondent was informed that this application would be considered at the hearing today.[15]The hearing before me today took place by way of CVP.[16]Mr Richardson is an acquaintance of the Claimant, though I am not aware of his specific relationship with the Claimant. For the purposes of these proceedings, I proceed on the assumption that neither the Claimant not Mr Richardson have any sort of legal experience and come to the Tribunal as lay persons.[17]At the outset of the hearing today, Mr. Richardson joined by phone. He was given the helpline number and he was then shortly thereafter able to join by video. The Claimant herself was also present in the same room as Mr. Richardson.[18]I asked Mr. Richardson about a witness statement and he confirmed that one had not been done. The words used were “I didn’t get that far.” I pressed further in terms of how he envisaged the hearing proceeding if the Claimant had not completed a witness statement. The line remained live, with the video moving and then the Claimants side disconnected.[19]Mr. Richardson did not immediately rejoin. The Tribunal clerk phoned him and asked him to join again, the clerk was informed that they were having trouble rejoining. By that point an email was received by the ET at 10.38am “I have not done a full witness statement and would like extra time to do this thank u sorry for the inconvenience but I need extra time to complete my witness statement”[20]At 10.45am a further email was received: “My app not working properly I am contacting the helpline again to get this resolved it won’t let me connect now”[21]The Tribunal clerk once again directed the Claimant to contact the helpline and to try and rejoin in 20 minutes.[22]At this point I note that there was a potential contradiction in the timeline. The Tribunal was first emailed re the lack of a witness statement and then emailed roughly seven minutes later suggesting that there was a technical problem.[23]The twenty minutes expired. There had been no further telephone calls, responses or emails. Nearly half the morning had now expired. I determined at this point that it would not be possible to have a fair hearing in the hearing window. The reasoning for this was as follows:a. I had an outstanding and wide-ranging strike out application, made back in July to consider.b. The Claimant’s ET 1 lacks the basic particulars.c. The absence of a witness statement could not be overcome by the two normal routes of a) discussing the case and identifying the point in the case and whether it is prejudicial to proceed in light of that discussion or b) using the ET 1 as the Claimant’s witness statement.d. The time allocation of one day and the time already lost.[24]The issue was what I would then do in light of the above facts. I therefore directed that the strike out application would be considered at 2pm. I directed that an email be sent to this effect. The Claimant was urged to attend.[25]At this point in time, I pause to note that I consider it to be more likely than not that the termination of the video call at that specific point in time was deliberate. I make this finding on the balance of probabilities. We had just begun to discuss a point that the Claimant was in difficulty on, namely the lack of a witness statement. The video phone was moving around, there was no break in sound, there was simply a question that was particularly difficult to answer. There was no screen freeze.[26]I am aware that the CVP system is not infallible. I am aware that parties have problems. However, I am not making this finding to the criminal standard which requires the reasonable exclusion of every possibility. Rather, the Claimant and her representative had joined with assistance from the helpdesk and then only had difficulty in response to a difficult question. The subsequent lack of correspondence or contact prior to the afternoon supports this position.[27]The fact that this hearing was online rather than being in person was not of particular significance to the stage that had been reached. The Claimant was capable of joining by video. No evidence had been heard yet. If I considered that the barrier here was the fact that this was a CVP hearing, I would have considered ordering an in person hearing. The online nature of the hearing was not the problem.[28]By adjourning to 2pm, I considered that I was giving the Claimant one further opportunity to engage. I also deliberately left a period in excess of two hours so that they could engage or correspond further.[29]At 2pm, the Respondent’s representative attended but neither the Claimant’s representative nor the Claimant attended. I asked for the Newcastle ET inbox to be checked and nothing had been received.[30]The Respondent’s representative confirmed that they had received the email postponing this matter to 2pm and also confirmed that the email had been copied into the Claimant’s representative.[31]Had the Claimant or her representative been present at 2pm, I would have enquired further as to why they had left the hearing and what was preventing them from returning.[32]The Respondents representative then made their application for strike out. I indicated to them that I did not consider the ground regarding a failure to progress the claim to be arguable on the basis that there had been some engagement and that the underlying case law deals with parties who disengage from the process entirely.[33]The application was therefore developed on the following bases.[34]The first basis was that it was not longer possible to have a fair hearing within the hearing window. It was not more proportionate to postpone to another date in light of the fact that Ms. Holmes who was the relevant decision maker was a) no longer an employee of the Respondent and had been cooperating with the Respondent voluntarily to this point, which could not be guaranteed and b) was pregnant and due to give birth in October, with maternity leave then to follow.[35]The second point was that the Claimant had adequate time to prepare a witness statement. This was in the wider context of there being no stateable case contained within the ET 1. The Claimant was in breach of the Orders of the Tribunal.[36]The third point was that the Claimant had conducted proceedings unreasonably. There had been no contact since the 23rd June 2025. This has been compounded further today by the Claimant absenting themselves from proceedings.[37]The fourth point was that by absenting herself, Rule 47 was engaged and the claim could be dismissed on that basis in addition to the above.
The Law
[38]Strike out is not a casual matter. This is not the County Court. Denton v TH White Ltd EWCA Civ 906 does not apply. Employment Tribunals exist in order to hear cases and provide workplace justice to all sides. Strike out is draconian. It is a high bar.[39]The starting point in respect of strike out based upon the conduct of the proceedings is Blockbuster Entertainment Limited v James [2006] EWCA Civ 684 in which at para 18, Sedley LJ memorably stated: “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.”[40]The Sedley LJ went on to hold at para 21: “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”[41]Of particular relevance is the Judgment of Choudhury P in Emuemukoro v Croma Vigilant (Scotland) Ltd & Others (2021) UKEAT/0014/20/JOJ) in that when assessing whether a fair trial is still possible as part of its consideration of the proportionality of strike out, the Tribunal must ask itself the question whether or not a fair trial is possible in the hearing window. A submission that the Tribunal must ask itself whether a fair trial is possible per se was rejected.[42]Emuemukoro has been cited with approval in subsequent EAT cases.
Conclusions
[43]I have sought to weigh matters up carefully, recognising that strike out is a serious matter, procedurally determining a claim without it being heard on its merits.[44]A fair trial is not possible within the hearing window (i.e. today) because there is no witness statement. If a generous and more informal approach were adopted, there are no particulars within the ET 1 that could be used as a witness statement either. Even more, I have not had the opportunity to engage with the Claimant or her representative as to why she says that the dismissal is unfair.[45]I have taken into account that Emuemukoro will be primarily designed to cover multi day hearings in which the parties have gone to significant expense and that a relisting would be significantly in the future. I do not suggest that the authority is restricted to multi day hearings, but I do note the wider context and put this into the balance.[46]A postponement today is prejudicial to the Respondent. It is particularly prejudicial to a witness, who is no longer employed and is due to commence maternity leave. I do not treat this as an absolute, but it is relevant.[47]The Respondent confirmed to me that if the matter were to be postponed then a preparation time order would be sought against the Claimant. Given the witness problems, the overall prejudice to the Respondent could not adequately be covered by a successful preparation time order, even if the Claimant were to be in a position to pay such an order. I am aware that the Claimant was employed as a Care Assistant, I do not have any knowledge of her ability to pay such an order if one were made.[48]The lack of particulars does matter. The Claimant had just over two years of service. The Respondent alleges that within that period she had a poor disciplinary record and at the time of her dismissal was on a final written warning. The dismissal was in respect of an allegation that a pain relief patch was not applied for 24 hours, thereby leaving a service user in potential pain. This being compounded by the matter not being reported. At the time, the Claimant alleges that she did not have a phone signal to report the point. I cite these basic facts to illustrate that this is a case that requires particulars and a witness statement. I do not suggest that the existence of a final warning or a dismissal for a serious allegation means that a claim for unfair dismissal is bound to fail. What I do note is that in order to understand and hear a such a claim, I would want to know why it is said to be unfair and what evidence was being advanced. It is not a discrete point of law that can be resolved in isolation for example.[49]The above points must also be seen in the additional context of the Claimant appearing to be in deliberate breach of the Tribunal orders regarding a witness statement and also appearing to deliberately absent herself from these proceedings and not joining back in.[50]In terms of the length of this case, I recognise that it only commenced on the 31st March 2025. I mention this because of the wider context of some Employment Tribunals in England now listing longer hearings into 2028 and 2029. One view would be to say simply, irrespective of the conduct of the Claimant or her representative, adjourn the case, list a case management hearing, even if it takes 18 more months then hear the case then.[51]I am not attracted to the above proposition. It provides too much leeway to a party to frustrate the processes of the Tribunal, requiring both the other side and the Tribunal to expend resources in the face of what appears at least in part to be a deliberate default.[52]I have also considered whether any distinction should be made between the Claimant and the Claimant’s representative. This is not a case in which the Tribunal has been contacting the representative and the individual party does not know about it. The Claimant was present at the hearing this morning.[53]I have determined that this is an appropriate case in which to exercise my power to strike out the Claimant’s claim.[54]I accept each of the underlying points made by the Respondent in favour of strike out, though it is right to say that I have directed myself on the law and in particular have placed particular weight on the high bar for strike out, its draconian nature and the extent to which alternatives to strike out are proportionate alternatives.[55]My decision to strike out therefore is on the basis that under Rule 38(1):a. 38(1)(b) the manner in which the proceedings have been conducted by or on behalf of the Claimant has been unreasonable. i. The Claimant has not supplied a witness statement. ii. The Claimant has absented herself from the proceedings today and not returned. iii. The Claimant did not engage with the Respondent since 23rd June 2025 in respect of a hearing on the 13th August 2025.b. 38(1)(c) the non-compliance with the Order of the Tribunal regarding witness statementsc. 38(1)(e) that it is no longer possible to have a fair hearing within the hearing window. i. The absence of a witness statement and the absence of particulars ii. The Claimant absenting herself from proceedings. iii. A postponement would cause difficulty securing the key witness of the Respondent, who is no longer employed and is due to commence maternity leave.[56]This isn’t about a single breach of an order in the form of the witness statement. There are multiple problems which require weighing up.[57]I have considered alternatives to strike out. I conder that postponement would be unduly prejudicial to the Respondent and it witness. I further consider that the underlying problems are in part due to deliberate actions (no witness statement/absenting themselves from proceedings) and that a Tribunal should not be forced into postponing a case simply because the Judge has the power to postpone. A postponement could well result in an adverse preparation time order.[58]Rule 38(2) of the Employment Tribunal Procedure Rules has been complied with in that: i. The Respondent’s application was made on the 24th July 2025. ii. The parties were notified in advance of this hearing that the application will be dealt with at the hearing today. iii. The Claimant was given further notification that the application would be considered at 2pm today.[59]In the alternative, I would have dismissed the case under Rule 47 due to the Claimant not attending the proceedings today.[60]As the Claimant was not present at the strike out application, I decided of my own volition to reserve judgment so as to enable my reasons to be sent at the same time as the Judgment. These reasons were produced on the same day at the hearing.