Employment Judge Suzanne PalmerMr Rel represented himself for claimantDate 9 October 2025
JUDGMENT
The Claimant’s claim is struck out in its entirety under Rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024 because the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious.
REASONS
[1]The Respondent is a company which operates a hotel in Leyton. It has two directors, Mr Mustafa Yaman and his son Mr Yildirim Gunac Yaman. The two directors are also directors of another company, MYC Properties Limited, which Judgment & Reasons 1 of 19 Date 9 October 2025 owns a number of properties, including the building from which the Respondent hotel business is operated.[2]The Claimant was employed by the Respondent under a contract of employment which is for part-time hours, as a handyman. His employment started on 1 September 2018 and ended on his resignation in early 2023 (the precise date is disputed).[3]In a nutshell, the Claimant alleges that although his contract was for a role as a handyman at the hotel, he actually performed very little of his work in the hotel, but instead spent much of his time working full-time hours on a number of different construction sites and private properties. His case is that all this work was performed for Mr Mustafa Yaman and that as far as he was concerned, it was all part of the same contract. He accepts that he received a regular payment each month from the Respondent into his bank account, however he says that he was paid cash on a weekly basis for the construction work, and that it was always agreed that this would be how his contract would operate.[4]The Respondent says, in a nutshell, that Mr Yaman was only ever employed as a part-time handyman. It says that Mr Yaman asked its directors repeatedly for a full-time contract or for additional work. He was referred by them to a number of private individuals known to or associated with the directors (companies that did work for them at their sites, their friends and relatives, and sometimes them personally) to do additional work as a casual labourer. They say that the additional work he did was maintenance rather than construction work. They say that this work had nothing to do with the Respondent company or the employment contract with the Claimant.[5]The Claimant says that he did not receive holiday pay for the work he did on the various other sites, and moreover that the holiday pay he was paid by the Respondent, as well as the furlough pay he received in relation to his employment during the covid-pandemic period, were deducted from cash payments made to him by Mustafa Yaman for his work on the construction sites. He alleges that he was treated badly by the directors in a number of ways, set out in further and better particulars which he provided, and he relies on these as alleged breaches of the implied term of trust and confidence.
The Complaints
[6]The Claimant is making the following complaints:6.1 Unfair (constructive) dismissal;6.2 Pay claims in relation to:6.2.1 Notice pay;6.2.2 Unpaid holiday pay;6.2.3 Unlawful deduction of pay (holiday and furlough pay deducted from cash payments) Judgment & Reasons 2 of 19 Date 9 October 2025 Background – Claims, Issues and Litigation history[7]ACAS early conciliation started on 14 April 2023 and ended on 24 May 2023.[8]The Claimant’s claim was presented on 21 June 2023. At that time the Claimant was represented, but his representative came off the record on 13 July 2023.[9]The Respondent’s response was received on 24 July 2023.[10]The case was initially listed for a 1 day Final Hearing by CVP on 5 January 2024. That hearing was later vacated and a 3 day Final Hearing was listed in person in May 2025.[11]The issues to be determined at the hearing are set out in an Annex to this judgment. The list, as drafted by the Respondent’s representative, was sent to the Claimant and both parties confirmed that it accurately captured the issues.[12]On the first day of the hearing, following matters of general housekeeping, I heard an application by the Claimant to amend his claim to include a complaint of unlawful discrimination on the grounds of race. The allegations the Claimant wished to bring were:12.1 An allegation that the director of the Respondent, Mr Mustafa Yaman, made comments of a vulgar nature to him which were directed at his Polish nationality, for example “Fucking Poles”. It appears that this allegation could potentially be characterised as direct discrimination or harassment on grounds of race under the Equality Act 2010;12.2 An allegation that because of the Claimant’s Polish nationality, the director of the Respondent, Mr Mustafa Yaman, only gave him a part-time contract even though he was in reality working full-time hours. It appears that this allegation could potentially be characterised as one of direct race discrimination.[13]For reasons given to the parties orally at the hearing, the application to amend was refused.[14]The remainder of the first day and the entirety of the second day were used to hear evidence from the Claimant, with the assistance of a Polish interpreter.[15]On the third day of the hearing I heard evidence from the Respondent’s first witness, Mr Gunac Yaman. Mr G Yuman is a co-owner and co-director of the Respondent, along with his father Mr Mustafa Yaman.[16]The case then adjourned part-heard to three further days in October 2025. Case Management Orders were made which for administrative reasons were unfortunately not sent to the parties until 8 September 2025.[17]On 8 September 2025 the Tribunal received an application from the Respondent to strike out the Claimant’s claim in its entirety under Rule 38(1)(b). Judgment & Reasons 3 of 19 Date 9 October 2025[18]The hearing resumed on 7 October 2025. The start was delayed until 12 because of an oversight by the Tribunal in not booking an interpreter. Having explored housekeeping matters with the parties, I issued a Witness Order in respect of Mr Krzysztof Jablonski and adjourned the proceedings to 8 October.[19]On 8 October I heard evidence solely in relation to the Respondent’s application from Mr Jablonski, Mr G Yaman and Mr Baker on behalf of the Respondent and from the Claimant on his own behalf. I then heard the parties’ submissions on the Rule 38 application and adjourned until the following day.[20]On 9 October 2025 I delivered judgment to the parties in respect of the Rule 38 application. Documents and evidence[21]The following documents were provided to me:21.1 In relation to the substantive hearing:21.1.1 Received in May 202521.1.1.1 R1 Hearing bundle (not agreed);21.1.1.2 R2 Statement of Mr G Yaman;21.1.1.3 R3 Statement of Mr K Jablonski;21.1.1.4 R4 Statement of Mr M Yaman;21.1.1.5 R5 Representative’s handwritten schedule of payslips;21.1.1.6 C1 Claimant’s witness statement (English version)21.1.1.7 C2 Claimant’s witness statement (Polish version21.1.1.8 List of issues21.1.1.9 C3 document confirming that C’s hip arthroplasty in January 2018.21.1.2 Received in October 202521.1.2.1 R6A Companies House information about Respondent21.1.2.2 R6B Companies House information about MYC Properties Ltd21.1.2.3 R10 R’s summary of legal principles for constructive dismissal21.1.2.4 R11 R’s skeleton closing submissions.21.2 In respect of the Rule 38 application21.2.1 R7 Bundle21.2.2 R8 Further witness statement from G Yaman21.2.3 R9 Representative’s Rule 38 closing submissions21.2.4 R12 Representative’s witness statement The Application under Rule 38[22]I have been asked to consider an application made by the Respondent on 8 September 2025 for the Claimant’s claim to be struck out in its entirety. The application is made under Rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024, in other words on the basis that the Respondent alleges that the Judgment & Reasons 4 of 19 Date 9 October 2025 manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious.[23]In simple terms, the basis of the application is that the Respondent says that the Claimant threatened or intimidated a material witness in a telephone conversation which took place after the hearing had adjourned part-heard in May 2025. That witness said that he was fearful of the consequences for him and his family if he gave evidence as planned at the resumed hearing and was no longer prepared to attend the hearing as a witness. The Respondent says that in the circumstances a fair hearing is no longer possible and that the only sanction which will remedy the situation is a strike-out order.[24]The Claimant opposes the application. In simple terms, he accepts that he had a telephone conversation with the witness in which there was discussion of whether the witness was going to give evidence. However the Claimant denies that he threatened the witness. He contends that a striking-out order would be inappropriate and would cause him disproportionate prejudice. The law[25]In considering this application, I am required to consider first whether the alleged ground is established – in other words, whether the Claimant has conducted the proceedings in a manner which is scandalous, unreasonable or vexatious. If so, I am required to go on to consider whether or not to exercise my discretion to make a striking-out order. In deciding whether or not to exercise that discretion, I must have regard to the overriding objective of dealing with cases “justly and fairly”, and to have regard to proportionality, balancing the interests of both parties. I also have to consider whether a less severe sanction than striking-out is available and appropriate in the circumstances.[26]I remind myself that in the context of Rule 38, “scandalous” does not have its everyday meaning of “shocking”. Instead it means behaviour which is irrelevant to the issues in the case or abusive of the other side. “Vexatious” means conduct which is done to harass the other side or out of some improper motive, or any abuse of the court process – in other words, using the process in a way which differs from its ordinary and proper use.[27]Before striking out for unreasonable conduct under Rule 38(1)(b), I need to be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or that it has made a fair trial impossible. In either case, I am required to consider whether striking out is a proportionate response – Blockbuster Entertainment Ltd v James [2006] IRLR 630 CA. Normally a case cannot be struck out unless I consider that a fair trial is no longer possible – De Keyser Ltd v Wilson [2001] IRLR 324, EAT.[28]I have had regard to the three stages set out in the case of Bolch v Chipman [2004 IRLR 140, EAT. I am required to consider:28.1 Whether the Claimant has behaved scandalously, vexatiously or unreasonably when conducting the proceedings; Judgment & Reasons 5 of 19 Date 9 October 202528.2 If so, whether a fair trial is still possible: a striking-out order is not to be regarded as a punishment for the conduct, but as a sanction where it is no longer possible to proceed in a way which is fair to both parties;28.3 Even if a fair trial is now impossible, whether a striking-out order is appropriate in all the circumstances, or whether a lesser penalty than striking-out could be imposed.[29]I have also reminded myself that in cases of witness intimidation, a fair trial may well no longer be possible, but each case will turn on its own facts. I will need to consider whether the act of intimidation (if I find that it occurred) was so closely associated with the proceedings that it formed part of the manner in which they have been conducted, and whether it impacts on the ability to have a fair trial, and whether any alternative response would be adequate and effective to put things right. Procedure adopted and evidence in relation to application[30]In the circumstances of this case, where there is a specific and disputed factual allegation giving rise to the application, I considered that the only way in which I could reach a decision as to whether the alleged improper conduct took place was to conduct a “mini-trial” within the proceedings before reaching my decision. I heard evidence under affirmation from the following:30.1 The witness whose evidence is at the heart of the application, Mr K Jablonski. Mr Jablonski attended on the second day of the hearing scheduled this week after I issued an Order for him to attend on the first day. He attended via CVP and a family friend sat beside him to provide support and technical assistance. Mr Jablonski had not provided a supplementary witness statement but gave oral evidence in chief. He was cross-examined by the Claimant and answered my questions.30.2 Mr G Yaman, an owner and director of the Respondent and the son of the other director and co-owner. Mr Yaman had provided a supplementary witness statement of two pages, a copy of which had been provided to the Claimant translated into Polish using Google translate. The Claimant indicated that he had no questions for Mr Yaman in cross-examination.30.3 Mr L Baker, the Respondent’s representative, a non-practising barrister. Mr Baker had provided a witness statement of two pages, a copy of which had been provided to the Claimant translated into Polish using Google translate. The Claimant indicated that he had no questions for Mr Baker in cross-examination.30.4 The Claimant, assisted by an interpreter translating between Polish and English. At my invitation, the Claimant adopted his written response to the application as his evidence in chief and supplemented it orally. He was cross-examined by Mr Baker and answered my questions. Judgment & Reasons 6 of 19 Date 9 October 2025[31]I was provided with the following documents relating specifically to this application:31.1 A bundle [R7] containing the Respondent’s application and the Claimant’s email of 10 September 2025 objecting to the application. The bundle also contained copies of both documents in Polish. The application had been translated from the original English into Polish using Google translate. The response had been dictated by the Claimant and typed by his sister in Polish, who made grammatical alterations. It had then been translated from Polish to English using Google translate.31.2 The statements of Mr Yaman [R8] and Mr Baker [R12], both of which attached copies of the document translated into Polish using Google translate. Both witnesses signed and dated a copy of the statement at the start of their evidence. The Claimant had no questions for either witness. I do not regard Mr Yaman’s evidence as significant to this application because it simply confirms and corroborates Mr Jablonski’s account of what he told the Respondent about the alleged telephone conversation. The evidence of Mr Baker goes only to one narrow issue about the Claimant’s counter-allegation of threats against him, and is of limited relevance to the strike-out application.31.3 A copy of Mr Baker’s closing submissions in relation to the strike-out application [R12], with an attached copy translated into Polish using Google translate.[32]As a side note, in reading the material in advance of hearing the application, I noted that in his response, the Claimant had referred in some detail to “without prejudice” conversations between the parties, including specific details of offers made by the Respondent at various points. This was despite me expressly advising him on the first day of the hearing in May that it was not appropriate for the content of without prejudice discussions about settlement to be made known to me as the Judge hearing the case. I had explained to the Claimant in May that this was because of the risk of that knowledge influencing my decision in relation to the case. I had told him that the risk could potentially result in me having to recuse myself and the proceedings having to recommence from the beginning.[33]I took the view that for the purposes of considering this application, I could fairly put that part of the evidence out of my mind without it influencing or being perceived to influence my decision in any way in relation to the application. The purpose of the discussions being raised by the Claimant appeared to be that he made a counter-allegation that he felt threatened by the Respondent making a number of offers to him, and what he alleges was said at the time those offers were made. In the circumstances, the amounts of the offers (as opposed to the fact of them being made and the alleged language in which they were expressed) did not appear to be in any way relevant to the application.[34]In the event that I did not uphold the strike-out application, I proposed to have a conversation with the parties as to whether they wished to address me on whether or not I ought to consider recusing myself from further involvement in the Judgment & Reasons 7 of 19 Date 9 October 2025 substantive hearing. However the Respondent had not at this stage asked for me to recuse myself and it appeared to me to be disproportionate to initiate that conversation until I had determined the application. Fact-finding and credibility[35]In general terms I found Mr Jablonski’s evidence clear and straightforward. He had some difficulties in understanding more complex questions and expressing some of his answers, due to the fact that English is not his first language. However with the occasional assistance of the interpreter he was able to answer questions clearly. His evidence did not appear to be exaggerated or embellished, for example he was open in conceding that he did not know whether a subsequent incident on 8 September 2025 had anything to do with the Claimant.[36]The Claimant had the assistance of the interpreter throughout his evidence to me. I found his evidence somewhat unclear and confusing at times. The Claimant makes the submission that his evidence was not fluent because it was given through an interpreter. I made allowance for the fact that the Claimant’s answers were being translated, and did not consider that the problem was the fluency of his responses – what he said was articulate. The issue was that I found some of the points he made, once translated, difficult to understand.[37]By way of example, in the Claimant’s written response to the application he appeared to suggest that Mr Jablonski told him that the Respondent did not want Mr Jablonski to be a witness in case he said something which undermined their case (“According to the information K Jablonski provided me, the defendant wants witness K Jablonski not to be questioned, because under the influence of stress and emotions, he may testify a truth that is inconvenient for the defendant”]. This allegation is strongly denied by Mr Jablonski and Mr Yaman. The Claimant, when giving evidence, appeared to resile from his written position, saying that nothing like this was ever discussed in their conversation and he did not understand why he was being asked about it.[38]When taken to the documents he had provided to the Tribunal (and after he had been shown the original and had the relevant paragraph of the English version translated to him), the Claimant suggested that the translation of what he had dictated to his sister in Polish had not been accurately translated by Google translate. I accept that that is possible, however the Claimant was then unable to tell me what he had meant to say in his written document, simply saying repeatedly that he was “confused”, had already answered the question and still did not understand why he was being asked about it.[39]In addition, despite saying in his response to the application that he would provide more detail about the content of the telephone conversation at the hearing, the Claimant did not in fact provide me with any significant further detail beyond the limited account set out in his response.[40]I also considered that the Claimant’s evidence in relation to the alleged threats made to him by Mr Baker and/or the Respondent was confused and implausible. He referred to an offer made to him outside the hearing room during the Judgment & Reasons 8 of 19 Date 9 October 2025 proceedings in May. My note of the discussion around that issue, from May 7 2025, is that the Claimant complained to me that the Respondent’s representative had told him to accept a settlement offer (which he rejected) or he would “regret it by the end of the week”, which the Claimant considered threatening. The comment was denied at the time by Mr Baker. I explained at the time that I cannot hear details of negotiations as they are without prejudice, and it might result in me having to withdraw from the case. I explained that in broad terms that sometimes in negotiations a party may adopt a firm stance and the other side may perceive that as threatening when it is not meant to be. I reminded both parties that this is a formal court case and that they are expected to conduct conversations with one another in a courteous and professional manner.[41]In his written response to this strike-out application, the Claimant referred again to that conversation, making the additional and new allegation that Mr Baker said that “he was from Jamaica and that he wouldn’t be refused”. He also referred to a subsequent oral offer made later in the week in May. He also referred to further offers subsequently made in writing, saying that the Respondent’s representative had “repeatedly sent me emails offering financial settlements. When I replied that I was not interested in resolving the matter amicably, the attorney became persistent and sent further, increasingly larger amounts”. The Claimant said that he found these further offers threatening, to the extent that those threats “led to the breakdown of my long-term relationship with my partner… who feared for her health and life. These threats also resulted in my permanent return to Poland, which resulted in my resignation from my job in the UK. This situation led to significant health and financial costs… I do not wish for further settlement attempts from the defendant; otherwise, I will consider this to be further attempts to intimidate me”.[42]Mr Baker denies making any threat and denies using the specific words alleged. Even leaving that to one side, I do not find the Claimant’s account in relation to this issue plausible. There is no suggestion that the subsequent offers were accompanied by inappropriate language: what the Claimant is saying was threatening was the making of offers of settlement in increasing sums. I do not consider that it is credible that the Claimant regarded this as a threat, certainly not to the extent of requiring him to leave the country and give up employment here. In answer to a question from me about whether he was saying that his decision to return to Poland was because of the without prejudice offers, he said that it was because of the “outcome of these proceedings from the very beginning”, in other words the proceedings in general rather than the without prejudice communications specifically. That is a considerable change in his account.[43]In answer to questions in cross-examination about why he says that the offer(s) were threatening, the Claimant said that he interprets them as a threat. The note I have of his evidence at this mini-hearing is that he said that “the witness today said he felt threatened so I had the right to feel the same way”. It appeared to me that the Claimant was, seeking to justify his initial conversation with Mr Jablonski, and had raised the fact of the without prejudice offers after the event to try to provide justification on a “like-for-like” basis. I do not find it plausible that he would genuinely have perceived the fact that the Respondent was offering to settle as a Judgment & Reasons 9 of 19 Date 9 October 2025 threat. I consider that the Claimant’s position in respect of this issue undermines the credibility of his evidence generally in relation to the application.[44]On the balance of probabilities I preferred the evidence of Mr Jablonski about what happened during the call, and accept his account. I further note that what he said is corroborated by what he reported to Mr G Yaman when asked what was troubling him.[45]On the basis of the evidence I heard, I make the following findings of fact in relation to the application.45.1 Mr Jablonski and the Claimant, apart from seeing one another at the first three days of this hearing in May 2025, have not been in communication since the Claimant left the hotel in early 2023.45.2 Mr Jablonski received a telephone call from the Claimant on 30 June 2025, which lasted around 5 minutes. He was aware that there had been ongoing settlement negotiations between the Claimant and the Respondent and thought that the call might be about that, so he decided to answer.45.3 The start of the call was friendly and civil. The Claimant asked how Mr Jablonski was. Mr Jablonski asked the Claimant why the Claimant had a problem with him.45.4 The Claimant started to discuss the evidence given by Mr G Yaman at the hearing in May 2025 and to ask Mr Jablonski what he thought about it. He seems to have asked Mr Jablonski something along the lines of whether Mr Jablonski agreed with him that Mr Yaman had told lies during his evidence, and Mr Jablonski replied to the effect that he thought Mr Yaman had not lied.45.5 The Claimant then asked Mr Jablonski words to the effect of whether he was going to “follow” with what he said in his witness statement. I take that to mean either that he was asking Mr Jablonski whether he was going to maintain the account in his own witness statement during his oral evidence, or potentially that he was asking Mr Jablonski whether Mr Jablonski proposed to stand by the evidence given by the Respondent’s other witness (Mr Yaman) in relation to the issues in dispute.45.6 Mr Jablonski confirmed that he would be following what he said in his witness statement, because it was true.45.7 The Claimant then became angry. He made a comment to Mr Jablonski to the effect of “then this is war”.45.8 The Claimant then said to Mr Jablonski words to the effect of “You are not going to see your kids, your grandchildren, your family, your wife again” and ended the call. Judgment & Reasons 10 of 19 Date 9 October 202545.9 As a result of the conversation, Mr Jablonski felt scared for the safety of his family, who live in Poland. He felt sufficiently scared that he took some annual leave and travelled to Poland where he remained for several weeks to ensure that they were safe. Once he was satisfied that all seemed well, he returned to England and to work.45.10 Mr Jablonski decided not to contact the police because he feared that if he did, there would be another court case and that this would cause more problems.45.11 When he returned to work in London he did not immediately share the information with the Respondent, but he felt stressed and was quiet and withdrawn at work.45.12 Mr Yaman noticed that Mr Jablonski was withdrawn and asked him what was wrong. Mr Jablonski asked to speak to him in private and told him what had happened. Mr Jablonski explained that he did not feel that he could continue to be a witness for the Respondent.45.13 That conversation (between Mr Yaman and Mr Jablonski) took place on around 1 September 2025.45.14 Mr Yaman raised the matter with the Respondent’s representative, who emailed the Claimant on 8 September 2025 sending a copy of the application to strike out the claim.45.15 On 9 September 2025 Mr Jablonski received a text message from his son saying “Hello Daddy can you call Mum because today 2 men coming and ask about you. I don’t know what happened”. Mr Jablonski called his wife who said that two men had come to the door of the family home and asked when he (Mr Jablonski) was coming from England.45.16 As a result of the conversation with the Claimant, Mr Jablonski is no longer willing to give evidence in relation to the substantive proceedings because he is frightened for the safety of him and members of his immediate family if he does so.[46]In answer to a specific question from me, Mr Jablonski confirmed that, although he maintains that the content of his original statement is true, he is no longer prepared to attend the substantive hearing in order to give evidence in relation to the substantive issues, because he is a “family man” and is scared about what the Claimant might do to him or his family. He said that he did not know what the Claimant would do. He did not want any trouble for his family as a result of being a witness. Although he initially said that he thought that the police would be able to protect him, he then qualified that by saying that he was not sure that they would.[47]I also asked Mr Jablonski whether he thought that these were just words, or whether he thought that something might actually happen if he gave evidence. He said that he thought that something might happen because he considered that the Judgment & Reasons 11 of 19 Date 9 October 2025 Claimant is a “very crazy man” and was “ready for anything”. Whilst this was a strongly worded assertion, I note that Mr Jablonski worked alongside the Claimant for over 5 years and knew him well. I also note that there are allegations by the Respondent’s witnesses in the substantive proceedings, which are denied by the Claimant, that the Claimant was at times aggressive, particularly when he had been drinking. I have not made any findings in respect of those allegations at this stage, but I consider that they provide context for the words used by Mr Jablonski in terms of his perception of the risk posed by the Claimant. I did note that but I was able to observe during the Claimant’s evidence and his cross-examination of the Respondent’s witnesses that he was at times somewhat confrontational in his approach to disagreement.[48]I accept Mr Jablonski’s evidence that he was genuinely frightened about the potential consequences for himself and/or members of his close family if he continued to give evidence in relation to the substantive proceedings.[49]Mr Jablonski was frank about the fact that there had been no further contact since the telephone call on 30 June and he did not know whether the visit to his property in Poland was related to the Claimant in any way but that it could have been. I note that given the timing (coming a day after the strike-out application was made in relation to the earlier conversation) it would be reasonable for this incident to add to Mr Jablonski’s concerns, whether or not the visit actually had anything to do with the Claimant. Mr Jablonski tells me that there has never previously been any visit like this to his home. I do not find the Claimant’s suggestion that this could just be a canvasser or a cold call plausible, because it seems inherently unlikely that callers in those circumstances would fail to identify who they were and would ask a specific question about when Mr Jablonski would be returning from England.[50]Although there is insufficient evidence for me to be able to conclude on the balance of probabilities that the visit to Mr Jablonski’s home was connected to the Claimant, I consider that it is reasonable for Mr Jablonski to consider that it could be, and for this to add to his general concerns following the original call. I also note, because the point was put to Mr Jablonski in cross-examination, that the Claimant knew a lot about Mr Jablonski’s family, because over the course of 5 ½ years working together they had discussed their families a lot.[51]The Claimant suggests that Mr Jablonski has simply misunderstood what he said. The Claimant says that he “made no threats against [Mr Jablonski] or his family. I merely informed him that if he testified falsely at the hearing, he could face legal consequences”. He said in oral evidence that those consequences could be that Mr Jablonski could be “locked up and then he wouldn’t see his grandchildren”. I do not accept that account, which again appears to me to be an attempt by the Claimant to justify his actions after the event, with the benefit of hindsight.[52]As Mr Jablonski told me (and put to Mr Jablonski in cross-examination as he said that Mr Jablonski was aware of this), several members of Mr Rel’s family are police officers in Poland. It appears to me that if that is the case, then if anything the Claimant should have been more aware than the average party might be of the inappropriateness of contacting a witness in this way to put pressure on them to change their evidence. Judgment & Reasons 12 of 19 Date 9 October 2025[53]In all the circumstances, I find that Mr Jablonski reasonably perceived the words used by the Claimant as a threat to deter him from giving evidence. He felt intimidated and frightened by the comments made to him by the Claimant to the effect that “then this is war” and that he would not see his wife, children or grandchildren again. I find that this led to Mr Jablonski refusing to give evidence in relation to the substantive proceedings. Conclusions[54]The first issue I have to consider is whether as a result of the actions I have found that the Claimant took, he acted in a way which was scandalous, vexatious or unreasonable. In light of the matters I have set out above, I consider that the Claimant has acted in such a manner.[55]I find that by approaching Mr Jablonski in the way he did, and using the words he did, the Claimant was seeking to influence Mr Jablonski in the evidence he gave, and/or to deter him from giving that evidence. Whilst it may not have been the Claimant’s intention to cause Mr Jablonski to withdraw altogether from the hearing, I find that by approaching Mr Jablonski as he did and saying what he did, the Claimant must at the very least have been reckless as to the potential consequences.[56]I consider that this falls within the definition of “scandalous” because it was abusive not only towards Mr Jablonski personally, but to the Respondent in its ability to defend the allegations. The proper course of action, if the Claimant considered that Mr Jablonski was not giving accurate evidence, was to challenge that evidence by way of cross-examination as he had done with other witnesses.[57]I also consider that this conduct was “vexatious”, in that it was an abuse of the proper court process, for the improper motive or influencing a witness in the evidence they gave or in whether to give evidence at all, with an implied threat of harm to that witness or members of their family if they did not co-operate.[58]I further find the conduct to be unreasonable. It ought to have been apparent to the Claimant that this approach was inappropriate, and even more so in circumstances where, as he has sought to remind both the witness and the Tribunal, he is related to police officers and therefore could arguably be regarded as having above average awareness of the importance of following a proper hearing process.[59]The second issue I have to consider is whether as a result of the Claimant’s actions a fair hearing is no longer possible. I consider that it is not. Both parties agree that Mr Jablonski is a significant witness in the substantive proceedings. He was the Claimant’s line manager at the Respondent hotel and they worked alongside one another every day for over 5 years. Mr Jablonski, on his account, gave direction to the Claimant on the work he undertook at the hotel, and will have relevant knowledge in relation to the hours he worked and the amount and nature of work he undertook at the hotel. Those are areas of factual dispute which have become more extensive in light of the Claimant’s oral evidence. Judgment & Reasons 13 of 19 Date 9 October 2025[60]On the Claimant’s account, Mr Jablonski was also his foreman in relation to all the work the Claimant says he was engaged on by Mr M Yaman outside his work at the hotel. Both of them were subject to similar contractual arrangements for the Respondent, in that they were on part-time salaried contracts to carry out maintenance work at the hotel, and undertook other work for the directors and members of their friends and family outside their work at the hotel.[61]There are extensive areas of factual dispute in this case in respect of which Mr Jablonski’s evidence is likely to provide me with assistance in resolving the issues which I need to consider. Mr Jablonski’s original witness statement is not long and does not address all the issues in the list of issues. However, it has become apparent during the course of oral evidence from both the Claimant and from Mr Gunac Yaman that there are many additional areas of factual dispute where he is likely to be able to provide relevant further evidence.[62]The Claimant has clarified during his evidence that Mr Jablonski is either the perpetrator or a direct witness in respect of the majority of the matters he relies on as alleged breaches of contract in his constructive dismissal claim. In respect of the claims relating to pay, hours and contract terms, Mr Jablonski is likely to be able to provide important evidence, partly because of his role as the Claimant’s line manager and partly because of his own working arrangements.[63]In addition, the Claimant has asserted that there were times when Mr Jablonski was responsible for making cash payments to construction site workers in the absence of Mr M Yaman, so his evidence in relation to those arrangements is likely to be material in resolving the extensive disputes about those payments.[64]The relevance of Mr Jablonski’s evidence therefore goes well beyond what appears from the face of his witness statement. The Claimant has made it clear that he wishes to cross-examine Mr Jablonski and the Respondent is equally clear that it wishes to rely on Mr Jablonski’s evidence. I have gone through the list of issues carefully while considering this application. It appears that Mr Jablonski is likely to be able to give relevant evidence as a potential witness in respect of each of the 17 alleged breaches the Claimant relies on in relation to constructive dismissal, and is expressly referred to as a witness in 4 of them.[65]He also gives relevant evidence in respect of the Respondent’s asserted reason for the Claimant leaving the hotel, albeit that this evidence is largely corroborative of primary evidence given by Mr G Yaman. In respect of the various Working Time Regulations and National Minimum Wage claims, it seems to be common ground that the Claimant’s hours were not recorded because he was on a salary. As his line manager working with him on a daily basis, Mr Jablonski is the individual at the Respondent best placed to give evidence about the Claimant’s working hours, duties, rest breaks and holidays.[66]I have considered whether or not there is other evidence I could take into account to resolve the issues, without needing to rely on Mr Jablonski’s oral evidence. The difficulty is that it is clear from Mr G Yaman’s evidence that he and the Claimant did not work alongside one another on a regular basis. Mr G Yaman said that he saw the Claimant only about two or three times a week because his Judgment & Reasons 14 of 19 Date 9 October 2025 responsibilities were wider than the maintenance department. Mr Jablonski was the person responsible for maintenance.[67]On the face of it, Mr M Yaman would be an appropriate witness to give evidence in relation to the alleged breaches of contract. However Mr M Yaman is not in good health, and is currently subject to medical care for prostate cancer. He was unable to attend the hearing in May, and was unable to attend the hearing this week because he was undergoing what was described as an “invasive procedure”. His prognosis is uncertain and the Respondent’s position is that it is not clear that he will be well enough to attend even if I adjourn these proceedings to a later date. In his absence, the Respondent was, as it is entitled to do, intending to rely on Mr Jablonski’s evidence on the basis that he had direct knowledge of most if not all of the allegations.[68]I therefore consider that Mr Jablonski’s evidence is effectively the sole evidence, and may well be the decisive evidence, from the Respondent in respect of many of the allegations.[69]I have also considered whether it would be possible for me to resolve the issues in dispute by taking Mr Jablonski’s evidence on paper without hearing from him. I have concluded that this would not be fair and would not be sufficient to remedy the potential unfairness in the hearing.[70]First, not all the allegations are covered in Mr Jablonski’s statement. That is unfortunate, and some degree of criticism can be levelled at the Respondent and its representatives for that. However, the Claimant’s allegations were not clearly articulated in his claim form and further particulars, and in many instances the way he is putting his cases has only become apparent through the course of further explanation provided by him during his own oral evidence. Some of the oral evidence he has given raises entirely new areas of factual dispute. One simple example is his assertion that from the outset of his employment he rarely worked at the hotel and did not go there at all for a period of over a year. Therefore even if Mr Jablonski’s statement had touched on each allegation, it is likely that I would need to hear additional oral evidence from him.[71]Second, it would be difficult to proceed on the basis of the statement alone without doing significant injustice to one or other of the parties. The statement would be hearsay evidence, and I would be bound to take that into account when deciding what weight I could give it. If I gave it less weight than the Claimant’s oral evidence, that would be unfair to the Respondent, given that Mr Jablonski was initially able and willing to attend the hearing (and was present throughout the first three days in May). This only changed as a result of the Claimant’s conduct. If I sought to remedy that unfairness to the Respondent by attaching the same weight as I would normally attach to oral evidence, that would be unfair to the Claimant, as the evidence would not have been tested by cross-examination and questioning.[72]I therefore consider that it would be well-nigh impossible to assess the evidence in due course, in the absence of Mr Jablonski, without doing a significant injustice to one party or the other, and that it would not be in the interests of justice or the overriding objective for me to attempt to do so. Judgment & Reasons 15 of 19 Date 9 October 2025[73]I further consider that it would not be appropriate for me to delay the proceedings further in order to wait to see whether Mr M Yaman makes a sufficient recovery to be able to give evidence at some later date. The Claimant’s claim was presented in June 2023 and relates to events ending in January 2023. There have now been six hearing dates, with a delay of 5 months between the first three and the next three. Further delay is likely to result in further deterioration of the parties’ memories, not only of the events themselves, but also of the bulk of the evidence given during these proceedings. To allocate further hearing time at this stage, as a result of the Claimant’s conduct, would not serve the interests of justice and would be disproportionate.[74]The third issue I have to consider is whether a striking-out order is appropriate and proportionate in all the circumstances, or whether a lesser sanction is available to remedy the situation.[75]To a large extent this has been covered by the points I have already made in respect of whether a fair hearing is still possible. I have considered carefully what the alternatives might be to striking out the claim today on the basis that there cannot be a fair hearing without Mr Jablonski attending. For one reason or another, I have explained why in my view it would be unfair to the parties and/or inappropriate to adjourn or to seek to proceed without Mr Jablonski’s evidence, or solely on the basis of his written evidence.[76]I agree with the Respondent’s submission that the Claimant’s conduct strikes at the heart of these proceedings and that there is no other reasonable course of action available to me to remedy the situation.[77]I should emphasise that this is not a decision I have taken likely, and I consider that striking out a claim is a draconian remedy which should be deployed very much as a last resort. I have very much in mind the potential prejudice to the Claimant if I strike out his claim. He will be deprived of the ability to pursue a claim which he considers has merit. However the Tribunal needs to be able to determine that claim in a way which is fair to the Respondent as well, and it is the Claimant’s actions which have made that impossible in this case, in my judgment.[78]I further note two additional points. These are something of a side issue, but they do to some extent potentially put in proper context the extent of any potential prejudice to the Claimant.[79]First, it is clear from the Respondent’s submissions that, even if I were not minded to strike out the claim, it had potential concerns about whether I would be able to set aside the information provided to me by the Claimant about without prejudice discussions between the parties. I have already indicated that I proposed to discuss this point with the parties if I refused the application. I do not know what the outcome of that discussion would have been, but it seems to me that there would be at least a possibility that I would have had to recuse myself in any event.[80]Second, I have formed no view about the merits of the claim. However, I note that it seems from the Claimant’s evidence that most of the allegations set out as Judgment & Reasons 16 of 19 Date 9 October 2025 alleged breaches of contract, if not all of them, took place in the context of the work he did outside his role as a maintenance man at the hotel. All of his pay claims also appear to do so, in that he accepts that he was paid his contractual entitlement of wages and holiday pay in accordance with the part-time contract with L & K Hotels. What he seems to be saying is that those sums were then deducted from money (cash payments) he should otherwise have received for work he did elsewhere. He says that the work elsewhere was provided by and done for Mr M Yaman, however he accepted clearly in oral evidence that he did not know which company he was working for when he did it. In the circumstances, it appears his claim against this Respondent, L & K Hotels, may have weaknesses, even though I am not yet at the stage of being able fully to assess or evaluate the extent those potential weaknesses, because I have not yet heard all the evidence and submissions. In the circumstances, however, the claim of which the Claimant would be deprived may not be a strong one. Summary of conclusions[81]My reason for striking out the claim, however, is that I consider that a fair hearing is no longer possible because of the Claimant’s scandalous, vexatious or unreasonable conduct, and I can see no lesser sanction capable of remedying the situation.[82]I have therefore decided that the Claimant’s claim should be struck out in its entirety under Rule 38(1)(b).[83]After I gave oral reasons to the parties, the Claimant requested written reasons. I explained to him that the wording of these written reasons may vary in slight detail from the oral reasons given at the hearing, but that the written reasons prevail and that the decision is the same. The Claimant also enquired about obtaining a transcript of the proceedings. I informed him that he would need to contact the Tribunal to request a transcript, and that there would be a cost involved in obtaining it. Employment Judge S Palmer Dated: 9 October 2025 ANNEX: LIST OF ISSUES FOR SUBSTANTIVE HEARING Constructive dismissal 1. Did the Claimant resign in circumstances in which he is entitled to treat himself as having been constructively dismissed? In particular: 2. was there a fundamental breach of the employment contract by the Respondent? The Claimant relies on the following: i. Threats of losing job: 21.02.2022 – after an argument with Mustafa in presence of foreman Krzysztof Jabłoński, I asked about the holiday pay, pay for working during pandemic restrictions and the raise of the salary. I will share the message related to this matter. This was one of many attempts to start a discussion, so I find it difficult to provide Judgment & Reasons 17 of 19 Date 9 October 2025 all dates, due to working in stressful environment, doing manual labor and a period of time that has since passed. ii. Constant criticism: “Why you are doing this like that?”, “Why you are f…. with it?” (vulgarisms were used). iii. Constantly looking for something to berate me for, even the smallest details in the initial phase of work. iv. Giving absurd instructions: During every project he would instruct me to move heavy materials from one place to another during the entire process of construction. Then those materials would be thrown away or scrapped. We were also carrying old furniture, mattresses and carpets left by previous tenants and moved them to different flats. We knew that in close future we would have to carry those furniture away because no tenant would want to have bug infested furniture. v. Perform tasks not in line with the craft, that lead to additional corrections. For example, we had to use hammers to crush concrete all day long for a week, and sometimes even longer. In 2019 project at Leyton, 2021-2023 project on Seven Sisters and Turnpike Lane, or tasks not related to any project. vi. Raising voice every time someone or something made him angry. He was screaming and threatening us. vii. Aggression: He was throwing and kicking things. viii. Using vulgarism directed at someone’s nationality, for example “Fuxxxxx Poles”. ix. Insinuating a mental illness by insulting words and hand gestures. x. Preventing me from using my due break: Often delivery of supplies and materials in time of my break, using loud equipment by other employees and lack of place designated for a break. xi. Giving unrealistic deadlines for tasks: At times we had to stay overtime. Many times I missed my break in order to get everything done in time. xii. Humiliation: I had to fulfill my physiological needs where I could, as there was no toilet. If I remember correctly, around 2022 one of the employees named Tony thrown his excrements over a fence on the parcel next to the building site. One of the neighbors noticed this and came to complain. Foreman Krzysztof Jabłoński talked with the neighbor in my presence (project in 2021-2023). xiii. Preventing employees from fulfilling their physiological needs: During two projects (2019-2021 projects at Layton), toilet was in the hotel 200 meters away. xiv. Forcing me to resign: Assigning me the hardest tasks, separating me from other employees, play other employees against me. They all, including foreman Krzysztof Jabłoński, lived in one of the houses owned by Responded. The house was right across the street of the Respondent’s hotel, in which he lived, so it was easy for him to manage employees even after working hours. Also, my equipment was being taken away and not given back. I had to look for them myself. The respondent often did not greet me and did not reply to my greetings. xv. Assigning tasks to unqualified employees: Work at heights, assembling and dismantling scaffolding. I was executing those tasks with foreman Krzysztof Jabłoński, who was not qualified to do them as he himself said. This related to 2018-2019 respondent’s house project, 2019-2020 project at Leyton, 2020 Hotel basement project, 2021-2023 restaurant project on Seven Sisters/Turnpike Lane. Judgment & Reasons 18 of 19 Date 9 October 2025 xvi. Discrimination: No full time employment contract, my hourly rate, unfair treatment due to my nationality and due to being the only non-smoking person (I quote “ Who doesn’t smoke must fxxxxx work (vulgarism)), smoking during meal in my presence or during executing tasks together. xvii. At the end, I would like to say that all projects have been executed under time pressure, due to no permits for assembling a scaffolding. There has been some complains regarding that, I’m sure they are noted somewhere. Project related to the basement was also executed under pressure of time, because pandemic restrictions were about to end and the hotel was supposed to be open. Every project had unrealistic deadlines, which had been always moved anyways, but causes the accidents. One of them that happen at Layton was noted because we had an inspection’. 3. if so, did the Claimant resign in response to the breach of his contract of employment? 4. did the Claimant waive any breach and affirm the contract? Unfair dismissal remedy 5. Is the Claimant entitled to receive compensation for unfair dismissal? 6. If so, what sum? 7. Should a Polkey reduction be made? 8. Did the claimant contribute to his dismissal? 9. Did either party fail to follow the ACAS guidelines? s12 Working Time Regulations 1998 10. Did the respondent breach the Working Time Regulations in not providing the claimant with rest breaks? s4 Working Time Regulations 1998 11. Did the respondent breach the Working Time Regulations 1998 in making the claimant work in excess of 48 hours per week? s13 Working Time Regulations 1998 12. Is the Claimant entitled to any accrued but unpaid holiday pay 13. Did the Respondent unlawfully deduct holiday pay and furlough pay, previously paid to the Claimant’s bank account, from cash payments made to him in respect of work undertaken by him outside the hotel (this appears in the alternative to be a Wages Act claim and/or a breach of contract claim). s8 Employment Rights Act 1996 14. Did the Respondent fail to provide the Claimant with itemised pay slips? National Minimum Wage Act 1998 15. Did the Respondent breach s1 of the National Minimum Wage Act 1998 Breach of contract 16. Was the claimant wrongfully dismissed? Judgment & Reasons 19 of 19 Date 9 October 2025