Mr L Samnick v Barclays Execution Services Ltd and others: 3204704/2021
EMPLOYMENT TRIBUNALS
Case No 3204704/2021
Between
Mr L SamnickClaimant(1) Barclays Execution Services Limited (2) Jeong Kim (3) Petrus Theodorus (4) Maria Rood a.k.a Ron Rood (5) Konstantina Armata (6) Claire Fordham; (7) Faye Richardson (8) Chris Easdon (9) Ruth Surendran (10) Jeremy Haworth (11) Elyze Gonzalez (12) Melanie Philips (13) Sarah Hollinsworth (14) Claire Cardosi (15) Nicola Middleton (16) Lindsey Brown (17) Sonia Boniface Determined on the papersRespondent
Before
Employment Judge John CrosfillDate 3 November 2025
JUDGMENT
[1]The Claimant is ordered to pay the Respondents £3,500 in respect of their legal costs incurred as a consequence of the postponement of the hearing listed on 29 April 2022.
REASONS
Discussion and conclusions
[1]The Respondents have applied for their costs of attending a preliminary hearing that was intended to deal with the question of whether the Claimant’s claims in this case were brought within the relevant statutory time limits (or any extension thereof). The Claimant did not attend that hearing and I decided that it was not in the interests of justice to proceed in the absence of the Claimant and acceded to the requests made previously by the Claimant to postpone the hearing.
The hearing
[2]By a case management order sent to the parties on 6 May 2022 I relisted the preliminary hearing for 7 June 2022.[3]The Respondents set out their application for costs in a letter dated 13 May 2022. The Respondents had suggested that in addition to the time limit points the hearing on 7 June 2022 also deal with their application for costs. At that hearing it was agreed that I should deal with the application on the papers having directed that the Claimant make any further submissions in writing.
Background
[4]This is the second of two claims brought by the Claimant arising from his employment with the First Respondent. His first claim has is to be heard together with claims brought by two former colleagues. This claim has not been joined to the earlier claims.[5]The Claimant presented his ET1 to the Tribunal on 10 June 2021. He brings claims of unfair dismissal, claims that he has been subjected to a detriment because he has made protected disclosures and claims under the Equality Act 2010. In his ET1 the Claimant states that his employment terminated on 23 February 2021. At paragraph 6 of the addendum to his ET1 he acknowledges that some of his claims might be out of time. He states that it was not ‘reasonably practicable’ to have presented his claim any earlier.[6]In my case management order sent to the parties on 18 February 2022 I made directions in this claim. I listed a hearing to determine the time limits point. My order provided that the Claimant should file any witness statement relating to the issue of time limits by no later than 23 March 2022. I made other directions designed to identify the issues in the case.[7]On 22 February 2022 Mr Samnick wrote to the Tribunal asking that I vary my case management orders in his second claim postponing all directions until October 2022 he relied upon his health as the reason for his requests. On 4 March 2022 I responded in the following terms: Mr Samnick asks me to suspend all directions in his second claim until October 2022. He says that he has not got the resources (in the broadest sense) to deal with his second claim. I recognise that Mr Samnick has a disability. The timetable I have set for the preparation for the two preliminary hearings is not onerous. The tribunal is very used to assisting people with all forms of disability and will make any reasonable adjustments to its procedure to accommodate those. There are good reasons for holding an early preliminary hearing to determine whether Mr Samnick’s claims are out of time. He has named a large number of individuals and they have a right to have any claims against them determined in a reasonable time. If Mr Samnick seeks a postponement on medical grounds he will need to provide medical evidence specifically directed towards the issue of why he could not comply with the directions that set. He must provide any medical practitioner who he asks to provide such medical evidence with a copy of my case management order. That medical practitioner should note that the only matters that Mr Samnick is required to deal with are to comply with paragraph 5.2, 5.3, 7.1, 7.3 and 7.4. I would expect any medical practitioner to have been made aware of what Mr Samnick has shown himself as being able to do to date. That medical evidence should be served on the Respondent and the Tribunal as soon as possible. In the meantime I decline to vary my order.[8]Mr Samnick sent a further e-mail to the Tribunal on 23 March 2022 in which he renewed his application. He attached medical evidence to that e-mail. By a letter sent on 25 March 2022 I responded to Mr Samnick. I agreed to vary the order that he provide a witness statement extending the time to do so until 8 April 2022. I declined to postpone the hearing. I gave the following reasons for that decision: I have carefully reviewed the entirety of the medical evidence sent to me by Mr Samnick. The medical records and letters that he has sent me do evidence the fact that he had a moderate depressive episode requiring treatment through counselling and prescription of antidepressant medication. The documentation records that Mr Salmond has reported experiencing chest pains and panic attacks. There is no record of any physical cause of the chest pains which have been thoroughly investigated. The inference is that the chest pains are a symptom of a mental health condition. The witness statement that Mr Samnick had prepared in accordance with my earlier orders suggest that Mr Samnick has difficulties with motivation and concentration in addition to the symptoms I have briefly described above. The Respondents have conceded that Mr Samnick has a disability falling within section 6 of the Equality Act 2010. In making my earlier decisions about case management and the listing of hearings I had always assumed that the Respondents’ concession was properly made. I was aware that Mr Samnick suffered from anxiety and depression and panic attacks when I made my earlier orders. The issue upon which I asked Mr Samnick to provide medical evidence was on the question of whether he would be placed at any disadvantage either by complying with the timetable that I have set or in attending a face-to-face hearing in April. I have previously taken the view that the timetable that I have set is not at all onerous. Many of the tasks are quite straightforward. I have had regard to the fact that Mr Samnick has been able to correspond with the Respondent and tribunal and produce several large documents. He has been able to attend hearings on the telephone and via CVP in which he has on some occasions represented himself without drawing my attention to any particular difficulties. I have explained that there are compe[ll]ing reasons for wishing to progress the second claim. The Respondents have a legitimate interest in that claim progressing in a reasonable time and in particular having the potential knockout point that the claims have been presented outside the statutory time limits dealt with as soon as reasonably practicable. The medical evidence that has been provided does not deal directly with the issues of whether Mr Samnick would be disadvantaged by the orders that I have made or whether or not he is unable to attend a face-to-face hearing. Past experience tells me that many people suffering from moderate depressive episodes and/or panic attacks are capable of complying with directions and attending hearings. The tribunal is particularly well-equipped to assist people with those conditions feel comfortable during a face-to-face hearing. The medical evidence does not deal with the up-to-date situation. Assuming the evidence to be complete it appears that Mr Samnick has had no engagement with any consultant since late 2020 in respect of his mental health when he was discharged with a prescription for antidepressants. Whilst I am prepared to infer that the mental health condition persists I am really not assisted by the provision of medical evidence which is at least 18 months out of date and does not deal directly with the questions of whether there is any disadvantage in the directions that I have set or in attending a face-to-face hearing. I am not prepared to vary my orders unless I receive medical evidence that deals directly with the question of whether or not Mr Samnick is placed at any disadvantage by the orders that I have made. Any medical practitioner providing such evidence must be informed that the Tribunal regularly holds face to face hearings with people who have anxiety, depression and panic attacks and is very used to making adjustments to accommodate that. If any medical evidence is directed at the time given to Mr Samnick to complete the orders that I have given I would expect the medical practitioner to be fully informed about the nature of the tasks that I have required Mr Samnick to complete and the time that I have given him to do so. If it is suggested that more time is necessary I would require any evidence to explain what further time would be necessary and why. I would be content to receive such evidence from any medical practitioner or suitably qualified therapist by way of a letter or email. I do not consider the evidence that has been provided thus far to be sufficient to persuade me to vary my orders.[9]Mr Samnick did not produce any witness statement dealing with the issue of time limits prior to the scheduled hearing dates. He did not comply with any other directions that I made in this particular claim.[10]On 28 April 2022 there was a preliminary hearing in the earlier cases. Mr Samnick attended in person at that hearing. He asked me to allow him breaks during the hearing which I permitted as far as was possible without unduly disrupting the hearing.[11]The earlier claims had been listed for a final hearing commencing on 7 June 2022. There had been significant and protracted disputes about the scope of those claims and no agreement had been reached (and indeed still has not been reached) as to the issues to be determined by the Tribunal in those claims. As a consequence the final hearing was postponed by me at the conclusion of a hearing on 28 April 2022. All three of the Claimants strenuously resisted the postponement and in order to accommodate their arguments the hearing finished later than I had wished. I observed that Mr Samnick appeared tired and commented upon that during the hearing.[12]Mr Samnick has appealed the decision to postpone that hearing and whilst that appeal appears to be entirely academic it is implicit that he is asserting that he would have been in a position to attend that hearing and take part in a 20-day hearing.[13]Mr Samnick told me on 28 April 2022 that he did not intend to attend the hearing on the following day. I informed him that I had already considered two applications made by him to postpone the hearing and had rejected them. I pointed out that he had not provided any medical evidence that supported his application. He informed me late in the afternoon that he had received a medical report from his psychotherapist. He did not ask me to read it. I informed him that I would consider any application he made for a postponement based upon any fresh evidence at the outset of the hearing the following day.[14]At 20:04 on 28 April 2022 the Claimant sent an e-mail to the Tribunal in which he said that he would not be attending the hearing. He attached a letter addressed ‘to who it may concern’ from Ricky Brown who describes himself as an Integrative Psychotherapist accredited by the British Association for Counselling and Psychotherapy. The Claimant in his written submissions says that he received that letter at 15:00 on 28 April 2022. He did not ask me if I would look at it and he did not send it to the Tribunal at that time. He said: ‘I am writing on behalf of Mr Louis Samnick in my ongoing role as his Psychotherapist. Mr Samnick has engaged in weekly online Psychotherapy sessions with myself in excess of eighteen months. I confirm that Mr Samnick has requested this letter to address the following:a. Mr Samnick’s compromised capacity to comply simultaneously with the two sets of deadlines for both cases, and thus the request that the deadlines be postponed until October 2022.b. That in my professional opinion, Mr Samnick is not, and will not be fit to attend back-to-back, face-to-face preliminary hearings in person on 28th April 2022 (first claim) and 29th April 2022 (second claim). I strongly advise against Mr Samnick’s compliance with the simultaneous hearing dates as above due to the taxing nature it has had, and continues to have on his psychological and physical state. Though over the last eighteen months myself and Mr Samnick have therapeutically realised small achievements in his development, this looming court date has continued to, and completely supersedes the work through its ability to render Mr Samnick ‘powerless’ psychologically. I am prepared and willing to provide detail around symptoms and potential methods of support Mr Samnick would benefit from in preparation for his hearing should this be required. I apologise sincerely for the delay in communication.’[15]Ms McCann and her instructing solicitor attended the hearing on 29 April 2022. The Respondents took a neutral stance as to whether I should proceed with the hearing in the absence of the Claimant. I decided that I should not and set out my reasons for that in my case management order following the hearing.[16]When he completed his ET1 in this claim the Claimant did not complete the section that asked whether he had obtained alternative employment. The Claimant had submitted a schedule of loss in the earlier claim served after his resignation in which he claims millions of pounds. He does not give any credit for sums received from any new employment. I was told that the Respondent had sought information about attempts to mitigate loss. Mr Samnick did not dispute that he had not given the Respondents any information. At the hearing on 7 June 2022 Mr Samnick was asked questions in cross examination about what he had been doing in the period prior to presenting his claims. Mr Samnick initially was reluctant to say. He eventually gave limited answers that he had been headhunted from his position with the First Respondent and was working for a different financial institution at a managerial level (which represented a promotion).
The relevant law
[17]The jurisdiction to make an order of costs is found in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) 2013. Rule 76 provides: “When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”[18]There is essentially a 2 (or perhaps 3) stage test. Other than in defined circumstances, before there is any jurisdiction to award costs at all the tribunal must be satisfied that one or more of the threshold conditions set out in Rule 76 has been satisfied. If, and only if, it has should the tribunal move on to consider whether, in the circumstances of the particular case, it is right to make a costs order. Finally, it is necessary to decide what amount, if any to award. See Monaghan v Close Thornton Solicitors [2002] EAT/0003/01[19]Notwithstanding the existence of the jurisdiction to award costs the exercise of that jurisdiction remains exceptional Gee v Shell Ltd [2003] IRLR 82.[20]In Barnsley BC v Yerrakalva [2012] IRLR 78 CA Mummery LJ said: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.”[21]Rule 84 of the procedure rules provides that when deciding whether to make a costs order and if so in what amount the Tribunal may have regard to the means of the paying party. The rule is permissive rather than mandatory although it would be an unusual case where the means of the paying party were not a material factor. In Vaughan v London Borough of Lewisham [2013] IRLR the Employment Appeal Tribunal, following Arrowsmith v Nottingham Trent University [2012] ICR 159 held that an assessment of means was not necessarily limited to the ability to pay at the time that the order is made but can have regard to the future prospects of the paying party. The parties’ positions[22]The Respondents’ letter suggests that they are seeking their costs pursuant to rules 76(1) (a) or (c).There is no such rule as rule 76(1)(c) and it appears that this is a typing error with an intention to refer to rule 76(2). It is the Respondent’s position that the failure of the Claimant to timeously provide sufficient medical evidence to justify an adjournment is conduct that falls within rule 76(1) or (2).[23]The Respondents seek £3,500 representing the daily fee that they have agreed to pay Ms McCann.[24]The Claimant says that the Respondents’ application is ‘fundamentally misconceived’. He says that it is clear that he did not attend the hearing on 29 April 2022 because of his mental health issues. He says that he had made an application to postpone the hearing 7 days before the hearing.[25]In his e-mail of 13 July 2022 the Claimant says that the Respondents’ application has been made in bad faith as they have knowledge of his disability, knew of his previous applications and had his therapists letter sent on 29 April 2022.[26]The Claimant does not address me on his means.
Analysis
[27]The Claimant made two applications to postpone the hearing of 29 April 2022 in advance of the hearing. I refused each application setting out my reasons and stating in terms that I would reconsider the matter if I were provided with medical evidence that substantiated the assertions made that the Claimant was not sufficiently well to attend. The Claimant knew that I had refused his applications and he knew what he needed to do if he wished to renew them.[28]In giving the Claimant guidance on what would be required I was mirroring the Presidential guidance to parties seeking an adjournment which says: If the request is made because of the ill health of a party or a witness, the request should be accompanied by medical evidence (normally a medical certificate and a letter/document from the treating G.P. or hospital doctor) that confirms:• The nature of the health condition concerned and• Importantly, that the doctor considers in his or her professional opinion that s/he is unfit to attend the hearing and the basis of this conclusion. This is important as the fact that a person has a medical condition does not necessarily mean s/he cannot attend a hearing. If possible, the medical evidence should also indicate when it is expected that the person will be fit to attend. An Employment Judge must be satisfied on the evidence that it is just to grant a postponement: s/he may ask for additional evidence in a particular case. Parties may wish to note that a medical certificate to the effect that a person is not fit to attend a hearing is not conclusive evidence of that fact. The request for a postponement should be made as soon as it becomes apparent that the person will be unfit to attend. If the illness develops suddenly and so close to the start of the hearing that it is not possible to obtain the medical evidence before requesting a postponement, the request should be made at once with an undertaking to provide the necessary medical information within 7 days’.[29]The Claimant had failed to comply with orders that I made in February 2022 that he provide a witness statement (and other orders relating to the preparation of a list of issues). Given that he had acknowledged in his ET1 that some of his claims were out of time he would have recognised that without evidence justifying an extension he was at grave risk of having many of his claims dismissed.[30]The Claimant frequently references his status as a litigant in person. The Claimant holds a senior position in the financial sector. He is well educated and he had frequently produced documents that are littered with references to previously decided cases and statutory provisions. In his ET1 when referring to time limits he uses the phrase ‘reasonably practicable’ which mirrors the statutory test in Section 111 of the Employment Rights Act 1996. I do not accept that the Claimant is an unsophisticated litigant incapable of understanding the rules of procedure which are in any event applicable to represented and unrepresented litigants.[31]I find that the Claimant knew that I had not acceded to his applications for a postponement or to additional delay in preparing his witness statement and consciously took the decision to await the hearing on 28 April 2022 to announce his intention not to attend. I find that he had decided not to attend well in advance of that hearing. If he had not, he would have produced the witness statement that I had ordered him to produce.[32]The Respondents’ application for costs does not depend on a finding one way or the other as to the Claimant’s fitness to attend the hearing. They say that their application for costs is justified even if the Claimant was too ill to attend the hearing. They say that insofar as any up-to-date medical evidence was produced it was provided so late that they incurred unnecessary cost.[33]The Claimant was told in clear terms that a postponement would only be granted if the application was supported by medical evidence. The Claimant has not given any satisfactory explanation why he could not have provided such evidence as he has later produced at a much earlier stage. He was aware from 25 March 2022 what was required and therefore had a month to obtain medical evidence.[34]Assuming in the Claimant’s favour that there was a proper basis to seek a postponement I find that the Claimant acted unreasonably in not obtaining the medical evidence necessary to support that application and not providing it until 20:04 on the day before the hearing.[35]I find that that unreasonable conduct passes the threshold condition set out in rule 76(1)(a). The Claimant had clearly decided in advance of the hearing that he would not attend the hearing and did not have the courtesy to inform the Tribunal or the Respondents of that fact until the day before the hearing took place. He provided some medical evidence only after the Respondents had incurred the costs of a postponement. I shall not deal with the alternative position that the threshold condition in rule 76(2) has been met.[36]The Claimant has made submissions about the hearing on 28 April 2022 and said that he found that hearing exhausting. I have found above that the Claimant had no intention of attending the hearing on 29 April 2022 and had decided upon that before 28 April 2022. Whether the effect on the Claimant of the hearing on 28 April 2022 had any impact on his ability to attend on 29 April 2022 is not relevant to his unreasonable conduct before that but is relevant to the question of whether there would have been a postponement in any event – a matter which I shall have regard when looking at the discretion to make a costs order.[37]Despite a finding that the Claimant has behaved unreasonably, here essentially unilaterally deciding to ignore my refusal of applications for a postponement, it does not automatically follow that I should make a costs order. I need to consider whether the Claimant’s health played a part in his unreasonable conduct and look at all of the surrounding circumstances.[38]I must not make any assumptions about the Claimant’s health but must evaluate the evidence I have. The Respondent has conceded that the Claimant was disabled at all material times. Having a disability does always not mean that a party cannot comply with directions. I set out an evaluation of the medical evidence I was sent by the Claimant in March in my letter to the parties sent on 25 March 2022. There was evidence that the Claimant had been unwell in the past but no independent evidence that would allow me to infer that the position remained the same over a year later. Many episodes of moderate depression will resolve themselves.[39]I have had regard to the letter from Mr Brown sent on 28 April 2022. I do not find that letter compelling. Mr Brown does not suggest that he has any clinical expertise although I accept that he is an accredited counsellor. Mr Brown gives no reasons whatsoever for his conclusions that the Claimant was unable to comply with my directions (which gave him many weeks to provide a witness statement). He suggests that the second hearing would be ‘taxing’. As I indicated in my case management order of 29 April 2022 had I seen that letter prior to the morning of the hearing I would have sought further information to attempt to ascertain the basis of Mr Brown’s opinions.[40]Whilst I recognise that attending a court hearing and attending work are not the same I do consider that in assessing Mr Samnick’s ability to comply with orders and make timely applications for an adjournment I am entitled to have regard to the fact that he is working as a manager in a financial institution at a higher level than with the First Respondent where he was required to demonstrate a high level of skill.[41]There is an obvious tension between the Claimant informing me that he is unable to attend a hearing the day after another hearing whilst at the same time opposing a postponement of a 20-day hearing to start just 6 weeks later. The tension between those positions supports an inference that the Claimant is willing to participate in the hearings he wishes to participate in but is reluctant to engage with a hearing where he must persuade the Tribunal that his claims were presented within statutory time limits.[42]The Claimant has sent me a further letter from Mr Brown dated 26 May 2022.That letter was provided in support of an application to hold the adjourned hearing by video. I acceded to that request for pragmatic reasons without necessarily accepting the evidence given by Mr Brown. There are some aspects of this letter that cause me concern. Mr Brown states, as if it were fact, that the Claimant has suffered from discrimination (rather than acknowledging that this was the Claimant’s account). He suggests that the Claimant is suicidal. There is no evidence that the Claimant has consulted a medical practitioner about this. He links this to unidentified ‘unmanageable expectations and relentless trauma’. I can only assume that that is a reference to the orders that I have made. There was nothing unmanageable about the directions I set. The Claimant has in this litigation produced voluminous correspondence and documents when he has wanted to.[43]Having regard to the entirety of the evidence I am not satisfied that the unreasonable conduct I have found was caused by the Claimant’s health. Given his demonstrable abilities to hold down a responsible high-level job and his abilities to produce long complex documents in this litigation I do not accept that his abilities are impaired to the extent that he has suggested. On balance I cannot accept that the Claimant’s ill health prevented him from complying with my directions and, more importantly, if necessary making a properly evidenced application for a postponement in good time.[44]I turn to the question of whether there would have needed to be a postponement in any event because the Claimant was tired after the hearing on 28 April 2022. I accept that there might have been an application for a postponement by the Claimant on the basis that he had not prepared a witness statement but that is irrelevant. I have found that he had no good reason not to do so and it is independent of the hearing on 28 April 2022.[45]I accept that the hearing on 28 April 2022 ended after 5pm and was a long day for everybody. I also accept that the Claimant looked tired. It was unfortunate that we sat that late but I was dealing with robust opposition to my decision that the matter was not ready for a final hearing. The Claimant was plainly disappointed at my decision. I had agreed to give the Claimant breaks in the proceedings and I did so.[46]As I have found above the Claimant had already decided that he was not going to participate in the hearing on 28 April 2022. Against that background I approach any suggestion that the effect of the hearing on 28 April 2022 had any bearing on his decision not to attend on 29 April 2022 with caution. I have regard to the fact that the Claimant was pressing for the 20-day hearing to proceed and the fact that he only reluctantly has revealed that he has been working in a responsible job. The evidence from any qualified practitioner is so old as to have little bearing on the present situation. The evidence from Mr Brown is almost wholly unreasoned and comes from a counsellor who is not a medical professional although he is an accredited therapist. Having regard to the totality of the evidence that I have been provided with including statements from the Claimant both formal and in correspondence I am not satisfied that the Claimant was so unwell that he was unable to attend the hearing on 29 April 2022.[47]In his submissions the Claimant says that he did provide the evidence that I had directed him to provide before 29 April 2022. I will put to the side the fact that I would not have granted a postponement on the basis of Mr Brown’s letter (even in conjunction with the medical evidence). The simple fact was that referring to the existence of the letter at 3:00pm on 28 April 2022 and sending it 5 hours later was simply too late. No application for an adjournment had been granted and the Respondent had no choice but to attend the hearing.
The relevant law
[48]I have asked myself whether in the light of the matters above I ought to make an order for costs. I decide that I should. There has been unreasonable behaviour that has directly caused the Respondents to incur costs. Even assuming in the Claimant’s favour that he was not sufficiently well enough to comply with the directions and attend the hearing I do not accept that a person holding down a high-level job in a financial institution was incapable of making a timely application for a postponement properly supported by evidence. I consider this to be seriously unreasonable conduct.[49]I turn to the final question of what costs I should order the Claimant to pay. I had not granted the Claimant a postponement and the Respondent had no choice but to turn up on 29 April 2022. The sum of £3,500 is towards the top end of what I would consider reasonable for junior counsel for a 1-day hearing (or a refresher). However, this is complex litigation and the Respondent has not acted unreasonably in engaging experienced specialist Counsel. On the Claimant’s case the value of his claims, all together, is millions of pounds. He has joined in numerous individuals and the issues are complex.[50]I have considered whether the fees claimed should be reduced to reflect the fact that the preparation for the hearing by Ms McCann will not be altogether wasted. She would of course need to refresh her memory prior to the adjourned hearing. However, my understanding is that the costs do not include preparation time but are essentially a daily rate for attendance.[51]Having had regard to all of these matters I consider that the costs claimed by the Respondents were reasonably incurred.[52]The Claimant has not said anything about his means. I am not obliged to take his means into account but I have done so. The Claimant works in the banking industry. I know he has young children and is married. I am not restricted to asking what the Claimant might pay today but can have regard to his earning potential. In the light of what I know there is no reason to think that the Claimant could not afford to pay the costs claimed by the Respondents within a reasonable time.[53]For these reasons I order the Claimant to pay the Respondent’s costs of 29 April 2022 in the sum of £3500.[54]If any claim has been presented after the ordinary time limit imposed by subsection 123(1)(a) of the Equality Act 2010 (a period within 3 months extended by the provisions governing extensions of time for early conciliation) then the tribunal cannot entertain the complaint unless it is just and equitable to do so. The following propositions have emerged from the case law: 54.1. The discretion to be exercised under subsection 123(2)(b) is broad – see Chief Constable of Lincolnshire Police v. Caston [2010] IRLR 327 where Sedley LJ commented: ‘There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing employment tribunal proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer’ 54.2. Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA reminds a tribunal that whilst the discretion to extend time is wide the burden is on the Claimant to show why time should be extended and as such an extension is the exception and not the rule. 54.3. In deciding whether or not to extend time a tribunal might have regard to the statutory factors set out in the Section 33 of the Limitation Act 1980 see British Coal Corporation v Keeble and ors [1997] IRLR 336, EAT although caution needs to be applied to avoid those factors being approached in a mechanistic manner or treating them as exhaustive Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23 per Underhill LJ at paragraph 37. 54.4. Whether there is a good reason for the delay or indeed any reason is not determinative but is a material factor Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA. 54.5. It will be an error of law for the Tribunal not to consider the relative prejudice to each party Pathan v South London Islamic Centre EAT 0312/13 54.6. In Miller v Ministry of Justice [2016] UKEAT 0004/15 Mrs Justice Laing identified that: ‘There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.’ 54.7. If the question of whether to exercise the statutory discretion is being considered at a preliminary hearing rather than a final hearing then the apparent merits of the claim may be taken into account in assessing whether to exercise the discretion. In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132, emphasising the caution that would be needed in order to take this into account it was said; ‘The tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform.’ Time Limits – Employment Rights Act 1996[55]The time limit for a claim brought under Section 94 of the Employment Rights Act 1996 is set out in Section 111 the material parts of which say: (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A)Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).[56]The time limits for a claim brought under Section 48 of the Employment Rights Act 1996 are set out in sub sections 48(3)-(5) which read as follows: (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. An act extending over a period/series of similar acts[57]The meaning of ‘an act extending over a period’ is the same as the equivalent phrase in the Equality Act 2010 see Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686 and the discussion above.[58]In Arthur v London Eastern Railway Ltd | [2007] IRLR 58 the Court of Appeal held that in order for time to be extended on the basis that an act ostensibly out of time forms part of a series of similar acts the Claimant needs to establish that there is at least one unlawful similar act that was presented in time. A two-stage test[59]Where a claim is presented outside the period of 3 months it is necessary to ask firstly whether it was not reasonably practicable to present the claim in time and, only if it was not, go on to consider whether it was presented in a reasonable time thereafter. The two questions should not be conflated. There is no general discretion to extend time and the burden of proof rests squarely on the Claimant to establish that both limbs of the test are satisfied. The meaning of “reasonably practicable”[60]The expression “reasonably practicable” does not mean that the employee can simply say that his/her actions were reasonable and escape the time limit. On the other hand, an employee does not have to do everything possible to bring the claim. In Palmer and Saunders v Southend-On-Sea Borough Council [1984] IRLR 119 it was said that reasonably practicable should be treated as meaning “reasonably feasible”.[61]Schultz v Esso Petroleum Ltd [1999] IRLR 488 is authority for the proposition that whenever a question arises as to whether a particular step or action was reasonably practicable or feasible, the injection of the qualification of reasonableness requires the answer to be given against the background of the surrounding circumstances and the aim to be achieved. Medical conditions[62]Illness may mean that it is not reasonably practicable to present a claim in time. – see Palmer and Saunders. Where an illness is said to have made it not reasonably practicable to present a claim in time proper approach was set out in Schulz, by Potter LJ at page 1210: “….in assessing whether or not something could or should have been done within the limitation period, while looking at the period as a whole, attention will in the ordinary way focus upon the closing rather than the early stages.” “Reasonable ignorance”[63]The question of whether it is open to an employee ignorant of her rights to rely upon that ignorance as a reason why it was not reasonably practicable to present a claim in time has been the subject of a number of decisions of the higher courts. It is not sufficient to establish that the employee was ignorant of the right to bring a claim and/or the time limits for doing so. The issue of reasonableness is to be assessed by asking what the employee ought to have known see- Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 and Wall's Meat Co Ltd v Khan [1978] IRLR 499.
The hearing
[64]Where an employee is aware that a right to bring a claim exists it will be considerably harder to show that they ought not have taken steps to ascertain the time limit within which such claims should be presented - Porter v Bandridge Ltd [1978] ICR 943, Avon County Council v Haywood-Hicks [1978] IRLR 118. A reasonable period thereafter[65]The question of whether an employee has presented their claim within a reasonable time of the original time limit is a question to be determined objectively by the employment tribunal taking into account all material matters see Westward Circuits Ltd v Read [1973] ICR 301, NIRC. Striking out claims – generally[66]The power to strike out a claim under Rule 37(1)(a) on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, at para 30. In discrimination claims where findings of fact can depend upon whether or not it is appropriate to draw inferences of discrimination from primary facts particular care needs to be taken before striking out a claim Anyanwu v South Bank Students' Union [2001] IRLR 305, HL. The same cautious approach should be applied in a claim brought under S47B ERA 1996 North Glamorgan NHS Trust v Ezsias [2007] IRLR 603.[67]It will generally not be appropriate to strike out a claim where the central facts necessary to prove the case are in dispute. It is not the function of a tribunal such an application to conduct a mini trial. The proper approach is to take the Claimant’s case at its highest as it appears from their ET1 unless there are exceptional circumstances North Glamorgan NHS Trust v Ezsias. Such exceptional circumstances could include the fact that the Claimant's case is contradicted by undisputed contemporaneous documents or some other means of demonstrating that 'it is instantly demonstrable that the central facts in the claim are untrue' Tayside.[68]In Balls v Downham Market High School [2011] IRLR 217 Lady Smith reminded tribunals that the test is not whether the claim is likely to fail but whether there are no reasonable prospects of success. That however is not the same thing as there being no prospects of success at all - see North Glamorgan NHS Trust v Ezsias at para 25 citing Ballamoody v Central Nursing Council [2002] IRLR 288. Another way of putting the test is that the prospects are real as opposed to fanciful see North Glamorgan NHS Trust v Ezsias para 26.[69]QDOS Consulting Ltd and others v Swanson UKEAT/0495/11/RN provides authority the proposition that orders under rule 37 should be made only in the most obvious and plain cases and not in cases where there is a need for prolonged and extensive study of documents and witness statements. Those propositions may also be found in the authorities above. HHJ Serota QC prior to stating those propositions drew attention to the similar position under the Civil Procedure Rules. He said (at para 45): [45] It may be instructive to compare the position of striking out under the Employment Tribunal Rules with striking out as provided for in the Civil Procedure Rules. I note that there is a close affinity between striking out under CPR 34.2(a) [sic –there is a typo in the report], which enables the court to strike out the whole or part of a statement of case that discloses no reasonable grounds for bringing or defending a claim overlaps with Pt 24, on summary Judgment. Rule 24(2) entitles a court to give summary Judgment against a Claimant or Defendant on a claim or issue where there is no real prospect of succeeding on the claim or issue, or successfully defending the issue. The notes to CPR 24 in the White Book make this clear: “In order to defeat the application for summary Judgment, it is sufficient for the Respondent to show some prospect; ie some chance of success. That prospect must be real; ie the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word 'real' means the Respondent has to have a case which is better than merely arguable. The Respondent is not required to show their case will probably succeed at trial; a case may be held to have a real prospect of success even if it is improbable. However, in such a case the court is likely to make a conditional order.”[70]Care needs to be taken when assessing whether a case has no reasonable prospects of success to avoid focussing only on individual factual disputes. A case may have some reasonable prospects when regard is had to the overall picture and all allegations taken together see Qureshi v Victoria University of Manchester [2001] ICR 863[71]The statements of principle derived from the cases referred to above do not in any way fetter the discretion of a tribunal to strike out a case where it is appropriate to do so Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at para 41.[72]In Chandhok & Anor v Tirkey UKEAT/0190/14/KN Mr Justice Langstaff made the following comments (with emphasis added): “20. This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura [2007] ICR 867): "…only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination." Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”[73]ED & F Man Liquid Products Ltd v Patel and another [2003] EWCA Civ 472 concerned an application to set aside a default judgment. The Defendant contended that the test was the same as that for summary judgment made under Part 24 of the Civil Procedure Rules. The test to be applied under that rule is whether a claim or defence has “no real prospect of succeeding”. There is no material distinction between this test and the test under Rule 37 of the ET procedure rules. The Court of Appeal explain what is meant by the requirement to take a case at its highest. Potter LJ giving the judgment of the Court said, at para 10 (with emphasis added): “…..where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable..” Striking out claims – time limits[74]In Aziz v First Division Association (FDA) [2010] EWCA Civ 304 The Court of Appeal set out the proper approach when a tribunal is asked to consider striking out a claim on the basis that there is no jurisdiction and where that is resisted by the claimant by suggesting that the event complained of forms part of conduct extending over a period. The Court said: ‘34. One issue of considerable practical importance is the extent to which it is appropriate to resolve issues of time bar before a main hearing. Obviously there will be a saving of costs if matters outside the jurisdiction of the ET are disposed of at an early stage. On the other hand a claimant must not be barred from presenting his or her claim on any issue where there is an arguable case.35. The Court of Appeal considered the correct approach to this matter in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548. In that case the claimant complained of 17 incidents of racial discrimination over a period of many months. The question of time bar was dealt with at a pre-hearing review. The claimant gave oral evidence on that occasion. Having heard the claimant's evidence, the ET allowed five of the claimant's complaints to proceed but dismissed the other 12 complaints as being out of time. The EAT and the Court of Appeal both upheld that decision. Hooper LJ gave the leading judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the pre-hearing review was to consider whether the claimant had established a prima facie case. Hooper LJ accepted counsel's submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period.36. Another way of formulating the test to be applied at the pre-hearing review is this: the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 at paragraph 17.’ Discussion and conclusions The unfair dismissal complaint[75]A claim of unfair dismissal may only be brought against an employer – R1 in this case. The Claimant resigned without notice on 23 February 2021. He contacted ACAS on 3 March 2021 and obtained an Early Conciliation Certificate on 18 March 2021. He presented his claim to the employment tribunal on 10 June 2021. Upon the proper application of Section 207A of the Employment Rights Act 1996 the last date that the Claimant could have presented his claim within the ordinary time limit was 6 June 2021. I checked my own calculation using one of the many free online calculators which can be found in seconds by doing an internet search.[76]It follows that unless the Claimant can show that it was not reasonably practicable to have brought the claim by 6 June 2021 and that it was brought in a reasonable time thereafter the Tribunal cannot entertain that complaint. The Claimant had prepared evidence in relation to that point and I was able to make the findings set out above.[77]The Claimant has relied on a number of different arguments. These are: 77.1. That he was unaware of the proper method of calculating the time limit and got it wrong; and 77.2. That his mental health condition exacerbated by: 77.2.1. The death of his mother and attending her funeral; and 77.2.2. The death of an uncle; and 77.2.3. Concerns about his own health; and 77.2.4. Dealing with his first claim Meant that it was not reasonably practicable to have brought the claim in time.[78]I have found above that the Claimant did not make the mistake that he alleged was in his mind at the time he presented his claim. I find that that is just something the Claimant has seized upon in order to address the Respondents’ application. I need not decide the point on that basis.[79]As I have set out above the test of reasonable practicality requires me to have regard not only to what the Claimant actually knew or believed but to what they ought reasonably to have known or believed about their rights and how to enforce them – see the cases on reasonable ignorance set out above.[80]In this case the Claimant had instructed specialist Counsel to assist him with his first claim. She also assisted him to draft his resignation letter. The Claimant is a highly paid professional. He has given no adequate explanation as to why he could not have asked Anthea Brown when the time limit would expire for bringing a claim of unfair dismissal.[81]Even if the Claimant could not have afforded a few additional minutes of Anthea Brown’s time I find that without her assistance the Claimant was aware of the existence of a time limit. He could with no difficulty whatsoever have used a search engine to find out how Section 207A operated.[82]I do not accept that the Claimant’s ill health had any great impact on his ability to carry out the necessary legal research. His ET1 in this case and in his first case is full of legal references including references to time limits. There are numerous calculators on the internet and it takes just seconds to find one. The Claimant was working through most of the period when time was running against him. His role is senior and carries a great deal of responsibility. If he could carry out that role he was well enough to undertake some basic research.[83]I have accepted that in principle ill health might mean that it is reasonably practicable not to bring a claim in time.[84]I am prepared to accept that the Claimant had anxiety and depression and that the death of his mother and uncle (who I understand died some time later) as well as the stress of dealing with tribunal proceedings would have made the symptoms worse. However, I find that these symptoms were not so grave as to prevent the Claimant from engaging with his first claim and preparing and giving instructions to progress that claim. The Claimant has subsequently demonstrated an ability to provide numerous long and complex documents during a time when Mr Brown suggests he is more anxious rather than less.[85]The Claimant was capable of producing a complex ET1 on 10 June 2021. He has not explained why if he could do that on 10 June 2021 he could not have done it any earlier. There is no evidence that anything changed in that timeframe.[86]I do not accept that there is sufficient medical evidence that would allow me to find that it was not reasonably practical for the Claimant acting for himself to bring his claim in time. At the very worst it would have made in marginally harder for the Claimant to complete an ET1.[87]Whilst I would have found against the Claimant on this point even if he had not had specialist Counsel acting for him in his earlier claim the fact that he did is a further reason why I would find that it was reasonably practicable to have brought the claim in time. The Claimant was highly paid when working for the Respondent. He says that he is in a higher role. He will not say what he earns. He has not provided me with sufficient evidence to show that it was not reasonably practical for him to have instructed Anthea Brown to prepare and submit an ET1 on his behalf on the basis that her fees were unaffordable. I would have found against the Claimant on this alternative basis had it been necessary to do so.[88]As I have found that it was reasonably practical for the Claimant to present his unfair dismissal claim in time the question of whether it was presented a reasonable time thereafter does not arise. Dealing with the Respondents’ application under rule 37 I find that the Claimant has no reasonable prospects of showing that his claim was presented within the time limit imposed by Section 111 of the Employment Rights Act 1996 and that it should be struck out. The remaining claims[89]In respect of the alleged dismissal the Claimant brings the additional claims I have listed above. They are detailed at paragraph 13 of his Particulars of Claim. As I read the Particulars of Claim the Claimant is relying upon the dismissal as being the unlawful act that entitles him to bring those claims and not the individual actions he has set out at rows 1-18 of his table 2. Rows 1-18 refer to matters raised in his first claim.[90]The Claimant then adds rows 19-31 and says that those are further unlawful acts prior to his resignation. Paragraph 19 lists the claims he says arise from these facts.[91]Finally the Claimant lists in Table 3 acts he says post date his resignation. Again he says that the claims that arise are those listed in paragraph 19. Table 3 has a column headed ‘Aided by’ . In that column the Claimant identifies various Respondents.[92]As I understand the Claimant’s case he is saying that the matters in Table 2 entitled him to treat himself as dismissed. That dismissal is one unlawful act of which he complains as well as saying that the matters raised from row 16 – 31 being freestanding claims in both cases under the jurisdictions listed in paragraph 19. The time limit for a constructive dismissal claim relying on discriminatory conduct (or unlawful conduct of a type brought under Section 48) will run from the date of the (constructive) dismissal – see Lauren De Lacey v Wechseln Ltd ta The Andrew Hill Salon UKEAT 0038 20 VP.[93]The approach taken by the Claimant in his Particulars of Claim is very unhelpful. What is particularly disappointing is that the Particulars of Claim were drafted at a point where the Claimant knew or ought to have known that he needed to give proper particulars of each claim he makes. The Claimant wholly fails to do that. To give some examples: 93.1. In paragraph 19 he says that the acts or omissions raised in Table 3 give rise to claims under Section 15 of the Equality Act 2010. He does not say what the ‘something arising from his disability he says was a cause of his treatment; and 93.2. He says that all of the acts in Table 3 give rise to claims under Section 20/21 of the Equality Act 2010. He does not say what policy, criterion or practice placed him at any substantial disadvantage. 93.3. He refers at paragraph 19 to Section 112 of the Equality Act 2010 and refers to individuals aiding the acts set out in Table 3 but he does not say what those individuals did to aid any basic contravention.[94]The Claimant had been asked for further information about his claims but had failed to provide any.[95]Having regard to the dates that the Claimant approached ACAS for the purposes of Early Conciliation any claim arising from the acts in Table 2 would require the Claimant to either obtain an extension of time or to show that those acts formed part of conduct extending over a period (for the Equality Act claims) or an act extending over a period or that the act was part of a series of similar acts one of which was in time (for the purpose of claims brought under the Employment Rights Act 1996). I shall refer to such claims as potentially out of time.[96]The effect of Section 207A of the Employment Rights Act 1996 (and Section 140B of the Equality Act 2010) is that: 96.1. For R2 any act prior to 25 February 2021 is potentially out of time; and 96.2. For R3-R9 any act prior to 8 March 2021 is potentially out of time; and 96.3. For R10 – R13 any act prior to 27 February 2021 is potentially out of time; and 96.4. For R14 – R16 any act prior to 26 February 2021 is potentially out of time.[97]I need to deal with the issue of whether the Claimant has any reasonable prospects of success in showing that the claims identified in Table 3 are sufficiently linked with the earlier claims referred to at paragraphs 13 and 16 of the Particulars of Claim. I shall use the term ‘sufficiently linked’ as shorthand for the test I have set out in my self-direction above and include the question of whether any potentially out of time allegation is part of a series of similar acts.[98]The position of the individual respondents and R1 are not the same. R1, the corporate Respondent is liable for any unlawful acts or omissions of R2 – R16 arising in the course of their employment – see Section 109 of the Equality Act 2010. R1 has expressly disavowed the statutory defence provided within that section.[99]In the Claimant’s first claim I was required to decide when time started to run against an individual whose unlawful act formed part of conduct extending over a period. I held that time would run against the individual from the latest date of any act or omission by them and not from date that the conduct extending over a period comprised of acts of third parties ended. My reasons are fully set out in my judgment dated 1 March 2023 between paragraphs 45 and 68. As that judgment is in the public domain there is no reason to repeat my reasons here but I adopt those reasons.[100]In Table 3 the Claimant has suggested that for each of the 5 acts or omissions the person or persons responsible were aided by all of the remaining Respondents. I shall return to the question of whether I need to take the assertion that all of the Respondents aided all acts at face value below. In terms of when time runs against an individual respondent said to have committed an unlawful act under Section 112 of the Equality Act 2010 I consider that the same approach should be taken as if they had directly committed an unlawful act. The time limit must run from the date they did the thing that was unlawful. That is the date on which they aided the act of another. Some forms of aid might be conduct extending over a period. Whether that is the case is a question of fact.[101]In order to find that there was a sufficient link between the table 3 claims and the table 2 claims I need to deal with each Respondent separately. Table 3 has a column ‘Who’. On any fair reading of the Particulars of Claim that is a reference to the person who did the act and/or omission complained of. The references in that column are limited to R10 to R16 plus R1 who would in any event be liable for the acts of the named Respondents pursuant to section 109 of the Equality Act 2010.[102]Ms McCann argued that the resignation of the Claimant broke any course of conduct and that any acts after the resignation could not be considered part of conduct extending over a period or a series of similar acts with anything that occurred before the resignation. I am not satisfied that as a general proposition that will always hold true. It is easy to think of conduct that straddles a resignation that might amount to a sufficient link. Sexual harassment either side of a resignation might be one example. I consider that each case will depend on its own facts. On a strike out application the test is whether the Claimant has established a reasonably arguable basis for showing a sufficient link between acts. I need to apply the guidance in Aziz v First Division Association (FDA) where it was said that one relevant but not conclusive factor is whether the same individuals or different individuals were involved in the incidents. R1, R10-R16[103]There are 5 allegations in Table 3. The first concerns a suggestion that there was ‘a deliberate failure to investigate my grievances’. That is said to have been something done by 5 people R10 – R16. The poverty of the pleading is particularly apparent. The reader has no idea what each of those individuals is said to have done wrong. The allegation is said to give rise to 8 or perhaps 9 causes of action described in paragraph 19 of the particulars of claim.[104]In Table 2 there are some allegations made against R10 - R15. R16 is not mentioned. The causes of action are the same and are those specified in paragraph 19.[105]In Cox v Adecco & others UKEAT/0339/19/AT HHJ Tayler cautioned tribunals about making orders to strike out claims where the issues are unclear. In the present case the list of issues prepared by the Respondents, but not acted upon by the Claimant does set out the claims that have been brought. The draft list highlights the absence of particulars in respect of some claims but the basic claims are clear. Nevertheless the claims are put in general terms.[106]The Table 3 claims as against R1, R10-R16 are all apparently presented within the relevant statutory time limits. The claim that there was a failure to make payment of accrued but untaken holiday is expressed as occurring ‘Since 23 February 2021’. In reality any failure to pay would relate to the next payment date 28 February 2021 at the earliest.[107]As I have said there are claims against R1, R1-R15 in table 2 which rely on the same causes of action. Claims involving the same people of the same type might support a conclusion that it is reasonably arguable that there is a sufficient link between the claims. I consider that at present I do not have sufficient information about the claims brought to allow me to make a proper assessment. Whilst Cox v Adecco & others is not directly on point the caution that is urged before striking out a claim is of general application.[108]I consider this situation to be highly unsatisfactory. Had the Claimant responded to the Respondent’s request for further information and engaged in agreeing a list of issues then I would not be in the position I am.[109]I am not going to make any orders striking out the claims against R1, R10-16 as it is at least possible that when particulars are provided there may be some claims where the Claimant is able to show a sufficient link between table 3 and table 2 claims. What I shall do is to make case management orders requiring the Claimant to provide proper particulars of his claims as I have previously ordered. The Respondents will then be at liberty to renew their applications if so advised.[110]I shall not make any deposit orders in respect of these Respondents for the same reasons. It is premature to do so. R2-R9[111]It is the Respondent’s pleaded position that R6, Faye Richardson, left R1’s employment in December 2019. The Claimant has not ever said that he disagreed with that. If that is true then there could be no claim against her after that date unless she was acting as an agent of R1. The Claimant has not identified anything said or done by her after that date and did not suggest before me that the Respondents are wrong about her dates of employment.[112]The Claimant says that R2-R9 aided all of the acts in table 3. He has been asked to explain what those people did but has not responded. It is clear that including R6 was entirely baseless. I am driven to the conclusion that the Claimant has just included her name because of his previous dealings with her.[113]In Row 1 of Table 3 the Claimant alleges that there was a deliberate failure to investigate his grievances and his appeal. He lists acts on 2 March 2021 to 18 June 2021 although he does not say what he is complaining about. What is alleged is a deliberate omission. I do not consider it is possible to knowingly help a person with an omission but I can put that to one side. The Claimant has had opportunities to explain how he would put this claim. Firstly he was asked to give further information. Secondly he had an opportunity before me. He has included a claim against R6 where he cannot contradict the Respondents’ account that she was not an employee at the material time.[114]Row 2 refers to R15 ‘covering up independence of grievance investigators’ on 21 May 2021. In their ET3 the Respondents explain that on that date R15 wrote to the Claimant and told him that hearing managers in grievance and appeal cases always received HR support. The Claimant clearly views that as ‘covering up’. I should put aside the merits of that claim at this stage. In Table 3 the Claimant suggests that all of the Respondents ‘aided’ the sending of that letter. I am of the view that that there is no prospect of showing that R2-R9 aided R15 in writing her letter.[115]In the bundle before me was an e-mail from Melanie Phillips, R11 sent on 3 March 2021 acknowledging the Claimant’s resignation. She says: Thank you for your letter dated 23 February 2021, in which you resign from your position of Vice President within the Model Validation team with immediate effect. We will process your resignation accordingly, including making a payment for the 14 ½ days holiday which you have accrued but not used up to 23 February 2021. Please can I ask you to confirm whether you have any Barclays property (eg laptop, building pass, mobile phone, etc) which will need to be returned? Similarly, I am conscious that you have been out of the office on sick leave since September 2019 and therefore you may have personal belongings in a locker or desk in the office. Given the current restrictions on building access at the moment, when it is appropriate to do so, we can either arrange for you to have access to the office to drop off any Barclays property and pick up any personal property, or we can arrange for a courier to do the same. Please can I ask you to confirm any Barclays/personal property which needs to be returned and your preference for the method by which it is returned? Finally, I note the issues you have raised within your resignation letter. Please can I ask you to confirm whether you would like these issues to be referred to an independent manager for investigation through Barclays’ internal grievance process?[116]Rows 3 and 4 of Table 3 outline claims that R10 (which must really be R11) had failed to make arrangements for collection of personal property and that the Claimant had not received any holiday pay. In the ET3 it is accepted that there was a delay in processing the Claimant’s final payment. Putting to one side the merits of the claim advanced against R1 and R10 the Claimant then pleads that all of the remaining Respondents aided those omissions. That includes R6 who left R1’s employment in December 2019. I am of the view that there is no prospect of showing that that R2-R9 did anything to aid these particular omissions.[117]Row 5 of Table 3 refers to a further letter from R15. The complaint is that R15 confirmed the involvement of the Respondents in maintaining the state of affairs. The allegation is very hard to understand. It is plainly a reference to a letter written by R15. The ‘confirmation’ the detriment complained of. There is no explanation of how R2-R9 have aided that letter being written and I find that there is no prospect of establishing that they did.[118]To establish a reasonably arguable case bringing the claims Table 2 claims against R2-R9 into time (without any just and equitable extension) the Claimant must show that there were acts or omissions by those Respondents post dating 25 February 2021 for R2 and 8 March 2021 for R3-R9. He also needs to show that there is a sufficient link between those claims and the earlier claims.[119]The allegations of aiding set out in Table 3 are bare assertions. The Claimant has not set out any details of any act or omission that post-dated the events set out in Table 2. I have considered whether the Claimant should be given a further opportunity to clarify his claim. I do not think that it is in the interests of justice to do so. The Claimant has had ample opportunity to explain his case. He has brought claims against R6 which are fanciful. There is no reason to think that his claims against R2,3,4,6,7,8,or 9 are any better. The Claimant can maintain the same claims against R1.[120]I find that the Claimant has not established any reasonably arguable basis for a sufficient link between claims which are in time and those potentially out of time in respect of these individual respondents.[121]I shall apply those conclusions to Employment Rights Act claims. There is no provision from bringing a claim under Section 44 against an individual other than an employer. It follows that claims under that section cannot be pursued against R2-R9. Section 47B(1A) does permit a claim to be brought against a fellow worker. However, my findings are that the Claimant has not set out any act or omission that postdates the earliest date that a claim would have been potentially in time which would fall within that section. I do not consider that the mere assertion of ‘aiding’ in Table 3 is sufficient to establish any such claim. I do not consider that the claims of ‘aiding’ have any realistic prospects of success. The Table 2 claims are out of time and the test of reasonable practicality is the same for the unfair dismissal claim. For the same reasons as I give above the claims under Section 47B were presented outside of the time limit in Section 48 of the Employment Rights Act 1996 and the tribunal has no jurisdiction to entertain them.[122]For the Equality Act claims I need to consider whether the Claimant has any reasonable prospects of success in persuading a tribunal that it would be just and equitable to extend time for the Equality Act claims.[123]I have set out above my reasons for deciding that it was reasonably practicable for the Claimant to have brought his claims in time. The test in Section 123 of the Equality Act 2010 is different but the reasons for any delay are a relevant consideration. I rely on my findings above and conclude that the Claimant has not given any good explanation why he did not present his claim against R2-R9 within the time limits imposed by Section 123. I place particular emphasis on the fact that the Claimant was working in a senior managerial role. If he could do that he could have completed an ET1. I do not accept that any of the health difficulties I have acknowledged interfered with his ability to do so.[124]A matter that I consider that a tribunal would be bound to have regard to when considering whether it is just and equitable to extend time is the fact that a refusal to extend time in respect of an individual respondent does not by itself prevent the claim proceeding against the corporate respondent.[125]I would accept that the delays between the table 2 claims and the presentation of the ET1 are short. Often the fact that there is just a short delay would point towards a lack of any forensic prejudice. On the Claimant’s pleaded case if time were extended to the date of his resignation then the Tribunal, as against these individual Respondents, will have to deal with matters going back to 2016. Whilst many factual disputes may be resolved in the other proceedings there may be issues which are said to be distinct.[126]I accept that if a tribunal refused to extend time the Claimant would not be able to pursue his case against these individuals. That causes obvious prejudice.[127]I have heard the evidence directed towards whether it is just and equitable to extend time. I find that having regard to all of the circumstances it would not be just and equitable to give the Claimant any extension. He could have and should have brought his claim on time and there was no good reason why he could not do so.[128]It follows that the claims against R2-R9 brought under the Equality Act 2010 that require an extension of time have no reasonable prospects of success.[129]I shall make further case management orders in due course.
Discussion and conclusions
[1]The Respondents’ application for an order striking out the Claimants claims made pursuant to Rule 37 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is dismissed.[2]The Respondents’ application for the costs of and occasioned by the Claimant’s breach(es) of the orders of the Tribunal that he provide further information about his case limited to the costs of the extension to the hearing succeeds.[3]The Claimant is ordered to pay the Respondents the sum of £1500 as a contribution to the legal costs incurred by the Respondents by his unreasonable conduct and/or his actions in failing to comply with the orders of the tribunal.[1]The hearing was listed by me to consider an application by the Respondents that the Claimant’s claims should be struck out pursuant to Rule 37 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 made on the basis that the Claimant has persistently failed to comply with tribunal orders that he properly particularised the claims that he was bringing. The Respondent made a further application that whether its primary application succeeded of not the Claimant should be ordered to make a contribution to its costs of £1500. The Claimant resisted both applications. The hearing[2]At the Claimant’s request I converted what was to be an in person hearing to a hearing by video (‘CVP’). Other than some initial connection difficulties the hearing proceeded without difficulty. I record that I had previously refused a request by the Claimant to postpone the hearing made on the basis that he was anticipating receiving a judgement in respect of his earlier claim made against some of the same Respondents. I had explained that in my view the issues raised in the Respondents applications were entirely independent of the outcome of the first set of proceedings.[3]The Respondents had prepared a bundle said to contain all the relevant documents. The Claimant has set out his arguments in relation to the Respondents’ applications in e-mail correspondence and most recently in his email sent to the Tribunal on 25 October 2023 at 15:01. Ms McCann had prepared a skeleton argument.[4]I heard from both the Claimant and Ms McCann both of whom amplified their arguments previously set out in writing. I shall not set out the competing positions separately at any great length but deal with the salient points in my discussions and conclusions below. The application to strike out the claims[5]The law that I needed to apply in respect of the Respondents’ application is set out below.[6]Rule 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure)Regulations 2013 (hereafter ‘the rules’) provides as follows: Striking out 37.—(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;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (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……[7]In Bolch v Chipman [2004] IRLR 140, EAT it was suggested that the ordinary approach to the question of whether a claim should be struck out because of the conduct of a party is to address the following questions:a. whether there has been scandalous, unreasonable or vexatious conduct of the proceedings: andb. whether a fair trial is no longer possible: andc. whether strike out would be a proportionate response to the conduct in question: andd. what further consequences might follow.[8]In Bennett v London Borough of Southwark [2002] EWCA Civ 223 Sedley LJ has given the valuable reminders that:a. 'the courts and tribunals of this country are open to the difficult as well as the compliant, so long as they do not conduct their case unreasonably' Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684b. ‘Courts and tribunals do need to have broad backs…’ Bennett [ para 19][9]Where the conduct complained of is willful or contumacious then that may entitle a tribunal to strike out a claim even if a fair trial remains possible – National Grid Co Limited v Virdee [1992] IRLR 555 EAT.[10]Even where one of the tests permitting a tribunal to strike out a claim is met there is a separate question to be asked as to whether the Tribunal should exercise its discretion to strike out the claim see Hasan v Tesco Stores Limited UKEAT/0098/16 in support of those propositions.[11]When considering whether I should strike out the claims on the basis of a failure by the Claimant to comply with the orders I need to consider whether some lesser sanction is capable of ensuring that there can be a fair trial see Weir Valves and Controls UK Ltd v Armitage [2004] ICR 371, EAT where at paragraph 17 the EAT said: ‘The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.’ The events leading to the application.[12]In order for me to determine the Respondents’ application it is necessary to have regard to the entirety of the procedural history of this claim and the earlier claim brought by the Claimant. Within this section I make findings of fact in respect of the Claimant’s conduct of these proceedings.[13]I shall start with the claim form in the present claims. The ET1 was presented on 10 June 2021. The presentation of that claim needs to be seen against the background of the Claimant’s earlier claim. That claim had been presented in June 2020. The scope of the claims included in the ET1 was substantial numerous claims under various jurisdictions were said to arise from a large number of factual allegations. The claims were advanced against a large number of individuals. At an early stage the Respondents to those claims had asserted that there was an absence of proper particulars and suggested that the claims as set out were unclear.[14]The subsequent disputes between the parties required considerable case management. A hearing took place on 8 April 2021 at which the Claimant was represented by counsel. I made directions that the Claimant provide further information about his first claim. When the Claimant did provide further information the Respondents asserted that he had sought to introduce new claims which required permission to amend. At a further preliminary hearing on 20 and 21 May 2021 the Respondents’ position was broadly vindicated when it was accepted by Counsel acting for the Claimant that permission to amend was necessary. It was shortly after this hearing that the Claimant issued this claim.[15]The ET1 prepared by the Claimant brought claims against 16 Respondents. The Claimant identified 11 causes of action at paragraph 3 of his ET1. He includes a claim of constructive unfair dismissal (also said to be an act of discrimination). The particulars of the alleged breach of contract are set out in a table (Table 2) in summary form. The Claimant sets out further acts said to be unlawful in Table 3. This table too is in summary form. It refers to events taking place on various dates as far back as 2017. In his ET1 the Claimant reserved the ‘right’ to add to or amend his claim in the future.[16]The Claimant has resisted a suggestion made by the Respondent that his second claim was consolidated with his first. Indeed he had suggested the Respondents solicitor had acted dishonestly when it was asserted that it was an agreed position that the actions be consolidated. I had agreed that the action should proceed separately. I had considered it important that the individual respondents who were not concerned with the earlier claims should not have matters left hanging in abeyance pending final resolution of the initial claims.[17]Whilst the Claimant’s ET1 included a vast number of claims the details of what each individual respondent was said to have done that was unlawful was wholly lacking. When the Respondents presented their ET3 it included the following paragraph: ‘As detailed further below, the Claimant’s claim is significantly lacking in specification. The Respondents will write to the Claimant in due course (following the preparation of an initial draft list of issues in relation to this claim) to request that he provides further and better particularisation of his claim. Accordingly, these Grounds of Resistance are provided without prejudice to any response received from the Claimant to such a request, and the Respondents reserve their right to apply to amend these Grounds of Resistance following receipt of the Claimant’s response.’[18]The applications to amend made by the Claimant and the other Claimants in the first claim took me some time to resolve (largely due to the scope of the exercise. In my case management order dealing with those applications I made directions for the progress of the Claimant’s second claim. I made directions for there to be an open preliminary hearing for the purposes set out at paragraph 6 of my orders dated 16 February 2022 and sent to the parties on 18 February 2022. The hearing was fixed to deal with questions about whether the claims, or some of them, should be struck out because they had been presented outside any applicable statutory time limit. In addition I made directions aimed at clarifying the issues in the case.[19]The direction relevant to the present application was set out at paragraph 7.3 read with 7.2. I directed the Respondent to make a request for any further information. I directed the Claimant to respond to that request by 18 April 2022. The Respondent did comply with my case management orders sending the Claimant a request for further information on 21 March 2022.[20]The Claimant did not comply with my order that he provided further information. He did not comply with my orders in respect of the exchange of evidence in order that the question of whether his claims, and in particular his unfair dismissal claim, were presented within the statutory time limits. In fact the Claimant took no steps whatsoever in progressing his second claim. In correspondence he sought variations of my orders asserting that he did not have the capacity to deal with the steps necessary to progress both his first and second claims.[21]The Claimant failed to attend the hearing on 29 April 2022. My findings in respect of the Claimant’s conduct in failing to take any steps to prepare for that hearing and/or failing to properly evidence any reason why he could not properly prepare for that hearing are set out in my costs judgment dated 23 September 2022. In short I found that the Claimant had acted unreasonably in failing to comply with my directions or alternatively failing to make a properly evidenced application to vary the directions and/or seek a postponement. I concluded that the Claimant had made a decision to prioritise those parts of his other claims that he was actively pursuing (to the extent of appealing my decision to postpone a 6 week trial).[22]I decided not to proceed with the hearing on 29 April 2022 in the absence of the Claimant but instead fixed a further hearing to take place on 7 June 2022. At that hearing I dealt with the issue of time limits. My decisions were set out in a judgment dated 22 March 2022 (a substantial delay but caused in very great part by the time taken to case manage the first claims). I made a further case management order dated 28 March 2023 dealing with the steps necessary to progress the claims. In particular, I required the Claimant to answer the Respondent’s request for further information dated 21 March 2021 by no later than 31 July 2023. I selected a date some months after my order was made to accommodate the fact that the Claimant was attending his 30 day hearing in the summer of 2023. I had in my judgment in the strike out applications made it clear that the Claimant’s failure to provide the further information that I had ordered him to give was impeding the case management of the second claim.[23]During the hearing I drew attention to the fact that on 10 July 2023 the Claimant had presented an ET1 at the London Central Employment Tribunal bringing a claim against his current employer.[24]On 24 July 2023 the Respondents sent a letter to the Claimant reminding him of my case management orders. The letter was entirely measured and reminded the claimant of his obligations. On 31 July 2023 shortly before midnight the Claimant purported to comply with my orders.[25]It is sufficient to say that the Claimant wholly failed to provide the further information that I had ordered him to give. His responses were, either to refer the Respondent back to paragraphs of his particulars of claim, or to suggest that he had not understood the request. I do not accept that the Claimant failed to understand the requests made by the Respondents. The requests were crystal clear, and I note that the Claimant, who had been in possession of the request for further information had not asked for clarification in the two year period since the request had been made.[26]The Respondents wrote to the Claimant by e-mail on 7 August 2023. That e-mail started with the following passage: ‘The responses attached to your email do not comply with the terms of the Tribunal’s order sent to the parties on 29 March 2023, as they do not answer all of the Respondents’ questions included in their request for further information. In order to progress matters at this stage, the Respondents require (at the very minimum) confirmation of the heads of claim that you assert are applicable to each of the complaints included in your Particulars of Claim.’[27]The Respondents then went on to list the 10 statutory causes of action that the Claimant has identified in his ET1 (omitting the unfair dismissal claim which had been struck out). The e-mail included a list of the factual events summarised by the Claimant in his ET1. The e-mail warned the Claimant that if he did not comply with this request they would seek an unless order. The Respondents sought a response by 18 August 2023.[28]The Respondents e-mail suggested that the Respondent at least would be satisfied at that stage with far less information than I had ordered the Claimant to give. Whilst that may have been a pragmatic means of making progress it is not for the Respondents to vary my orders. Compliance with the Respondents reduced request would in many instances still not provide sufficient detail of who had done what and on when necessary to properly understand the Claimant’s case against each individual Respondent.[29]The Claimant responded to the Respondents on 18 August 2023. He said simply, ‘All the legal claims you have listed below are relevant for each of the allegations in the table below’. It is impossible to see how some of the factual allegations could amount to some of the causes of action the Claimant says that the claims are brought under. The Respondents’ broad brush attempt to move matters on had resulted in the Claimant making the widest possible allegation that could be supported by his pleaded case with no attempt to identify the elements of each specific claim.[30]The Respondents continued to press the Claimant for information about the way he put his claims. On 1 September 2023 the Respondents sent the Claimant a draft list of issues with parts highlighted where the Respondents said that further information was required. The Respondent said that if the Claimant did not comply with their request by 15 September 2023 they would apply for an unless order.[31]The Claimant did not respond to the Respondents’ e-mail of 1 September 2023 and on 21 September 2023 the Respondents sent a reminder which included a warning They said that if no response was received by 25 September 2023 they would apply for an unless order.[32]The Respondents made an application for an unless order by e-mail on 27 September 2023. Their application set out the history summarised above. They indicated that if I were not minded to make an unless order they reserved the right to apply for the claims to be struck out. I dealt with that application. I declined to make an unless order given the difficulties in assessing whether there is material compliance. I put the Claimant on notice that my provisional view was that his response to the request for further information dated 31 July 2023 did not comply with my order. I encouraged the Claimant to deal with any missing further information and suggested that he sought advice or looked at the Statutory Code of Practice to the Equality Act 2010. I ordered that the hearing listed for 31 October 2023 be expanded to a full day for a hearing in public to decide whether the claims should be struck out and to deal with any issues of costs providing that an application was made 7 days before the hearing.[33]The Claimant did not heed my suggestion that he revisit his efforts to provide further information in advance of the hearing listed before me. As indicated above he has taken the stance that either he had complied with my order by means of his responses on 31 July 2023 or that he had done so through the means of his witness statement and the evidence given in his first claim. Discussions and conclusions – the strike out application.[34]I have no hesitation in holding that the Claimant was in repeated breach of my order that he provide further information. His brief responses of 31 July 2023 do not provide any further information at all. I cannot accept the Claimant’s argument that the need to give further information in his second claim was discharged through providing a 200 page witness statement in his first claim. It is not incumbent on the Respondent or the Tribunal to trawl through a 200 page document to identify elements that might support the 100+ claims that the Claimant says are included in his second claim.[35]I need to consider whether that failure was wilful of whether it was the product of any disability or a misunderstanding about what was required.[36]I have concluded that the Claimant has simply refused to take any action in his second claim because he wanted all directions in that claim to await the conclusion of his first claim. That has been his stance throughout the proceedings. I had repeatedly made it clear that the claims would be case managed separately. The Claimant is well educated and has a senior position in financial services. He is highly intelligent. Whilst the documents that he has produced do not always accurately state the law it is evident that he has undertaken a very large amount of legal research. By the time he submitted his purported further information he had represented himself at a 30-day hearing. I reach the conclusion that he knew why I had made the orders I had, and I find that he understood what was required. The fact that he had undergone an identical exercise in his first set of proceedings supports those findings.[37]The Claimant’s stance has included a challenge to the necessity of providing the information I have ordered him to give. He has further suggested that he has complied with my order because his witness statement served in the first set of proceedings includes responses to many of the requests for further information. He has criticised the Respondents in robust terms for their stance in seeking what I regard as the basic information necessary to understand who is said to have done what that is said to be unlawful. In an e-mail to the tribunal sent on 27 October 2023 he said: ‘The respondents are engaging in an abusive process and acting in bad faith by seeking further and better particulars and applying for costs. They already possess all the essential details within my case. I have submitted a comprehensive 200-page witness statement for LS1, encompassing my entire period of employment at Barclays, with the most recent event detailed in 2022. Additionally, the disclosed documents include information in the respondent's possession up to 2022. Furthermore, cross-examinations have unveiled substantial additional information. They possess an intricate understanding of this case.’[38]The Claimant has implicitly suggested that his disability provides an explanation for his failure to comply. I do not accept that. The Claimant has provided a letter from Dr Matthew Green a consultant Psychiatrist that suggests that he has been suffering a depressive episode with significant anxiety since August 2023. The suggestion that is made is that the Claimant would be assisted by a hearing being conducted remotely. I had acceded to the Claimant’s request for this hearing to be conducted over CVP. The evidence of Dr Green did not deal directly with the issue of why the Claimant was able to take steps in the first set of proceedings – including the ability to produce lengthy and argumentative documents, bring further proceedings against his new employer, represent himself through a 30 day hearing and file written submissions at the conclusion of that case but was unable to comply with my orders once that case was concluded. The Claimant told me that his witness statement in his first claim ran to 200 pages. If his disability did not prevent him from completing that document I cannot accept that he was unable to comply with my order after the conclusion of the hearing of the first claim. If he is right and that document includes all the information requested by the Respondents then he could and should have extracted it. It was certainly not for the Respondents to do so.[39]I have considered a point implicit in the Claimant’s submissions that raises the suggestion that whilst the Claimant had capacity to deal with his first claim the additional burden of dealing with his second claim made that impossible or at least very difficult. That point is perhaps stronger looking at the period before 17 June 2023 the final day of the hearing of his first claim. It is unpersuasive after that date. As I have set out above my second order of 28 March 2023 requiring the Claimant to give further information fixed the date of 31 July 2023 for its provision precisely because I wanted to ensure that the Claimant had completed his first claim and had an opportunity to focus on his second claim. Whilst the Claimant commenced a claim against his current employer during that period he did not take any steps in relation to this claim.[40]The Respondent offered the Claimant an opportunity to provide at least some of the further information I had ordered he give before it raised the matter with the Tribunal. When the matter was eventually raised with the Tribunal on 27 September 2023 I made it clear that I expected the Claimant to remedy any omissions. The Claimant did not avail himself of any of those opportunities.[41]I have come to the conclusion that the Claimant knew that his document sent to the Respondent on 31 July 2023 did not comply with my order and that he had no intention of complying with the order at the time the document was sent. In short it was an open defiance of the Tribunal resisting my efforts to case manage the second claim before the first claim had concluded as he had wanted.[42]It follows from those factual conclusions that I find that the Claimant has been and remains in breach of orders of the Tribunal. I also conclude that in the light of my finding that his conduct is both wilful and defiant he has also acted unreasonably in the manner in which he has conducted the proceedings. The lack of progress in the proceedings is self-evident. That lack of progress is a sufficient basis in my view for a conclusion that the present claim has not been actively pursued by the Claimant. Important information necessary for both the Respondent and the Tribunal to understand the case is still lacking and there is insufficient detail given by the Claimant to draw up a meaningful list of issues.[43]Having concluded that three of the conditions for striking out a claim are met I must decide whether to do so would be proportionate. It does not follow that because I have found that the Claimant’s conduct of the proceedings has been in wilful defiance of the orders of the Tribunal that I should apply what is the ultimate sanction of striking out the case - Hasan v Tesco Stores Limited.[44]I am guided by Weir Valves and Controls UK Ltd v Armitage. Whilst in some cases of conscious disobedience of tribunal orders it might be appropriate to strike out the case I still need to consider the proportionality of such a step. A matter which I must consider is whether some lesser sanction would suffice. A lesser sanction would not suffice if the default had resulted in a fair trial being impossible in the future. A fair trial will be impossible unless the Claimant does what I have directed him to do. It is open to me to make an order under Rule 30 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations which would have the effect of bringing the claims to an end unless the Claimant provided the further information I have ordered him to give. I have alluded to difficulties in enforcing such orders.[45]Whilst I have listened to the careful submissions of Ms McCann, many of which are reflected in my conclusions about the Claimant’s conduct I have come to the conclusion that it would not be proportionate to strike out the claims before giving the Claimant a final opportunity to comply with my orders. If he did that then despite the delay caused in part by the Claimant’s failure to do what he was ordered to do there can still be a fair trial of these claims.[46]For these reasons I decline to strike out the Claimant’s remaining claims. Instead I announced an unless order giving the Claimant 4 further weeks to comply with my order. He tole me that that 14 days was a sufficient period to comply. I did not consider that realistic and granted more time. I made it clear that the period of 4 weeks ran from the date I pronounced the order. It has not been suggested by the Respondent that the Claimant has failed to comply. Costs[47]The Respondents had applied for an order that the Claimant made a contribution to their legal costs. They sought only the costs calculated by reference to half of Counsel’s fee for a single day. The sum sought was £1,500. The basis for asking for half a day’s fee was said to reflect the additional time that I had added to the hearing in order to deal with the Claimant’s default.
The relevant law
[48]Whilst I have in my previous decision in this claim set out the legal framework applicable to an application for costs I shall do again to identify the principles I had in mind in the current application.[49]The jurisdiction to make an order of costs is found in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) 2013. The material parts of Rule 76 provide: “When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted….(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”[50]There is essentially a 2 (or perhaps 3) stage test. Other than in defined circumstances, before there is any jurisdiction to award costs at all the tribunal must be satisfied that one or more of the threshold conditions set out in Rule 76(1) or (2) has been satisfied. If, and only if, it has should the tribunal move on to consider whether, in the circumstances of the particular case, it is right to make a costs order. It does not follow that because one or more threshold conditions are met a costs order will inevitably be made. A tribunal must exercise its discretion taking into account all relevant matters - Abaya v Leeds Teaching Hospital NHS Trust UKEAT/0258/16. Finally, if a costs order is to be made, it is necessary to decide what amount, if any to award. See Monaghan v Close Thornton Solicitors [2002] EAT/0003/01[51]Notwithstanding the existence of the jurisdiction to award costs the exercise of that jurisdiction remains exceptional Gee v Shell Ltd [2003] IRLR 82.[52]In Barnsley BC v Yerrakalva [2012] IRLR 78 CA Mummery LJ said: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.”[53]There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable, see McPherson v BNP Paribas [2004] ICR 1398 CA[54]Rule 84 of the procedure rules provides that when deciding whether to make a costs order and if so in what amount the Tribunal may have regard to the means of the paying party. The rule is permissive rather than mandatory although it would be an unusual case where the means of the paying party were not a material factor. Discussion and conclusions – Costs[55]I dealt with the Respondent’s application for costs after I had announced my reasons for not acceding to the Respondent’s application to strike out the claim. The Claimant quite rightly did not seek to address me at any length on the issue of whether the costs threshold was met. Whilst he did not accept my findings and criticism of his conduct he recognised that on the basis of those findings the threshold for making a costs order was met. I had found him to have acted unreasonably in failing to comply with the orders of the Tribunal. That was aggravated by the fact that he did no, not because he could not or did not understand what was required but because he did not want to.[56]I repeat my findings set out above. I am satisfied that the Claimant’s conduct of the proceedings has been unreasonable. As such I may make a costs order. The fact that I may does not mean that I should – see Abaya v Leeds Teaching Hospital NHS Trust and Gee v Shell Ltd.[57]I have had regard to the magnitude of the Claimant’s default. I consider his conduct to have been seriously unreasonable. In particular in the period from 31 July 2023 the Claimant has wholly failed to engage with the Respondents who at least initially gave him further opportunities to rectify his default. I recognise that the Claimant’s focus has been on his first claim and that he has devoted his energies to that. I am sure that he would have preferred to see what the outcome of that was before doing further work on his second claim. However in taking that approach he shows no empathy for the individuals he has named in the second set of proceedings who are entitled to a fair and speedy resolution.[58]I remind myself that I should not stray into making a costs order to demonstrate my disapproval of the Claimant’s conduct. A costs order is by its nature compensatory.[59]It could be said that the Respondents have failed to obtain an order striking out the Claimant’s case. In that sense the Claimant is the victor in this hearing. That is in my view a narrow view of the outcome. What the Respondents have achieved is a complete vindication of their assertion that the Claimant has behaved unreasonably. The unless order I have made is very much a final warning to the Claimant.[60]I have set out a history of the efforts of the Respondents to get the Claimant to do what he had been ordered to do. Against those efforts I express some surprise at the modest sum sought by the Respondents in their application for costs. I have no doubt that the costs actually expended would far exceed what is sought. Had the Respondents sought the costs of chasing the Claimant over a two year period for the most basic details of his claims I would have been sympathetic to that application.[61]Taking all of these matters and all other circumstances into account I have concluded that it is appropriate to make an order for costs.[62]I have had regard to what I know about the Claimant’s means. He holds a position in a financial institution at a greater level of remuneration than he received from Barclays. Whilst I do not know his exact income, it is in excess of £100,000 per annum before taxes. He tells me he has a mortgage and responsibilities towards his wife and children. I accept that. However I find that the Claimant would be able to afford (a further) sum of £1500 in addition to the first costs order that I made against him. If he has not got that sum immediately he will be able to afford it in a reasonable time.[63]I have set out the case management orders I made in a separate order.[64]The requests in relation to the claims of knowingly aiding a contravention under Issue 35.3 all relate to the factual allegation at para 4.16 (of which no further information was requested), which reads: ‘Since 3 March 2021, R1 and R10 have failed to make arrangements for the collection of LS’ personal belongings. Jeong Kim, Ron Rood, Konstantina Armata, Claire Fordham, Faye Richardson, Chris Easdon, Ruth Surendran and Jeremy Haworth and R11 – R16 “aided” this (Table 3, Row 3).’[65]The requests begin with a global request: ‘LS to confirm: What the relevant individuals (listed below) specifically did or deliberately did not do which knowingly aided that basic contravention by the Bank (R1) and Elyse Gonzalez (R10) from 3 March to 10 June 2021. The basic “contravention” was from 3 March 2021 and 10 June 2021 (date of LS’ ET1) (Table 3, Row 3: “failure to make arrangement for the collection of my personal belonging”).’[66]The Respondent has deleted the allegation at Issue 35.3.9 of aiding a contravention against Ms Gonzalez (R10), because R10 is alleged to have committed the basic contravention underlying this complaint, so cannot knowingly aid’ herself. That is unarguably correct; the claim against her is misconceived.[67]There follows essentially the same request in respect of the Claimant’s allegations at Issues 35.3.1 to 35.3.8, and 35.3.10 to 35.3.15 against the other 14 individuals (named above): ‘What [the individual] specifically did or deliberately did not do which knowingly aided that basic contravention by the Bank (R1) and Elyse Gonzalez (R10) from 3 March to 10 June 2021. The above is difficult to follow in the context of the underlying contravention (Table 3, Row 3: “failure to make arrangement for the collection of my personal belonging”).[68]The information is plainly necessary because all the Claimant’s allegations under para 35.3 of aiding the contravention at para 4.16 are so generalised that[69]The Claimant challenged the request; he has failed to comply with the order.[70]The requests in relation to the claims of knowingly aiding a contravention under Issue 35.4 all relate to the factual allegation at para 4.17 (of which no further information was requested), which reads: ‘Since 23 February 2021, R1 and R10 have failed to make payment of LS’ accrued but not used holiday. Jeong Kim, Ron Rood, Konstantina Armata, Claire Fordham, Faye Richardson, Chris Easdon, Ruth Surendran and Jeremy Haworth and R11 – R16 “aided” this (Table 3, Row 4).’[71]The requests begin with a global request: ‘LS to confirm: What the relevant individuals (listed below) specifically did or deliberately did not do which knowingly aided that basic contravention by the Bank (R1) and (Elyse Gonzalez) R10 on/after 23 February 2021. The basic “contravention” was on/after 23 February 2021 (Table 3, Row 4: “failure to make payment of my accrued by not used holidays (14.5 days)”).[72]The individual requests then follow. Please note that there is a formatting error, resulting in the subparagraphs being numbered ’35.5.1’ etc., rather than ’34.4.1’. I adopt the correct numbering.[73]The Respondent has deleted the allegation against R10 at Issue 35.4.9 because R10 is alleged to have committed the basic contravention. The claim is misconceived.[74]There follows a tailored request in respect of the Claimant’s allegations at Issues 35.4.1 to 35.4.8 and 35.4.10 and 35.4.15 against the 14 other individuals.
Discussion and conclusions
[75]The information is plainly necessary because all the Claimant’s allegations under para 35.4 of aiding the contravention at para 4.17 are so generalised that[76]The Claimant challenged the request; he has failed to comply with the order.[77]The requests in relation to the claims of knowingly aiding a contravention under Issue 35.5 all relate to the factual allegation at para 4.18 which reads: ‘On 19 May 2021, R15 confirmed the involvement of R14 in writing the questions for the grievance investigators and maintaining the state of affairs (i.e the ongoing race and disability discrimination and detrimental treatments referred to in LS’ first claim). Jeong Kim, Ron Rood, Konstantina Armata, Claire Fordham, Faye Richardson, Chris Easdon, Ruth Surendran and Jeremy Haworth and R11 – R16 “aided” this (Table 3, Row 5).[78]I have already recorded above that the Claimant failed to comply with the order for further information of para 4.18.[79]The requests begin with a global request: ‘LS: What the relevant individuals (listed below) specifically did or deliberately did not do which knowingly aided that basic contravention by the Bank (R1) and R15 on 19 May 2021 (Table 3, Row 5: “R15 confirmed the involvement of the respondents in maintaining the state of affairs”). The individual requests then follow.’[80]The Respondent has deleted the allegation against R15 at Issue 35.5.14 because R15 is alleged to have committed the basic contravention. The claim is misconceived.[81]There follows a tailored request in respect of the Claimant’s allegations at Issues 35.5.1 to 35.5.13 and 35.5.15 against the 14 other individuals.[82]The information is plainly necessary because all the Claimant’s allegations under para 35.5 of aiding the contravention at para 4.18 are so generalised that[83]Having failed to particularise the underlying factual allegation and declined to particularise any of the related claims of aiding a contravention, the Claimant failed to comply with the order. Health and Safety Detriment (s.44 ERA 1996)[84]I do not deal with these claims, set out at para 36 onwards of the list of issues, in this judgment. It appears to me from the Claimant’s footnote that he may be seeking to rely on matters which were adjudicated upon in the first case. The claims will be considered at the next hearing. The law Striking out
The law
[85]Rule 38 of the Employment Tribunal Procedure Rules 2024 provides:(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— […] (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. […][86]When considering whether to strike out, the Tribunal must apply a two-stage test and consider:(1) whether any of the grounds set out in rule 38(1) have been established; and(2) whether to exercise its discretion to strike out: see HM Prison Service v Dolby [2003] IRLR 694 at [15]. Non-compliance with orders[87]In deciding whether to strike out a party’s case for non-compliance with an order under Rule 38(1)(c), the Tribunal must have regard to the overriding objective (Rule 2). In Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371 the EAT held that this requires the Tribunal to consider all the relevant factors, including: 87.1. the extent and magnitude of the non-compliance; 87.2. whether the default was the responsibility of the party or his or her representative; 87.3. what disruption, unfairness or prejudice has been caused; 87.4. whether a fair hearing would still be possible, and 87.5. whether striking out or some lesser remedy would be an appropriate response to the disobedience.[88]When a Tribunal is considering a strike-out on the ground of non-compliance with orders, it must consider whether such an order is a proportionate response to the non-compliance (James v Blockbuster Entertainment Ltd [2006] IRLR 630).[89]In Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 at [55] it was held: ‘Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court.’[90]The overriding objective also provides as follows: The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[91]Choudhury P considered what constitutes a fair trial in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327: ‘I do not accept [Counsel’s] proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees [2000] 2 BCLC set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad’s proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.’[92]In Smith v Tesco Stores Limited [2023] EAT 11 at [45 and 34], HHJ Tayler noted that parties are not merely requested to assist the Tribunal in furthering the overriding objective, they are required to do so. ‘Even litigants in person must focus on their core claims and engage in clarifying the issues. It is not the fault of a litigant in person that she or he is not a lawyer, but neither is it the fault of the other party or the employment tribunal. While the employment tribunal should take reasonable steps to assist litigants in person, this must not be at the expense of fairness to the other parties to the claim, and to litigants in other proceedings who seek a fair determination of their disputes, having regard to the limited resources of the employment tribunal. Regrettably, those who are confused by, or disagree with, proper case management decisions that are fair to both parties, sometimes jump to the conclusion that the employment judge is biased and that the employment tribunal and its staff are adversaries to be challenged and attacked. If such a mistaken view results in a withdrawal from the required co-operation with the employment tribunal and the other party, necessary to advance the overriding objective, it puts a fair trial at risk.’ Unreasonable conduct of the proceedings[93]In Bolch v Chipman UKEAT/1149/02, the EAT set out the steps a tribunal must usually consider when deciding whether to strike out for unreasonable conduct. The employment tribunal should ask itself: first, whether there has been scandalous, unreasonable or vexatious conduct of the proceedings; if so, second (save in very limited circumstances where there has been wilful, deliberate or contumelious disobedience of an order of the employment tribunal), whether a fair trial is no longer possible; if so, third, whether strike out would be a proportionate response to the conduct in question, or whether it may be appropriate to impose a lesser penalty, such as a costs or preparation time order against the party, rather than striking out the claim or response. Conclusions: non-compliance with orders[94]The failure at this stage must be seen in the context of the Claimant’s earlier non-compliance. The Claimant wholly failed in July 2023 to provide the information he had been ordered to provide; EJ Crosfill rejected the Claimant’s assertion that he had not understood the request; he found that he had no intention of complying, that this amounted to an open defiance of the Tribunal and that his conduct was wilful (paras 22 and 28 above).[95]An unless order was made, which the Judge described as ‘very much a final warning’, in response to which the Claimant provided limited further information in November/December 2023 (paras 29-30 above).[96]The Claimant did not respond to requests from the Respondents to provide further clarification in November 2024 (paras 32-33); he did not engage with an attempt to finalise the list of issues before the preliminary hearing in May 2025 (para 34).[97]At the hearing in May 2025 EJ Whittall ordered the Claimant to provide the further information sought by the Respondents and he agreed to do so (para 35). He then failed to do so (paras 38-41).[98]It is too late to ‘challenge the excessive nature of the requests’, as the Claimant purports to do. He has been ordered to provide the information; the orders were not challenged by way of a reconsideration application or an appeal; he was required to comply.[99]Although not strictly necessary for me to do so, I record my view that the further information was plainly necessary. As things stand, there are multiple serious allegations of discrimination which lack the most basic detail; they cannot fairly be responded to in their current form. The very fact that the same allegations are made against so many individuals, with little or no variation between them, and under so many heads of claim, strongly suggests that the Claimant has simply adopted a scattergun approach to his claims.[100]In my judgment the extent and magnitude of the non-compliance is very great indeed.[101]The Claimant provided his explanation for his non-compliance in his email of 13 August 2025 (para 41 above). He provided no medical evidence to support his assertion that he had experienced mental health deterioration during the relevant period, such as would prevent him from complying with orders; the Claimant is experienced in litigation and is well aware of the need for medical evidence; he does not require guidance from the Tribunal.[102]While I have sympathy for the Claimant’s bereavements, there is no evidence that he was unable to comply with the orders because of them; on his own account, he continued to progress his appeals to the EAT and Court of Appeal during the same period; as for those appeals, the demands on his time which they give rise to do not provide good grounds for failing to comply with orders at first instance.[103]In my judgment, the explanation provided does not account satisfactorily for the Claimant’s non-compliance. Further, it is confined to the period between May and September; it does not account for the earlier failures.[104]In any event, it is clear from the comments inserted into the list of issues that the Claimant’s non-compliance is a choice on his part. He has stated that he will not provide the information sought until he gives his evidence, or possibly even when cross-examining, thereby indicating that he will continue to refuse to comply with the orders.[105]The Tribunal has given the Clamant multiple opportunities to clarify his claims; he has been warned repeatedly of the potential consequences of not doing so; the Respondent has gone to considerable lengths to assist him, as a litigant in person, to clarify his claims; the default is entirely the responsibility of the Claimant; I am satisfied that it is deliberate.[106]The disruption to the proceedings caused by the default is self-evident: it has caused substantial additional work for the Respondent and put it to additional costs; it has necessitated further preliminary hearings; it has led to further delay. Conclusions: unreasonable conduct of the proceedings[107]For the reasons set out above, I am satisfied that, by refusing to provide the information ordered, the Claimant has acted unreasonably; this most recent unreasonable conduct must also be seen against the background of the Claimant’s earlier default, which EJ Crosfill found to be wilful defiance of the Tribunal’s orders. I agree with Ms Dobbie that this is not a case of a litigant in person doing their best; it is a case of a litigant who does not consider himself bound by the authority of the Tribunal. Conclusions: fair trial and proportionality[108]The Respondent’s primary submission is that the entire case should be struck out for failure to comply with orders and unreasonable conduct of the proceedings; its secondary submission is that those claims which have still not been particularised should be struck out.[109]I consider it would be disproportionate to strike out the whole case at this stage. There are claims in the list of issues which the Claimant has properly particularised. I consider that a fair trial of those issues is still possible, subject to two conditions: firstly, that they survive the Respondent’s remaining strikeout application based on res judicata; and secondly, that the Claimant cooperates fully with the Respondent in preparing for any final hearing and complies with all future orders, avoiding any further delay. I am not persuaded that that the overall delay in reaching a final hearing (contributed to by the prioritisation of Case 1 and attempts to mediate Case 2) will cause such forensic prejudice that a fair trial will no longer be possible; of course, that may change in the future, depending on how the litigation progresses.[110]The position is different in relation to the unparticularised claims. I have considered whether a lesser sanction, including the making of an unless order would be a reasonable alternative and have concluded that it would not, in circumstances where the Claimant has had every opportunity to comply with the orders and has made it clear that he does not intend do so. In my judgment, it would be a waste of time, costs and, almost certainly, Tribunal resources: should the Claimant provide partial compliance, that would require further adjudication by a Judge. In any event, the Claimant has already been warned many times of the consequences of non-compliance; alternative sanctions have proved ineffective; costs orders have been made, which he has not paid.[111]The prejudice to the Claimant of striking out the unparticularised claims is selfevident and significant: he is deprived of the opportunity to seek to enforce his rights in relation to them. On the other hand, he has other claims which he can pursue.[112]The prejudice to the Respondent of not striking out the claims is very great indeed: 112.1. allowing the Claimant a further opportunity to comply will cause further delay in proceedings which have been beset by delays; 112.2. the position will not change in circumstances where the Claimant has stated that he declines to comply with the order for further particulars because he regards it as excessive; 112.3. it is inherently unfair to require a Respondent, whether corporate or individual, to defend legal claims which have not been properly particularised; 112.4. as for the Claimant’s assertion that he will provide the details of the claims in his witness statement, that would create a particular disadvantage to a Respondent, who is likely to be obliged to engage in further preparation (including seeking permission from the Tribunal to make further disclosure and/or serve supplementary witness statements, as appropriate); 112.5. that in turn puts the Respondents to additional expense which they are very unlikely to recoup in a case where the Claimant has failed to comply with earlier costs orders; 112.6. learning of the particulars of a legal claim for the first time in crossexamination is a form of ambush which is totally at odds with the case management regime in the Employment Tribunal.[113]I have also had regard to an additional and very weighty factor: allocating further scarce Tribunal resources to these claims would take resources away from litigants in other proceedings who are awaiting a fair determination of their disputes.[114]In the circumstances, I have concluded that a fair trial of the unparticularised claims is no longer possible.[115]For all these reasons, I have concluded that they should be struck out. Next steps[116]There will be a further preliminary hearing, with a time estimate of one day, at which the Respondent’s application to strike out further claims, which it contends are res judicata because they were determined in the judgment in Case 1, will be determined. The list of issues will be finalised, the final hearing listed and case management orders given for preparation.[117]The parties shall write to the Tribunal by no later than 7 days from the date on which this judgment is sent to the parties with their dates to avoid for the following six months. A hearing will then be listed.