Mr J Johnson v London Borough of Harrow and C Rowlands: 3301610/2025
EMPLOYMENT TRIBUNALS
Case No 3301610/2025
Between
Mr J JohnsonClaimantLondon Borough of Harrow (1) Caroline Rowlands (2) RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge RakhimS Bishop (instructed by counsel) for respondentDate 8 July 2025
JUDGMENT
[1]The claims (sex discrimination, whistleblowing, harassment and victimisation), against the First Respondent and the Second Respondent, are struck out under Employment Tribunal Rule 38(1)(a), because they are scandalous or vexatious, and have no reasonable prospect of success.
REASONS
[1]These are the reasons for my Judgment following the Public Preliminary Hearing that took place on the 8 July 2025.[2]The Public Preliminary Hearing was convened to decide whether the claim, or any part of it, should be struck out on four grounds: that judicial proceedings immunity applies, that it is scandalous or vexatious, that it has no reasonable prospect of success, or that it has little reasonable prospect of success such that a deposit order between £1 and £1000 should be imposed as a condition for the claim to proceed.
Background
[3]The basic background facts are that the Claimant commenced employment in July 2023 as a Residential Homes Manager in a children’s home. He was dismissed on 14th February 2024.[4]The Claimant pursued claims in the Employment Tribunal and 7 cases were brought: Case No. Parties 3300062/2024 Mr J Johnson v Briggite Jordan, Owen Chiguvare, Chris Munday, Barnet CouncilLondon Borough of Barnet,Hannah Richens 3300063/2024 Mr J Johnson v John Hooton 3302204/2024 Mr J Johnson v Briggite Jordan, Owen Chiguvare, Chris Munday, Barnet Council London Borough of Barnet, Hannah Richens 3302206/2024 Mr J Johnson v John Hooton, Marlene Mcloud, Julia Altman, Mahan Vandana, Tina McElligot 3303920/2024 Mr J Johnson v Craig Miller 3303157/2024 Mr J Johnson v Julia Duncan, Barnet Council 3300471/2024 Mr J Johnson v Barnet Council, Hannah Richens, Marlene Mcloud[5]There were various hearings:5.1 A hearing on 9 September 2024 before EJ Partington set Case Management Orders and issues. This is referenced in the EJ Anderson’s detailed decision dated 10 March 2025 (paragraph 6).5.2 On 9 December 2024 EJ Quill made further orders due to non compliance, raising possible strike out of the disability claim, which was considered at the next hearing. This is referenced in the EJ Anderson’s detailed decision dated 10 March 2025 (paragraph 6).5.3 A hearing took place before EJ Anderson on 24 – 26 February 2025. The decision was issued on 10 March 2025 concerning the linked claims against the London Borough of Barnet, EJ Anderson struck out limited parts of the claims and made deposit orders for the remainder. I had sight of the decision.5.4 At a hearing on 21 May 2025, EJ Emery struck out the remaining claims as the claimant failed to pay those deposit orders. The decision was issued on 28 May 2025. I had sight of the decision.[6]The claimant submitted his ET1 claim form on 31 October 2024, alleging sex discrimination, harassment and victimisation against the London Borough of Harrow (First Respondent) and Caroline Rowlands (Second Respondent). He also claimed whistleblowing.[7]The ET3 response was filed by the Respondents on 10 April 2025, denying the claims and asserting that the claim lacked particulars, was abusive, and should be struck out under Rule 13(2). They also raised judicial proceedings immunity and argued that the Second Respondent was not an agent under s.109 Equality Act 2010.[8]After dealing with the strike outs, EJ Emery considered this case on 21 May 2025. By the time that Preliminary Hearing started, the Claimant had left after making some comments to EJ Emery. A further preliminary hearing was listed for 8 July 2025 to consider strike out and deposit order applications.[9]This Public Preliminary Hearing today was ordered to determine:9.1.1 Should the claim or any part of it be struck out because judicial proceedings immunity applies to the allegations in the claim.9.1.2 Should the claim or any part of it be struck out because it is scandalous or vexatious.9.1.3 Should the claim or any part of it be struck out because it has no reasonable prospect of success.9.1.4 Does the claim or any part of it have little reasonable prospect of success. If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it? Procedural[10]The hearing today took place by way of video. It was attended by the claimant. The Respondents were represented by Mr Bishop, counsel.[11]The Respondents relied on an 84-page hearing bundle and a 58-page authorities bundle, while the Claimant relied on a 326-page bundle. Both parties submitted 5-page skeleton arguments and confirmed that no further documents would be relied upon.[12]At the start of the hearing, the Respondent had not received the Claimant’s documents, which had been sent to the Tribunal at 08:50 that morning after being submitted by the Claimant at 18:46 the previous evening directly to the Tribunal without copying in the Respondent. The Claimant stated that both his 5- page skeleton and 326-page bundle had been sent before the last preliminary hearing and should already be with the Respondent. The Tribunal arranged for the documents to be emailed to Mr Bishop and a 10 minutes stand down was requested and granted for the review of this material by Mr Bishop. Upon returning he confirmed that the Claimant is correct in that these documents had been provided in the previous litigation, namely the 7 linked cases which EJ Anderson had dealt with at the hearing in February 2025.[13]Due to the warm weather, general comfort measures were suggested, including taking breaks, using fans, opening windows and staying hydrated. The Claimant was also given the opportunity to pause and reflect before making his final submissions, though he did not request any further adjustments. The full round of submissions, including a short break, lasted approximately 90 minutes. I periodically checked in with the Claimant to ensure he was able to follow the submissions and locate the relevant page numbers. During his submissions, the Claimant initially overlooked certain points, which I raised specifically to give him the opportunity to address them fully.[14]As the Claimant had raised concerns about the conduct of previous Judges who had ruled against him, I asked whether he felt he had received a fair hearing today. He responded that he felt I had treated him professionally and expressed gratitude for that. However, he stated that he would reserve judgment on whether the hearing was fair until he had received the outcome.[15]I did provide an estimated time of return at 15:30 making it clear that the decision and reasons would be provided orally. I waited until 16:00 but the Claimant had still not attended or made any attempts to join, as confirmed by the clerk. I thus proceeded to deliver my judgment.[16]There have been previous cases involving different parties to the present case. The fact that someone has been involved in previous litigation would not in and of itself be a matter of particular relevance in this case. Applications[17]The Respondents made three principal applications at the Preliminary Hearing and invited I deal with matters in the following order:17.1 First, they applied for the claim to be struck out under Rule 38(1)(a) on the basis that it disclosed no acts or allegations, could not be sensibly responded to, and had no reasonable prospect of success.17.2 Second, they submitted that if the claim related to communications made in the course of defending earlier proceedings, then Judicial Proceedings Immunity (JPI) would apply, rendering the Tribunal without jurisdiction. However, they stated that no specific acts had been pleaded to assess this.17.3 Third, in the alternative, if the Tribunal did not strike out the claim, the Respondents argued that the claim had little reasonable prospect of success and that deposit orders should be made under Rule 40 as a condition for the Claimant to proceed.
The Law
[18]Rule 38 of the Employment Tribunal Procedure Rules 2024 states: 38.—(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—(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, 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. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[19]In respect of strike out due to breaches of Tribunal Orders, the leading authority is that of Blockbuster Entertainment Limited v James [2006] IRLR 630. The Court of Appeal emphasised that it is a draconian power. The decision to strike out must be a proportionate measure.[20]In respect of strike out due to having no reasonable prospects of success in Anyanwu v South Bank University [2001] IRLR 305, the House of Lords emphasised that the power to strike out claims should only be used in discrimination cases in the plainest and most obvious of cases. Discrimination cases are fact sensitive and it would generally not be appropriate to strike out discrimination cases. I refer to paras 24 and 29 in particular. See also: Ezsias v North Glamorgan NHS Trust [2007 ICR 1126.[21]It is important that before striking out, the essential contentions of a party are understood: Cox v Adecco [2021] ICR 1307. In respect of this point specifically, I would note that the Clamant attended today, had submitted documents and was given ample opportunity to raise issues and explain the grounds of his various claims. I am satisfied that I understand the claims that are being made by the Claimant. As noted before, the Claimant was able to make detailed submissions.[22]Rule 40 of the Employment Tribunal Procedure Rules 2024, in respect of Deposit Orders, states: 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non presentation or rejection of response, or case not contested).(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded.(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.[23]The following principles apply when considering whether or not to make a deposit order:23.1 The purpose of a deposit order is “to identify at an early stage claims with little prospect of success and discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails”. It is not the purpose of deposit orders “to make it difficult to access justice or to effect a strike out through the back door”: Hemdan v. Ishmail [2017] IRLR 228 per Simler J at paras 10-11.23.2 Because of the access to justice implications, tribunals should take particular care before making a deposit order, and give sufficient reasons before deciding that an allegation or argument has little reasonable prospect, particularly where core facts are in dispute: Sami v. Avellan [2022] EAT 72.23.3 It is legitimate to have regard to the claimant’s prospects of successfully proving the facts that are essential to the case. This may include forming a provisional view as to the credibility of the assertions being put forward: Van Rensburg v. Royal Borough of Kingston-upon-Thames UKEAT 0095/07.23.4 The tribunal must engage with, and make a reasonable attempt to understand, the basis of the claim before assessing its prospects of success: Wright v. Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14[24]In respect of both strike out/deposit orders on prospects of success points, I must not conduct a mini-trial.[25]The legal principle of Judicial Proceedings Immunity (JPI), as confirmed in South London and Maudsley NHS Trust v Dathi [2008] IRLR 350 (EAT), is that: “An employment tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent’s advisers to the Claimant’s advisers refusing to disclose a document said to be relevant. Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity. So is a response directed to the Tribunal to the Claimant’s application for costs. Both letters came into existence for the purpose of the proceedings and in the second case was ‘akin to a pleading’ and thus both attracted absolute immunity. The Claimant’s claims based on those two letters were struck out.”[26]This authority establishes that documents created for the purpose of tribunal proceedings, including correspondence between parties and responses to applications, are protected by absolute immunity and cannot form the basis of a claim. Respondents’ application for a strike out – Rule 38(1)(a)[27]The Respondents apply to strike out the claim under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2013. This states that a claim can be struck out by the Tribunal upon an application on the following grounds: “that it is scandalous or vexatious or has no reasonable prospect of success”. I accept the Respondents’ submissions that all three grounds under the rule are engaged.[28]As to whether it is scandalous or vexatious; The Claimant previously issued 7 claims against the London Borough of Barnet and various individuals, relying on 23 allegations of treatment and conduct. On 10 March 2025, Employment Judge Anderson struck out parts of the Barnet claims and made deposit orders in respect of the remainder. The Claimant failed to pay those deposits, and all claims were dismissed, as confirmed by Employment Judge Emery on 21 May 2025.[29]EJ Anderson found the Claimant to be a serial litigant engaging in litigation by attrition. This litigation is a continuation of that pattern, targeting legal representatives and an agency worker in a personal and vexatious manner. These findings are not without foundation; the Claimant has issued at least 47 claims since 2016 prior to the 7 cases against Barnet. Many of these claims involved non-compliance with Tribunal directions. This is now the 54th claim, namely the index claim before me.[30]I find the Claimant is a sophisticated litigant, evidenced by his use of agency provisions to bring claims against agents as in the case here. He has chosen to issue this claim without particulars, consistent with the litigation-by-attrition approach identified by EJ Anderson. The claim is targeting legal representatives who were simply doing their job. The associated Barnet claims have been struck out, yet the Claimant continues to pursue this related claim without particularising it.[31]It is noted that the Claimant has not succeeded in any discrimination claim. Most of his claims have been struck out for breach of orders or failure to pay deposit orders. This supports the conclusion that the purpose of the claims is to cause disruption rather than to pursue genuine allegations.[32]The claim has no reasonable prospects.[33]The First Respondent, HB Law (a legal department within London Borough of Harrow), acted as legal representative for LB Barnet (who were involved in the previous 7 cases) under a service agreement. No application to amend the claim has been made to date. The Claimant is an experienced litigant, capable of particularising his claims, as evidenced by the 23 allegations in the Barnet proceedings. He has chosen not to do so here. There are no allegations of any events or conduct by the Respondents in the ET1.[34]The Second Respondent was an agency worker engaged under an umbrella contract by the First Respondent. There appeared no dispute that she was an agency worker, and that does not mean she is an agent. Documents within the bundle confirm that she was placed by an agency and paid via an umbrella company. Her agency position was renewed every three months. The Claimant must show that she was an agent of LB Barnet, not merely an agency worker of LB Harrow. There is no realistic prospect that the Tribunal would find she was an agent of LB Barnet.[35]In Mechkarov v Citibank NA EAT 0119/17, the principle is that a claim should be read generously to identify the act complained of and the nature of the complaint. When reviewing the ET1, I struggle, even with a very generous interpretation, to identify the nature of the complaint. I agree that the clam, in its present form without any particulars is one which is one to which the Respondents cannot sensibly respond. It is unreasonable for anyone to even guess in these circumstances, especially given neither Respondent was the appellant’s employer.[36]The claim, as presented, contains no pleaded acts or omissions by either Respondent that could amount to a contravention of the Equality Act 2010. The ET1 refers in general terms to a “discrimination campaign” and names the First Respondent (London Borough of Harrow) and Second Respondent (Ms Rowlands) as being involved, but provides no particulars of any conduct, treatment or event said to have occurred. There is no factual basis upon which the Tribunal could assess whether any unlawful act is alleged, let alone whether it is capable of being proved.[37]No application to amend the claim has been made to date. The Claimant is an experienced litigant, capable of particularising his claims, as evidenced by the 23 allegations in the Barnet proceedings. He has chosen not to particularise them. That said, I have explored what he has to say on why he has brought the proceedings against the Respondents.[38]The Claimant’s submissions focused on his dissatisfaction with the handling of previous proceedings involving the London Borough of Barnet, including his suspension and the return to work of a colleague following an incident in September 2023. However, those matters relate to a different employer and different proceedings. The Claimant’s assertion that the First Respondent had a duty to take action against the London Borough of Barnet, or that the Second Respondent failed to act on information, is not supported by any legal duty or pleaded facts. The Claimant’s belief that the First Respondent is “covering it up” matters is speculative and unsupported.[39]Secretary of State for Business, Energy and Industrial Strategy v Parry and Anor [2018] EWCA Civ 672, is the authority that says where there is a reliance on particulars from another case, then that may be one to which the employer cannot sensibly respond. That is the case here. Simply citing two cases does not suffice, especially where the Respondents differ as is the case here. The Claimant cannot rely on acts from the Barnet cases, as those were not done by these Respondents. There are no pleaded acts or treatments in this claim.[40]The Claimant relies on section 110 of the Equality Act 2010, which provides for the liability of employees and agents. However, under section 110(1)(c), the agent must themselves have done something that amounts to a contravention of the Act. No such act has been identified. The Claimant has not pleaded any act by either Respondent that could amount to discrimination, harassment or victimisation.[41]The claims are therefore struck out.[42]In relation to Judicial Proceedings Immunity, the Respondents submit that all communications between them and the Claimant arose solely in the context of defending the earlier proceedings involving the London Borough of Barnet. I accept that submission. Applying the authority of South London and Maudsley NHS Trust v Dathi [2008] IRLR 350 (EAT), any such communications are protected by Judicial Proceedings Immunity (JPI). As the EAT held: “Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity. So is a response directed to the Tribunal to the Claimant’s application for costs. Both letters came into existence for the purpose of the proceedings… and thus both attracted absolute immunity.”[43]In this case, there are no pleaded acts outside the scope of JPI. The Claimant has not identified any conduct by the Respondents that falls outside the protection of that immunity. Accordingly, the claim is not just unparticularised; it is legally incapable of succeeding.[44]The Claimant’s assertion that the Second Respondent, as an agency worker, had a duty to act on information is misconceived. The evidence confirms that she was an agency worker engaged by the First Respondent (HB Public Law) and not an agent of the London Borough of Barnet. There is no basis on which the Tribunal could find that she was acting as an agent of Barnet for the purposes of section 109 or 110 of the Equality Act 2010.[45]In light of the above, I am satisfied that the claim discloses no reasonable prospect of success. It is not capable of being responded to in its current form, and any attempt to amend it would still fall within the scope of JPI.[46]The claim is therefore struck out in its entirety under Rule 38(1)(a).