Mr Z Menich v The Stephen Perse Foundation and others: 3302368/2022
EMPLOYMENT TRIBUNALS
Case No 3302368/2022
Between
Mr Zbigniew MenichClaimant(1) The Stephen Perse Foundation, (2) Mr Richard Girvan, (3) Mr Kevin Dumbrill, (4) Mr Gareth PercivalRespondent
Before
Employment Judge L BrownIn person for claimantMr McNerney - Counsel for respondentDate 15 May 2025
JUDGMENT
The application by the Respondent for a strike out of the Claimants claims fails and is dismissed. CERTIFICATE OF CORRECTION Employment Tribunals Procedure Rules 2024 Pursuant to the provisions of Rule 67, the Judgment sent to the parties on 27 May 2025 is corrected as set out in underlined block type and struck through type in paragraphs 8, 12, 21, 24, 26, 29, 30, 31, 40 and 43 the Judgment. Approved by: JUDGMENT to STRIKE OUT the CLAIMANT’S CLAIM The Claimant’s claim is struck out pursuant to Rule 38(1)(b) of the Employment Tribunal Procedural Rules 2024 because the manner in which the proceedings have been conducted has been scandalous, unreasonable and vexatious.
REASONS
Law
[1]Rule 38(1) of the Employment Tribunal Procedure Rules 2024 provides that the Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, a response or reply on the grounds, amongst others: (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious. 2. ‘Scandalous’ in the context of the predecessor to Rule 38(1)(a) has been said to mean the abuse of the privilege of legal process in order to vilify others or give gratuitous insult to the Court – Venice v Southwark London Borough Council 2002 ICR 881 CA. A ‘vexatious’ claim has been described as one that is not pursued with the expectation of success but to harass the other side or out of some improper motive – ET Marler Ltd v Robertson [1974] ICR 72 NIRC – though includes anything that is an abuse of process. In Attorney General v Barker [2001] FLR 759 QBD (Civ Div), Bingham LCJ said that the hallmark of vexatious proceedings are that they have little or no basis in law, and the effect of which is to subject a defendant to inconvenience, harassment and expense out of proportion to any gain to be derived to the Claimant. The expressions effectively have the same meaning under Rule 38(1)(b), though a claim may additionally be struck out pursuant to Rule 38(1)(b) where the proceedings have been conducted unreasonably, even if there are arguable issues to be determined by the Tribunal.[3]Regardless of whether a party’s conduct is scandalous, vexatious, or unreasonable, save in very limited circumstances, the Tribunal must additionally ask itself whether a fair trial is no longer possible and, if so, whether strike out would be a proportionate response to the conduct in question – Bolch v Chipman [2004] IRLR 140, adopted by the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 in which Sedley LJ described the power as a draconic one, not to be readily exercised. He described Mr James as “difficult, querulous and uncooperative in many respects” before going on to observe, “The Courts and Tribunals of this Country are open to the difficult as well as compliant, so long as they do not conduct their case unreasonably.”[4]In Smith v Tesco Stores Limited [2023] EAT 11, an appeal against the strike out of a claim, His Honour Judge Tayler said that it was always worth going back to the wording of the overriding objective in what is now Rule 3 of the 2024 Rules. Whereas the 2013 Rules provided that the parties “shall” assist the Tribunal to further the overriding objective, the wording of the 2024 Rules is, if anything, more emphatic: they “must” do so, and indeed must also co-operate generally with each other and with the Tribunal.
Background
[5]Ahead of the final hearing resuming part-heard on 14 April 2025, we decided of our own initiative that we should give consideration to whether the claim should be struck out on the grounds that the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious.[6]During the early stages of the final hearing in December last year, we began to have concerns as to the Claimant’s conduct of the proceedings, specifically his failure to work constructively with the Tribunal and indeed with the Respondents. The first three days of the final hearing were lost to ongoing case management issues. On the morning of the fourth day of the final hearing, it was necessary for us to additionally consider whether we should recuse ourselves from continuing to hear the case. We declined to recuse ourselves and, in our reasons for that decision, which were confirmed in writing, noted that the Claimant had pointedly declined to answer the Tribunal’s enquiries and was seeking to re-argue matters that had already been determined by us and at previous hearings. We observed that where a Tribunal encounters challenging conduct or otherwise has concerns as to a party’s conduct of the proceedings, it is incumbent upon the Tribunal to raise these matters with the parties or any relevant witness, so that they are aware of the Tribunal’s concerns, can provide an explanation for why they may be acting, or perceived to be acting, as they are, can reflect on the Tribunal’s concerns and, as appropriate, take action to address or moderate their behaviour. Regrettably, and notwithstanding he was provided with written reasons for our decision to enable him to reflect on the matter, the Claimant has failed to take on board our concerns or to heed similar concerns we expressed in the further course of December’s hearing. Instead, as we shall come back to, he has become increasingly entrenched to the point it seems that he regards the Tribunal as an adversary to be challenged and attacked.[7]As we shall also come back to, in our reasons for declining to recuse ourselves, we also touched upon the Claimant’s claimed difficulties with the English language. December’s hearing[8]To give a flavour of the case management issues that occupied the Tribunal over the first three days of the final hearing, much of the first day was taken up with protracted, ultimately fruitless discussion of the Hearing Bundle. Towards the end of the day the Claimant complained that we were going in circles; in fact, he was taking us in circles. In summary, notwithstanding, in May 2024, Employment Judge Hutchings had ordered the Respondents to be responsible for creating the Hearing Bundle (and, perhaps anticipating problems ahead, had directed the preparation of a separate bundle of any documents in dispute), the Claimant had taken it upon himself to create his own 2,476 page bundle. The electronic copy that was uploaded by him through the DUC was in a format and of a size that meant it could not readily be opened, viewed or navigated. We believe that may be because it was not in a PDF format as Employment Judge Hutchings had ordered. Whatever the reason for the difficulties with the electronic copy of his bundle and regardless of the fact there was no provision for him to prepare his own substantive bundle, the Claimant had not prepared a hard copy of his bundle for the witness table nor given consideration to whether a hard copy might be required by the Tribunal: in this regard, Tribunal member Mr Smith works without a laptop. Four months on from December’s hearing, the Claimant has still not provided a hard copy of his bundle for the witness table or Mr Smith or, to our knowledge, taken any steps to upload a more accessible copy of his bundle through the DUC. Perhaps more pertinently, in spite of our clear and repeated direction that he review the contents of the Hearing Bundle prepared by the Respondents, he has failed to identify a single document that has been omitted from it. That has not, however, prevented him from continuing to assert, repeatedly, that documents have been omitted from it, that it is somehow defective and indeed that the response should be struck out on the strength of how the Hearing Bundle has been prepared. He continues to blame the Respondents for what is instead a situation of his own making, because he is determined that there should be a bundle structured according to his diktats.[9]The hearing could not continue on 11 December 2024 as the Claimant reported that he was not sufficiently well to continue. He was then on oath and in the course of giving evidence. Before the hearing ended, Employment Judge Tynan issued a clear instruction to the Claimant that, until the case resumed in April, he must not discuss the case with anyone. It was not an ideal position for the Claimant to find himself in, but he evidently understood the ongoing requirement not to discuss the case with anyone (having been issued with several reminders in that regard in the course of his evidence), because without being prompted in the matter, namely before Employment Judge Tynan issued his instruction to the Claimant, he asked through the interpreter whether he would be subject to this restriction until the hearing resumed in April. The Claimant’s correspondence with the Tribunal since 11 December 2024[10]Since the final hearing was adjourned part heard on 11 December 2024, the Claimant has been in regular correspondence with the Tribunal. We believe that he has sent at least 19 emails to the Tribunal. With the exception of just one email, they are highly involved documents that have required in-depth analysis and careful consideration. Most contain multiple requests and applications. As we shall come back to, the emails are written in English and in them the Claimant engages in some detail and at some length, with a range of complex legal issues. He cites various statutory provisions, as well as decisions of the appellate courts, providing a précis of the key legal principles derived from each case.[11]Yesterday, in response to an enquiry by Employment Judge Tynan, the Claimant stated that he had initially drafted his emails in Polish and translated them using online tools. However, when we invited him to open the Polish language versions and share them with the interpreter, given his stated difficulties with English and navigating documents in English, he claimed he was unable to locate any of them. We find that he was lying to the Tribunal, that there were no drafts in Polish and that the emails were instead drafted by him in English because, as we shall come to, he is in fact proficient in the English language. The Claimant’s breach of the Tribunal’s order of 13 December 2024 and applications to vary the Tribunal’s orders and decisions[12]Following the adjournment on 11 December 2024, the Claimant failed to comply with the Tribunal’s oOrder of 13 December 2024 (made on 5 December 2024) that he file and serve an updated witness statement redacting those parts of specified paragraphs of the statement which made reference to without prejudice communications. On 17 March 2025, Employment Judge Tynan refused the Claimant’s application to set aside or vary that order (amongst others). The Claimant has still not complied with the order, one of six orders he has breached.[13]Within his 19 or so emails to the Tribunal since December’s hearing was adjourned part-heard, the Claimant has pursued numerous applications to vary previous decisions and orders of the Tribunal, including the decisions and orders of other Judges involved in his case. As we shall come back to, this has included various challenges to Employment Judge Hutchings’ May 2024 case management summary and orders notwithstanding an unsuccessful appeal to the Employment Appeal Tribunal. Since December, the Tribunal has issued no less than nine separate detailed orders, in each case, at the Claimant’s insistence, with detailed written reasons. We calculate that the written reasons extend to some 45 pages in total. Various of his applications have been dismissed as being “without merit”, “misconceived” and “an abuse of process”.[14]In each of his applications to vary previous decisions and orders of the Tribunal, the Claimant has failed to address why variation might be necessary in the interests of justice. Effectively, there is no order, direction or decision with which he does not take issue. He has continued to pursue variation applications notwithstanding Employment Judge Tynan and other Judges who have been involved in managing the proceedings have drawn his attention to the relevant legal principles governing such applications, including the Employment Appeal Tribunal’s ruling in Serco Limited v Wells UKEAT/0330/15/RN. Even when his variation applications have been rejected, he has renewed them. He seems determined to revisit past issues, and to do so repeatedly, regardless of the legal principles governing such applications and without any thought as to whether his applications, and repetition of them, have any merit or prospect of success. The Claimant’s conduct has not just been difficult, his applications in this regard have been time-consuming, disruptive and an abuse of process, and in certain respects, as we have just indicated and will come back to, his conduct has been dishonest. The orders to disclose relevant medical evidence[15]During the final hearing in December last year, we made two orders for disclosure of relevant medical evidence. The first order was for the Claimant to provide unredacted copies of six pages of medical evidence in the 2,836 page Hearing Bundle. Those six redacted pages, dating back some years, represent the totality of the available evidence in this case regarding the Claimant’s disability and its effects, notwithstanding he is seeking £2.78 million by way of compensation, including £500,000 for personal injury. We additionally ordered the Claimant to provide a letter from his GP regarding his claimed unfitness to continue attending the hearing on 11 December 2024, including the details of any medication prescribed to him on 9 December 2024 and his doctor’s opinion as to when he would likely be fit to attend any hearing in the future. This second order was made having due regard to the President’s 2013 Guidance.[16]The Claimant has not complied with either order. On 11 February 2025 Employment Judge Tynan refused the Claimant’s application to vary the order to provide unredacted copies of the medical evidence referred to. In his written reasons for that decisions, Employment Judge Tynan set out in some detail why the Tribunal had originally made the order that it had and why Employment Judge Tynan declined to vary it. Notwithstanding that decision and those reasons, the Claimant now submits that the original order breached his rights under the GDPR and European Convention on Human Rights, and also violated his privacy. We reject his assertions in that regard. Putting aside that this is another example of the Claimant persisting in challenging a decision that is not to his liking, the two orders were proportionate in terms of the issues with which they were concerned and in terms also of what is a £2.78 million claim. We are not aware that the Claimant has appealed either order.[17]There is no, or at least no reasonable explanation for the Claimant’s ongoing non-compliance with these two orders which, we find, instead reflects a conscious decision on the Claimant’s part to disregard orders of the Tribunal with which he does not agree.[18]As regards the Tribunal’s order for the Claimant to produce a letter from his GP regarding his claimed unfitness to continue attending on 11 December 2024, the Claimant’s explanation for not complying with the order is that his GP was only willing to provide a report on payment of a fee of £90, something the Claimant said he could not afford. Instead, he submitted two documents, the first relating to his attendance at Accident & Emergency on 7 December 2024, the second evidencing either his discharge from hospital on 9 December 2024 or a further hospital attendance for review on that date. The Claimant presented at Accident & Emergency on 7 December 2024 with a headache. The redacted document available to us suggests that there was no diagnosis of any medical condition on that occasion, though the Claimant has partially redacted the ‘clinical summary’ section and redacted the ‘investigation summary’ section in its entirety, thereby preventing us from having the complete picture. The further document from 9 December 2024 has likewise been heavily redacted, though does seemingly confirm that the Claimant was prescribed pain killers and sleeping tablets on that date. On 11 February 2025 Employment Judge Tynan ordered the Claimant to provide unredacted copies of both documents. The Claimant has not complied with this further order, the fourth order he has breached. Notwithstanding he understands that the Tribunal requires unredacted copies of the documents, he has since sought to rely upon the redacted document of 7 December 2024 in support of a further application submitted by him on 9 April 2025 to strike out the response, for permission to attend all future hearings by using the Cloud Video Platform (CVP) and for all further cross examination of him to cease immediately. The fact he seeks to rely upon a redacted document to secure these various outcomes, in circumstances where he remains in breach of an order to make an unredacted copy available to the Tribunal, speaks to his approach to these proceedings and determination not to cooperate with the Tribunal. The reasonable adjustments application[19]On 7 February 2025, the Claimant made a comprehensive application for extensive adjustments, “…to ensure that I am not placed at a disadvantage in participating in the Tribunal process”. Employment Judge Tynan directed that his application should be listed for an urgent one day case management hearing on 13 March 2025 and, in the meantime, ordered the Claimant to provide copies of his GP and other medical records covering the period from 1 January 2024 to enable consideration to be given to his request for adjustments. The Claimant has not complied with that order, the fifth order he has breached since the final hearing was adjourned part heard on 11 December 2024.[20]The Claimant failed to attend the hearing on 13 March 2025. Ahead of the hearing, Employment Judge Tynan refused the Claimant’s application to set aside the Notice of Hearing on grounds of alleged legal invalidity, noting that the Claimant’s application in that regard was without merit. He also refused the Claimant’s separate application to cancel the hearing. At the hearing on 13 March 2025 he made no orders on the Claimant’s application for adjustments and went on to determine that the threshold test was met for the Tribunal to consider making a costs order in favour of the First, Second and Third Respondents. At paragraph 36 of his written reasons, Employment Judge Tynan noted that the Claimant’s nonattendance on 13 March 2025 was linked to his determination not to comply with the order for disclosure of his GP and other medical records. Notwithstanding the Claimant’s non-attendance on 13 March 2025, Employment Judge Tynan nevertheless afforded him an opportunity to file a written statement of his financial means before any final decision was made in the matter, something he has not done in spite of his initial claim yesterday to the contrary. Unfounded assertions[21]The Claimant continues to assert that any orders or directions since Employment Judge Hutching’s involvement in May 2024, have been made without proper judicial authority or reasons. His assertions in that regard are unfounded, indeed entirely misconceived, even spurious, not least given that he continues to make those assertions in spite of being told that they are without merit. His recent email of 13 April 2025 is the latest example.[22]The Claimant asserts that this Tribunal, Employment Judge Hutchings and indeed others, have failed to provide written reasons for their decisions. We have referred already to the fact that the Claimant has received nine separate orders accompanied by 45 pages of written reasons since December’s hearing was adjourned. Employment Judge Hutchings issued a comprehensive 32-page record of the hearing which took place over two days in May 2024.[23]The reasons for Employment Judge Tynan’s decision on the Claimant’s reasonable adjustments application extend to some 11 pages. In the Claimant’s most recent email to the Tribunal, sent shortly before yesterday’s hearing was scheduled to commence, the Claimant listed his reasonable adjustments application as one of a number of applications that the Tribunal has failed to address. His assertion in that regard is plainly wrong, though it reflects his approach to these proceedings, namely his willingness to make broad, unfounded assertions which the Tribunal and the Respondents are then required to unpick and address. It is becoming increasingly difficult to keep pace with the Claimant’s emails and the various assertions in them. In our judgment it reflects a conscious strategy of attritional, vexatious conduct on the Claimant’s part. The Claimant’s application dated 19 February 2025[24]On 17 March 2025, Employment Judge Tynan made various orders on the Claimant’s application dated 19 February 2025 (his twelfth application since the final hearing was adjourned part heard on 11 December 2024). Employment Judge Tynan’s written reasons speak for themselves as regards the Claimant’s ongoing unreasonable conduct of the proceedings. Notwithstanding the Claimant’s previous unsuccessful applications to vary the Tribunal’s decisions and orders, and the relevant legal principles having been drawn to his attention, the Claimant was continuing to apply for orders to be set aside or varied, including on the wholly unmeritorious grounds that they had not been signed (there being no requirement since 6 January 2025 for judgments or orders to be signed). The Claimant knew that this did not provide grounds to set aside an order, as Employment Judge Tynan had rejected an earlier application by the Claimant to set aside a Notice of Preliminary Hearing sent to the parties on 12 February 2024 on the same grounds. The Claimant’s willingness to persist in challenging orders on the grounds that they had not been signed evidences his ongoing determination to pursue applications regardless of their merit. In our judgment that is scandalous and / or vexatious conduct on his part.[25]Although the Claimant has changed tack slightly in more recent weeks, he continues to challenge the validity of both the legal process and the orders and directions that have been made. For example, in his email to the Tribunal yesterday he asserts that Employment Judge Hutchings’ May 2024 case management summary and orders, together with all orders made since December 2024, have been made without proper judicial authority or reasons. We shall come back to this in a moment, but in summary it reflects the Claimant’s ongoing determination to identify some reason why the orders might be invalid, partly we find in order to justify in his own mind his non-compliance with them. Ongoing applications to strike out the response[26]In Employment Judge Tynan’s order of 17 March 2025 he dismissed applications by the Claimant to add a rRespondent and a claim. For the reasons given in writing, Employment Judge Tynan considered the applications to be an abuse of process, likewise the Claimant’s renewed application to strike out the response. Notwithstanding the Claimant’s strike out application was considered in detail by Employment Judge Hutchings on 28 May 2024, the Claimant continues to challenge her decision. We refused an application by the Claimant on the first day of the final hearing to strike out the response; his application was pursued on many of the same grounds that had been considered by Employment Judge Hutchings. Notwithstanding her decision and our refusal of his further application, the Claimant renewed his strike out application on 1 March 2025. The application was entirely repetitive of the 2024 strike out application which had been refused by Employment Judge Hutchings. At paragraph V(2) of his 1 March 2025 application, the Claimant requested that the Tribunal issue “immediate” written reasons for its refusal of his strike out application on 2 December 2024. Whilst the request was not made within 14 days of the date that the record of the decision was sent to the parties, namely 18 December 2024, we are nevertheless minded to extend time for that request in case there has been any misunderstanding in the matter. Written reasons will follow in due course. In summary though, the 2 December 2024 application was refused because it was largely an attempt by the Claimant to overturn Employment Judge Hutchings’ refusal of his 2024 strike out application. The only new matters sought to be relied upon by the Claimant in his further application concerned the Hearing Bundle. We have noted already that any issues or difficulties in that regard were entirely of his own making. Insofar as he seeks to rely upon them, on his case they would support the claim, rather than the response, being struck out.[27]Notwithstanding Employment Judge Hutchings’ and this Tribunal’s refusal to strike out the response, and Employment Judge Tynan’s refusal to revisit the issue following the Claimant’s further application on 1 March 2025, the Claimant continues to assert that the response should be struck out. In his email to the Tribunal of 3 April 2025, he goes as far as to say that his 2 December 2024 strike application has not been determined, a curious submission given that he has requested written reasons for the Tribunal’s decision not to strike out the response. As well as repeating many of the grounds previously advanced unsuccessfully by him, and which he is well aware have not been upheld by the Tribunal, he asserts that no decision was in fact issued by Employment Judge Hutchings on what was then his 37 application and, accordingly, that the application remains “live and unresolved”. It is the latest example of the Claimant seeking to identify procedural routes by which he might impugn decisions with which he does not agree and reflects what we have described as a conscious strategy of attritional conduct on his part. In our judgment such conduct is both vexatious and unreasonable. For the avoidance of doubt, Employment Judge Hutchings addressed the strike out application at paragraphs 76 – 91 of her record of case management hearing. Twice she recorded that the application was dismissed and that the response would not be struck out. We return to this issue below, specifically to the Claimant’s appeal to the Employment Appeal Tribunal. The Claimant’s failure to abide by the Tribunal’s direction not to discuss the case in the course of the adjournment[28]On 17 March 2025, Employment Judge Tynan ordered the Claimant to write to the Tribunal and the Respondent to confirm whether he had had any assistance in writing any of the 19 or so emails he has sent to the Tribunal since 11 December 2024. As the Claimant has been under oath since December 2024 and precluded therefore from discussing the case with anyone, it seems likely he will have disobeyed the Tribunal’s instruction in the matter if he had assistance with the emails. If he did not have any help with them, then as Employment Judge Tynan also explained in his reasons for his order, it would be difficult to reconcile this with the Claimant’s stated difficulties in understanding English, including documents written in English, and his claimed need for careful, verbatim translation.[29]This is not a claimant who says that he is reasonably proficient in English but prefers the assistance of an interpreter when giving evidence or because these are complex legal proceedings with the potential for misunderstanding. Instead, the Claimant claims that he has limited English so that he requires careful, verbatim translation of the proceedings. He has declined to speak any English during the hearing notwithstanding Employment Judge KJ Palmer noted in August 2023 that his English was “extremely good”. He claimed not to understand Employment Judge Tynan when asked a number of times “who” had prepared the transcripts in English of various convert recordings made by him. We are particularly troubled by the Claimant’s evidence on this issue yesterday. He has been on notice since last year that we have reservations as to his claimed limited abilities in the English language. Yesterday, he repeatedly refused to answer the Tribunal’s enquiries as to whether he could read documents written in English, including paragraph 1.1 of Employment Judge Tynan’s order of 11 February 2025 as follows: In order that consideration may be given to the Claimant’s request for adjustments, the Claimant must by 11 March 2025 send to the Tribunal and the Respondent copies of his GP and other medical records covering the period from 1 January 2024 to the date of securing copies of the records. We wished to ascertain his understanding of that order in the context of his non-compliance with it. The Claimant claimed that he required access to his personal notes to be able to answer the Tribunal’s enquiries, notwithstanding the relevant order was in front of him. He first wrongly asserted that he had complied with the order for disclosure of his GP and other medical records, before complaining that the Tribunal was forcing him to do something he was unwilling to do. He said he was under pressure and asked for a break. When the hearing resumed after about 15 minutes the Claimant was asked again whether he had been able to understand what had been written in English at paragraph 1.1 of Employment Judge Tynan’s order of 11 February 2025. Once again, the Claimant refused to say. He suggested instead that he had already addressed the matter in correspondence. We pointed out to him that he had not done so. In our judgment, he continued to obfuscate and when pressed further as to his ability or otherwise to understand what was written at paragraph 1.1 of the order of 11 February 2025, the Claimant replied, “I can see what is written there” but otherwise defaulted to saying that he needed access to his notes in order to comment further. He then complained that his rights were being denied, including denial of access to his McKenzie Friend. The Tribunal had invited the Claimant to address these important matters on oath as they touch directly upon the question of whether he has misled the Tribunal regarding his English language skills and disobeyed an instruction not to discuss the case.[30]We encountered a similar pattern of obfuscation when we asked the Claimant whether he had assistance from any person in writing any of his various emails to the Tribunal since 11 December 2024. He repeatedly stated that he had used online tools and that the emails reflected his thoughts and conclusions, but in spite of our various, repeated requests of him, he pointedly refused to say whether he had had assistance with them from another person. We infer from his sustained, pointed refusal to answer the Tribunal’s clear and specific questions in the matter that he did have input and support from one or more others in writing the emails and in so doing that he discussed the case in detail with others in clear contravention of the Tribunal’s instruction not to do so. His actions in this regard are in the context that he has failed to comply with six orders of the Tribunal and that this has been a conscious decision on his part. In Employment Judge Tynan’s written reasons of 14 March 2025, he said that the Claimant’s non-attendance on 13 March 2025 was a conscious decision on his part directly linked to his determination not to comply with the order that he disclose evidence relevant to the issues to be determined. And, as we have noted already, he has shown an ongoing unwillingness to accept the ClaimantTribunal’s case management decisions and a marked propensity to revisit and reopen issues that have previously not been determined to his liking. We find, since the final hearing was adjourned part-heard on 11 December 2024, that the Claimant has sought assistance with this case from and discussed it with one or more others in blatant disregard of our instruction not to do so. We can no longer trust him to comply with any further order, direction or instruction we might make, including any reminder we might issue during the remainder of his evidence not to discuss the case with anyone. Misleading the Tribunal[31]We agree with Ms Halsall that the Claimant has deliberately misled, indeed lied the Tribunal as to the level of his English language skills: to what end it is hard to know. Over the course of the final hearing and during the adjournment, the Claimant has shown himself to be stubborn, contrary and uncooperative and inclined to be difficult for the sake of it. As regards his English language skills, we conclude that he has been dishonest with this Tribunal. As we say, in August 2023, Employment Judge KJ Palmer observed that the Claimant had, “extremely good” English. We have had the further benefit of having read the transcripts of the covert recordings kept by the Claimant which also evidence that he speaks good English and that he is able to understand others when they speak English without any need for translation, repetition or clarification. Indeed, such is the level of the Claimant’s English language skills that he was able to tell Mr Girvan of the Respondent that he was only talking metaphorically when he spoke of being caught between two colleagues and “getting punched from both sides” (see page 79 of the Transcript Hearing Bundle). Although we have yet to hear evidence from Mr Dumbrill, our assessment of the Claimant’s level of understanding and his ability in the English language is consistent with paragraph 33 of Mr Dumbrill’s witness statement, in which he refers to the Claimant being educated to a high level and speaking multiple languages fluently.
Conclusions
[32]In Smith v Tesco Stores Limited, the circumstances that led to the claim being struck out were that Mr Smith was refusing to comply with the obligation to assist the Tribunal to further the overriding objective. Specifically, the Tribunal had experienced great difficulty in identifying the issues in the case. The Employment Appeal Tribunal noted that this was part of a course of conduct in which the Claimant had shown that he was, “not prepared to cooperate with the Tribunal process”. That certainly describes this claimant, even if the issues in the case have essentially been defined.[33]As long ago as August 2023, Employment Judge KJ Palmer referred to a 23 page letter from the Claimant as a, “request to revisit and unravel the issues determined and set out in the Summary of EJ Gumbiti-Zimuto”. The Claimant’s continued determination to revisit and unravel issues, directions, decisions, orders and reasons he does not agree with has become a central, defining feature of these proceedings. In the words of His Honour Judge Tayler in Smith v Tesco Stores Ltd, the Claimant has become embattled and is failing to engage properly, or indeed almost at all, with the Tribunal. Since the final hearing was adjourned part heard on 11 December 2024, the Claimant’s challenges and attempts to revisit and unravel what has gone before have become relentless, even oppressive. They have involved a great many hours of Employment Judge Tynan’s time, at the expense of other deserving cases. In our judgment, in spite of his various assertions yesterday that he simply wants his claim to be examined on its merits, the Claimant has set out to sabotage these proceedings. In short, it is ‘his way or the highway’ (an idiom we are confident he will understand). We have no hope or expectation that the Claimant’s conduct of the proceedings will change. His extensive correspondence since 11 December 2024 evidences his unwillingness to change course. His conduct yesterday morning, whilst still under oath, as well as his most recent correspondence merely reinforces that his disruptive conduct will continue unabated should the final hearing resume. This is not a Claimant who has belatedly seen the error of his ways: he refuses to take any responsibility for his actions to date and gives not the slightest indication of wanting a final chance to cooperate with the Tribunal. His repeated refusal to answer the Tribunal’s basic enquiries yesterday, is a mark of his defiant attitude, indeed his contempt for the Tribunal. We had anticipated that it might take just a few minutes to explore those issues with the Claimant. We were seeking his confirmation that he had received the Tribunal’s orders and wanted to check that he accepted he had not complied with various of our orders, specifically that we had not overlooked any correspondence from him which evidenced his compliance or an intention to comply given the chance. We also wished to establish whether the Claimant had discussed the case with anyone whilst under oath and, if so, his explanation for this (for example, whether it might have resulted from a misunderstanding on his part). Instead we were thwarted by the Claimant at every turn. He was determined that he would not answer our enquiries.[34]In December last year, the first three days of the final hearing were lost to case management issues. In our collective experience that is exceptional, the more so given that there had been case management preliminary hearings before four different Judges.[35]The Claimant gave evidence over three days on 6, 9 and 10 December 2024 during which time Ms Halsall was able to make only limited inroads into the issues in the case. She has explored events up to November 2019. The Claimant resigned two years later. There are a further 19 issues to be explored in terms of the complaint of constructive unfair dismissal: the entirety of the Claimant’s whistleblowing and disability discrimination complaints have yet to be explored with him. The Claimant’s current position, reiterated in correspondence and repeated at Tribunal yesterday, is that the Tribunal’s various orders since May last year were made without proper judicial authority and should be set aside, that the Tribunal should acknowledge the procedural irregularities in the case and the Respondents’ alleged exploitation of them, and that a determination should be made on the existing evidence without further procedural burdens on him. Whilst he has not said in terms that he will not submit to cross examination, his refusal yesterday to engage with the Tribunal’s basic enquiries does not augur well. In his most recent email to the Tribunal, sent yesterday at 9:43am shortly before the hearing was due to commence, the Claimant wrote, “Proceeding with my continued cross examination in April 2025 would further compromise my right to a fair hearing under Article 6 of the European Convention on Human Rights… I cannot lawfully be compelled to continue without the Tribunal first addressing my outstanding objections and issuing formal judicial clarification.”[36]In an earlier email to the Tribunal on 4 April 2025, he asserted that the continuation of his cross examination, “…under the discriminatory, intimidating and procedurally irregular conditions… places me at real and immediate risk to my wellbeing and physical harm. This is not a theoretical risk, it is a foreseeable and preventable consequence of the Tribunal’s conduct, particularly in May and December 2024.” He has not adduced any medical evidence in this regard, and as noted already, remains in breach of three separate orders regarding the disclosure of relevant medical evidence. In our judgment, it is the Respondents’ rights that are jeopardised by the Claimant’s apparent unwillingness to unequivocally submit to cross examination.[37]The Claimant’s conduct at Tribunal yesterday, in December last year and in the months in between, evidences that he will only engage in these proceedings on his own terms and according to his distorted world view. That does not provide a basis on which to go forward. We have no confidence that he will cooperate in any ongoing hearing. On the contrary, we anticipate that he will refuse to engage constructively with Ms Halsall’s further cross examination in the same way that he failed to engage with the Tribunal’s limited enquiries of him yesterday. We fully expect him to continue to make unmeritorious applications and that he will disobey any further orders we make, and seek to revisit and unravel the Tribunal’s decisions and orders, including those of Employment Judge Hutchings. In our judgment, it renders a fair trial no longer possible in this matter. Indeed, we very much doubt, on the strength of the Claimant’s conduct yesterday, that if we were to proceed, this case would be capable of being heard in the remaining six and a half day trial window.[38]The Claimant’s email yesterday and various earlier emails, proceed on the premise that the May 2024 hearing was procedurally unlawful and that this in turn has invalidated the entirety of this Tribunal’s and Employment Judge Tynan’s orders since then. At a preliminary hearing in the Employment Appeal Tribunal on 10 October 2024, Judge Tayler noted that in fixing the matter for the hearing, Judge Beard had been unclear precisely what decision of Employment Judge Hutchings the Claimant was seeking to appeal. Fortunately, His Honour Judge Tayler was able to clear the matter up with the Claimant. He recorded at paragraph 3 of his reasons that the record of the May 2024 preliminary hearing for case management, “…has not been appealed, despite the fact that the Claimant’s criticisms are about what happened at that hearing.” He went on to say at paragraph 5 of his reasons, “If the Claimant wished to challenge the conduct of and / or the decisions taken at that hearing, he should have appealed that order, although I cannot see that there would have been any merit in such an appeal.”[39]Putting aside that the learned Judge saw no merit to any appeal, the time for appealing Employment Judge Hutching’s May 2024 order, whether on the grounds of procedural irregularity or otherwise, has long since passed. This Tribunal is not a route by which the Claimant can now seek to revisit and unravel the May 2024 record of hearing, or the Claimant’s decision last year not to pursue an appeal. However, his belief and determination that we should do so, and his misguided assertion that the entire proceedings since May 2024 are legally and procedurally invalid, speaks further to why a fair trial is no longer possible. The Claimant is entrenched in his view that the proceedings are invalid and nothing will dissuade him from that view which he has expressed over a number of weeks now in increasingly trenchant terms. His position is that the response should be struck out and that the Tribunal should issue, “…a suitable order reflecting the full scope of the Claimant’s claims, issued without a hearing.” By which we assume the Claimant means a judgment in his favour for £2.78 million (being the stated value of his claim, notwithstanding he is 46 years of age and was earning just £25,758 per annum (gross) when he resigned his employment). He claims £1.5 million for failure to make adjustments and £500,000 for personal injury. He goes as far as to assert in his email of 3 April 2025 that the Tribunal’s failure to verify the fairness and legal validity of the proceedings constitutes an abuse of power. It is the Claimant’s continued machinations that are an abuse of this process.[40]Having identified extensive vexatious and unreasonable conduct on the part of the Claimant, we have asked ourselves whether there is no proportionate lesser sanction than striking out the whole claim. Unless Orders might secure the Claimant’s compliance with the three orders for disclosure of his relevant medical records, but they will not secure his cooperation in furthering the overriding objective: there is effectively no order we can make that might bring this about or alter the Claimant’s entrenched view of the proceedings, including Employment Judge Hutchings’ and Employment Judge Tynan’s management of them. We have given thought to whether we might simply proceed to determine the claim on the papers and on the strength of the relatively limited evidence to date. In our judgment that would be to deny the Respondents its their fundamental right to cross examine the Claimant and to test his case in the normal way, a claim as we say which he values at £2.78 million. We have alternatively considered whether we might limit ourselves to the five issues covered so far in cross examination. In our judgement that would be an artificial exercise and one which we should not undertake without risking a potentially significant injustice to the Respondents.[41]Strike out is not a way out, it is draconic and a last resort. It requires “anxious consideration” on the part of this Tribunal, not least given how far we have got in hearing the case.[42]In Blockbuster Entertainment Limited v James, Lord Justice Sedley noted that Mr James had been difficult, querulous and uncooperative before expressing the hope that he would show the, “…moderation and respect for others that he had displayed in his oral submissions.” Difficult, querulous and uncooperative could be said to scratch the surface in terms of Mr Menich’s conduct over the last five months or more. His conduct yesterday and his correspondence since December does not evidence the slightest moderation or respect for the Tribunal or this process. He is unconcerned as to the needs of other litigants and impervious to the finite resources of this Tribunal. On the contrary, his correspondence evidences a demanding, obstructive, disproportionate approach to the proceedings and a willingness to place unconscionable and unsustainable demands upon the Tribunal’s time and resources. Quite simply this cannot continue.[43]This is a Claimant who has disobeyed six orders of the Tribunal, who is refusing to cooperate with the Tribunal and the Respondents, who is unwilling or unable to advance the overriding objective, and has misled and lied to the Tribunal. He has sabotaged any remaining possibility of a fair trial. In our judgment it is proportionate to strike out his claim. Approved by: COSTS JUDGMENT The Tribunal orders the Claimant to pay the Respondent’s costs and expenses assessed in the sum of £1,835.60.
Conclusions
[1]At a hearing on 13 March 2025, I determined that the threshold test was met for the Tribunal to consider making a costs and expenses order in favour of the First to Third Respondents in respect of its costs and expenses of that hearing. I also determined that Ms Halsall’s fees and expenses of £1,835.60 for attending the hearing had been reasonably incurred and were reasonable in amount.[2]The Claimant was on notice that the hearing on 13 March 2025 might proceed in his absence, furthermore that consideration might be given at the hearing to whether there were grounds to make a costs order against him. Although I was of the view that the Claimant had made a conscious decision not to attend the hearing, I determined that he should nevertheless be afforded an opportunity to provide information as to his ability or otherwise to pay any costs and expenses that he might otherwise be ordered to pay. I therefore made an order that if he wished the Tribunal to have regard to his ability to pay he must file and serve a written statement of his financial means, setting out his income and outgoings (including his share of any joint outgoings if he cohabits), as well as his assets and liabilities, supported with documentation. I ordered that his written statement must be signed and dated and supported with a statement of truth, and that it should be provided by 11 April 2025.[3]In spite of initial suggesting today that he had done so, the Claimant has not availed himself of the opportunity to submit a written statement of his financial means. He said today that he is reliant upon state benefits and has no savings or assets, and no means to pay any costs or expenses that he might be ordered to pay. He has not adduced any evidence in support of what he says, for example a copy of any benefits eligibility assessment or copies of his bank account statements. I have not been provided with some form of balance sheet illustrating his income and regular outgoings or his assets and liabilities. He has not said whether he cohabits. Other than the Claimant’s bare assertion that he cannot pay any costs and expenses, I have little or no information before me to assist me in making an informed, balanced decision in the matter.[4]Under Rule 82 of the 2024 Rules, tribunals have a discretion as to whether to have regard to a paying party’s means when deciding whether to make a costs and expenses order and, if so, in what amount. On this occasion, I cannot have any significant regard to the Claimant’s means given his failure to place meaningful information before the tribunal, in circumstances where he was afforded a reasonable opportunity to do so. It is not my intention to punish the Claimant, rather to ensure I do justice as between the parties in circumstances where I have already determined that the threshold test has been making for making a costs order in favour of the Respondent. I am unwilling to defer any decision in the matter to another hearing in order to afford the Claimant a further opportunity to comply with the order I made on 13 March 2025; the Respondent has already been put to unnecessary costs and expense in this matter.[5]In all the circumstances, I conclude that it is just and equitable to order the Claimant to pay the Respondent’s costs and expenses of £1,835.60. Should the Respondent take action to enforce the order through the County Court, that will provide a further opportunity for the Claimant to place relevant information before that Court in support of any request by him to be permitted to pay the amount by instalments.[6]The First to Third Respondents evidently have in mind making a further costs application following the Tribunal’s decision today to strike out the claim. In the event such an application is made, I encourage the Claimant to ensure that he makes detailed information available to the Tribunal regarding his financial means, in the form of a written statement supported with documentation, so that if (but only if) the Tribunal is minded to make a costs order against him it can weigh in its deliberations his ability or otherwise to pay. Approved by:
Conclusions
[1]Rule 68 of the Employment Tribunals Procedure Rules 2024 (“the Rules”) empowers a tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Any suggestion that a Tribunal has made an error of law or that its findings were perverse is generally a matter for appeal – Ebury Partners UK Limited v Acton Davis [2023] EAT 40.[2]Rule 70 of the Rules provides that if a tribunal considers that there is no reasonable prospect of the judgment being varied or revoked, the application must be refused.[3]In Outasight VB Limited v Brown UKEAT/0253/14, the Employment Appeal Tribunal considered the Tribunal’s equivalent powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013 and observed: “The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also 1 of 4 to the interests of the other party to the litigation and to the public interest requirement that there should, insofar as possible, be finality of litigation.”[4]The Claimant has applied for reconsideration of the costs order I made on 15 April 2025, albeit which was only sent to the parties on 27 June 2025. A costs order is a “judgment” for the purposes of the Rules and, as such, it is susceptible to an application for reconsideration. I shall refer to the costs order hereafter as the costs judgment.[5]The costs judgment has to be read in conjunction with the orders I made at an earlier hearing on 13 March 2025, specifically my determination that the threshold test was met under Rule 74(2)(a) of the Rules to consider making a costs order in favour of the First to Third Respondents in respect of the costs of that hearing.[6]I determined the costs issue alone on 15 April 2025, as it arose directly out of the Claimant’s unreasonable conduct in relation to the 13 March 2025 hearing at which I had also sat alone. The Claimant failed to attend the March hearing notwithstanding it had been listed as a matter of some urgency in response to his application for adjustments ahead of the final hearing resuming part-heard on 14 April 2025. The Claimant was by then also in breach of an order I had made for him to disclose copies of his recent medical records.[7]The further context is that the Claimant emailed the Tribunal on 11 March 2025 and again during the afternoon of 12 March 2025 objecting to the hearing, notwithstanding it had been listed on his application. Having considered his email of 11 March 2025, I directed on the morning of 12 March 2025 that the following day’s hearing should remain in the List and that the Claimant should be informed that his substantive application for adjustments might be considered in his absence if he did not attend the hearing and warned that consideration might be given to making a costs order if his conduct of the proceedings was found to be unreasonable. A letter to this effect was duly sent to the parties on 12 March 2025 by the Administration. There was plainly no opportunity for the letter to have been sent any sooner given the timing of the Claimant’s email of 11 March 2025.[8]I decided on 13 March 2025 to proceed in the Claimant’s absence. I addressed the Claimant’s various objections to the hearing in some detail in the written reasons that accompanied my orders following that hearing. There has been no appeal against my decision to proceed that day or against the case management orders themselves. However, as he has done throughout these proceedings, in his application for reconsideration, the Claimant seeks to re-visit these other aspects even though they are not within the scope of his reconsideration application. Any application by the Claimant to vary my case management orders of 13 March 2025 would now be out of time, likewise any appeal.[9]Rule 75 of the Rules provides that a costs order should not be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing as the tribunal may order). The Claimant says that he was not afforded such an opportunity. However, as I said in my written reasons 2 of 4 of 13 March 2025, it was his decision not to attend the hearing on 13 March 2025. His late notification of his objections and intentions meant that there was only a limited window in which to inform him, amongst other things, that consideration might be given to making a costs order against him. In the circumstances I consider that he was given a reasonable opportunity to make representations, either in person by attending the hearing or in writing if he was determined not to attend.[10]The Claimant continues to assert that the way in which the hearing was notified, including the costs aspect, was procedurally invalid or irregular. As I say, I addressed his objections in the written reasons that accompanied my orders. On the specific issue of costs, Rule 75 does not prescribe the form by which a party is to be notified that a tribunal is considering making a costs order. That is unsurprising since costs issues not infrequently arise, and are dealt with, in the course of a hearing without the parties therefore being given any prior notice in the matter. I am satisfied that the Tribunal’s letter to the parties of 12 March 2025 was in compliance with the Rules and that it was not procedurally improper as the Claimant asserts.[11]Even if the Claimant persuaded me that he did not have a reasonable opportunity to make representations, in my judgement there is no reasonable prospect of the costs judgment being varied or revoked. Reference has been made in the course of these proceedings to the Claimant’s determination to revisit and unravel issues, directions, decisions, orders and reasons he does not agree with; when we struck out his claim, the members and I observed that this had become a central, defining feature of the proceedings. His application for reconsideration is no exception. In it, he rehearses various arguments that have not previously found favour with the Tribunal, indeed a number of which he has been told, sometimes more than once, are misconceived and an abuse of process. For example, notwithstanding his unsuccessful appeal to the EAT, he continues to challenge the validity of the proceedings since the hearing before Employment Judge Hutchings in May 2024 and continues to assert that his participation since then has been under objection and protest. The interests of justice do not require that I should re-visit this and his various other arguments. However many times they are rehearsed, they continue to have no prospect of success. Many of them are not even relevant to the question of costs.[12]I set out in my written reasons of 13 March 2025 why the threshold test was met for the making of a costs order, including that the Claimant had wilfully refused, to make relevant medical evidence available to the Tribunal notwithstanding he was asking for hearings in his case to be expedited and for a range of adjustments to be made. Nothing the Claimant has written in his application for reconsideration alters or has any chance of altering the decisions I reached on 13 March and 15 April 2025, whether in relation to the case management issues under consideration on 13 March 2025 or on the related question of costs. The Respondents have a reasonable expectation of finality, and there is a clear public interest in such. The Claimant’s continued repetition of essentially unmeritorious arguments does not warrant him being afforded a further platform to develop those arguments. There is no reasonable prospect of the costs judgment being varied or revoked. 3 of 4[13]In the circumstances, the application for reconsideration is refused. Approved by: