Mrs R ZaveriClaimantBritish Airways PLC RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge AndersonIn person for claimantMr Millington (instructed by Solicitor) for respondentDate 28 February 2025
JUDGMENT
[1]The application for strike out by the Respondent is refused.
REASONS
[1]This matter came before me by way of Public Preliminary Hearing. The hearing was listed to consider the Respondents application for strike out.[2]Of my own volition I have decided to provide brief written reasons in respect of my refusal to strike out to enable any future Judge to understand my decision should a further application for strike out become necessary. This also has the benefit of enabling the parties to understand the importance of my decision and the need for the hearing listed in May to take place.[3]I had before me a bundle of 251 pages plus a separate index.[4]Mr Millington made his application. As he described it, there were three themes:a. Unreasonable conduct in terms of the nature and content of emails sent to the Respondents solicitors together with contacting the Respondent directly.b. Refusal to engage with the Respondents solicitors thereby placing the hearing date at risk.c. Conduct of the proceedings, including breaches of orders, suggesting that 50 witnesses will be called, all placing a fair hearing within the hearing window at risk.[5]The application was made under Rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024.[6]I allowed the Claimant the opportunity to reply. Initially, the Claimant was strong in her wording regarding the case generally.[7]I sought to assist the Claimant by making the following points:a. The Tribunal has ordered the parties to agree a bundle. The current draft bundle is near 1000 pages, which is a lot. It is not for the parties to not comply with orders because they believe that the Respondent has withheld documents.b. If the hearing is placed at risk, then this could be a reason for strike out. If it were to be relisted, a relisting of a seven-day case in Reading would be significantly in the future.c. Weightmans are a regulated law firm on record for the Respondent. The Claimant is required to correspond with them regarding this case and not the Respondent directly.[8]The Claimant said that she accepted these points going forward.[9]I had regard to Blockbuster Entertainment Limited v James [2006] IRLR 630 together with the wording of Rule 38 and the overriding objective.[10]Blockbuster assists me in reminding me that the Tribunals are open to the difficult as well as the compliant so long as they do not conduct their case unreasonably. In addition, proportionality is an essential consideration when considering strike out.[11]In the present case, I am clear from the application for strike out that the content and tone of the emails to the Respondents solicitors has been unreasonable as has contacting BA directly. There is simply no need for such personalised language in litigation. It achieves no objective and simply makes the lives of everyone more difficult. I am also clear that there has been breaches of orders and that the responsibility for there not being an agreed bundle rests with the Claimant.[12]However, I am also clear that a fair trial remains possible provided that I make orders today that will be complied with. The draft bundle is ready to go and the Respondents witness statements are drafted. The Claimant likewise says she is prepared. The Claimant says that she will comply with these orders and I have proceeded on this basis.[13]This is not a ‘restart’. Any future application for strike out will be able to refer to these reasons and see that there have been previous breaches. The Claimant is at risk of a future Judge striking out her case if these orders are not complied with.[14]I expressed myself in clear terms today. The Claimant must correspond and cooperate with Weightmans. She must do so appropriately. My Orders must be complied with.[15]The trial bundle is nearly 1000 pages and the listing of seven days must include reading time, deliberation time and giving Judgment. A fair trial is possible, but I was clear with the parties that the Judge hearing the case will need to actively manage it in order to ensure that it is heard within the window.[16]We also discussed the ’50 witnesses’ being called by the Claimant. I said that this was a common misunderstanding. Firstly, the sheer volume of witnesses would require a relisting of the case. Secondly, it is a common misconception that calling witnesses still employed en masse would assist. Most would likely be reluctant or hostile witnesses. If the Claimant called them, she could not cross-examine them. The Claimant said that she understood and indicated that she would not be pursuing this course of action.[17]Costs were briefly discussed as a proportionate alternative to strike out. No application for costs was before me today. I simply record that fact and do not comment either positively or negatively upon it were an application made in the future.[18]I record the discussion that was had today regarding specific disclosure. Previously, the Claimant refused to agree the bundle but no application for specific disclosure was made to the Tribunal. I set out the relevant test to the Claimant and in particular the fact that specific disclosure had to be necessary for a fair disposal of the proceedings. Wide ranging and broad applications do not meet that test. Also, if CCTV (for example) does not exist and the Respondent has stated this, no additional order can make it exist. No application was before me today, though at the same time, nothing was said that would be sufficiently specific to fall within such an application.[19]Therefore, whilst I do not prevent the Claimant from making a future application, and I express no view on that, any application for specific disclosure would not be a reason for not complying with my orders today. Approved By: