Mr J Martins and Mrs V Martins v GXO Logistics UK Ltd and others: 3311560/2020 and others
JUDGMENT
[1]The application of Kuene + Nagel Limited to be removed from these proceedings is granted.[2]Mr Martins acted unreasonably within the meaning of Rule 76 Employment Tribunal Rules 2013 in pursuing his claim against Kuene + Nagel Limited. Case numbers : 3311560/2020 & others 2[3]Mr Martins is ordered to pay £625 towards the costs incurred by Kuene + Nagel Limited.REASONS
[1]On 3 July 2025 Employment Judge Quill directed as follows:- “Claimant 2 (Vicki Martins) email of 3.2.25 is an unequivocal withdrawal. Her claims are all at an end. A judgment dismissing them will be sent shortly.” Case Numbers: 3311560/2020,3311561/2020,3311562/2020,3311563/2020, 3323883/2021,3323884/2021,3310920/2022,3314603/2022, 3305778/2022,3305779/2022,3304201/2022,3304202/2022, 3305781/2022,3305782/2022,3300606/2023,3300607/2023 2 The first claimant[2]Today’s hearing was listed as a case management preliminary hearing Dispute Resolution Appointment. It was listed by Employment Judge Laidler on 7 May 2024 (although the case management orders do not contain the listing).[3]On 6 February 2025 the respondent applied to the tribunal to have the first claimant’s claims dismissed as they were not being actively pursued. The application states:- “The respondent also makes an application for the First Claimant’s claims to be dismissed on the basis that he is no longer actively pursuing them. The First Claimant was ordered to provide a schedule of loss in June 2024. He has not done this despite us requesting it from him and highlighting the order that he has breached. Recent correspondence on this was an email of 2 December 2024 asking for the schedule of loss by return, an email of 31 December 2024 referring to the fact that he had not responded to our email or provided his schedule of loss and asking him to confirm if he was pursuing his claim as a matter of urgency, and a further email of 3 February 2025 where we stated “Please note that if there is no response to this email we will have no option but to ask the tribunal to dismiss your claim on the basis that you are no longer pursuing it.” No response has been received from the first claimant. The respondent has been put to considerable time and expense in defending the 16 claims that the Claimants have brought and respectfully request that the employment tribunal dismisses the claims for the reasons set out above.”[4]On 24 February 2025 the respondent emailed the tribunal to request that the dismissal application be dealt with.[5]On 16 April 2025 the respondent again emailed the tribunal requesting that the dismissal applications be dealt with.[6]On 25 June 2025 the respondent again emailed the tribunal requesting that the dismissal application be dealt with.[7]On 3 July 2025 Employment Judge Quill directed as follows:- “The respondent R alleges that claimant 1 (Jeff Martins) is not actively pursuing the claim. From claimant 1, there seems to have been nothing sent to tribunal in response to respondent’s email of 25.6.25 or 16.4.25. If claimant 1 is still pursuing the claims he must write to Tribunal and Respondent immediately to say so, or the claim might be struck out and the future hearings cancelled. By 4 July 2025 claimant must write to comment on respondent’s allegations that he breached orders and to say if he is planning to attend the hearings.”claim.
[8]On 3 July 2025 the claimant emailed the tribunal as follows:- Case Numbers: 3311560/2020,3311561/2020,3311562/2020,3311563/2020, 3323883/2021,3323884/2021,3310920/2022,3314603/2022, 3305778/2022,3305779/2022,3304201/2022,3304202/2022, 3305781/2022,3305782/2022,3300606/2023,3300607/2023 3 “I can confirm that I am wanting to still pursue all claims. I have yet to complete a schedule of loss, as ordered, as a) the extreme complexity of the matters (as a litigant in person) and b) my ongoing health issues.”[9]In the circumstances, I decided to hear the parties on the issue of the strike out application. As this was a case management preliminary hearing, so I cannot strike out the claimant’s claim at the hearing and I make plain that the strike out order has been made subsequent to the hearing.[10]The first and second claimants have issued a total of 16 claims of which 10 relate to the first claimant. The first claim was issued on 8 September 2020.[11]Although the second respondent, Mr Michael Fludgate, did not present a response, Employment Judge Lewis ordered all the claims to be listed for a preliminary hearing on 14 March 2024.[12]A case management preliminary hearing was heard by Employment Judge Laidler on 14 March 2024. Many of the issues were set out and the first claimant was ordered to provide further information by 11 April 2024. The two claims against Mr Michael Fludgate were expressly referred to in the case summary and were clearly before the tribunal. Those two claims were therefore travelling with the rest if not actually consolidated with them.[13]A second case management preliminary hearing was heard by Employment Judge Laidler on 7 May 2024. The first claimant had failed to comply with the order for further information but did provide the further information during the course of that hearing.[14]At that hearing the final hearing was listed for 15 days at Cambridge Employment Tribunal between 1 and 19 September 2025. Case management orders were made as follows:-12.1 Claimant to serve a schedule of loss by 4 June 2024:12.2 Claimant to indicate if he was interested in judicial mediation by 2 July 2024:12.3 Disclosure of documents by 27 September 2024:12.4 Hearing bundle to be created by 6 December 2024.12.5 Witness statements to be exchanged by 28 February 2025.[15]As the two Fludgate claims were travelling with the rest, those orders applied to them as well.[16]The claimant has not complied with any case management orders.[17]Mr Pipkin told me that his trainee emailed the claimant chasing the schedule of loss in the autumn of 2024. In addition, Mr Pipkin emailed the claimant on 2 and Case Numbers: 3311560/2020,3311561/2020,3311562/2020,3311563/2020, 3323883/2021,3323884/2021,3310920/2022,3314603/2022, 3305778/2022,3305779/2022,3304201/2022,3304202/2022, 3305781/2022,3305782/2022,3300606/2023,3300607/2023 4 31 December and 3 February 2025. The claimant claimed he did not receive those emails although the email address used was correct.[18]Thus, eight weeks before the scheduled start of this hearing nothing has been done by the first claimant to prepare for it. The respondent’s position is that it assumed that the case was not being actively pursued and did not want to waste money preparing for the hearing. I was informed that the respondent’s disclosure is 800-900 pages. The claimant said he has 150 pages. The respondent is intending to call between 13 and 15 witnesses, many of whom no longer work for the respondent. The claimant is intending to call three witnesses.[19]When I asked the claimant for an explanation as to why he had done nothing he told me that every time he looked at what he needed to do his anxiety and depression kicked in. He said events were still very raw with him. He told me the effects of his divorce from the second claimant affected him greatly. He told me he tried to grapple with it and unravelled as he went to the next point. The claimant told me he had been to CAB who could offer him some assistance in preparing his schedule of loss.[20]The respondent’s position was that it would be impossible to get this case into a triable format in the eight weeks available. The respondent submitted that it would not be possible to obtain and finalise the 13-15 witness statements, cross reference them with the hearing bundle and prepare for the hearing.The law
[21]Where the exercise of a power which may result in a terminating ruling, such as a decision to strike out a claim or response, the exercise of the discretion must also be approached through the lens of the Court of Appeal authority of Blockbuster Entertainment:- “5. This power [a reference to what is now the power to strike out for unreasonable conduct under Rule 37(1)(b)] as the employment tribunal reminded itself, is a draconian power not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it is made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decision of this court in Arrow Nominees v Blackledge, De Keyser v Wilson and Weir Valves v Armitage but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal”.[22]Sedley LJ returned to the question of proportionality: “20. It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure. 21. It is not only by reason of the convention right to a fair hearing vouchsafed by Case Numbers: 3311560/2020,3311561/2020,3311562/2020,3311563/2020, 3323883/2021,3323884/2021,3310920/2022,3314603/2022, 3305778/2022,3305779/2022,3304201/2022,3304202/2022, 3305781/2022,3305782/2022,3300606/2023,3300607/2023 5 Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196 especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact that if it is a fact that the tribunal is ready to try the claims, or as the case may be that there is still time in which ordinary preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”[23]As per Weir Valves:- “13. What are the principles on which the employment tribunal should act in deciding whether to strike out in a case such as this, where there has been a breach of a direction?14. Where the unreasonable conduct which the employment tribunal is considering involves no breach of a court order, the crucial and decisive question will generally be whether a fair trial of the issue is still possible…15. Even if a fair trial as a whole is not possible, the question of remedy must still be considered so as to ensure that the effect of a debarral order does not exceed what is proportionate. For example, it may still be entirely just to allow a defaulting party to take part in a question of compensation which he is liable to pay.16. Those principles apply where there is no disobedience to an order. What if there is a court order and there has been disobedience to it? This is an additional consideration. The principles which we have set out above do not apply in the same way. The tribunal must be able to impose a sanction where there has been wilful disobedience to an order.17. But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. 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.”[24]I have taken into account the overriding objective which I do not set out here. Case Numbers: 3311560/2020,3311561/2020,3311562/2020,3311563/2020, 3323883/2021,3323884/2021,3310920/2022,3314603/2022, 3305778/2022,3305779/2022,3304201/2022,3304202/2022, 3305781/2022,3305782/2022,3300606/2023,3300607/2023 6Conclusions
[25]Although the claimant has alluded to his health, no medical evidence has been placed before me.[26]In my judgment, the breach of the orders by the claimant is of the greatest magnitude.[27]The fault is the claimant’s alone.[28]The fact is that there are only eight weeks before the hearing of this case is to begin. The case is of some complexity with allegations of discrimination on the grounds of gender reassignment, marriage and sex, whistleblowing and constructive unfair dismissal.[29]In my judgment, the respondent would be greatly prejudiced by being required to prepare 13-15 witness statements and the trial bundle within a matter of weeks. In my judgment, it would not be possible to take all the procedural steps necessary and to allow, say, three weeks for the advocate to prepare for the hearing. I have concluded that it is not possible to have a fair trial of these cases.[30]I have considered whether any lesser sanction would be appropriate. Postponing the hearing would be in no ones interests. Watford Employment Tribunal is currently listing cases longer than five days towards the end of 2027. It would not be fair and would prejudice the respondent trying issues up to seven years after they occurred,[31]It is simply not possible to conceive of any lesser sanction that would salvage the hearing date.[32]Consequently I have concluded that striking out all the claimant’s claims is proportionate. Approved by