Mr W Maseke v Telefonica UK Ltd and others: 3313184/2020 and others

EMPLOYMENT TRIBUNALS

Case No 3313184/2020

Between

Mr W MasekeClaimant

Telefonica UK Ltd and othersRespondent

Before

Employment Judge Gumbiti-Zimuto

In person for claimant

Mr O Lawrence (instructed by counsel) for respondent

Date 16 February 2024

JUDGMENT

[1]The claimant’s complaints as set out in the in schedule in the letter of 28 April 2022 at 1.1, 1.2, 1.7, 1.8, and 1.11 have been presented outside the time limit for the presentation of complaints contained in section 123 Equality 2010. It is just and equitable to extend the time for the presentation of complaints, the employment tribunal has jurisdiction to consider these complaints.

[2]The claimant’s complaints as set out in the in schedule in the letter of 28 April 2022 at 1.4, 1.5, 1.9, 1.13, 1.14, 1.15, 5.1 to 5.13, 5.19 and 5.20 have been presented outside the time limit for the presentation of complaints contained in section 123 Equality 2010. It is not just and equitable to extend the time for the presentation of complaints, the employment tribunal does not have jurisdiction to consider these complaints.

[3]The respondent’s application for a deposit is refused.

REASONS

[1]The claimant has now presented a total of six claims against the respondent. At the time of an earlier preliminary on 1 April 2022 the claimant had presented only five claims of which two he subsequently withdrew. The claimant has however since presented a new claim arising from his dismissal and is seeking to have the withdrawn claims re-instated.

[2]This preliminary hearing is to consider whether the employment tribunal has jurisdiction to consider the claimant’s complaints which have been presented outside the time limit for the presentation of complaints contained in section 123 Equality 2010. I am also asked to consider whether to make an order for a deposit in respect of any contention that has little reasonable prospect of success. Case number 3300036/2022 the fifth claim

[3]The claimant’s complaints in the fifth claim as set out in the schedule in the letter of 28 April 2022 at 5.1 to 5.13, 5.19, and 5.20 are between 5 and 1½ years out of time. The complaints relate to matters which arise from his treatment at the hands of his line manager “Rupert” and a variety of other matters. There is not a coherent narrative of these events which indicates that they form, as the claimant contends, part of a course of conduct which amounts to a single act continuing over a period of time which includes matters that are in time. Complaints in the fifth claim which are in time are made against a different line manager and relate to the disclosure of the claimant’s sensitive personal data, withholding information on benefit protection, delay in providing the claimant with information on termination benefits and conduct that the claimant considers to be vexatious over the claimant’s final hearing.

[4]There is no link, other than the fact that these events happened to the claimant, that knits them to each other so that they form part of a course of conduct or an act extending over a period. The incidents are all of a different nature, involve different people and occurred at distinctly different periods of time.

[5]I have gone on to consider whether the out of time complaints should be allowed to proceed on the basis that it is just and equitable to extend time. My conclusion is that it is not just and equitable to extent time. The matters I have taken into account in reaching this conclusion include the fact that some of these matters would clearly have little reasonable prospect of success and it would have been appropriate to consider the imposition of a deposit order if the contentions made in the complaints were to be allowed to continue. Other matters which put forward a coherent complaint that can only be determined after a consideration of the evidence, in respect of these matters, I take into account the fact that the matters took place, in the some instances, more than 5 years before the claimant claim was presented. The matters relating to the claimant’s management by “Rupert”, his erstwhile line manger, are historic matters that the claimant consciously decided not to pursue at the time. The claimant stated that he made the decision to put them behind him and move on. The claimant does not allege that there was any impediment to his making any complaint at the time if he had been so minded to. The claimant does not say that his view of the treatment changed because of any later discoveries about the events. The claimant always considered this treatment unfair and discriminatory. The events which caused the claimant to decide to claim discrimination in respect of the historic matters in the fifth claim had occurred by the time the claimant brought his earlier four claims but he did not choose to complain at that time. The historic matters raised in the fifth claim could have been raised in the earlier claims but were not.

[6]Looking into the historic matters now in dispute so long after they occurred will present difficulties for the parties simply because of the passage of time and the fact sensitive nature of the complaints about discrimination. Extending time in respect of these historic complaints in the fifth claim is not on the interests of justice, it is not just and equitable to do so. Claim number 3313184/2020 the first claim

[7]I am satisfied that it is just and equitable to extend time in respect of the complaints at 1.1,1.2, 1.7.1.8, and 1.11. All of these complaints contain clear allegations which the respondent and claimant can address in any hearing notwithstanding the passage of time. Whether the claimant should succeed or fail in respect of these matters can only be determined by hearing evidence. It is not, in my view, possible to weigh up the strength or weakness of these claims without considering all the relevant evidence. While it is not immediately clear why race played a part in respect of any of the claimant’s allegations, the question whether there was discrimination on the grounds of race requires looking at comparators, and considering any reasons put forward for the less favourable treatment, all of which take place on considering all the evidene. I am satisfied that there is no evidence of prejudice to the parties, in particular the respondent, in allowing the case to proceed. .

[8]I have also considered the complaints at 1.4, 1.5, 1.9, 1.13, 1.14 and 1.15 are out of time. They are not part of a continuing act or course of conduct part of which is in time they are all distinct different events complained of by the claimant.

[9]In respect of 1.4 it is in my view clear that this complaint has little reasonable prospect of success, the complaint is not credible. The reference to a “Raper” complained of by the claimant is to a real person whose name was mentioned in chat messages. It was not a matter directed to the claimant. In respect of the matter at 1.5, on the face of the information before me, the claimant will not be able to show that this event occurred. The allegation has no prospect of success. In the matter at 1.9 the claimant has not set out coherently how he was defamed or explained how race could be shown to form any part of the matters complained of. In respect of the matters at 1.13 the claimant‘s complaint about being asked questions about Tanzania is not a matter that amounts to less favourable treatment because of his race. The allegations put forward is not a coherent complaint of discrimination on the grounds of race. In respect of the complaint at 1.14, the claimant being asked questions about his marital status is not less favourable treatment on the grounds of his race. In respect of 1.15 the claimant being asked whether he was in the toilet is not less favourable treatment because of his race.

[10]In view of my conclusions on the clear and obvious lack of merit in the respect of any the these claims just referred to I am of the view that the respondent is significantly prejudiced by having to prepare a claim to defend these hopeless allegations which are all made out of time. I have therefore come to the conclusion that it is not just and equitable to extend time. Deposit

[11]I am satisfied that some of the claimant’s complaints which are in time have little reasonable prospects of success. Generally, the claimant has not explained why race plays any part in the various adverse events of which he complains. Some matters are inherently weak, for example the claimant complains that a delay in providing him information was on the grounds of his race without any clear reason why his race was a factor in respect of any delay shown, such a complaint has little reasonable prospect of success. In discrimination claims all the evidence has to be considered including the treatment of comparators before a determination can fairly be made . The way that the claimant’s individual complaints have been put to me at present is such that some of the complaints I consider have little reasonable prospect of success.

[12]However, I decline to make a deposit order because taking into account the claimant’s means noting the claimant’s inability to pay any deposit other than the most trifling amount and concluding that a deposit order would operate as a bar to the claimant being able to proceed with the his claim. I do not consider that in this case I can properly order this claimant to pay a deposit.

[13]On 13 May 2022 the claimant submitted claim no. 3305682/2022 against Telefonica (O2). I will call this the Sixth Claim.

[14]On 10 March 2023 the claimant submitted claim no. 3302475/2023 against Telefonica UK Ltd (Vmed O2 UK Ltd). I will call this the Seventh Claim. Page 2 of 15

[15]On 1 June 2023 the claimant submitted claim no. 3305951/2023 against Telefonica UK Ltd, The Outer Temple and Shoosmiths LLP. I will call this the Eighth Claim.

[16]On 5 July 2023 the claimant submitted claim no. 3307733/2023 against Telefonica UK Ltd, “Ministry of Justice/Lord Chief Justice”, Outer Temple Chambers and Shoosmiths LLP. I will call this the Ninth Claim. The claimant’s particulars of this claim start by saying “This is a discrimination victimization, harassment, intimidation, aggravation ("conduct"), and a protected disclosure (p.d) claim as there has been a collusion between the Tribunal, HMCTS, Lead Respondent (Telefonica UK Ltd), its representative and counsel ("Respondent").” These claims must all be consolidated.

[18]I have identified these claims from the tribunal’s electronic database, but even then I cannot be confident that these are all the claims. It appears that in some cases ET3s have not been received (or perhaps not registered, or not received or registered from all respondents) and it may be that some respondents are unaware of some of the claims. That does not affect this decision, although I note the claimant makes various points about delay in serving the Sixth Claim. THE RESPONDENTS’ APPLICATION(S)

[19]The relevant application from the respondents (at least the first and second respondents) was made on 12 July 2023. It reads: “In the two-week period since the Tribunal wrote to the parties on 23 June 2023 confirming Employment Judge Gumbiti-Zimuto’s decision to recuse himself from further consideration of the Claimant’s claims against the Respondent, the Claimant has written to the Tribunal on three separate occasions to make further numerous requests of the Tribunal and applications, as well as continuing to make false allegations about the Respondent, ourselves and the Tribunal. This is the same way in which the Claimant has conducted himself throughout his claims, but in particular since December 2022. It is contended that it is not sustainable for the proceedings to continue to be conducted in this manner by the Claimant, which only serves to put the Tribunal’s limited resources (as well as the Respondent’s time and costs) to waste. In addition to the multiple and excessively detailed correspondence sent by the Claimant to the Tribunal, the Claimant has raised two further claims against the Respondent and also a claim against ourselves as the Respondent’s legal advisor and also a barristers’ chambers. We have written to the Tribunal on three previous occasions on 1 February, 9 May and 9 June 2023 to apply for a substantive preliminary hearing to address jurisdictional matters relating to the claim brought by Page 3 of 15 the Claimant under case number 3302475/2023 and also the Claimant’s ongoing unreasonable and vexatious conduct in these proceedings ... To date, though the Tribunal has responded to some of the Claimant’s applications, we have not received a response to our applications. In view of the Claimant ongoing conduct, and the unnecessary and wasted time and cost to which he continues to put the Respondent in having to respond to his frequent applications, we would request that our applications for a preliminary hearing are put before an Employment Judge as a matter of urgency. It is noted that the Claimant’s preference is to not have a further substantive preliminary hearing due to his health, however, as a result of his own conduct and potential jurisdictional issues arising from one of his newest claims, it is believed that a substantive preliminary hearing is now required in order to further the overriding objective and ensure that the proceedings are heard in a fair, reasonable and proportionate manner.”

[20]The respondent’s application of 1 February 2023 talks of “the Claimant’s further spurious and malicious allegations and misconceived applications, which the Respondent believes to be an abuse of process” and includes the following: “In making the serious and untrue allegations against the Employment Judge and the Respondent’s Counsel (and potentially by extension the Respondent and ourselves), the Claimant continues to conduct the proceedings in a scandalous, unreasonable and vexatious manner ...”. They also say: “Furthermore, in view of comments made by the Claimant … the Respondent believes that it is no longer possible for a fair hearing to be held … the Claimant does not, and will not, accept the judgments made at the Preliminary Hearings due to his dissatisfaction with them, to the extent that the Claimant now makes extremely serious and malicious allegations against the Employment Judge and the Respondent’s Counsel in an attempt to subvert the normal Employment Tribunal process. In the circumstances, there can be no assurance that the Claimant would not take the same approach if dissatisfied with any further judgments that are made by the Employment Tribunal, in particular at the final hearing. Accordingly, the Respondent submits that the Remaining Claims should be struck out pursuant to Rule 37(1)(e) of the Regulations, on the basis that it is no longer possible for a fair hearing to be held.”

[21]The email of 9 May 2023 makes representations that are specific to case no. 3302475/2023.

[22]The email of 9 June 2023 says (amongst other things): “On 1 February 2023, the Respondent applied for a substantive preliminary hearing to determine whether the First, Second and Fifth Page 4 of 15 Claims should be struck out on the ground that the Claimant is conducting the proceedings in a scandalous, unreasonable or vexatious manner and / or that a fair hearing is no longer possible (“the Respondent’s First Application”). Following presentation of the Sixth Claim by the Claimant, the Respondent made a further application on 9 May 2023 for a preliminary hearing to determine whether the Tribunal has jurisdiction to hear the Sixth Claim. At the time of writing, the Respondent has not received a response from the Tribunal to either of its applications. Since the Respondent’s First Application, the Claimant has continued to make spurious allegations against the Respondent, Shoosmiths LLP and / or Miss Clarke in their role as the Respondent’s advisor, Mr Lawrence in his role as the Respondent’s barrister at the three preliminary hearings, and also Employment Judge Gumbiti-Zimuto and the Employment Tribunal. In addition, the Claimant has made a significant number of applications, including numerous applications for strike out of the Respondent’s responses without any just cause (and which have been refused by the Employment Tribunal). It is contended that the Claimant’s ongoing behaviour in making unwarranted applications and vexatious allegations, which has culminated in the Claimant now making scandalous applications to add Shoosmiths LLP and / or Miss Clarke and Mr Lawrence as parties to his claim due to their roles as legal advisors to the Respondent, is clear proof of the Claimant’s ongoing unreasonable, vexatious and scandalous behaviour. It is submitted that the Claimant’s conduct does not further the overriding objective, but is an abuse of the Tribunal process and the Tribunal’s limited resources and time. In addition, the Respondent (and now its legal advisors) have been put to significant unnecessary time and cost in having to review and respond to the Claimant’s frequent and excessively detailed correspondence and applications to the Tribunal.” RECUSAL OF EJ GUMBITI-ZIMUTO

[23]An application submitted by the claimant on 24 April 2023 included an application for EJ Gumbiti-Zimuto to recuse himself from further involvement in the case. In an order of 22 June 2023, EJ Gumbiti-Zimuto granted that application, although on a limited basis. The judge’s reasons for granting the application include the following: “The claimant’s application for the me to recuse as the judge to his cases is made based on serious but unsubstantiated allegations, including allegations that there is deliberate collusion by me as judge with the respondent and that I have discriminated against the claimant because of his race. The supposed factual basis of such complaints is not readily Page 5 of 15 ascertainable beyond the fact that the claimant disagrees with various decision made by me in the conduct of his cases against the respondent and that I have deliberately ignored the claimant’s applications with a view to frustrating the claimant’s case. There are essentially no facts alleged that by the claimant to support these allegations ... The claimant’s application for me to recuse has no proper factual basis … … an objective bystander fully informed of all the relevant circumstances would not consider that there is bias against the claimant, I nonetheless consider that they would consider that the claimant’s unfounded complaints amount to a considerable obstruction and distraction from the orderly conduct of the work of the Employment Tribunal and is possibly impacting on the claimant’s ability to properly address the issues he needs to address in the case if he is to have a successful outcome. The objective bystander would further consider that the manner in which the case has been conducted is having an obstructive effect on the administration of justice because of the claimant’s unfounded complaints against the Judge ... Though reluctant to do so I am satisfied that it is on balance better that I recuse myself from the further conduct of the claimant’s case. I come to this conclusion because I consider that I act as a lightning rod to further complaints from the claimant. This is disruptive of the conduct of the case and is likely to impact on the ability of the parties to be able to deal with case in a way which is proportionate to the complexity of the issues. Furthermore, generally it is a waste of resources for me to have to continue to spend considerable amounts of time responding to repeated applications and unfounded allegations.”

[24]To paraphrase this, the judge considered that there was no proper basis for the claimant’s recusal application, but nevertheless found that it was pragmatic to agree to the application in the hope that the claimant would move on to address the issues between the parties, rather than ancillary matters such as unfounded allegations of collusion. He also recorded that “there is no merit in the claimant’s various complaints”.

[25]The order was sent to the parties on 23 June 2023. On the face of it, then, the claimant would have had it by the time of lodging his Ninth Claim (5 July 2023), which repeated the allegations of collusion and sought to join the “Ministry of Justice/Lord Chief Justice” as a respondent. THE CLAIMANT’S RESPONSE Medical evidence Page 6 of 15

[26]The claimant’s response to the order included with it a report from Georgia Costa, Psychologist and Psychotherapist, dated 31 March 2022. Ms Costa concludes – she says in agreement with other mental health professionals – that the claimant has Generalised Anxiety Disorder as well as a depressive illness. She says: “GAD is characterised by persistent and excessive worry about a number of different things … Individuals with GAD find it difficult to control their worry. They may worry more than seems warranted about actual events or may expect the worst even when there is no apparent reason for concern.” Previous witness statement

[27]The witness statement of 21 July 2022 is headed “application to amend, correct and update statement in response to respondent’s application(s) of 28.04.2022”. This seems to relate largely to the merits of his claims and an earlier application by the respondent to strike out parts of the claims (perhaps all of them) on the basis that they were brought outside the normal time limits. Current witness statement

[28]The claimant’s current witness statement runs to 87 pages (including appendices).

[29]In the first four pages the claimant sets out some background.

[30]At page 5 the claimant refers to the order of 30 August 2023, correctly pointing out that there is nothing in the order that relates to his claims having “no reasonable prospects of success”. At page six the claimant raises the prospect of his own application under rule 37 to strike out the respondent(s) responses. In page seven he applies under rule 29 for a variation of the order of 30 August 2023, to include issuing orders against the respondent(s), although it is not clear to me on what basis that application is made. He says that this is the second time he has had to face an application to strike out his claim(s). He goes on to make counter-applications against the respondent(s) concerning questions in relation to witnesses and disclosure, some of which are set out in more detail in his appendices. He says that the appendices “include vital information which is integral and an important part of my response as to why my claims should not be struck out”. He continues with criticism of the respondents and previous employment judges, particularly in relation to a list of issues, and then discusses the recusal decision of EJ Gumbiti-Zimuto.

[31]The claimant goes on to talk about defamation by the respondent and his rule 50 application. At para 67 he says: “Therefore, given the above facts and before I dive deeper on the crux of the matters I am ordered to respond … any reasonable persona may Page 7 of 15 come to a conclusion that if there was any unreasonableness at all, or vexatious or inappropriate manner, it would be by the Respondents and Tribunal in how it had unreasonably, scandalously and disastrously flawed the process, repeatedly breached the rules, UK and International laws on how the proceedings were conducted and which prompted me to repeatedly make those vital applications.”

[32]He continues at para 68: “I feel this disastrous and unacceptable conduct by Respondents and Tribunal is even reflected in their collusion whereby some events … could not have happened has there been no communication (in any form) which was outside the rule 92 between the Tribunal and Respondents.”

[33]From para 80 onward the claimant complains of delay in serving his sixth claim.

[34]At para 108 the claimant complains of “abuse of process” in a failure by the respondent to observe rule 92 on submitting its ET3. He requests that the tribunal strike out the respondent’s response. He talks of “shoddy, unreasonable and ulteriorly written reasons” and his further applications in May 2022. He goes on to speak of events at the preliminary hearing on 22 July 2022.

[35]At para 124 the claimant talks of “collusion between the Judge and Respondent” in relation to events surrounding and concerned with that preliminary hearing. At paras 126-129 he addresses the position of the original respondents’ legal representatives (who are now respondents in their own right to some of his claims).

[36]At para 132 the claimant says, as he has said elsewhere, that a fair trial is no longer possible. In the following paragraph this is developed into a fair trial being “forever impossible”.

[37]At para 134 onwards the claimant refers to specific disclosure. At para 142 he speaks of striking out each respondent’s defence, and at para 144 speaks of the Secretary of State for Justice as being a respondent (to the Ninth Claim). He says: “… the Tribunal has encouraged this conduct and now punish me for its own irresponsibility, breach of its own rules, abuse of powers and privileges at my significant detriments …”

[38]At para 145 he continues, and says “all Respondents have improperly used Tribunal procedures and rules for an unintended, malicious, or perverse reason in which I’d more often been discriminated against and victimized because of my race and taken advantage for due to my lack of the complex legal matters, dire ill-health and financial vulnerabilities”. Page 8 of 15

[39]The claimant goes on to discuss abuse of process, saying that a fair trial was no longer possible even before 1 February 2022. He talks of the damage to his health caused by the events in these proceedings, and encourages the tribunal to “avoid a hearing by all means possible”.

[40]At para 168 he speaks of the merits of elements of his claims, accusing the respondents (including the respondents who are legal representatives) of providing a defence they know to be false. The claimant refers to case 3301182/2021, a previous decision of EJ Gumbiti-Zimuto in a case brought against the respondents’ legal representatives. This appears to be in support of his position that EJ Gumbiti-Zimuto had colluded with the respondents or their legal representatives.

[41]The remainder of the claimant’s witness statement or submission is taken up with a number of appendices.

[42]The nature of the materials submitted by the claimant is essentially that his claims should not be struck out and that he has not done anything wrong. His position is that the respondents and the tribunal itself have committed multiple wrongs against him and that it is the respondents’ response(s) that should be struck out.

[43]It appears also from the tribunal file that the claimant has lodged an appeal against an earlier decision by EJ Gumbiti-Zimuto to refuse to strike out a response, and that that appeal remains outstanding. I note that one of the grounds of appeal sets out the claimant’s concern that “a fair trial for me is no longer forever possible”. The appeal seeks, amongst other things, “strike out all respondent’s response”. THE LAW

[44]Rule 37(1) provides that: “… a Tribunal may strike out all or part of a claim or response on any of the following grounds: … (b) that the manner in which the proceedings have been conducted by … the claimant or the respondent … has been scandalous, unreasonable or vexatious … (e) that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim …”

[45]Rule 37 is to be applied in accordance with the overriding objective in rule 2: Page 9 of 15 “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable:(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.”

[46]Cases such as Blockbuster v James

[2006] EWCA Civ 684

make clear the close relationship between rule 37(1)(b) and (e). At para 5 of Blockbuster Sedley LJ says: “[The power to strike out a claim or response] is a Draconic power, not to be readily exercised. It comes into being if … 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 has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.”

[47]There has been no “persistent disregard of required procedural steps” by the claimant. From Blockbuster, the questions to be considered are (and see also Bloch v Chipman

[2004] IRLR 140

): 1. Has the claimant conducted the claims in a scandalous, unreasonable or vexatious manner? 2. If so, is a fair trial possible? 3. If not, is striking out the claim a proportionate response, or is some lesser response appropriate?

[48]An aspect of point 3 must be whether, if striking out is a proportionate response, the proportionate response is striking out the whole of the claim(s) or just part of the claim(s).

[49]I also note para 18 of Blockbuster: Page 10 of 15 “The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by [the claimant in that case] are things which, if true, merit concern and adjudication. There can be no doubt, either, that [the claimant in that case] has been difficult, querulous and uncooperative in many respects ... But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably.”

[50]That must apply equally to the claimant in these claims. Among the allegations made by him are things which, if true, merit concern and adjudication. They should be considered by the tribunal to the extent possible, with striking out being seen as a last resort. DISCUSSION AND CONCLUSIONS 1. Scandalous, unreasonable and vexatious conduct of proceedings?

[51]I have no hesitation in finding that the claimant has conducted these proceedings in a scandalous, unreasonable and vexatious manner.

[52]EJ Gumbiti-Zimuto made it clear in his response to the claimant’s application for his recusal that “the application … has no proper factual basis” and “there are … no facts alleged … by the claimant to support these allegations”. He also explained that he was recusing himself not because of any merit in the claimant’s application, but because “it is a waste of resources for me to have to continue to spend considerable amounts of time responding to repeated applications and unfounded allegations”, with the claimant’s complaints against him being “disruptive of the conduct of the case”.

[53]At least part of the application made by the claimant was based on supposed “deliberate collusion … with the respondent”.

[54]There will be occasions when an application for recusal is warranted. A bad or unsuccessful application for recusal is not necessarily unreasonable conduct of a claim or response. I must also bear in mind that as a litigant in person the claimant would not necessarily know the legal tests to be applied in an application for recusal.

[55]What makes the claimant’s application for recusal in this case unreasonable conduct is that it was made with “no proper factual basis”. I also find that accusing a judge of “deliberate collusion” with another party, without any proper factual basis, is scandalous conduct of proceedings.

[56]There is more to it in this case, though. EJ Gumbiti-Zimuto plainly hoped that by withdrawing from the case the claimant would find himself able to move on with the substance of his case, and would cease making the accusations that EJ Gumbiti-Zimuto had found to be baseless. Unfortunately that has not been the case. Page 11 of 15

[57]Since the success of his recusal application, the claimant has only increased the strength of his accusations against the judiciary, the respondents and their representatives, including bringing the Ninth Claim with the Ministry of Justice/Lord Chief Justice and the respondents’ legal representatives as respondents.

[58]Even if the facts alleged by the claimant were true I do not see how the employment tribunal would have any jurisdiction over the claims that the claimant seeks to bring against the respondents’ legal representatives or the Ministry of Justice/Lord Chief Justice. To bring those claims amounts to unreasonable and vexatious conduct by the claimant. To allege collusion without any proper factual basis is scandalous conduct.

[59]I have considerable reservations about the extent of the claimant’s applications, but do not consider it necessary to determine whether the extent of the claimant’s applications amounts to unreasonable conduct, since the volume of applications is not something I consider yet interferes with the prospects for a fair trial. 2. A fair trial?

[60]Given that there has been scandalous, unreasonable and vexatious conduct by the claimant, is a fair trial still possible?

[61]Both parties agree, although for different reasons, that a fair trial is not possible. It is the claimant’s case that “a fair trial was no longer possible or me from the word ‘go’ at the very earliest stages of the tribunal proceedings in 2021”. However, what matters is whether the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim(s).

[62]There are clearly formidable obstacles in the way of a fair trial. Trust and cooperation between the parties appears to be minimal. However, that of itself only makes a fair trial difficult. It does not mean that it is not possible.

[63]The claimant’s repeated baseless attacks on EJ Gumbiti-Zimuto are disturbing, but do not mean that a fair trial is no longer possible. The judiciary are expected to be robust in the face of what may be unmerited criticism from people who struggle to understand tribunal procedure or whose commitment to their claims leads them into unwise actions.

[64]What makes a fair trial no longer possible is the claimant’s ongoing collateral attacks on the respondents’ legal representatives and baseless allegations of collusion between those representatives and the judiciary. This is the way it is put in the respondents’ application (made by their representatives): “[the claimant] continue[s] to make false allegations about the respondent, ourselves and the tribunal. This is the same way in which the claimant has conducted himself throughout his claims, but in Page 12 of 15 particular since December 2022 … it is not sustainable for the proceedings to continue to be conducted in this manner by the claimant … the claimant has raised two further claims against the respondent and also a claim against ourselves as the respondent’s legal advisor and also a barristers’ chambers.”

[65]And in their application of 1 February 2023: “the Claimant now makes extremely serious and malicious allegations against the Employment Judge and the Respondent’s Counsel in an attempt to subvert the normal Employment Tribunal process. In the circumstances, there can be no assurance that the Claimant would not take the same approach if dissatisfied with any further judgments that are made by the Employment Tribunal, in particular at the final hearing.”

[66]As referred to above, even if there was merit to the claimant’s criticisms of the respondent’s representatives it is difficult to see how his criticism of them could then fall within the jurisdiction of the tribunal. However, he has now made two claims against them, including now the Ministry of Justice/Lord Chief Justice. The respondents’ representatives should be free to conduct the defence of the claims in accordance with their instructions and their professional and legal obligations without fear that they themselves will come under collateral attack from the claimant in a forum that has, essentially, no jurisdiction to rule on his complaints against them. They should not be under intimidation of being joined into the claims themselves.

[67]That is all the more so when it includes highly damaging and baseless claims of collusion with the judiciary. By the time of his response to the application, the claimant has gone so far as to review a previous claim that EJ Gumbiti-Zimuto was concerned with against the respondent’s solicitors, and has drawn completely unwarranted conclusions as to collusion from that.

[68]A fair trial is no longer possible because of the claimant’s vexatious and unreasonable attempts to bring employment tribunal claims against the respondents’ representatives and the judiciary, and because of his scandalous baseless allegations of collusion. 3. Is striking out the claim(s) a proportionate response?

[69]What else can be done in response to this?

[70]An award of costs is always a possibility in the face of vexatious, unreasonable or scandalous behaviour, but this would not address the underlying problem of holding a fair hearing.

[71]Although not provided for in the rules, I have considered whether any sort or informal or formal warning could be given to the claimant about his conduct in order to give him a last chance of continuing with the claims. The difficulty with Page 13 of 15 this is that I see no prospect of it being effective. As time has gone on, the claimant has become more vehement in his allegations. EJ Gumbiti-Zimuto’s order may have been seen by some as a caution against repeating the allegations made by the claimant, but they have not been seen that way by the claimant. I see no suggestion that the claimant would ever desist in his allegations.

[72]There is then the question of whether part only of the claims should be struck out, with some continuing.

[73]The first point on this is that it is clear that the claims against the Ministry of Justice/Lord Chief Justice and the respondent’s legal representatives must be struck out. They are in themselves unreasonable and vexatious.

[74]The second question is whether there is anything that can be saved from the claimant’s claims against his former employers. The difficulty with this is that it is not a case where the problems lie in understanding the claimant’s claims or in the merits of different aspects of his claim. The problem is with the claimant’s overall conduct of the claims, and I do not see any way in which parts of the claims could be struck out but other points not struck out.

[75]Finally, I have considered the implications of the claimant’s diagnosis for this decision. It has not been part of the claimant’s response to the application that his medical condition has led him into inappropriate behaviour. His main point is that his medical condition has been aggravated by the actions of the tribunal, respondents and respondents’ representatives. It seems likely to me (although it was not part of the claimant’s response) that his health condition has adversely affected his ability to conduct his claim, but that does not mean that his behaviour has not been vexatious, unreasonable or scandalous, nor does it mean that a fair trial is possible. I do not see any steps that could be taken on the basis of his health short of striking out the claims, and he has not suggested any. The claimant’s claims are struck out.

[1]On 18 January 2024 (within the necessary time limit) the claimant made an application for reconsideration of the judgment promulgated on 5 January 2024.

[2]In his application the claimant says that a default judgment and warning to strike out the respondents’ response had been issued by REJ Foxwell on 6 January 2024. He says: “This application for reconsideration to the judgment follows my response to the order by REJ Foxwell in which he’d required the respondents submit skeleton arguments to the tribunal by 15.01.2024 but have all failed to comply with the Order … Hence my application of 16.01.2024 in which I sought a default judgment be issued on that basis and also sought a strike out of the remaining respondent’s responses as they have no reasonable prospect of success.”

[3]I am not aware of any default or rule 21 judgment having been issued in the claim, and I note that in his reference to his application of 16 January 2024 (which I have not seen) the claimant is seeking a default judgment rather than suggesting that one has already been issued.

[4]While reiterating his view that a fair trial is no longer possible, the claimant says “the decision by EJ Anstis should have focused on the vital public interest factors”. He goes on to set out those factors. The essence of this is that alleged wrongdoing by the respondent(s) that was the subject of the claimant’s alleged protected disclosures (and their subsequent conduct of his claims) requires investigation in the public interest. Page 1 of 4

[5]It is the claimant’s view that the order of REJ Foxwell had the effect of reversing my strike out of the claims – at least in respect of claim 3307733/2023 to which REJ Foxwell’s order relates. That point is dealt with in a separate order of today’s date. He makes points in relation to his health and personal circumstances.

[6]His application concludes: “I request the EJ Anstis consider revoking the judgment and consider the non-response to the REJ Foxwell’s as a further demonstration of Respondents conduct and make a determination without a hearing, and order if the tribunal requires a schedule of loss for the remedy which I have already put in my application to the REJ Foxwell on 16.01.2024 following the latest further misconduct whereby the respondent have deliberately declined to company with the order, which amounts to rule 37(1). I respectfully request the tribunal consider my request and revoke the judgment, and issue a summary judgment for the amount sought of £60,000,000 (Sixty Million Pounds) against the respondents, which I shall put a percentage on each respondent a percentage based on the weight of their acts …”

[7]The claimant’s application is supported by various appendices.

[8]The first stage of reconsideration is set out at rule 71. I must consider whether there is “no reasonable prospect of the original decision being varied or revoked” and, if so, the application is refused at this stage.

[9]I do consider that there is no reasonable prospect of the original decision being varied or revoked, and accordingly the application for reconsideration is refused at this stage. The reasons for this are:a. Much of what the claimant says is concerned with the underlying merits of his claims. At para 50 of my judgment I acknowledge that “amongst the allegations made by [the claimant] are things which, if true, merit concern and adjudication”. However, the judgment proceeded by reference to rule 37(1)(b) (the manner in which proceedings have been conducted) and rule 37(1)(e) (whether a fair trial is possible) rather than any consideration of the underlying merits of the claims.

b. The claimant’s application says little about his conduct of proceedings, and repeats his position that a fair trial is no longer possible. I have already addressed the question of a fair trial in my judgment and see no basis on which that decision should be changed.

[10]Finally, I have mentioned that I have not seen or considered any application made by the claimant on 16 January 2024 in case no. 3307733/2023. That case has been struck out and is not reinstated so there is no basis on which I can Page 2 of 4 consider the application the claimant describes for a default judgment and a strike out of the responses in that case.

[1]On 18 January 2024 the claimant made an application for reconsideration of my judgment of 10 November 2023 which was promulgated to the parties on 5 January 2024. I will call this the first reconsideration application.

[2]On 25 January 2024 I prepared a judgment refusing the first reconsideration application. I will call this the first reconsideration judgment. On the same date I prepared an order addressing apparently contradictory matters that had arisen in case no. 3307733/2023. These were promulgated on 8 February 2024.

[3]The claimant has written to the tribunal on both 24 January 2024 and 25 January 2024. Page 1 of 5

[4]The email of 24 January 2024 includes an attachment headed “application for extending time for reconsideration on the judgment of 10.11.2023 and further application for revoking/setting aside the said judgement”. I will call this the second reconsideration application.

[5]The primary point made by the claimant in that application is that the Ministry of Justice or Secretary of State for Justice is not included in the title of my judgment of 10 November 2023.

[6]The claimant describes this as “a very serious error which would render the judgment null/invalid”. He expresses his concern that if the judgment were to be revoked and ultimately succeed in his claim(s) the omission of the Secretary of State from the title of the judgment of 10 November 2023 would mean that if he could not obtain judgment against the Secretary of State.

[7]From para 24 onwards the claimant appears to be making further points about the relationship between my judgment and REJ Foxwell’s order. The position on that has been addressed in the first reconsideration judgment and accompanying order, which the claimant would not have had at the time of writing.

[8]Whether the email of 25 January 2024 contains any actual application is unclear to me, but the claimant again points out that the name Ministry of Justice/Secretary of State for Justice (perhaps also Lord or Lady Chief Justice) is missing from the title of the judgment of 10 November 2023.

[9]As the claimant identifies, the second reconsideration application was made on 24 January 2024 and is brought outside the usual time limit for reconsideration of a judgment promulgated on 5 January 2024, so the first question is whether or not I should extend time.

[10]The basis of the application for extension of time is that due to ill health the claimant did not initially spot the omission of the Ministry of Justice from the title of the judgment. I do not accept that as a good reason for extending time. The claimant’s ill health did not prevent him being able to make his first reconsideration application in time, and not spotting the omission earlier is not a reason for me to extend time. In reaching this decision I have also considered the underlying merits of the application. The claimant is correct that the title omits the name Ministry of Justice (or similar) as a respondent. However, I think the judgment is clear in striking out the claims and does not require any amendment of the title section. The claimant’s concerns about what may happen if there is any reinstatement of his claim(s) are misconceived.

[11]Whatever is done about this omission it cannot be what the claimant is seeking: revocation of the judgment. I acknowledge the omission of the name of the Ministry of Justice from the title but do not think this affects the underlying judgment. If any party considers that the addition of the Ministry of Justice, Secretary of State for Justice or Lord or Lady Chief Justice to the title is Page 2 of 5 necessary or desirable they can apply for a correction under rule 69, but that is the appropriate application, rather than an application for reconsideration.

[12]In an attempt to avoid further applications on this point I have included the Ministry of Justice and variations of that in the title to this application. I hope that this will not prompt further applications on the basis that I have misnamed any relevant party. The third reconsideration application

[13]By the time these matters were referred to me there was a third reconsideration application, submitted by the claimant on 9 February 2024. This is said to be based on “extremely serious criminal conduct by respondents”, although it is not immediately clear which respondents he had in mind. I note the claimant says that the Minster for Justice has been a victim of this conduct, so it seems unlikely that the claimant had the Ministry of Justice or any associated respondents as perpetrators of this alleged criminal conduct.

[14]At para 4 of this application the claimant frames his application in broad terms. It is any of(i) an application for reconsideration of my first reconsideration judgment (which would be within time),

(ii) an application for reconsideration of the original judgment (with associated application for extension of time), and

(iii) an application in relation to REJ Foxwell’s order (but it is not clear what that application is).

[15]At first the claimant does not address the alleged criminal conduct, but talks of failures arising in case no. 3307733/2023 and of orders under rule 21. I consider those have been fully dealt with in my first reconsideration judgment and the order accompanying it.

[16]The substance of the claimant’s application appears under the heading “further application pursuant to rule 37(1) following latest evidence of hacking by first and second respondents (and others, vicariously)”. The claimant says that on 21 January 2024 he discovered “a hack onto my personal computer” involving VirginMedia using a “passkey” but, he says “I can’t go into any details about how this has been done”. The claimant goes on to repeat the multiple difficulties he has had in attempting to conduct his claims. He seems to suggest that the tribunal’s systems may also have been accessed by some of the respondents, although it is not at all clear how this could occur and the claimant does not suggest how it occurred.

[17]The claimant’s application says this was only discovered by him on 21 January 2024. It was not necessarily something he would have known about previously, in which case I consider it appropriate to extend time on the question of any reconsideration of the original judgment.

[18]Appendix A and B to the claimant’s claim are screenshots from the Accounts/Passkeys setting on the claimant’s computer, showing one passkey with the reference “oauth.virginmedia.com”. Page 3 of 5 Decision on the third reconsideration application

[19]I have decided this without calling on any of the respondents for a response. The claimant’s allegations of hacking seem to me to be improbable and I do not see the presence of a passkey apparently from one of the respondents as being an indication that they have hacked into his computer. However, I can decide the application without coming to a concluded view on that.

[20]First of all, there is nothing the first reconsideration decision nor even in the original judgment that depends on the claimant’s computer having been hacked or not hacked. There is no reasonable prospect of either decision being varied since neither decision depends one way or another on whether the claimant has or has not been hacked.

[21]What this application really is is made clear by the title the claimant gives to the section addressing it. It is an application under rule 37(1) to strike out the respondents’ (or some of their) responses. That cannot have any effect in circumstances where the claimant’s claims have previously been struck out.

[1]On 16 February 2024 I submitted for promulgation my decision on applications including what I have described as the claimant’s second (24 January 2024) and third (9 February 2024) applications for reconsideration of my original strike out judgment and/or my first reconsideration judgment.

[2]On 20 February 2024 the claimant submitted what is titled “For both the judgment and order of 25.01.2024: Second Application for Revocation of the Judgement and variation/setting aside etc. of the Order of 25.01.2024 by Employment Judge Anstis, including re-assertion of applications pursuant to the Employment Tribunal Rules of Procedure 2013 - Rule 21, and rule 37.”

[3]The first part of the heading makes it clear that the judgment the claimant has in mind is my judgment of 25 January 2024. That was my first reconsideration judgment. I take the claimant’s “application for revocation of the judgment” to be an application for reconsideration of the first reconsideration judgment. A separate order addresses the extent to which the claimant’s application is for a variation of my order of 25 January 2024.

[4]The first reconsideration judgment was promulgated on 8 February 2024, so the claimant’s application for reconsideration of that is within time. If it was intended as an application for reconsideration of my original strike out judgment it is out of time. There is no application to extend time and I do not see any basis on which time should be extended. Page 1 of 3

[5]I think this is the claimant’s fourth application for reconsideration of a judgment, and this judgment is my third reconsideration judgment. The application

[6]The claimant talks of the respondents (or some of them) failing to respond to his eighth and ninth claims, and having disobeyed REJ Foxwell’s order. That order was revoked by my order of 25 January 2024, so has no ongoing effect.

[7]I have found it quite difficult to understand the basis of the reconsideration application by the claimant. It seems to be founded on the idea that some of the respondents did not file a response to either his eighth or ninth claims, and that therefore a rule 21 judgment (contemplated in some of the tribunal’s correspondence) should follow. As my first reconsideration judgment made clear, there has been no rule 21 judgment. A rule 21 judgment does not follow automatically from the non-submission of a response and is not something that a claimant is necessarily entitled to. Much of the rest of this part of the claimant’s application is taken up with his position on his allegations being a matter of public interest. I have addressed that in my first reconsideration judgment.

[8]The claimant goes on to criticise my non-consideration of his application of 16 January 2024 (referred to at para 10 of the reasons for my first reconsideration judgment) but the point must remain that any application for a default or rule 21 judgment cannot continue when the claim has been struck out.

[9]The claimant also seems to suggest that any striking out should not have extended so far as his eighth or ninth claims. That seems to be a dispute with my original strike out judgment (and would be out of time for any reconsideration) not a dispute with my first reconsideration judgment. The claimant makes points as to whether striking out is a suitable sanction or whether any issues could be dealt with by an unless order. I do not see how the claimant’s conduct of the claims could have been dealt with by an unless order, but in any event this is a dispute with my original strike out judgment (and is out of time) and is not about my first reconsideration judgment.

[10]Much of the rest of the claimant’s application seems to be concerned with the general merits of his claim and his allegations of hacking against various respondents. Those matters have been addressed in previous decisions, and do not seem to be relevant to the question of whether my first reconsideration judgment should be reconsidered.

[11]The fourth reconsideration application is refused on the basis that there is no reasonable prospect of the first reconsideration judgment being varied or revoked.

[1]On 25 March 2024 the claimant made an “application to set aside the judgment and order of 28.02.2024 EJ Anstis on the grounds that they were procured by fraud and extensive abuse of process, including forgery, disobey of the order by REJ Foxwell and many others thus making a fair trial no longer possible”.

[2]So far as setting aside the judgment of 28 February 2024 is concerned, that judgment was itself a judgment on reconsideration, and I have described it as being the third reconsideration judgment. Although the claimant has not framed his current application as an application for reconsideration, that is the basis on which I have considered it, and it would be his fifth application for reconsideration, resulting in this fourth reconsideration judgment. The judgment of 28 February 2024 was promulgated on 12 March 2024 so the application is made within time.

[3]I have no hesitation in dismissing this on the basis that there is no reasonable prospect of the judgment of 28 February 2024 being varied or revoked. The claimant’s application simply repeats arguments that have previously been considered and dismissed. For the avoidance of doubt, a party applying for a rule 21 judgment has no automatic entitlement to that judgment. Employment Judge Anstis Date: 21 May 2024 Page 1 of 2 Case Numbers: 3313184/2020 and others as set out on the attached schedule Judgment and reasons SCHEDULE OF CLAIMS 3313184/2020 3306767/2021 3300036/2022 3305682/2022 3302475/2023 3305951/2023 3307733/2023 Page 2 of 2