Mr P Smith v STV Television Ltd and Others: 4102832/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102832/2025

Between

Mr Peter SmithClaimant

STV Television Ltd and OthersRespondent

Before

Employment Judge O’Donnell

Date 6 January 2026

JUDGMENT

The judgment of the Employment Tribunal is that the claimant’s applications for the Judge to recuse himself, strike-out of the response and a judgment to be issued under Rule 22 are not well-founded and are all hereby refused.

REASONS

[1]The claimant has brought complaints against the respondents in relation to automatic unfair dismissal and detriment for making protected disclosures under the Employment Rights Act 1996 and disability discrimination under the Equality Act 2010. The respondents resist all the complaints.

[2]The claimant has made a number of case management applications, the majority of which have been determined. There were two outstanding applications and it was considered that it would be of assistance to all parties for these to be determined before the first case management hearing, now due to be held on 30 January 2026.

[3]The outstanding applications were for strike-out of the responses from all respondents and for a judgment to be issued under Rule 22. It was agreed that these applications could be determined on the papers. Time in chambers was listed on 22 December 2025 for me to consider these applications.

[4]In advance of that date, the claimant raised two matters that require to be dealt with before the original matters can be determined. Recusal

[5]The claimant has applied for me to recuse myself from considering the outstanding applications and having any further involvement with the case on the grounds that it is said that I am biased against the claimant and/or have pre-determined matters.

[6]The claimant does not allege actual bias (in the sense that I have something to gain from the outcome of the case or some personal involvement with it) nor does he allege apparent bias on the basis that I have some connection with those involved in the case that a fair-minded observer would consider makes it appear that I am biased.

[7]Rather, the claimant’s application is based on the decisions I have made in respect of the other case management applications made by the claimant (where I have refused those applications), concerns I have expressed about how the claimant and his representative are conducting proceedings and that, when making an earlier decision, I had referred to the ET3 being presented timeously on 3 September 2025.

[8]It is almost inevitable in the litigation process that decisions will be made with which one party will be unhappy. This is the very nature of adversarial litigation. However, that does not mean that any person making such decisions is biased or would be considered to be biased by a fair-minded observer. If a Judge had to recuse themselves from a case because they had made a decision in favour of one party rather than the other then the legal system would very quickly grind to a halt.

[9]If a party considers that a Judge has made an error of law in respect of any decision then they can appeal that decision which the claimant has done in this case. However, that would not be grounds for a Judge to recuse themselves from the proceedings.

[10]Similarly, a Judge must be entitled to express concerns about how proceedings are being conducted. The Overriding Objective requires the Tribunal to deal with case proportionately avoiding undue technicality and expense; parties and representatives are required to assist the Tribunal in achieving the Overriding Objective. If a Judge considers that one party or their representative is not doing so then they are entitled to express this view; this is not done simply to criticise but, especially in the case of parties or representatives who are not legally qualified, to assist them in understanding what is required of them in the Tribunal process.

[11]Finally, the date on which the Tribunal has recorded receipt of the ET3 is a fact and it cannot be the case that a matter has been pre-determined or that there is any bias when a Judge states that fact. It may well be that the fact in question is central to a matter to be determined but that does not lead to bias or the appearance of bias.

[12]For the reasons set out above, I do not consider that a fair-minded observer would consider that there was bias or the appearance of bias and I do not consider that there is any basis to recuse myself from determining the issues in question or continuing to case manage the case. Public hearing

[13]The second matter raised by the claimant is the question of whether the applications in question should be determined at a public hearing in terms of Rule 54(2) of the Tribunal Rules of Procedure because it involves the determination of an application for strike-out.

[14]The starting point for this issue is the important procedural protection at Rule 38(2) which states that any party facing a strike-out application must be given the opportunity to make representations, either in writing or, if they request it, at a hearing. In the present case, the respondents have not sought a hearing and have indicated that they are content for the matter to be determined in writing. No preliminary hearing has, therefore, been required.

[15]In these circumstances, no “hearing” in terms of the Rules of Procedure has been listed. Time has been allocated for me to deal with the application in chambers on the basis of the written representations made by the parties and parties have been notified of this. It has been described as a “hearing in chambers” but this is not a hearing in terms of the Rules to which Rule 54(2) applies. Application for strike-out

[16]I will deal with the application for strike-out of the response first because, if this is determined in favour of the claimant, it would impact on the question of whether a judgment under Rule 22 can be made; Rule 38(4) provides that if a response is struck-out then the effect is that no reply has been made and so Rule 22 applies.

[17]The Tribunal has power to strike-out the whole or part of claim under Rule 38: At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; …

[18]The process for striking-out under Rule 38 involves a two stage test (HM Prison Service v Dolby

[2003] IRLR 694

, EAT; Hasan v Tesco Stores Ltd

UKEAT/0098/16

). First, the Tribunal must determine whether one of the specified grounds for striking out has been established; second, if one of the grounds is made out, the tribunal must decide as a matter of discretion whether to strike out or whether some other, less draconian, sanction should be applied.

[19]In Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL, the House of Lords was clear that great caution must be exercised in striking-out discrimination claims given that they are generally fact-sensitive and require full examination of the evidence for a Tribunal to make a proper determination. The same principle would apply to responses in discrimination claims.

[20]In considering whether to strike-out, the Tribunal must take the relevant party’s case at its highest and assume they will make out the facts they offer to prove unless those facts are conclusively disproved or fundamentally inconsistent with contemporaneous documents (Mechkarov v Citibank NA

2016 ICR 1121

, EAT).

[21]The claimant’s application is based on the assertion that the response from the respondents has no reasonable prospects of success. The claimant believes that he will inevitably succeed and he is, of course, entitled to hold that view.

[22]The grounds of resistance relied on by all the respondents sets out a statable defence to the claims being pursued and, taking that defence at its highest and assuming that the respondents prove the facts they are offering to prove, it cannot be said that the response has no reasonable prospects of success.

[23]It is quite clear that there are disputes of fact between the parties that will require to be resolved before the claims can be determined. This is the purpose of a final hearing where evidence is led by both parties and submissions made as to what findings the Tribunal should make. Both parties will have the opportunity to present evidence and make their case.

[24]I also bear in mind that the burden of proof (or initial burden of proof) in the claims being pursued lies with the claimant and not the respondent. There are also technical legal issues in dispute (for example, issues relating to time bar, disability status, whether any disclosures are qualifying disclosures) which will need to be addressed.

[25]The claimant has sought to argue that, based on contemporaneous documents, the respondent will not be able to make out the facts they are offering to prove. He has produced a 26 page file of productions (“bundle”) in support of his application to strike-out which I have reviewed.

[26]However, for the following reasons, I am not satisfied that these productions are sufficient for me to decide that the respondents’ defence will not be made out and that the draconian step of preventing them from leading that defence should be taken:a. The documents produced are presented without the sort of context which witnesses can give to documents.

b. At p1 of the bundle, the claimant presents extracts from correspondence with no real context at all. These are sentences or parts of sentences which have been selected by the claimant from correspondence to suggest that the whole document will contradict what is pled in the ET3. The evidential value of these selective quotes is questionable and certainly insufficient to establish that the respondents will not make out their defence.

c. Other documents are presented by the claimant, some in part and some in whole, on the basis that he believes that these show that his claims will succeed. However, these documents, on their own, are insufficient for me to be satisfied that there is no reasonable prospect of the respondents being able to make out their defence; it may well be that, once all of the evidence is heard and these documents are put into context within the whole factual matrix, the Tribunal hearing the case will find that the claimant succeeds but the case is nowhere close to that stage of proceedings.

d. For example, the claimant has present documents at pp20-22 of the bundle relating to his request for an adjustment to how the internal grievance process was being conducted which he believes shows that his claim for breach of the duty to make reasonable adjustments will succeed. However, they show nothing more than him making a request for adjustments and the respondent asking for clarification of the request. On its own, this is not enough for the claim to succeed; it may well be that once all the evidence about adjustments is heard that the claim is successful but these two emails alone for not sufficient.

[27]The claimant makes other arguments about why he says the respondents will fail in their defence and, again, once all the evidence is heard that may be the case but there is not sufficient material, at this stage, for me to reach this conclusion and strike out the response. Two examples will demonstrate the point:a. The claimant makes reference to the fact that the respondent complied with his request for the grievance process to be carried out in writing as meaning that the respondent had knowledge of his disability. However, the ET3 does not deny knowledge in terms but simply reserves the respondents’ position on knowledge of disability. The ET3 does not admit knowledge of substantial disadvantage in the context of the duty to make reasonable adjustments but this is a separate matter from knowledge of disability.

b. The claimant disputes the assertion in the ET3 that all “relevant” staff were interviewed as part of the grievance process. The staff whom the respondent considered relevant may well be different from those whom the claimant considered relevant. The Tribunal cannot judge which view is correct (or what, if any, inference should be drawn from this) without hearing all the evidence.

[28]The claimant also argues that the respondents have not addressed the claim of automatic unfair dismissal but this is very clearly addressed at paragraphs 9.7 to 9.10 of the Grounds of Resistance where the respondent denies that the claimant was dismissed for making protected disclosures and that he was dismissed by reason of redundancy or another reason that was not making the disclosures relied upon by the claimant. There is clearly a dispute between the parties as to the genuine reason for dismissal which the Tribunal will resolve at the final hearing having heard all the evidence.

[29]For all these reasons, the Tribunal is not satisfied that the response has no reasonable prospects of success and the claimant’s application for strike-out is refused. Rule 22 Judgment

[30]The application for strike-out having been refused, I am only concerned with the claimant’s application for a Rule 22 judgment as originally made rather than on the effect of Rule 38(4).

[31]The ET3 was due to be presented on 3 September 2025. On that date, the ET3 was hand-delivered to the Tribunal and I have had sight of a copy of the form date stamped by the Tribunal as being received on 3 September 2025 (the date stamped copy has also been sent to the claimant). I am, therefore, satisfied that the ET3 was properly and timeously presented.

[32]This, on its own, is sufficient to deal with the claimant’s application for a judgment under Rule 22; if the ET3 has been properly presented then Rule 22 does not apply and no judgment can be issued under that Rule.

[33]The issue has arisen because it took until 10 September 2025 for the ET3 to be processed. Before that had occurred, the claimant had made the application for a judgment under Rule 22 on 5 September 2025 and this had been referred to EJ MacLean who had asked for further information before considering the matter further. However, all of that has no bearing on the factual question of whether the ET3 was presented on time and, as set out above, it was.

[34]The claimant’s submissions on this point are difficult to follow and it is not clear why he says a judgment can be issued under Rule 22. To the extent that he suggests that the respondent is wrong about when the ET3 was presented or that they have not provided evidence of when the ET3 was lodged, this is addressed above; the form has been date stamped by the Tribunal as being received on 3 September 2025.

[35]It being the case that the criteria for Rule 22 being applied are not met then the application for a judgment under this Rule is refused.