Mr J G Lawrynowicz v Bidvest Noonan (UK) Ltd: 4108988/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4108988/2021
Between
Mr J G LawrynowiczClaimantBidvest Noonan (UK) LimitedRespondent
Before
Employment Judge N M HosieMr C Crow, Counsel for respondentInstructed by for respondentFieldfisher LLP for respondentDate 13 September 2024
JUDGMENT
[1]the claimant’s application to amend is refused; and[2]the claim is struck out in terms of Rules 37(1)(a) and (b) in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
REASONS
Introduction
[1]This case called before me by way of a Preliminary Hearing to consider the following issues:- Whether the claimant should be allowed to amend his claim. Whether the claim should be struck out in terms of Rule 37(1)(b) in Schedule 1 of the Tribunal Rules of Procedure on the grounds of unreasonable conduct in the bringing of proceedings. Whether the claim should be struck out in terms of Rule 37(1)(a) on the basis that it has “no reasonable prospect of success”. Whether the claimant has provided the evidence necessary to prove “disability” status in terms of s.6 of the Equality Act 2010. Evidence[2]I heard evidence from the claimant at the Preliminary Hearing. I was also provided with a bundle of documentary productions (“P”). At the conclusion of the Hearing, I heard submissions from both parties. The respondent’s Counsel spoke to written submissions which are referred to for their terms. Respondent’s designation[3]The respondent’s Counsel asserted that the correct designation for the respondent is “Bidvest Noonan (UK) Limited” (“Bidvest”), following Bidvest’s acquisition of Cordant Security Limited in 2021 (P68). As there was no objection from the claimant and nothing to suggest that was not so, I amended the respondent’s designation accordingly. Claimant’s amendment application[4]The claimant made an application to amend by letter dated 4 October 2021 (P49/50). In short, he sought to withdraw certain complaints he had intimated and to bring complaints of constructive unfair dismissal and discrimination. His application, in so far as it related to the “new” complaints, was opposed by the respondent. Chronology[5]Helpfully, in his written submissions the respondent’s Counsel detailed a chronology of events relevant to the amendment application. I was satisfied that this chronology was accurate. It is in the following terms:- Date Event Comment December 2017 Incident at work – C spat Not 2019, as suggested in at by member of public some of the medical notes December 2019 Alleged act of religious The date of the refusal is not discrimination – refusal of specified but must pre-date day off for annual leave 24.12.19. [51] March 2020 Alleged incidents of disability discrimination and failure to make reasonable adjustments [51-52] 12 – 31st May 2020 Alleged non-payment of Relevant to the Constructive SSP Dismissal case 28 – 29th June 2020 ACAS conciliation [4] NB: pre-EDT, C was sufficiently aware of process to engage in early conciliation but denies knowledge of time limit 30th March 2021 ET1 submitted [5] Contains none of the claims now sought to be added by amendment 7th June 2021 PH before EJ Hendry [30- No identification of a pleaded 34] discrimination claim; confirmation that UD claim not pleaded 25th June 2021 C’s letter explaining delay Despite the guidance of EJ in submitting original ET1 Hendry, no amended [35-6] pleading or particulars of discrimination or UD complaint provided. 10th September 2021 PH before EJ Hosie [44- Confirmation that C “wishes 48] to advance complaints of constructive unfair dismissal and discrimination” which “were not intimated in the claim form”. Amendment necessary. Directions provided as to format of amendment [45 §5 – 47 §9]. R contends these directions have still not been fully complied with. 4th October 2021 Letter referring to Amended pleading in fact application to amend [49- dated 7th October 2021 [51-3] 50] 7th October 2021 Amended claim [51-3], without sufficient particularisation/noncompliance with ET order 31st October 2021 Further written particulars Continued non-compliance from C [57] with ET order 11th November 2021 Hearing before EJ Hosie Finding of non-compliance [58-61] [59] at §4. Further orders for particularisation. 2nd December 2021 Further Still non-compliant (no Eq Act particularisation/pleading references, no explanation of [62-3] link to protected characteristics). 23rd December 2021 ET order for Further GoR by 7th January 2022 [67] 7th January 2021 Further GoR filed/served [75], [68-74] 14th January 2022 Initial response to questions from K. Krawiec [95] 25th February 2022 Written responses of K. Krawiec [108][6]By letter dated 4 October 2021, the claimant applied to amend his claim by “adding” complaints of constructive unfair dismissal and discrimination (P49- 50). By letter dated 7 October 2021, the claimant intimated that he wished to bring a complaint of disability discrimination “and failure to make reasonable adjustments” and also “religious discrimination in the workplace” (P51-52). This was in response to directions which I had given in the Note which I issued following a case management Preliminary Hearing on 10 September 2021 (P44-48). The claimant’s application to amend was opposed by the respondent. Discussion and
Conclusion
[7]I do not take issue with the legal principles set out by Counsel in his written submissions.[8]In Cocking v Sandhurst (Stationers) Limited & another [1974] ICR 650, Sir John Donaldson, delivering the Judgment of the NIRC, laid down a general procedure for Tribunals to follow when deciding whether to allow amendments. These guidelines have been approved in several subsequent cases and were re-stated in Selkent Bus Co Limited v Moore [1996] ICR 836. In that case, the EAT emphasised that the Tribunal, in determining whether to grant an application to amend, must carry out a careful balancing exercise of the relevant factors, having regard to the interests of justice and to the relative hardship that will be caused to parties by granting or refusing the amendment. Useful guidance on this issue was also given by the EAT in Argyll & Clyde Health Board v Foulds & others UKEATS/009/06/RN and Transport & General Workers Union v Safeway Stores Limited UKEAT/0092/07/LA.[9]In both these cases, the EAT referred, with approval, to the terms of paragraph [311.03], in section P1 of Harvey on Industrial Relations in Employment Law:- “(b) Altering Existing Claims and Making New Claims [311.03] A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;(ii) amendments which add or substitute a new cause of action which is linked to, or arises out of the same facts, as the original claim; and(iii) amendments which add or substitute a wholly or new cause of action which is not connected to the original at all” Valuable guidance was also provided by Mummery LJ at pages 843 and 844 in Selkent:- “………………………………………………………………………………. (4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of granting the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: (a) The nature of the amendment Applications to amend have many different kinds, ranging on the one hand from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substituting a further label for facts already pleaded to, to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claims. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits If the new complaint or cause of action is proposed to be added by way of amendment it is essential for the Tribunal to consider whether the complaint is out of time, and if so, whether the time limit could be extended under the applicable statutory provisions e.g. in the case of unfair dismissal s.67 of the Employment Protection (Consolidation) Act 1978 (now section 111(2) of the Employment Rights Act 1996). (c) The timing and the manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments (now the 2013 Regulations). The amendments may be made at any time, before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts and information appearing from documents disclosed in discovery. Whenever taking any facts into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting amendments. Questions of delay, as a result of adjournment and additional costs particularly if they are unlikely to be recovered by the successful party are relevant in reaching a decision”[10]When considering the issue, I was also mindful of guidance of the EAT in the recent case, Vaughan v Modality Partnership UKEAT/0147/20/BA. In that case, the principles surrounding an amendment application were summarised by HHJ Tayler. Nature of the Amendment[11]The claimant application was a substantial alteration. It sought to introduce new causes of action. I recorded that that was so, in the Note which I issued following the case management Preliminary Hearing on 10 September 2021 (P45, para 4). Applicability of Time Limits[12]The new complaints in the proposed amendment are significantly out of time. Helpfully, at para 8.4 of his written submissions, Counsel calculated the delays for each of them, beyond the expiry of the time limit. I was satisfied that his calculations were accurate. These are as follows:- Religious discrimination: > 1 year 8 months Disability harassment: > 1 year 4 months Reasonable adjustments: > 1 year 2 months Constructive unfair dismissal: > 1 year 32 days[13]While I was mindful that in relation to an application to amend time bar is not determinative, I considered, nevertheless, whether I would have exercised my discretion and allowed the claims to proceed although out of time. I heard evidence from the claimant about this. The reasons he gave for the delay in submitting these new complaints in time were an ignorance of the time limits and his mental health condition. There was included within the bundle medical reports from NHS Highland dated 11 December 2019, 10 February 2020 and 14 April 2020 (P79, 80 and 39). Discrimination “Just and equitable” extension[14]The 3 month time limit for bringing a discrimination complaint is not absolute: Employment Tribunals have discretion to extend the time limit for presenting a complaint where they think it “just and equitable” to do so – s.123(1)(b) of the Equality Act 2010 (“the 2010 Act”). Tribunals thus have a broader discretion under discrimination law than they do in unfair dismissal cases as the Employment Rights Act 1996 provides that the time limit for presenting an unfair dismissal complaint can only be extended if the claimant shows that it was “not reasonably practicable” to present the claim in time.[15]In determining whether I would exercise my discretion and allow the discrimination complaints to proceed, I found the guidance in British Coal Corporation v Keeble & others [1997] IRLR 336 to be helpful. In that case the EAT suggested that Employment Tribunals would be assisted by considering the factors listed in s.33 of the Limitation Act 1980 which deals with the exercise of discretion in civil courts and personal injury cases. However, in doing so I remained mindful of the recent Court of Appeal case, Adedaji v University Hospital Birmingham NHS Foundation Trust [2021] EWCA Civ 23. In that case the Court reviewed a number of recent cases involving the Limitation Act factors cited in British Coal : “The best approach for a Tribunal when considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, ‘the length of, and the reasons for the delay’. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking”.[16]The Tribunal has a wide discretion under the 2010 Act to consider whether to allow in a claim out of time; the relevance of the factors in British Coal depends on the facts of the particular case. Prejudice[17]Were I to decide not to exercise my discretion to extend the time limit, then the claimant would be prejudiced as he will not be able to pursue these new complaints. On the other hand, were I to allow the amendment the respondent will be prejudiced in having to defend additional complaints , there will be delay and further expense will be incurred not only in conducting the proceedings but also in investigating matters which occurred some years ago. It is also unlikely that the respondent would be able to recover these additional expenses, even if it successfully defended the claim. I would also be allowing the claimant to proceed with complaints in respect of which otherwise the Tribunal would have no jurisdiction. In my view, the balance of prejudice favours the respondent. Alternative Remedy[18]Were I to decide not to exercise my discretion the claimant will still be able to pursue the claims which he was minded to pursue in the first instance. Delay[19]Clearly, this was a very significant factor indeed in the present case, as the delays beyond the expiry of the time limits were all over 1 year for each of the complaints.[20]Further, it was clear from the terms of the claim form, subsequent correspondence, the claimant’s involvement in the case management Preliminary Hearings and the manner in which he gave evidence at the Preliminary Hearing, that he is well able to articulate his position and identify the nature of his complaints, notwithstanding the fact that he is unrepresented and English is not his first language.[21]Although the claimant has no experience of Employment Tribunal proceedings he was able to submit a claim form without the benefit of advice. The time limits for bringing claims can readily be ascertained by reasonable enquiry, for example by way of a simple internet search.[22]Nor was I persuaded, on the basis of the claimant’s own evidence and the medical reports which were produced, that his mental health condition was a factor in the very significant delay in bringing these new complaints.[23]Were I to exercise my discretion and allow these new complaints to be introduced, by the time of any Final Hearing witnesses would be required to recall events that occurred some years ago. In that event, I would be concerned with regard to the cogency of the evidence and whether there could be a fair Hearing in such circumstances.[24]While I have a wide discretion to extend the time limit and that the just and equitable “escape clause” in relation to discrimination complaints is much wider than that relating to unfair dismissal complaints, I was also mindful of such cases as Robertson v Bexley Community Centre [2003] IRLR 434 in which the Court of Appeal stated that when Employment Tribunals consider exercising this discretion: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule” (my emphasis)[25]I arrived at the view, therefore, and I am bound to say without a great deal of difficulty, that there was no impediment to the claimant submitting these new complaints in time; that the length of the delay was a material factor and that the balance of prejudice favoured the respondent. The application to amend to introduce these new complaints is so out of time and the reasons given quite insufficient to engage the just and equitable discretion.[26]Had I been required, therefore, to address the time bar issue on its own and not in the context of an application to amend, in all the circumstances, and weighing all these factors in the balance I would have decided that it would not be just and equitable to exercise my discretion and extend the time limits in respect of the discrimination complaints. Unfair Dismissal “Not reasonably practicable extension”[27]As I recorded above, the just and equitable extension is wider and less onerous than the requirement in unfair dismissal cases for a claimant to establish it was “not reasonably practicable” to present the complaint in time. It follows, therefore, from my reasoning in relation to the just and equitable extension, that had I been required to do so I would not have exercised my discretion and extended the time limit in respect of the unfair dismissal complaint.[28]However, for the purposes of considering the claimant’s application to amend, time bar is not determinative, as Mummery LJ said in Selkent. It is but one factor to be considered, in the round, albeit an important one, particularly in the circumstances of the present case. The Timing and Manner of the Application/Prejudice and Hardship[29]As I recorded above, there was no impediment, in my view, to the claimant bringing these new complaints in good time and were I to allow the amendment further specification would be required and the respondent would be put to considerable additional expense investigating the new allegations and responding. It would also mean that any Final Hearing would be considerably longer and more expensive.[30]I am of the view, therefore, that the balance of prejudice/hardship clearly favours the respondent. Conclusion[31]For all these reasons, therefore, and also having regard to the “overriding objective” in the Rules of Procedure, I arrived at the view that the claimant’s application to amend should be refused. “Strike Out: Unreasonable Conduct in the Prosecution of Claims”[32]Rule 37 in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is in the following terms:- “Striking Out 37 –(1) At any stage of these 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; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above”.[33]The respondent’s Counsel submitted that the claim should be struck out as the manner in which the claimant conducted proceedings had been “unreasonable”, in terms of Rule 37(1)(b). He made the following submissions in this regard:- C remains non-compliant with the clear orders of the Tribunal. The case to be met remains unclear, leaving the Tribunal and or the Respondent to ‘fill in the blanks’. Account has to be taken of the claimant’s unrepresented status. However, that has been done in the attempts made by the Tribunal to attempt to assist C to set out his case. It remains the case that the same rules apply to litigants in person as represented parties. R is entitled to know the case it must meet and C does not appear capable of providing that information in a comprehensible form”.[34]When considering this issue, I was mindful that the claimant was unrepresented and had no experience of Employment Tribunal proceedings and that there is always a concern about striking out a claim against a litigant in person on the basis of a failure to plead his case.[35]However, when I considered the history of the case and the opportunities which had been afforded to the claimant to plead his case properly and the guidance which had been given to him, I was satisfied that the submissions by the claimant’s Counsel were well founded. I refer, in particular, to EJ Hendry’s Note which he issued following the case management Preliminary Hearing on 7 June (P30-34); the Note which I issued following the case management Preliminary Hearing on 10 September 2021 (P44-48); and the Note which I issued following the case management Preliminary Hearing on 11 November 2021 (P58-61). Despite the Orders and Directions in these Notes and the guidance given to the claimant as to what was required of him and reference to the relevant case law, the claimant failed to respond in any meaningful way to the directions and failed to provide the respondent with fair notice of the complaints he wishes to pursue, along with the facts relied upon in relation to each of these complaints.[36]Further, at the Preliminary Hearing the claimant was unable to provide any satisfactory explanation as to why he had failed to do so and as I recorded above though English is not his first language and although he had health issues, there was no impediment to him doing so.[37]I arrived at the view, therefore, that the manner in which the claimant had been conducted by the claimant was unreasonable. Accordingly, the claim is struck out in its entirety in terms of Rule 37(1)(b). Strike Out: Non Compliance with Orders[38]I also wish to record that, had I been required to do so, I would also have struck out the claim for non-compliance with Orders of the Tribunal, in terms of Rule 37(1)(c). These Orders were clearly set out in the Notes which were issued following the case management Preliminary Hearings, but, as I recorded above, they were never responded to or fully complied with by the claimant, in any meaningful way despite him being afforded ample opportunity to do so. “Strike Out: No Reasonable Prospects of Success”[39]For the sake of completeness, I also wish to record that I was satisfied that the following submissions by the respondent’s Counsel were well founded:- “The religious discrimination case is forlorn and certainly without reasonable prospects. C has pleaded no facts which might give rise to a prima facie case that the refusal of annual leave on 24.12.19 was because of his religion/belief. It is not known how the claimant might go about proving that his comparator has no faith/is an ‘unbeliever’ or that R knew of this.” Disability Status[40]Although I am not required to do so, having decided to refuse the claimant’s application to amend and to strike out the claim, for the sake of completeness I wish to record that I was also satisfied that the submissions by the respondent’s Counsel in this regard were well founded. On the evidence, and having regard to the lack of medical evidence in support of the claimant’s allegations concerning the adverse effect of his alleged impairments at the material time, namely the alleged discriminatory treatment, the claimant failed to establish he was disabled, in terms of s.6 of the Equality Act 2010.[41]Had I been required to do so, therefore, I would have dismissed the disability discrimination complaints for that reason.[42]When considering whether I would exercise my discretion in this regard, I had regard to the guidance in British Coal Corporation v. Keeble & Others [1997] IRLR 336 and also Robertson v. Bexley Community Centre [2003] IRLR 434 in which the Court of Appeal stated that when Employment Tribunals consider exercising the “just and equitable” discretion: “There is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule." (my emphasis)[43]While I was mindful of the claimant’s ill-health and the fact that English is not his first language, had I been required to do so I would not have decided to exercise my discretion and extend the time limit in respect of the discrimination claim on the ground that it was “just and equitable” to do so; I would not have extended the time limit in respect of the unfair dismissal claim, on the basis that it had not been “reasonably practicable” to submit the claim in time.[44]In deciding to make this decision I was aware that it is not necessary to decide if a claim is out of time when deciding whether to grant permission to amend, save in clear cases. In my view, this is one of these cases (Galilee v. Commissioner of Police of the Metropolis [2017] UKEAT 0SO7_16_2211).[45]However, for the purposes of considering the claimant’s application to amend, time bar is not determinative as, Mummery LJ said in Selkent. It is but one factor to be considered in the round, albeit an important one, particularly in the circumstances of the present case. The timing and manner of the application[46]As I recorded above, there was no absolute impediment to the claimant either . submitting his claim form in time or submitting the discrimination and unfair dismissal complaints in time.[47]Were I to allow the amendment, the claimant would be required to provide further specification of his claims and this would involve further procedure, delay and expense.[48]While the claimant is a litigant in person and a Polish national, I was also mindful of what the Honourable Mr Justice Langstaff (President) said in Chandhok v. Tirkey UKEAT/0190/14/KN at para.16:- “The claim, as set out in ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement nor a document but the claims made - meaning, under the Rules of Procedure 2013, the claim as set out in the ET1" Balance of hardship and injustice[49]This is the ultimate question for the Tribunal. As the EAT said in Vaughan at para 25: " No one factor is likely to be decisive. The balance of justice is always key.”[50]Even if I allowed the amendment, this does not deprive the respondent from the right to argue that the claims are out of time and, if so, this would involve further delay and expense.[51]Also, were I to allow the amendment, further specification of the claims would be required, and the respondent would have to carry out considerable new factual enquiry about events that happened some years previously. This would also involve, inevitably, further Tribunal procedures with resultant delay and expense.[52]As I recorded above, in Abercrombie Underhill LJ stated this important consideration at paragraph 48: - “.....the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.”[53]Also, due to the passage of time the cogency of evidence available is bound to be affected. It is now over four years since the allegations and I had no reason to doubt the assertion by the respondent’s Counsel that the respondent no longer has witnesses of fact remaining in its business that can speak to the allegations. When the claimant resigned with effect from 5 July 2020 he was employed by Cordant Security Ltd. Subsequently, there was a business transfer to the respondent, Bidvest Noonan, but the Cordant employees who would be essential witnesses, left after the transfer. This means that if these witnesses can’t be traced, or are unwilling to give evidence, the respondent would be prejudiced and significantly limited in its ability to present evidence of fact before the Tribunal.[54]For all these the reasons, therefore, and in light of my consideration of the three Selkent factors, I arrived at the view that the balance of prejudice and hardship favoured the respondent.[55]I should say that in arriving at this decision and considering the balancing exercise I had to carry out, I was mindful that were I to refuse the application the case would be dismissed in its entirety and the claimant would have no other remedy at an employment tribunal.[56]Accordingly, the claimant’s application to amend is refused. That being so, his claim falls to be dismissed. Respondent’s applications for strike-out[57]These were alternative submissions by Counsel, were I to decide to grant the claimant’s application to amend. Although I have refused the application to amend and dismissed the claim, I record my decisions, for the sake of completeness. Relevant Tribunal Rules[58]The striking out provisions are to be found in Rule 37 in Schedule 1 of the Tribunal Rules of Procedure:- “37. Striking Out(1) 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; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an Order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in Rule 21 above." Case law[59]Strike out is often described in the case law as a draconian measure and that it should only be exercised in exceptional circumstances. The EAT in Hasan v. Tesco Stores Ltd UKEAT/0098/16 set out that that there is a two stage process when considering an application for strike out. The first stage is to decide whether any of the grounds in Rules 37(1)(a)-(e) have been established and, if so, the second stage is for the Tribunal to consider whether to exercise its discretion to strike out.[60]I also noted the guidance that when considering an application to strike out I should have regard to the overriding objective of dealing with cases fairly and justly. I Fair hearing[61]In the event that I decided to grant the application to amend, Counsel submitted that the claims should be struck out on the basis that it would not be possible to have a fair hearing in respect of the claim, given the passage of time and the difficulty obtaining evidence from witnesses, pursuant to Rule 37(1)(e).[62]Counsel adopted the submissions by the respondent’s solicitors, in this regard, in their letter of 11 June 2024 (P.118-120, at P.120): - “1........................................................................................................................... (b) As the allegations relate to the period 2020/2021, the parties are now four years since the allegations. The Respondent no longer has witnesses of fact remaining in the Respondent’s business that can speak to the allegations. As such, the Respondent is prejudiced and significantly limited in its ability to present evidence of fact before the Tribunal. (c) Aside from the Tribunal’s jurisdiction, the issues to be determined are now 4 years old. Even in the event that the Respondent was able to present witnesses, due to the passage of time, it is no longer possible to hold a fair hearing. Memories fade overtime ........................................................ 3. It is no longer possible to have a fair hearing in respect of the claim given the time that has passed pursuant to rule 37(1)(e) ..................................The respondent no longer has any witnesses who can address the claims brought.”[63]Counsel explained, as I narrated above, that until he resigned on 5 July 2020, the claimant was an employee of Cordant Security Ltd. However, there was a subsequent transfer of the business to the respondent, Bidvest Noonan (UK) Ltd. The Cordant employees left after the transfer and are no longer employed by Bidvest. The claimant’s allegations refer to what was allegedly said to him and that is why the Cordant employees are essential witnesses.[64]In support of his submissions, Counsel referred to the Judgment of the EAT in Leeks v. University College London Hospitals NHS Foundation Trust [2024] EAT134 at para.39:- “39. Where a witness has left employment the Employment Tribunal will generally need to consider, amongst any other relevant factors: 39.1. Who is the witness? 39.2. What evidence can the witness give? 39.3. How long ago did the matter(s) about which the witness is to give evidence occur? 39.4. Has a draft or finalised witness statement been taken? 39.5. To what extent is the evidence supported by contemporaneous documentation? 39.6. Can other witnesses give evidence about the matters? 39.7. Is the employer still in contact with the witness? 39.8. Is the employee prepared to give evidence voluntarily? 39.9. Can attendance be secured by making a witness order? 39.10. Is there any reason to believe that the witness is now disposed against the interests of the employer? Claimant’s submissions[65]The claimant advised that he opposed the strike-out application. He questioned whether the respondent had ever tried to make contact with the witnesses at any time from the start of these proceedings. He said he was able to provide contact details for one of the Managers.[66]When considering this application I was mindful that this specific ground is rarely used. However, I arrived at the view that this was one of the exceptional cases. It was no longer possible to have a fair hearing. I had no reason to doubt the respondent’s contention that none of the potential witnesses remained employed by it. It was also significant that some of the issues to be determined are now some four years old. Further, were I to allow the amendment there will inevitably be further procedures which will cause further delay. The claimant will still require to provide further specification of his claims and, as yet, the respondent has not conceded that the claimant was a disabled person in terms of s.6 of the Equality Act 2010. It is likely, therefore, that any final hearing would be required to address matters which occurred some five years ago.[67]Having regard to the guidance in Leeks, to which I was referred, while it would be possible for the respondent to seek Witness Orders and while the claimant apparently has contact details for one Manager, full specification of the allegations will be required first to enable the respondent to identify who the witnesses are; they will have to trace the witnesses which will be difficult after such a length of time; they will have to find out what relevant evidence they can give; the witnesses may not be cooperative as they are not employed by the respondent; and they may not be cooperative or favourably disposed to the respondent and be prepared to give evidence on their behalf at a hearing, as their particular employment with Cordant ended when Bidvest took over the business.[68]Further, after such a long period of time there is bound to be a risk of evidential prejudice to the respondent by the loss or diminution in quality of cogent evidence. This is of particular significance in the present case for, as Counsel submitted,' the claimant’s allegations refer to what was allegedly said to him.[69]I was also mindful when considering this issue of the overriding objective in the Rules of Procedure which requires a Tribunal to deal with cases fairly and justly. This includes, so far as practicable, “ensuring that the parties are on an equal footing”. In the event that the case was to proceed to a final hearing given the evidential difficulties which the respondent inevitably will encounter, there is a likelihood that parties would not be “on an equal footing” at the hearing.[70]I decided, therefore, that Counsel’s submissions were well-founded. I decided, having regard to the guidance in Hasan, that the grounds in Rule 37(1) (e) had been established and that, in all the circumstances, I should exercise my discretion to strike out.[71]Had, I been required to do so, therefore, in the event that I had allowed the application to amend, I would have struck out the claim on the basis that it was no longer possible to have a fair hearing.[72]The claimant’s failure to specify his claims with resultant delays was not deliberate and strike out is a severe sanction to be used with restraint, which is very clear from the case law some of which I refer to below. However, in my view, in the particular circumstances of the present case, strike out is, “the only proportionate and fair course to take” (Blockbuster Entertainment Ltd v. James [2006] IRLR 630). “Prospects”[73]Counsel also submitted, in the alternative, that, were I to allow the application to amend, ail the claims should be struck out as having “no reasonable prospect of success”, in terms of Rule 37(1)(a). He again adopted the submissions by his instructing solicitors in their letter of 11 June 2024 (P.120):- “The Claimant has no real prospects of success pursuant to Rule 37(1)(a) of the Rules for the following reasons:(i) The claimant’s claims for failure to make reasonable adjustments, harassment related to disability and discrimination have not been pleaded in a way which can be sensibly responded to and are fundamentally flawed. The claimant has failed to make out these claims. In particular, the claimant has failed to articulate why the allegations were related to either disability or religion or belief;(ii) Moreover, the respondent notes that the claimant’s claim for constructive unfair dismissal is fundamentally flawed as there is a delay between the allegations and the claimant’s resignation and therefore he did not resign in response to any alleged breaches; Overriding Objective The respondent is of the view that, in accordance with Rule 37 of the Rules, the claimant’s entire claim should be struck out because they have no real prospect of success. We submit that granting this application would be in accordance with the overriding objective, as to grant the application would prevent further delay and save the time and resources of the parties and the Tribunal.” Discrimination claim[74]As I recorded above, it is well established in the case law that the power of strike out is a draconian one and should only be exercised in rare circumstances. The effect of a successful strike out application would be to prevent a party proceeding to a hearing and leading evidence in relation to the merits of their claim (Balls v. Donham Market High School & College [2011] IRLR 217EAT). I was mindful of this in arriving at my decision.[75]I was also aware of the “fact sensitive” nature of discrimination claims and the guidance in the case law in such cases as Anyanwu v. Southbank Students’ Union & Southbank University [2001] IRLR 305, HL, that strike out should only be ordered, “in the most obvious and clearest cases”.[76]In my view, this was one of these cases. The submissions by the respondent’s Counsel and his instructing solicitors, in relation to the discrimination claim, were well founded. Time bar[77]The originating claim form was submitted well out of time and were I to allow the amendment the respondent’s solicitors would undoubtedly take a time bar point. In any event, the Tribunal would have to consider time bar as it is a jurisdictional matter. As I recorded above, in relation to the amendment application, in my view having heard evidence from the claimant, he would not be able to establish that it was just and equitable to extend the time limit. The claim would be dismissed, therefore, for want of jurisdiction.[78]Further, the onus is on the claimant to prove his discrimination claims. Even were I to allow the amendment and even if I were to accept the claimant’s averments at their highest value, this would not amount to a prima facie case of discrimination. The claimant has also failed to aver the reason why his alleged treatment was on the ground of either disability or religion or belief.[79]Also, I was satisfied again, as Counsel had submitted at the previous preliminary hearing, that:- “The religious discrimination case is forlorn and certainly without reasonable prospects. The claimant has pleaded no facts which might give rise to a prima facia case that the refusal of annual leave on 24.12.19 was because of his religious/belief. It is not known how the claimant might go about proving his comparator has no faith/is an “unbeliever” or that the respondent knew of this."[80]I decided, therefore, having regard to the guidance in Hasan, that the grounds in Rule 37(1)(a) had been established and that I should exercise my discretion to strike out. Constructive unfair dismissal claim Time bar[81]Taking the claimant’s averments at their highest, this claim appeared to have more merit, than the discrimination claim, However, timescale would again be an issue. As I recorded above, the originating claim form was submitted well out of time. Having heard the claimant’s evidence, I would not have extended the time limit on the ground, so far as this claim was concerned, that it had not been reasonably practicable to submit the claim in time. In any event, even if it had not been reasonably practicable to submit the claim in time for a period after the claimant’s employment ended, he did not submit his claim form within a reasonable period thereafter. He was fit for work in January 2021, well able to submit his claim form then, but he did not do so until 30 March 2021. The constructive unfair dismissal claim would also be dismissed, therefore, for want of jurisdiction.[82]Further, as the respondent’s Counsel and instructing solicitors submitted, there was a delay between the allegations of breach of contract and the claimant’s resignation. This undoubtedly would give rise to issues of affirmation and whether or not the claimant resigned in response to any breach of contract by the respondent.[83]I arrived at the view, therefore, that even if I had allowed the amendment, this claim also would have no reason reasonable prospect of success and would be struck out. I decided, having regard to the guidance in Hasan, that the grounds in Rule 37(1)(a) had been established and that I should exercise my discretion to strike out.[84]More generally, I also considered whether the claimant, as a litigant in person, should perhaps be given even further leeway and another opportunity to provide the necessary specification of his claims. However, any such procedure would take time and involve the respondent in further expense and they must already have incurred significant expense defending these claims which, as pleaded, are without merit. I am satisfied that the claimant had been afforded a more than reasonable opportunity of doing so, it having been explained to him at case management preliminary hearings the requirement to provide specification, “fair notice”, of his claims, and he had singularly failed to do so.[85]I was also mindful of the observations of the EAT in Chandhok, which I referred to above, concerning the purpose of the claim form.[86]I might add that I remained mindful throughout my deliberations that the claimant did not and does not enjoy good health, he is a litigant in person and English is not his first language. However, on the basis of his written pleadings, as amended, and even taking them at their highest value, I was satisfied there was no reasonable prospect of any of his claims succeeding. The “overriding objective” in the Rules of Procedure requires an Employment Tribunal to be fair to both parties.[87]Accordingly, had I been required to do so I would also have struck out the claim, in its entirety, on the basis that it has “no reasonable prospect of success”. Claimant’s strike out application[88]The claimant applied to have the respondent’s response struck out, in terms of Rules 37(1)(a) and 37(1)(b). He gave his reasons for his application as follows:- “1. The current method of conducting the defence by the respondent’s representative consists only of denials without any facts. It constitutes an abuse of the Court’s process and is likely to obstruct the just disposal of the proceedings. 2. The respondent’s line of defence consists of rejecting inconvenient evidence and opposing the presentation of “new evidence” that may have a significant impact on the conclusion of the case. 3. The respondent does not give notice of any evidence to contradict the account of the complainer. 4. The extension of the case is bad for the claimant’s health, which is currently supported by medical letters.” Respondent’s submissions[89]Counsel advised that the claimant’s application was opposed. He reminded me that the test for strike-out is a “high bar” and, in any event, none of the conduct alleged by the claimant, “comes remotely close to meeting that high bar”.[90]He submitted that, “it is perfectly legitimate for the respondent to respond to a claim by denying that it happened. There is no need for the respondent to provide an alternative explanation if their position is it didn’t happen. In any event, the claim as pled lacked specification and even if the respondent’s response is lacking in detail that is because the claim lacks detail."[91]He submitted that the respondent had conducted the case, “entirely properly”.[92]I had no difficulty rejecting the claimant’s application. In my view, the submissions by the respondent’s Counsel were well-founded.[93]The onus is on the claimant to establish his claims and to provide “fair notice” of them. He has failed to do so, even taking his pleadings at their highest value. It is not improper or an “abuse of the court’s process”, or even unreasonable, for the respondent simply to deny the claimant’s allegations.[94]Further, and in any event, the state of the pleadings is such that the claimant’s amendment application is still outstanding and there is no requirement for the respondent to respond in any detail to claims in the claim form which are wholly lacking in specification and in respect of which the Tribunal does not have jurisdiction .[95]Accordingly, the claimant’s application is refused.