Employment Judge B ChapmanIn person for claimantMr J Fireman (instructed by Counsel) for respondentDate 1 July 2026
REASONS
[1]These written reasons relate to a Preliminary Hearing on 29 April 2026 to consider the strike out of the Claimant’s claim. The Respondent made a costs application which was also considered. The Tribunal heard oral evidence from the Claimant and submissions from both parties on both aspects.[2]The underlying claim relates to matters in 2023. ACAS was notified of the claim on 09 November 2023, and issued its Early Conciliation Certificate on 30 November 2023. The Employment Tribunal received the claim on 17 December 2023.[3]There has been a short delay in producing these reasons due to a period of pre-booked leave following the request. Background to Preliminary Hearing[4]On 12 January 2024, the Employment Tribunal made directions towards a Final Hearing listed on 05 January 2026 – 07 January 2026, which included the following deadlines:a.15 March 2024: Claimant to provide his Schedule of Loss and copies of his evidence and documents in support;b.31 May 2024: Parties to exchange relevant evidence and documents;c.12 July 2024: Bundle of documents to be agreed;d.20 September 2024: Parties to prepare witness statements;[5]Those directions were largely complied with, save that the Claimant was late with his Schedule of Loss. On 23 March 2024, he wrote to the Employment Tribunal to apologise for missing the deadline and reiterating that he understood the important of adhering to the required timescales. He followed up the same day with an email outlining claims for emotional distress, a requirement for mandatory training on diversity, equality and inclusion, and a policy review.[6]On 26 April 2024, a Preliminary Hearing took place before EJ Heap. The Claimant was directed to confirm the basis of his claim within 14 days, the parties were to confirm whether they had an interest in judicial mediation within 14 days, and the other directions were to otherwise remain as they were.[7]On Saturday 03 January 2026, ahead of the Final Hearing taking place on Monday 05 January 2026:a. At 07:57, the Claimant wrote to the Employment Tribunal to explain he could not attend the Final Hearing due to ‘serious medical reasons’. He explained he had had surgery whilst abroad on 12 December 2025, appointments with his GP and a Surgical Assessment Team in the UK on 23 December 2025, and was undergoing further medical investigations including a pending MRI scan. He asserted that he was still unwell and not fit to attend, that his condition was ongoing, and he required further medical assessment and follow up. He explained he was willing to provide medical evidence or documentation if required.b. At 19:15, the Respondent objected to any adjournment. They asserted that counsel’s fees had been incurred, travel arrangements had been made, and it would be unfair on the witnesses. They noted that the Claimant had only made them aware of the surgery the weekend before the hearing was due to take place, and that no medical evidence had been provided.c. At 23:05, the Claimant emailed again explaining that he returned to the UK on 22 December 2025, that he had been dealing with ongoing health issues relating to the surgery since he returned, and that health investigations were taking time and ongoing. He asserted he had not notified the Tribunal earlier because he had been chasing his GP and surgical assessment team. He explained that he had full medical evidence and documentation to support what he was saying, including proof of his surgery, travel dates, GP visits and ongoing medical assessments.[8]On Sunday 04 January 2026, the Claimant emailed the Respondent to explain that he had had 4 surgical procedures from June 2025 to date, and that he had attended Urgent Care that day (i.e. on 04 January 2026).[9]On Monday 05 January 2026, which was the first day of the listed Final Hearing before EJ Welch, the Judge issued a strike out warning. The warning explained that the Judge was considering striking out the claim because it appeared no fair hearing was possible as the manner in which proceedings had been conducted by the Claimant had been unreasonable, and the claim had not been actively pursued. It explained that the Claimant had failed to provide any details of his condition or medical evidence supporting his assertions, or to explain the reasons for the late notification of his circumstances. The Claimant was directed to provide within 7 days:a. Medical evidence that he was unfit to attend the 3-day Final Hearing;b. A medical opinion concerning when he would be sufficiently recovered to attend a 3-day hearing, along with any adjustments that might be required;c. The reason why he had failed to contact the Tribunal and the Respondent until 03 January 2026.[10]On 06 January 2026, the Claimant sent to the Employment Tribunal an email expressing his regret, explaining that he would provide the evidence, and asserting that he had been unwell for a prolonged period of time and had had 4 surgeries between June 2025 to date.[11]On 09 January 2026, the Claimant sent to the Employment Tribunal a further email explaining he had some of the evidence, but that he had been told it would take 4 weeks to release the further evidence and that his medical team could not provide a prognosis at that time. He sought an extension of time.[12]On 16 January 2026, the Respondent wrote to the Employment Tribunal explaining they had not received any of the directed evidence from the Claimant.[13]On 21 February 2026, Employment Judge Welch made directions listing the matter for the present Public Preliminary Hearing and made the following directions:a.21 March 2026: Extended deadline for the Claimant to provide the evidence he had been directed to provide by EJ Welch on 05 January 2026;b.04 April 2026: The Claimant to prepare the bundle for the hearing;c.04 April 2026: The deadline for either party to provide witness statements if they wanted to give evidence;d.22 April 2026: The bundle and witness statements (if any) to be sent to the Employment Tribunal.[14]The claimant did not provide the additional medical evidence. At the Preliminary Hearing, he explained that his further medical evidence had arrived with him 2 weeks before the Hearing. It had been received in paper format (as opposed to an electronic format). He had not sent it to the Employment Tribunal because it was in a paper format. He had not made any efforts to liaise with the Employment Tribunal about sending it in. This was despite his previous assurances as outlined above.[15]Given the lack of medical evidence, the Employment Tribunal instead took brief oral evidence from the Claimant who was cross examined by the Respondent’s counsel Mr Fireman briefly and proportionately.
Law
[16]In determining whether the claim, or any part of it, should be struck out, the Tribunal has to apply Rule 38(1) of the Employment Tribunal Procedure Rules 2024 (“the Rules”). Under that Rule, the Tribunal may, on its own initiative, strike out all or part of a claim on a number of specified grounds. The grounds relevant for present purposes are: that the manner in which the proceedings have been conducted by or on behalf of the claimant has been unreasonable (Rule 38(1)(b)); that the claim has not been actively pursued (Rule 38(1)(d)); and that it is no longer possible to have a fair hearing (Rule 38(1)(e)).[17]Where one or more of those grounds is established, the Tribunal must then go on to consider whether it should exercise its discretion to strike out the claim (Hasan v Tesco Stores Ltd (EAT 0098/16)). The discretion must be exercised in accordance with reason, relevance, principle and justice, and with regard to the overriding objective (Williams v Real Care Agency Ltd [2012] ICR D27 (EAT)). The overriding objective, set out in Rule 3, requires the Tribunal to deal with cases fairly and justly, which includes, so far as practicable, ensuring that the parties are on an equal footing; dealing with cases in ways proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility; avoiding delay so far as compatible with proper consideration of the issues; and saving expense. In applying this framework, the Tribunal should also recognise that strike out is a severe sanction.[18]Rule 38(2) requires that, before a claim is struck out, the Claimant must be given a reasonable opportunity to make representations. The Claimant had the opportunity to make representations at the hearing.[19]In considering the adequacy of the response to a strike‑out warning by a person representing their self, the Tribunal should afford a measure of latitude to them if they are making genuine, if inept, efforts to respond (Manuel v Eldon Technology Ltd (EAT 0323/15)).[20]In assessing whether a claim has been actively pursued for the purposes of Rule 38(1)(d), the Tribunal should consider whether any delay has been intentional, disrespectful, or abusive to the Tribunal, or whether there had been inordinate and inexcusable delay giving rise to a substantial risk that a fair hearing was no longer possible or was likely to cause serious prejudice to the respondent. Prejudice may not be difficult to show, as it will often be necessary to investigate the facts before memories fade, to avoid allowing hurt feelings to fester, and to provide as summary a remedy as possible (Evans v Commissioner of Police of the Metropolis). In Riley v CPS (2013), strike out was upheld on the basis that a fair hearing was no longer possible where the claimant’s medical condition meant there was no prognosis as to when, if ever, they would be well enough to participate. It was held to be wrong to adjourn in the hope that her condition might improve.[21]In considering whether there has been unreasonable conduct of proceedings under Rule 38(1)(b), the Tribunal should apply the structured approach set out in Bolch v Chipman [2004] IRLR 140 (EAT). The first question is whether the Claimant has behaved unreasonably. If so, the second question is whether a fair trial remains possible. If it does, the claim should ordinarily be permitted to proceed, although that may have an impact on witness memories. If a fair trial is no longer possible, the Tribunal must then consider whether a lesser sanction, such as a costs order, would be an appropriate and proportionate alternative to strike out.[22]Turning to costs, Rule 74 provides that the Tribunal may make a costs order on its own initiative or on the application of a party. The Tribunal must consider whether to make such an order where it considers that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing the proceedings or in the way they have been conducted; where a claim had no reasonable prospects of success; or where a hearing has been postponed or adjourned on the application of a party made less than seven days before the hearing was due to begin. A costs order may also be made on the application of a party where a party has breached an order, rule or practice direction, or where a hearing has been postponed or adjourned.[23]Where the jurisdiction to award costs is engaged, the Tribunal retains a discretion as to whether to make an award. If it decides to do so, it must then consider the appropriate amount.[24]The Tribunal should also have regard to the principle that costs remain the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420). The threshold for awarding costs is a high one (Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117 (EAT)). Again, the Tribunal is not to judge a person representing their self by the same standards as a professional representative (AQ Ltd v Holden [2012] IRLR 648 (EAT)).[25]The Tribunal did not strike out the claim, but did make an order for costs. It was a very finely balanced decision.[26]The Tribunal was satisfied that the Claimant was unwell before the hearing. On the limited evidence seen, the Claimant had presented himself to medical professionals over the weekend prior to the hearing which has prompted further investigation and led to a fit note being issued. The issue related to that which he had undergone surgery for in December 2025. The Tribunal was satisfied that the delay was not intentional. The underlying reason for the delay (being illness) was not, in itself, inexcusable. The claim was being actively pursued.[27]Even showing a measure of latitude to the Claimant as a person representing their self, the Tribunal was not satisfied that the Claimant had conducted himself reasonably.[28]He could and should have at least notified the Respondent of his ongoing illness and the risk that he may be too unwell for the hearing well in advance. This would have allowed the Respondent to consider consenting to a postponement in an effort to mitigate cost, and for the Tribunal to be updated in respect of the situation.[29]He could and should have been able to evidence his illness. He had the letter from December 2025 confirming his surgery. He himself had said in his email to the Tribunal he had ‘full medical evidence and documentation to support what he was saying, including proof of his surgery, travel dates, GP visits and ongoing medical assessments’. He explained at the hearing that, having become more unwell over the course of the weekend prior to the Final Hearing, he attended Urgent Care. Even on the evidence presented to the Tribunal, that attendance is not recorded. The Claimant told the Tribunal he did receive some evidence of his attendance, albeit he did not think it was sufficient. It was still evidence he could have provided. The Tribunal did not accept his assertion that he did not send the evidence because he did not think he could send confidential information. The Tribunal would understand if the Claimant said he was reluctant to send confidential information to the Respondent, but it is not plausible that he would not think the Tribunal needed to see it.[30]Even as at the date of the hearing, it is difficult to understand why the Claimant made no effort to send his updating medical evidence to the Tribunal despite his clear assurances that he was going to, nor to liaise with the Tribunal about this if he was in difficulty sending the evidence. He has repeatedly asserted his understanding of the need to comply with Tribunal directions, including following a previous breach of directions. It displays a disregard and disrespect for the Tribunal’s directions.[31]The Tribunal did not accept that the Claimant was so incapacitated that he was unable to update, or provide evidence to, the Respondent or the Tribunal in good time ahead of the previously listed Final Hearing. He had not been so unwell that he could not chase his GP and medical team. He had been quick in response to the Tribunal when the strike out warning was issued, despite his suggestion at the hearing being that he was suddenly more unwell over the course of that weekend (which, notably, is not quite what he was asserting in his emails to the Tribunal over the course of that weekend when he explained he had ongoing complications).[32]The Tribunal was satisfied that there could be a fair Final Hearing. The Tribunal considered the fact that the memories of witnesses fade. It was important to recognise that, by the time of the previously listed Final Hearing, the events in question were 1.5 years old. By the time a further Final Hearing can take place, witnesses will need to try to remember even further back in time. That said, the disputed factual matters are fairly limited. They relate to allegations that: on 13 March 2023 a memo was sent to the Claimant and other members of staff telling them to only speak English, another member of staff took a photograph of the Claimant which was sent on to white members of staff, and that a member of staff was instructed to take a photo of the Claimant and other non-white members of staff. The matter had been fully prepared for trial and witness statements had been produced. The Claimant explained that he had a good prognosis arising out of surgery expected this year, indicating that a relisted Final Hearing is likely to be effective.[33]A Costs Order was appropriate. The Claimant’s conduct has been unreasonable for the reasons outlined above. The application to postpone came in less than 7 days before the hearing. Whilst the Tribunal appreciated that the hearing was not strictly postponed, the principle underlying the rule is the same: the Respondent has suffered costs because of the Claimant’s conduct. When efforts were made to explore the Claimant’s means to pay a costs order, he confirmed that he would pay the Respondent’s costs of the ineffective hearing if that was ordered. That would provide an effective remedy. A Costs Order would be less draconian than striking the claim out.[34]Whilst the Claimant changed his position about paying for a costs order after the decision to make the order had been made, the decision was made taking into account the previous assertion.[35]The total claimed was £9383.29. This was excessive given there had only been attendance on Day 1 of the hearing. The total sum awarded was £4500 (inclusive of VAT). Counsel’s fee of £4000 was allowed in full as this will have been incurred and deemed. £500 was otherwise allowed towards the remaining expenses for attendance on Day 1. Approved by: