Mr B Barko v Lea Interchange Bus Company Ltd T/a Stage Coach: 6002718/2025
EMPLOYMENT TRIBUNALS
Case No 6002718/2025
Between
Mr B BarkoClaimantLea Interchange Bus Company Ltd T/a Stage CoachRespondent
Before
Employment Judge HallenIn person for claimantMs. E. Moncur- Solicitor for respondentDate 17 February 2026
JUDGMENT
[1]The Claimant’s application to amend his claim made on 15 October and 24 October 2025 is refused as it is out of time.[2]The Claimant’s claims of harassment and protected disclosure detriments are struck out as they have no reasonable prospect of success and accordingly his claim to the Tribunal is struck out in its entirety.
REASONS
[1]Employment Judge Shore considered this case at a preliminary hearing on 24 June 2025. At that hearing, Judge Shore listed the matter for an open public preliminary hearing that eventually took place in front of me on Thursday 12 February 2026. The purpose of the hearing was to determine whether the Claimant had made claims that could be sensibly understood and responded to, what claims had the Claimant made, did any of the claims made require the permission of the Tribunal to be added to the case, should any claim or part of a claim be dismissed as having no reasonable prospects of success and should any claim or part of a claim be made the subject of a deposit order?[2]At the hearing before Judge Shore, the Claimant indicated that he was making a whistle blowing claim, a workplace harassment and bullying claim, a claim related to false accusations and the intolerable situation at work. In his Claim Form, he had set out 7 cases in paragraph 8.2 which the Employment Judge at that hearing tried to understand. Most of that hearing was spent trying to work out what claims the Claimant was making as he had no legal training and had no representation. Judge Shore set out the legal principles defining what a qualifying disclosure was as well as setting out what harassment amounted to as to prohibited conduct in the Equality Act 2010. He made it clear that the alleged harassment needed to be unwanted conduct related to a protected characteristic under that Act. With regard to the cases outlined in the Claimant's Claim Form, he directed that the Claimant to provide to the Respondent no later than 29 July 2025 details of the protected disclosure and specifically what happened, when it happened, how it happened, who did the thing that he was complaining about. If the alleged act was an act of harassment, what protected characteristic did the Claimant say related to harassment. If the case was alleged to be about whistle blowing, the Claimant was required to say what the protected disclosure was, what part of section 43 B ERA it related to, who was the disclosure made to, how was it made and why was it in the public interest. The Claimant subsequently provided the Respondent with a number of details again referenced in writing as cases 1 to cases 8 within the time period specified by the Tribunal.[3]For the purposes of the hearing before me, I had an agreed bundle of documents made-up of 67 pages, the Respondents written submissions with respect to its strike out application, deposit order and opposition to any amendment made by the Claimant to his Claim Form filed at the Tribunal on 26 January 2025. I also had an updated document that was an e-mail from the Claimant to the Respondent, and the Tribunal dated 17 October 2025 confirming that since his reinstatement back to his bus driver job on 2 August 2025, working conditions had much improved for him. He attached to his e-mail documentation related to his appeal against dismissal and this update was made-up of 44 pages. He confirmed that the update was purely for the purposes of confirming that the working situation has improved for him since his reinstatement in August 2025.[4]At the beginning of the hearing, the Claimant confirmed that he was not pursuing a claim for unfair dismissal as he had been reinstated. He also confirmed that he was not pursuing a claim for breach of contract relating to unpaid holiday pay as his holiday pay had been paid to him. The parties agreed that the purpose of the hearing before me was to consider whether the Claimant’s claims for detriment on grounds of making a protected disclosure or harassment or part of them should be struck out on the basis that they have no reasonable prospect of success or whether the complaints should be subject to a deposit order on the basis that they had little reasonable prospect of success and finally whether any of the claims made by the Claimant required leave to be added by way of an amendment and specifically those claims made on 15 and 24 October 2025 require an amendment to his application. Facts.[5]Following Judge Shore’s order, the Claimant provided further particulars of his claims by way of eight separate case references in writing to both the Respondent and the Tribunal within the time limit. With regard to case one, he referenced poor customer service and rude behaviour from May and June 2024 claiming that the Respondent followed an unfair procedure with respect to disciplinary action against him that he confirmed was neither a protected disclosure nor harassment. With regard to case 2, he referenced a final written warning issued against him related to conduct in October and November 2024 that he asserted the Respondent did not follow its disciplinary policy properly. He did not reference any protected disclosure, nor any harassment related to a protected characteristic. In relation to case 3, he referenced an investigation meeting in November 2024 and criticised how that was handled. He was not able to reference harassment related to a protected characteristic nor could he reference a specific protected disclosure. In relation to case 4, this referenced a workplace absence in December 2024 and a payment of an in-lieu day that he said the company did not follow the correct procedures in dealing with it towards him. He could not point to harassment related to a protected characteristic nor could he specify a protected disclosure. With regard to case 5, this related to internal communication on the Respondent’s internal network for which he was subsequently excluded that he referenced as a broader claim of unfair treatment. He was not able to point to harassment related to a protected characteristic nor was he able to specify details of a protected disclosure. With regard to case 6, he referenced psychological harassment that he addressed to workplace colleagues related to disciplinary action against him that he said was harassment. He could not specify a protected characteristic in relation to such harassment nor was he able to point to a specific public interest disclosure. In relation to case 7, this related to an accident that occurred in November 2024 relating to his bus and a public vehicle for which he said he was harassed by his managers. He could not identify a protected characteristic in respect of this harassment, nor did he reference any public interest disclosure. In relation to case 8, this related to a personal matter that required him to travel to Hungary in June 2025 for which he claimed in lieu days that he said were not processed properly by the Respondent. He was not able to reference a protected characteristic in relation to this alleged harassment nor was he able to identify a specific public interest disclosure.[6]The cases referred to by the Claimant related to disciplinary action taken against him or grievances about how he was personally treated by the Respondent which he maintained was harassment albeit he could not point to a protected characteristic under the Equality Act in relation to any of the above cases. Furthermore, he was not able to identify any protected interest disclosure with the required specificity that Employment Judge Shore required of him in the order that was made at the previous preliminary hearing. Furthermore, he was unable to provide such specificity during his submissions before me at the hearing.[7]On 15 October 2025, nearly ten months after he lodged his Claim Form to the Tribunal and in respect of providing further information to the Respondent and to the Tribunal, he referenced retaliation by the Respondent following disclosures made in October 2024 relating to safety and data handling concerns and on 24 October in a statement of further information, he referenced a description of disclosures made between October 2024 and July 2025 in relation to safety and data handling concerns that he said were in the public interest. He said that these related to improper management and deletion of safety related messages, lack of transparency regarding bus safety checks and recording of incidents and failure to provide mandatory data protection and security training. In this statement, he did not provide the details of the protected disclosure required by Employment Judge Shore specifically he did not set out what the protected disclosure was, which part of section 43 B it related to, who the disclosure was made to, how it was made, and why it was in the public interest.
Relevant Law
[8]The following statutory provisions were considered in relation to the merits of the claims and time limits: Employment Rights Act 1996, Equality Act 2010. Striking Out[9]An employment judge has power under Rule 38(1)(a), at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on the ground that it has no reasonable prospect of success.[10]In Hack v. St Christopher’s Fellowship [2016] ICR 411 EAT, the then President of the Employment Appeal Tribunal said, at paragraph 54: “Rule 37 of the Employment Tribunal Rules 2013 provides materially:- “(i) At any stage in 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) Where it is scandalous or vexatious or has no reasonable prospect of success…55. The words are “no reasonable prospect”. Some prospect may exist, but be insufficient. The standard is a high one.”[11]Lady Smith explained in Balls v Downham Market High School and College [2011] IRLR 217, EAT (paragraph 6): “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words “no” because it shows the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects….”[12]In Romanowska v. Aspirations Care Limited [2014] (UKEAT/015/14) the Appeal Tribunal expressed the view that where the reason for dismissal was the central dispute between the parties, it would be very rare indeed for such a dispute to be resolved without hearing from the parties who actually made the decision. It did not however exclude the possibility entirely.[13]The EAT has held that the striking out process requires a two-stage test in HM Prison Service v. Dolby [2003] IRLR 694 EAT, at para 15. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. See also Hassan v. Tesco Stores UKEAT/0098/19/BA at paragraph 17 the EAT observed: “There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claims had no reasonable prospect of success, to consider how to exercise his discretion. The way in which r 38 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under the Employment Appeal Tribunal Rules 1993 was interpreted as requiring a two-stage approach.”[14]It has been held that the power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances (Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly [2012] IRLR 755, at para 30). More specifically, cases should not, as a general principle, be struck out on this ground when the central facts are in dispute.[15]In Mechkarov v. Citibank N A UKEAT/0041/16, the EAT set out the approach to be followed including: -(i) Ordinarily, the Claimant’s case should be taken at its highest.(ii) Strike out is available in the clearest cases – where it is plain and obvious.(iii) Strike out is available if the Claimant’s case is conclusively disproved or is totally and inexplicably inconsistent with undisputed contemporaneous documents. Deposit Orders[16]A deposit order can be made if the specific allegation or argument has little reasonable prospect of success. In Hemdan v. Ishmail [2017] IRLR 228, Simler J, pointed out that the purpose of a deposit order ‘is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails’ (para 10), she stated that the purpose ‘is emphatically not to make it difficult to access justice or to effect a strike out through the back door’ (para 11). Amendment of Claim Form[17]Two key cases established the factors the tribunal should consider when faced with an application to amend: In Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 the then President held that regard should be had to all the circumstances of the case and in particular, the tribunal should "consider any injustice or hardship which may be caused to any of the parties ... if the proposed amendment were allowed, or as the case may be, refused". Cocking was followed by the EAT in Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore [1996] 661, IRLR which held that, when faced with an application to amend, a tribunal must carry out a careful balancing exercise of all the relevant circumstances and exercise its discretion in a way that is consistent with the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions." The EAT considered that the relevant circumstances would include the nature of the amendment, the applicability of time limits and the timing and manner of the application. Decision on the Respondents application Amendment of Claim Form[18]In the first instance, the Claimant in his correspondence with the Respondent and the Tribunal on 15 and 24 October 2025 nearly ten months after the Claim Form was submitted to the Tribunal in the provision of further information by him asserted a whistle blowing claim between October 2024 and July 2025 referencing several safety and data handling concerns that he said were raised with the Respondent that he believed were in the public interest. These included improper management and deletion of safety related messages and reports on the company's internal communication platform, a lack of transparency and accountability regarding bus safety checks and recording of incidents and the companies alleged failure to provide mandatory data protection and security training. In this further information, the Claimant did not specify why he was seeking to make this amendment and why the amendment application was made so late in the day. I noted that the details provided in the further statement of 25 October contained details that were not raised in the Claim Form at all and were related to an entirely new claim. This could not be said to be a relabelling exercise. I also noted that the details provided by the Claimant on 15 and 24 October 2025 did not comply with Employment Judge Shore’s direction to the Claimant in that it did not specify what the protected disclosure was, which part of section 43B it related to, who the disclosure was made to, how it was made, and why it was in the public interest.[19]I find that the Claimant specifically failed to deal with these matters and raised a general concern without specificity as a new claim 10 months after the Claim Form was submitted. The amendment application was substantially out of time in that it related to alleged disclosures as long ago as October 2024 and no explanation was provided to me as to why the application was so late and why it could not be set out in the original Claim Form. The Claimant also did not set out why this proposed amendment could not have been made before Employment Judge Shore in June 2025 at which hearing the Claimant was in attendance. Furthermore, no effort was made by the Claimant to explain why the amendment application could not have been made along with the further details provided by him to the Tribunal and the Respondent by 29 July 2025. Given the lack of specificity and the lack of explanation for why the amendment application was made so late, I determined that the amendment should not be allowed. It lacked any detail, was substantially out of time, and given the lack of detail, there was no reasonable prospect of such claim being successful in any event. Weighing up the balance of prejudice, the Respondent would be substantially prejudiced by this amendment of the claim that still lacked any real detail and certainly lacked the detail that Employment Judge Shore required of the Claimant following the preliminary hearing on 24 June 2025. Accordingly, the amendment application was refused.[20]Dealing with the strike out application, I had to determine in the first instance whether the whistle blowing detriment claim and the harassment claim had no reasonable prospect of success and if so whether I should exercise my discretion to strike out these claims.[21]Dealing with the harassment claim in the first instance, it was clear to me that the Claimant being a litigant in person did not understand that harassment had to be as a consequence of a protected characteristic. The Claimant was given an opportunity by Employment Judge Shore to clarify which protected characteristic he relied upon under the Equality Act but in each of his eight case references that followed the preliminary hearing, he failed to reference a protected characteristic at all. It was made clear to him at the previous hearing that harassment was not a free-standing right and needed to be related to a protected characteristic under the Equality Act. As the Claimant was not able to point to a protected characteristic upon which he relied, I find that his harassment claim stands no reasonable prospect of success at a substantive hearing. Accordingly, in such circumstances, I decided to exercise my discretion to strike out this claim.[22]Turning to the protected interest detriment claim/s, the Claimant was ordered by Employment Judge Shore to provide specific detail of his claims. He sent in eight case references following the preliminary hearing and in none of these case references, was he able to specify what the protected disclosure was, which part of section 43B it was related to, who the disclosure was made to, how it was made, and why it was in the public interest. In the absence of him providing the specific detail that Judge Shore required of him, I find that any protected disclosure detriment claims that he says he wishes to make, stand no reasonable prospect of success. Accordingly, in such circumstances, I decided to exercise my discretion to strike out this claim.[23]The Claim Form is struck out in its entirety.