Ms P Angelova v Greencore Food to Go Ltd: 6003796/2024
EMPLOYMENT TRIBUNALS
Case No 6003796/2024
Between
Ms P AngelovaClaimantGreencore Food to Go LtdRespondent
Before
Employment Judge DunlopIn person for claimantMs E Kelly (instructed by solicitor) for respondentDate 12 February 2026
REASONS
[1]Ms Angelova’s claim form was presented on 12 June 2024. The complaints are not entirely clear from the claim form, but Ms Angelova had ticked boxes indicating that she wished to complain about discrimination on the grounds of both race and disability. The narrative indicated that the respondent’s treatment of her had caused her to sustain an injury, and that the respondent had forced her to continue with her current (physical) job role rather than permitting her to move to lighter duties.[2]Notice of the claim was sent to the respondent, at the address provided on the claim form, by letter dated 24 June 2024. The notice provided that a response was due by 22 July 2024. At the same time, a notice of hearing was issued for a preliminary hearing for case management. That is standard practice for claims involving discrimination allegations. The preliminary hearing was listed for 27 September 2024.[3]On 13 August 2024 the Tribunal sent a standard letter to the respondent informing it that it had failed to enter a response and that Judgment may now be issued.[4]On 16 August 2024 Eversheds Sutherland, solicitors acting on behalf of the respondent, wrote to the Tribunal applying to extend time for presentation of the response and supplying a draft response and grounds of resistance. The application accepted that the address given in the ET1 was correct, and explained the arrangements for handling post at the respondent’s premises. It noted that the ‘response not received’ letter had been successfully received on 14 August 2024 (one day after posting) but that the original service documents appeared to never have been received.[5]Further correspondence ensued, and it was clear that Ms Angelova objected to the respondent being permitted to enter a late response and take part in the proceedings. She wanted a Judgment to be issued under Rule 21. The parties were told that the respondent’s extension of time application would be dealt with at this preliminary hearing.
The Law
[6]The principles in relation to granting extension of time for presentation of a response in the Employment Tribunal are settled. Rule 20 of the Employment Tribunal rules of Procedure 2013 does not set out any specific test to be applied, giving the Tribunal a wide discretion, subject to the general requirement under Rule 2 to deal with cases “fairly and justly”.[7]In the key case of Kwik Save v Swain [1997] ICR 49, the Employment Appeal Tribunal set out the matters to be considered in an extension of time application. Although this was a decision taken under an earlier iteration of the Employment Tribunal Rules of Procedure, these remain the principles that are applied today. According to that decision, the following factors are relevant:7.1 The employer’s explanation as to why an extension of time is required. The more serious the delay, the more important it is that the employer provide a satisfactory and honest explanation.7.2 The merits of the defence In broad terms, Judges should look more sympathetically at a defence which appears to have merit, as there is more risk of injustice if the claimant succeeds by default.7.3 The balance of prejudice between the parties[8]More recent guidance comes from Thorney Golf Centre Ltd v Reed 2024 EAT 1996. In his Judgment in that case, HHJ Auerbach emphasised the need to analyse the delay caused by the respondent’s actions, and the reasons for that delay. Discussion and conclusion[9]I commented during the hearing that, given the claimant’s strenuous objections to the extension of time application, it would have been useful for the respondent to have provided witness evidence to support the account given in the application about its mail-handling procedures, and the fact that the original service documents appear not to have arrived. I was unable to make findings of fact about those matters from the solicitors’ letter.[10]However, I can make a finding of fact, based on the record of correspondence, that the respondent, and its solicitors, acted exceptionally quickly to prepare a response and application within 2 days of receiving the ‘response not received’ letter on 14 August. The effect of giving the claim urgent attention at that stage, was that the preliminary hearing on 27 September 2024 was able to go ahead as listed. There was therefore no delay at all to the progress of the proceedings, consequent on the late response.[11]The merits of the defence are difficult to assess in circumstances where the claim is not fully clarified. Further details in respect of this are set out in the case management document. At the very least, it seems to me that there are significant difficulties with some parts of the claim and, for that reason alone, the defence may well succeed if the respondent is permitted to resist the claim.[12]To my mind, the balance of prejudice in this case is clear, and overwhelmingly favours the respondent. As explained above, there has been no delay to the proceedings, so the only prejudice the claimant has suffered has been the loss of a ‘windfall’ victory. On the other hand, these are serious allegations and a judgment against the respondent could have significant consequences, in both reputational and financial terms.[13]The claimant argued that she is in physical pain and will have difficulty attending hearings and prosecuting her case due to that. Of course I am sympathetic to the claimant in this regard, and that is a difficulty which will have to be carefully managed through the provision of whatever adjustments may be reasonable and appropriate. However, that is not a prejudice which arises from the respondent’s late presentation of its response. The overriding objective requires me to deal with cases fairly and justly and put the parties on an equal footing. If I were to refuse the extension of time application simply because this claimant will find the litigation process difficult, it would be grossly unfair to the respondent.[14]If necessary, I would be prepared to infer from the respondent’s prompt actions on receipt of the ‘response not received’ letter that the explanation that the original service documents were not delivered (for whatever reason) is true. However, in view of all the factors set out above, I was satisfied that that I should exercise my discretion to extend time irrespective of whether the respondent’s explanation for non-receipt of the original service documents was accepted or not. In those circumstances, although it would have been better for the respondent to produce evidence, it ultimately made no material difference to the outcome.
Introduction
[24]It is the Tribunal’s firm expectation that the next preliminary hearing (listed below on 20 January 2026) will go ahead whether the claimant attends or not. The purpose of today’s adjournment was to give the claimant fair warning that the Tribunal will decide whether to strike out her claim on 20 January 2026 so that she can decide how she wishes to make her representations to the Tribunal before that decision is taken. The claimant suggests, in various documents on the Tribunal file, that her medical condition is not expected to improve and that she will not be fit to attend any further Tribunal hearings. This means the Tribunal is unlikely to postpone the hearing on 20 January 2026 because the claimant is not well enough to attend. If the claimant’s condition is not going to improve there will be little point in granting a further postponement of that hearing as she will not be able to attend any rebooked hearing either. (There would need to be clear medical evidence to show that the claimant would be likely to improve enough to participate and that this was likely to happen within a specific and predictable time period.)[25]There have previously been difficulties in relation to the provision of documents for Tribunal hearings. In light of this:a. The respondent will not produce an updated skeleton argument for the hearing on 20 January 2026.b. The claimant has now been sent the skeleton argument document dated 3 October 2025 and has fair warning of its contents. She can prepare any written responses in response to this document or can attend the hearing to respond to the skeleton argument document orally.c. Respondent’s counsel can make oral submissions at the hearing on 20 January 2026 to supplement the contents of the existing skeleton argument of 3 October. (NB: Any further/updated skeleton argument might cause difficulties and might trigger requests for a postponement or for the opportunity to respond in writing to the latest piece of correspondence. That will frustrate the Tribunal’s attempts to make reasonable progress in the case at the next hearing.) Preliminary Hearing on 20 January 2026[26]A further preliminary hearing has been listed to take place on 20 January 2026 by video. It has been listed for a full day and will be a public hearing.[27]At the hearing on 20 January 2026 the judge will:a. Decide whether to strike out some or all of the claimant’s claim.b. If the claim is not struck out, decide whether the claimant was a disabled person within the meaning of the Equality Act 2010 for the purposes of her disability discrimination claim.c. If the claim is not struck out, clarify the legal issues in the claim.d. If the claim is not struck out, consider whether the claimant should be permitted to amend her claim and, if so, in what way.e. If the claim is not struck out, give any further appropriate case management orders for the progression of the case.[28]However, the Tribunal at the Preliminary Hearing may decide not to determine any of these issues if it appears to it to be in accordance with the overriding objective not to do so’. 3. Judge Eeley was clearly concerned that the claimant understood the nature of today’s hearing and the need for her to address her mind to the potential consequences, to make representations and decide whether she was intending to attend the hearing or rely upon written submissions. This was especially important because the claimant had failed to attend the PH before her. 4. The Note of PH was sent to the parties on 6 November 2025. The claimant responded by applying for a reconsideration of the PH. However, this hearing did not involve the making of any judgments and only involved the listing of the case for a further hearing and making case management orders. Written reasons were also requested, and Judge Eeley provided a detailed letter to the parties on 18 December 2025 noting that the claimant had sent 14 separate documents to the Tribunal since the PH. She confirmed that the case management orders would not be varied and that it was an accurate record. The claimant was reminded that she was not disadvantaged by Judge Eeley’s decisions and she was actually being given an additional opportunity to make submissions. 5. Unfortunately, a noticeable feature of this case has been the claimant’s failure to engage with the progression of the proceedings and instead challenge every positive case management step taken. Consequently, the Tribunal’s electronic file contains more than 100 items from the claimant which is excessive when balanced against documents and communications from the respondent and the Tribunal. 6. The claimant then provided further correspondence on 23 December 2025, and Regional Employment Judge Franey provided comments in a letter dated 14 January 2026, explaining to the claimant that other case management issues could be dealt with upon conclusion of consideration of the strike out application. He reminded the claimant that details of the respondent’s application could be found within the respondent’s skeleton argument provided on 3 October 2025. 7. The claimant had also sent correspondence on 6 January 2026 which included the application for reasonable adjustments, copies of PIP and Carers Allowance awards and a reply to Mr Welch’s skeleton argument, (discussed below). 8. I noted that the 4 page reasonable adjustments application document, the claimant (without supporting medical evidence), asserted: ‘As confirmed by the medical evidence already provided to the Tribunal, it is medically determined that the claimant is incapable of attending or participating in a full-day hearing. ‘This medical incapacity is ongoing and directly affects the claimant’s ability to engage in oral hearings.’ The claimant did not refer to the medical reports which supported this conclusion but considering the next section of her application headed ‘REASONABLE ADJUSTMENTS REQUESTED’, I noted that she requested the following: ‘The matters, issues and applications be determined on the papers, without an oral hearing, pursuant to Rule 31 of the Employment Tribunals Rules of Procedure. ‘Determination on the papers would enable the claimant to participate fully and effectively, while avoiding the procedural disadvantage caused by her disability.’ I found this application puzzling because the claimant had not provided any details of dates of medical evidence in support of her adjustment and which was significant given that parties are expected to attend hearings in person of remotely by CVP so that effective discussions can take place, questions asked and representations made. The available medical evidence is considered by me below. 9. This is a case with 225 separate documents included within the Tribunal electronic file. The claimant’s communications dominate and she clearly has the means to submit frequent and lengthy correspondence when she wanted to, although addressing the need to progress her case. 10. However, I accepted that she would not be attending the PH before me today, which had been anticipated by Judge Eeley in her Note of PH and referred to in the introduction above. While the claimant was not proposing to attend, I was satisfied that she had ample opportunity to make representations concerning the respondent’s application and had taken advantage of that opportunity. 11. Mr Welch had attended as counsel for the respondent and had been counsel at previous hearings. Ms Spirdonova the Bulgarian interpreter was present too. She had been previously instructed by the Tribunal to support the claimant whose English while noted as being good by Judge Dunlop in a previous PHCM was recognised being her second language. Once Ms Spirdonova was released (being no longer required given the claimant’s absence), I began the PH. 12. I explained to Mr Welch that I had delayed the start of the PH until 11:30am in order that I could consider the many documents in the case file and that I would hear his submissions, before retiring to consider the claimant’s written submissions, deliberating and providing my written judgment and reasons. I confirmed that I would only consider the strike out application today as there was insufficient time to consider anything else. Considering the events of the previous PH before Judge Eeley, I agreed that it was in the interests of justice to consider strike out before anything else. 13. The claimant had provided one last piece of correspondence in reply to the Tribunal’s letter dated 14 January 2026. It was an unnecessarily verbose and argumentative. Essentially however, the claimant was seeking the postponement of the hearing today presuming that her reasonable adjustments application had not been considered. The email did not add to the previous correspondence in this case and did not provide any further medical evidence that might raise any concerns. It was therefore in the interests of justice to proceed with the PH. Available papers and evidence 14. The respondent produced a 628-page PH bundle which contained the following relevant papers: a) Pleadings; b) Records of the previous hearings; c) The claimant’s medical evidence; and, d) The claimant’s applications. 15. Mr Welch had also provided a copy of his skeleton argument, originally produced for the PH before Judge Eeley and provided on 3 October 2025. 16. It is understood that the claimant has received these documents previously. Quite sensibly, Judge Eeley ordered that they not be updated to ensure the claimant had plenty of time to review these documents before the PH before me. 17. The claimant had produced many documents and uploaded them upon the Tribunal system. Since the PH before Judge Eeley, the claimant had submitted 20 documents or applications. However, I considered that the key documents were the reply to the respondent’s skeleton argument and the reasonable adjustments application. Most of the other documents related to challenges regarding previous Tribunal decisions. Timeline for the case 18. The claimant presented a claim form to the Tribunal on 13 June 2024 following a period of early conciliation with ACAS from 5 April to 14 May 2024. The claimant indicated that her dates of employment were 29 May 2019 until 8 January 2024 and she worked as a production operative at the respondent’s Liverpool factory. She ticked boxes in section8.1 of the claim form stating complaints of discrimination relating to disability and race. in section8.2 she provided limited background information concerning a back injury sustained at work, less favourable treatment following that injury and a failure to make reasonable adjustments by finding alternative work for her. No details of any race discrimination were provided. 19. The claim was accepted by the Tribunal, and a Notice of Claim letter was sent to the respondent on 24 June 2024 providing that the response must be presented by 22 July 2024. 20. The respondent missed the 22 July date, but they were permitted an extension of time so that the response presented on 16 August 2024 was accepted. The respondent sought further particulars regarding disability, the complaints being brought and the claim was resisted. 21. On 27 September 2024, Judge Dunlop considered the case at a preliminary hearing case management (PHCM) and recorded that the claimant had made an application to postpone the hearing because her health was too poor to attend. The claimant had attended the PHCM, but informed Judge Dunlop throughout the hearing, that she was in great pain. The claimant declined a proposal of a stay in the proceedings and asserted that she did not believe her health would improve. Judge Dunlop allowed the respondent an extension of time in which to present their grounds of resistance and noted that the two major things that needed to happen were identifying the list of issues and whether the claimant was disabled within the meaning of section 6 Equality Act 2010 (EQA). It was also noted that the claimant had failed to particularise the asserted claim of race discrimination. 22. Judge Dunlop listed the case for two further PHCMs with one on 13 February 2025 to consider the claimant’s application to amend her claim and another on 10 March 2025 to determine whether the claimant was disabled within the meaning of section 6 EQA 2010. 23. It was clear from the way that the Note of PH was presented and worded, that Judge Dunlop took time and displayed considerable care in ensuring that the claimant could participate effectively during the PHCM and made allowances both for the discomfort the claimant said she was experiencing, her unrepresented status and (while the claimant’s English was good), recognising that her first language was Bulgarian. 24. Unfortunately, rather than progressing her claim and focusing upon case management, the claimant sought to spend considerable time challenging the orders made at the PHCM to progress the case. 25. It is acknowledged that limited progress was achieved when on 6 December 2024 the claimant provided her disability impact statement and other documents a few days outside the order made by Judge Dunlop, (29 November 2024). 26. On 23 January 2025, Judge Tobin acknowledged the claimant’s application to amend her claim and reminded the parties that this would be considered at the PH on 13 February 2025. He reminded the parties of the legal test that would be applied and the balancing exercise that would be adopted to ensure that a decision was made that would be in the interests of justice. 27. On 12 February 2025, Judge Ainscough considered correspondence from the claimant and decided to postpone the PH listed for 13 February 2025. This was to hear the claimant’s application to amend. However, she was told that the PH listed for 10 March 2025 would remain listed and the claimant would be expected to attend. The claimant was informed that unless she attended hearings, it would not be possible to progress the claim and medical evidence must be provided should ill health prevent her attendance at future hearings. The claimant was also told that if medical advice is that she will never be able to attend a hearing, it must be disclosed so that the Tribunal can consider whether the proceedings can continue. 28. On 7 March 2025, I considered the case and expressed concern that ‘the claimant is failing to advance her claim in a proportionate way. This includes failing to cooperate with the respondent in ensuring that the case is effectively dealt with at the next preliminary hearing.’ I expressed surprise at the usually simple task of completing a hearing bundle being delayed by the claimant’s intransigence and invited her to re-read Judge Dunlop’s case management orders.[29]On 10 March 2025, Judge Fearon heard the PHCM. Mr Welch attended this PHCM and Judge Fearon recorded that before the hearing was due to begin, the Tribunal made several calls to the claimant but was diverted to voicemail. Emails were also sent but remained unanswered and despite additional time being allowed for the claimant to join the hearing, she failed to do so. Eventually, Judge Fearon decided to postpone the case relisting it for 3 October 2025 with a 3 hour duration to consider disability, effective date of termination and claimant’s application to amend.[30]Guidance concerning strike out and deposit applications was included within the ‘Fearon Note of PH’ that was sent to the parties. A strike out warning was given in section 2 of the Note and the grounds under Rule 38(1)(b), (c), (d) & (e) were referenced.[31]In paragraph (1) of the Orders section of the Fearon Note of PH under the heading ‘Applications’, Judge Fearon explained that consideration was given to the question of the claimant’s non attendance under Rule 47 and the claimant’s application made earlier to postpone the hearing because of ill health under Rule 32. It was noted that the claimant had not provided up to date medical evidence, but on balance Judge Fearon concluded: ‘the circumstances arising sufficiently exceptional to justify postponing the hearing…[t]he circumstances arising, however, raise further cause for concern, concerns having already been raised by the Tribunal, about the claimant’s conduct of these proceedings and whether she will ever be fit to attend a hearing in the future: the claimant again stating the position in her email dated 7 March 2025 that the GP has previously advised she is unfit to attend and further meetings/hearings.’[32]On 7 April 2025, Judge Batten responded to more than a dozen applications/documents received the claimant during March 2025. Sick notes were acknowledged, the claimant’s ongoing challenge against the respondent being granted an extension of time to present a response was stated as being resolved and any further challenges should involve an appeal. It was noted that the claimant had made an application to strike out the response but informed her that to pursue such an application, she must provide dates when she can attend a hearing. It was also noted that the claimant was seeking reconsideration, but Judge Batten observed that the claimant had not stated what decision she was challenging and therefore that application would be refused. The claimant had also made an application for privacy and Judge Batten refused this reminding the claimant of Rule 49 and the principle of open justice.[33]Numerous applications continued to be made by the claimant. On 12 May 2025, Judge Buzzard noted that the claimant had made ‘an extraordinary number of applications’. He decided that the PH on 3 October 2025 be extended to 1 day with the Judge hearing the case, deciding on the day what matters to deal with and in what order.[34]The PH took place before Judge Eeley on 3 October 2025, with the claimant not attending and Mr Welch attending on behalf of the respondent. I have already referred in the Introduction above to what I believe are relevant sections of the ‘Eeley Note of PH’. Judge Eeley also summarised the procedural position to date and it is worth referring to the discussions that took place regarding the question of strike out.[35]It was recorded that on 26 September 2025, the claimant had emailed the Tribunal and the respondent, confirming that she was unfit to attend the PH on 3 October 2025, because of her medical condition. She attached two GP letters and asked that the case be determined on the papers. While Mr Welch was understandably keen to request that Judge Eeley order strike out of the claim, she was concerned that strike out was not included on the agenda of issues for consideration on 3 October 2025, (see reference to Fearon Note of PH above). The claimant she believed, should have been warned that strike out might have been a consequence of the PH and a further PH would therefore need to be listed.[36]Mr Welch was instructed to press for strike out arguing that Judge Fearon had clearly identified strike out as being warned and an explanation of strike out being included within her Note. Judge Eeley considered however, that the claimant was a litigant in person and English was not her first language. Although Judge Fearon had given a strike out warning within the Note of PH, Judge Eeley noted that strike out was not included within the matters to be considered on 3 October 2025. Moreover, while the claimant had previously raised a few written submissions in an email on 28 and 29 April 2025, she had not had an opportunity to reply to the respondent’s skeleton argument that was only provided before the ‘Eeley PH’ began on 3 October 2025.[37]Ultimately, her conclusion was that the claimant had not had sufficient warning and a further PH therefore needed to be listed – namely the PH which I have heard. As described already above, Judge Eeley was explicit in saying that this PH would take place whether or not the claimant attended. The adjournment until 20 January 2026, was to allow the claimant to make representations and it was considered likely (based upon medical evidence provided so far), that the claimant would not attend, (as has proven to be the case).[38]As already mentioned, to assist the claimant, Judge Eeley made clear that Mr Welch would be expected to rely upon his skeleton argument of 3 October 2025 and would not update this document, so that the claimant had time to respond.[39]Unfortunately, rather than focus upon the question of strike out, following her receipt of the Eeley Note of PH, the claimant adopted a now familiar approach of seeking to ‘reconsider’ the decisions made. These were of course decisions made at a hearing she failed to attend. Twenty pieces of correspondence and/or documents were sent to the Tribunal before the PH on 20 January 2026.[40]Judge Eeley was understandably dismayed by this approach and in a letter sent on 18 December 2025, she referred to considering numerous documents. She reminded the claimant that on 3 October 2025 hearing date, she could only consider those documents which had been submitted by that date. She reminded the claimant that case management decisions are not judgments and cannot be subject to reconsideration under Rules 68 to 71. Judge Eeley did consider whether it was in the interests of justice to vary the existing orders made, but concluded it was not. She also concluded it simply was not proportionate for a Judge to be expected to read every single one of the claimant’s documents and only give decisions on paper and that the most efficient way to proceed was at the hearing on 20 January 2026. It was added, that while the Judge may be able to consider other matters at that PH, in addition to the question of strike out, it may not be practicable for them to do so.[41]The claimant was informed that she needed to decide whether she wished to make written submissions or make oral representations at the PH. These case management orders were made by Judge Eeley in order that the claimant had a fair opportunity to consider how she would approach the PH. In what was a lengthy 4 page letter (necessitated by the claimant’s extension correspondence/applications), Judge Eeley referred to the relevant documents available on the Tribunal’s electronic case file. The claimant was informed that she need not submit any further copies of documents before 20 January 2025.[42]The claimant then submitted further correspondence, including an application on 23 December 2025. It was 12 pages length and described ‘procedural irregularities and inaccuracies in the administrative correspondence of 18 December 2025’. Rather than focus upon preparations for 20 January 2026, this application appeared to serve the purpose of preventing the hearing going ahead by attacking Judge Eeley’s diligent and considerate approach within the Tribunal letter of 18 December 2025. This resulted in Regional Employment Judge Franey reminding the claimant in a Tribunal letter dated 14 January 2026 that: a) Judge Eeley had already determined the claimant’s application to vary her earlier case management order, b) there is no judicial bias or unfairness arising from delays in the administrative process of the Tribunal, c) that the Tribunal has limited resources, d) that further consideration can be given to other case management issues once the strike out application has been considered. e) that the basis for strike out can be found in the respondent’s skeleton argument dated 3 October 2025.
Law
[43]Strike out is provided by Rule 38 of the ET Rules of Procedure 2024: Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply 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, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it 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 is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer's contract claim)[44]Mr Welch, referred to the following relevant cases in his skeleton argument: a) Riley v Crown Prosecution Service [2013] EWCA Civ 951. Considering where it is no longer possible to have a fair hearing when a claimant’s medical condition was central to the issue. Paragraph (28) referenced. b) Rolls Royce plc v Riddle [2008] IRLR 873. Considering where a claimant is considered not to be actively pursuing their claim. Paragraph (20) referenced. c) Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371. Considering non-compliance with procedural orders and paragraph (17) referenced. d) Abegaze v Shrewsbury College of Arts & Technology [2010] IRLR 236. Considering unreasonable conduct within the proceedings and paragraph (15) referenced. e) Harris v Academies Enterprise Trust [2015] ICR 617. Considering unreasonable conduct within the proceedings and non-compliance with procedural orders. f) De Keyser Ltd v Wilson [2001] IRLR 324. Considering unreasonable conduct and non-compliance with procedural orders and paragraph (26) referenced. g) Blockbuster Entertainment Ltd v James [2006] IRLR 630. Considering unreasonable conduct and non-compliance with procedural orders and paragraph (5) referenced (deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible, but that strike out must remain a proportionate response). h) Birkett v James [1978] AC 297. Considering where a claimant is not actively pursuing their claim and paragraph 321C referenced. i) Evans Executors v Metropolitan Police Authority [1993] ICR 151. Considering where a claimant is not actively pursuing their claim and paragraph 155C referenced. j) Khan v London Borough of Brent UKEAT/0002/18 (8 March 2018, unreported). Considering where a claimant is not actively pursuing their claim and paragraphs (31 & 32) referenced.[45]Mr Welch also referred in his skeleton argument to several other cases which it is not necessary to consider in this judgment because they related to the other preliminary matters of amendments to the claim and which were not considered by me today. Respondent’s Submissions[46]Mr Welch’s submissions were primarily contained within the written skeleton argument which he had produced before the PH on 3 October 2025 and with Judge Eeley. He provided oral submissions at the hearing today as well.[47]He described the reasons for the application for strike out application which arose from the order made by Judge Fearon at the PHCM on 10 March 2025 within section 2 of the orders made.[48]He firstly explained that Rule 38(1)(e) applied because a fair hearing was no longer possible. Referring to paragraph (28) of Riley (see above), he argued that the claimant had provided no relevant medical evidence that will explain when and how the claimant will be able to participate in future hearings, despite having been told by Judge Ainscough that such evidence should be provided where non-attendance was likely. There was no prospect of the claimant being fit in the near future and there was a powerful argument for striking out the claim on this ground.[49]In relation to Rule 38(1)(c), there had been unreasonable conduct and noncompliance with Tribunal orders. The claimant has never particularised her claim despite having presented her claim form on 12 June 2024. This is wilful and disobedience of the orders made by Judge Dunlop at para (8). He added that the claimant does not find herself able to engage selectively when she wants to with long documents, reconsideration and amendment application, set aside and reasonable adjustments. He added that the definition of contumelious behaviour had been met as well.[50]In relation to Rule 38(1)(d), Mr Welch argued that the claimant was not progressing her claim and we were no farther forward in the proceedings than we were since Judge Dunlop heard the first PHCM on 27 September 2024. The claimant has not attended hearings and as this will be required at final hearing, no prospect of this case progressing further.[51]Mr Welch asserted that this was probably the clearest case ever of the strike out test being met. Judge Fearon at paragraph 2.1.2 says the claimant conducted herself in a scandalous way, she had not particularised her claims. He accepted that no trial/hearing date or window had yet been set but argued that it cannot be considering the limited progress made in identifying issues. Claimant’s submissions[52]The claimant provided written submissions within a 25 page document under several headings. It opened with criticism of receiving the respondent’s skeleton argument shortly before the hearing on 3 October 2025. However, as already mentioned in the Eeley Note of PH and subsequent letter sent on 18 December 2025, this was why Judge Eeley allowed a delay until today and no further documents from the respondent.[53]The claimant remains unhappy about the respondent seeking an extension of time for late presentation of the response. She refers to reconsideration of Judge Dunlop’s decision regarding this matter even now.[54]She described experiencing pain during the hearing she attended, delay caused by several preliminary hearings being listed by Judge Dunlop, whom she accused of displaying a lack of balance.[55]The claimant argues that she particularised her race discrimination in her submission dated 18 September 2024, she said she provided details of her disability discrimination complaint and breach of contract claim.[56]The claimant argues that she provided her disability impact statement and additional medical evidence in support on 6 December 2024.[57]She said that she was unfit to attend the PHCM hearing before Judge Ainscough and provided medical evidence.[58]Medical practice delayed providing evidence before the PHCM until 25 March 2025 and proper weight should be given to this medical evidence in determining whether a fair trial is possible.[59]The written submissions were overly long and surprisingly so, given the extent of the pain and discomfort the claimant described. It sought to blame the respondent and did not appear to recognise the difficulties arising from proceedings which had languished without much progress being made since the claim was presented.[60]She did refer to the overriding objective and the need to ensure that parties were insofar as possible, placed on an equal footing.[61]However, a continuing focus remained the respondent’s presentation of a response following the making of an application for an extension of time. she went through various Tribunal’s Rules of Procedure but the size of her submissions, their repetitive nature and lack of focus make it disproportionate to expand any further on their contents within this judgment. Discussion regarding decision The claimant’s status in these proceedings[62]In considering this preliminary hearing, I was acutely aware that the claimant was unrepresented, a Bulgarian national whose did not speak English as a first language and who described ongoing health issues affecting her ability to participate in proceedings and to attend hearings. I was concerned that my primary task in this PH was to consider whether the claim should be struck out and was acutely aware that a draconian penalty to impose and I must be satisfied that it is a proportionate decision to make having considered all of the circumstances in this case.[63]The claimant recently submitted a document entitled ‘Application for Reasonable Adjustments’ dated 6 January 2026. It was 4 pages in length. It opened with reference to Rule 3 (overriding objective), Rule 30 (case management powers), Tribunal’s ‘statutory duties under sections 20 & 21 and 29 (sic) of the Equality Act 2010’, Article 6 of the European Convention on Human Rights (right to a fair trial) and Rule 31 (determination without a hearing). She explained that she did not seek reasonable adjustments at an earlier stage of the proceedings because she believed the Tribunal would have considered it was fair and proportionate to dispose of the case on the papers. The claimant’s medical and health related evidence[64]The claimant referred to existing medical evidence describing her as being incapable of attending a full day hearing. She argued that determination on the papers would enable the claimant to ‘participate fully and effectively’. The claimant did not provide any proposal of how she might be able to attend the hearing remotely, how hearings might be limited in length, of how she might be able to attend for a few hours over a number of days or anything else that might permit an active role from her where submissions could be made, evidence heard and challenged both by her and other witnesses.[65]The claimant provided PIP decision letters and evidence of medical and carer support. The PIP letter from the DWP was dated 9 October 2021 awarding payments relating to daily living needs and mobility needs from 2021 until 2024. The Carers Allowance was for a Mr Georgiev dated 14 March 2022 whose address was not the same as the claimant’s address, and it was unclear whether it related to support of the claimant or not. It was noted that Mr Georgiev’s address was used by the claimant in medical records of an MRI scan from 2021 which she submitted earlier in these proceedings. These documents did not provide much insight into the claimant’s ability to participate in these proceedings, but it revealed that the DWP had recognised a long-term health issue affecting the claimant’s day to day activities.[66]On 2 May 2024, the claimant’s GP Practice Surgery referred to chronic back pain stemming from a back injury at work in October 2019. Reference was made by Dr J Cross to multi-level disc degeneration and impingement of the L4 nerve root. This was supported by other NHS health service letters between the period from 2021 to 2024.[67]A disability statement was provided by the claimant on 29 November 2024. While I was not considering the question of the claimant’s disability under section 6 Equality Act 2010 at this point, I noted that she referred to an accident on 21 October 2019. She described a low back injury mostly on her right side which confined her to bed for 2 weeks. Strong use of painkillers was identified. A referral for physiotherapy at a number Liverpool University Hospital locations was identified but concluding with a belief that the condition will progress and worsen as the claimant ages, that she remains incapable of work and that without treatment, she would not be able to move at all.[68]Additional information was supplied on 6 December 2024 specifically answering the questions asked in the case management order of the Judge Dunlop Note of PH but essentially providing the same information within the original disability statement. However, significantly, the claimant also submitted on this date, a Med 3 fit note dated 20 November 2020 where her GP assessed her on 17 November 2020 recorded ‘you may be fit for work taking account of the following advice’ (i.e. it did not utilise the alternative wording ‘you are not fit for work’), with ‘amended duties’ being assessed as ‘cold environment likely to worsen pain…long periods standing also likely to be detrimental’. No reference was made sitting down or access to screens being impaired by this condition.[69]An OH Medical Report from Sue Heaps dated 1 July 2021 recorded that ongoing issues were connected with prolonged standing and working in cold conditions. Avoiding static posture was recommended. Adjustments were suggested in terms of job role and this was supported by A G Head-Rapson Consultant in Anaesthesia and Pain Relief in a letter dated 31 January 2023.[70]A GP letter dated 5 November 2024 from Dr J Cross marked ‘To Whom it May Concern’, referred to the chronic back pain suffered by the claimant and the degenerative changes identified to her lower back. Gynaecological issues were also mentioned, the impact painkillers had upon her wakefulness and concentration and the issues arising from being ‘a single Mum of two children and she also has no family members in the UK for support’. The letter concludes by saying: ‘We’d appreciate you taking this information into account and if you can consider excusing her from the upcoming meetings she would greatly appreciate that.’[71]This letter was not addressed to the Tribunal specifically and the final paragraph was presented in a way that opened with the first person plural ‘we’ suggesting that the claimant and the GP request we consider this letter, while concluding in the second person singular ‘she’ (i.e. the claimant) would appreciate being excused from ‘meetings’. The letter did not give an opinion that the claimant’s physical health arising from her back pain prevented her from attending hearings and it did not recommend adjustments such as remote hearings or explain why non-attendance was the only option to progress the case.[72]The claimant did experience difficulties in obtaining letters from her GP in advance of the Tribunal PHs. A further letter dated 25 March 2025 from Dr Cross was provided which was a repetition of the wording used on 5 November 2024. The claimant provided these earlier letters from Dr Cross prior to the PH before Judge Eeley.[73]No further correspondence, however, has been submitted which unequivocally explains that the claimant is unable to attend in person hearings or remote hearings by video. Alternatively, no suitable adjustments in terms of breaks or being allowed to mobilise that are typically allowed for parties suffering from lower back pain in the courts or Tribunals. No medical evidence has been provided by the claimant which suggests that the claimant’s health is likely to improve to a point where she can actively participate in Tribunal proceedings and attend future hearings.[74]While I have a great deal of sympathy for anyone who is suffering from chronic back pain (and in the claimant’s case, other personal issues), I am not persuaded that there is sufficient evidence available to persuade me that she is unable to attend either in person or remote hearings and the continuous failure to attend hearings, even if only for a limited period of time is unreasonable and has caused unnecessary delay in this case. The claimant’s ability to litigate[75]Judge Dunlop at the PHCM on 27 September 2024 upon observing the claimant’s discomfort suggested that she could request a stay of proceedings to allow time for her health to improve. The claimant declined saying that she wished to continue and did not expect her health to improve. The claimant has not applied for a stay since that hearing and while her condition may not improve, it might have allowed her time to reflect and perhaps seek assistance. The claimant did suggest at that hearing, she would consider obtaining legal representation, although she has been unable to obtain any since then.[76]I would note that despite being a litigant in person, the claimant has been prolific in her communications with the Tribunal when receiving the various Notes of PH and letters relating to case management. She can produce lengthy documents which are articulate and refer to relevant parts of the ET Rule of Procedure 2024. While not always interpreted correctly, the claimant broadly understands the Tribunal process and is able to assert what she believes are her rights within the proceedings as a party.[77]I also note that when the claimant attended the PHCM before Judge Dunlop it was recorded that her English was good, adding that while an interpreter would be appointed for every hearing that she attended, it was likely that their involvement would be limited to translation of complex or technical language. The claimant has not suggested that she struggles to understand written words in English and based upon the clarity of her correspondence, I am not persuaded that language has been a barrier in this case. The procedural time line and delay[78]The claim was presented on 13 June 2024, and I am now considering this case more than 18 months following its commencement. More than 2 years have elapsed since the claimant’s employment ended.[79]There have been several PHCMs and PHs as follows: a) PHCM - 27 September 2024 – Judge Dunlop – claimant attended. Listed for further PHCMs on 13 February 2025 (claimant’s application to amend) and 10 March 2025 (whether the claimant is disabled under section 6 EQA 2010). Case management order (7) & (8) of the Dunlop Note of PH requiring the claimant to provide further information relating to the background information in her claim form and if wishing to bring additional allegations, requiring her to make an application to amend. The claimant was required to comply by 29 November 2024. She has failed to do so and this remains an outstanding order despite the significant correspondence provided to the Tribunal. b) PH - 13 February 2025 – postponed at claimant’s request. c) PH - 10 March 2025 – Judge Fearon – claimant did not attend. Listed the case for a PH on 3 October 2025 to consider disability, application to amend and case management. Claimant also issued with a strike out warning. d) PH - 3 October 2025 – Judge Eeley – claimant did not attend. Listed for a PH on 20 January 2025 to deal with strike out (and if relevant/time available), other matters. e) PH - 20 January 2026 – this hearing. Relevance of the delay with regards to a fair hearing remaining possible[80]We are now in the position where the claimant’s precise claim remains unclear, it has not been possible to list the case for a final hearing, and important matters such as disclosure, final hearing bundle and exchange of witness statements remain outstanding. The delay in this case has been considerable.[81]It difficult to know how many days would be required for a final hearing because the claimant has failed to provide the necessary information concerning her claims. Based upon the information before me however, a discrimination complaint of this nature would typically require 5 days or event more. Consequently, the present state of the listing of cases in NW Region means that multi day hearings of 5 days or more will not take place until late 2027 at the earliest.[82]The claimant has not provided medical evidence which confirms she cannot attend hearings either in person or remotely. But given the claimant’s ill health, even if her health did improve so that attendance at hearings became possible, any hearing would in all probability require shorter hearing days with many breaks. While this could amount to a reasonable adjustment, it will result in a longer multi day hearing being required.[83]The claimant has time and time again failed to offer any reasonable adjustments that would allow her to attend hearings and instead she has insisted that any hearings cannot take place in person and should be carried out as a paper exercise.[84]This is not supported by the medical evidence and in any event, if consideration is given to the requirement that a fair hearing take place, it would not be in the interests of justice for the claimant to proceed to a final hearing or preliminary hearing dealing with an issue such as disability, without giving witness evidence under oath and being subjected to reasonable cross examination.[85]However, the claimant’s continuous approach has been to refuse to attend hearings and not even offer adjustments as a compromise. She does not anticipate her health to improve. Given that almost no progress has been made apart from the presentation of the claim and response, it really is difficult to see how a fair hearing within a reasonable trial window of (say), the next 18 months or longer, is possible.[86]What concerns me is that the claimant has become obsessed with the respondent being allowed an extension of time to present a response which was resolved long ago and which the claimant has referred to on several occasions since then.[87]Moreover, the claimant is not without the ability to produce copious numbers of applications to the Tribunal accompanied by numerous documents, which have often been submitted on several occasions. The applications and letters are often lengthy and make technical points and refer to access to justice. However, given the frequency with which she has corresponded with the Tribunal, access to justice is not a problem for the claimant.[88]Instead, the claimant has self sabotaged her claim by treating every attempt by a Judge to case manage her case and progress it as an act of aggression. The Tribunal has been exceptionally patient with the claimant. Rather than treat each Note of PH as an opportunity to move her case forward, (i.e. by identifying the issues, listing for substantive hearings and dealing with disclosure and witness evidence), she has attempted to criticise the orders made and seek their variation. This is unacceptable and unreasonable behaviour and not justified or supported based upon the information before me and in all the circumstances.[89]The respondent has behaved reasonably in how they have reacted to the claimant’s approach to case management but understandably has become increasingly unhappy with the claimant’s failure to progress her case. It was understandable that Mr Welch was instructed to press for strike out at the PH before Judge Eeley, but given the circumstances described within her Note of PH, it was on balance appropriate to delay the question of strike until 20 January 2026. Rule 38 (1)(e) – fair hearing no longer possible[90]In terms of whether a fair hearing is no longer possible (Rule 38(1)(e)), Mr Welch referred to Riley (above), which involved a claimant having no reasonable prospect of improving sufficiently. He argued that these principles could be applied in this case. The claimant has confirmed as early as the PHCM before Judge Dunlop that she did not expect her condition to improve and since this date. She has declined to attend hearings on health grounds. She has offered a fit note which while being indefinite in duration, neither that document nor her GP letters support an inability to attend hearings either in person or virtually with appropriate adjustments.[91]The claimant has interpreted the Med 3 and other supplied medical evidence as supporting her belief that she cannot attend hearings. She expects proceedings to continue without hearings taking place and for the reasons given above, my conclusion is that with no prospect of the claimant being able to attend hearings in the foreseeable future, a fair hearing cannot take place.[92]In reaching this conclusion, I have considered whether there is any prospect of this case reaching a final hearing having considered all of the available information. But the claimant is determined that this case continues with her involvement being restricted to written submissions and evidence in support without actually reaching a stage where witness evidence is tested under oath. Despite continued patience from the Tribunal who have sought to remind the claimant what is required from parties in a litigation process, her failure to offer some form of participation in hearings, leaves me deciding that this is a case where a fair hearing is no longer possible. Rule 38(1)(d) – failure to pursue claim[93]Mr Welch also argued that because of the submissions made in relation to Rule 38(1)(e), a fair hearing was not possible under Rule 38(1)(d) as well.[94]Curiously, it could be argued that this is a case where the claimant has actually engaged continuously and in detail with the process. However, as I explained above, this considerable engagement by the claimant cannot amounted to pursuing the case in a positive way. Instead, she has sought to challenge and seek to vary or revoke comments and orders made by the Tribunal Judges at preliminary hearings and in Tribunal correspondence. The claimant has been reminded on several occasions of the need to focus upon progressing her case and she time and time again, she has failed to do so.[95]Mr Welch did argue that the definition of ‘contumelious’ (i.e. scornful and insulting or insolent behaviour) as described in Birkett (above), has been met when considering the claimant’s conduct in relation to the question of strike out. On balance, I am compelled to agree with this submission in the sense that the claimant has been scornful of the Tribunal’s many attempts to assist the claimant in accordance with the overriding objective. While being mindful of the claimant’s circumstances, she has failed to make any attempt to cooperate and has stubbornly expected the Tribunal and the respondent to accommodate her demands without reflecting upon how they might allow a fair process to exist.[96]Additionally, I am content that the claimant has behaved in a way where there has been an inordinate and inexcusable delay. That behaviour has resulted in a substantial risk that a fair trial is no longer possible. It has also caused significant prejudice to the respondent. The respondent still does not have a clear case from the claimant, has expended significant fees defending the claim in what have become protracted and required a disproportionate number of preliminary hearings. Mr Welch submitted that in Khan (above), the EAT reminded us that litigants in person should not consider themselves exempt from the requirement to pursue their claim and this case before me is an illustration of where that principle should be considered. Rule 38(1)(b) – the manner in which the proceedings have been conducted[97]I have also considered the question of strike out under Rule 38(1)(b) where there is scandalous or unreasonable conduct by a party. It has been in my experience a ground that is usually unsuccessful. This is because although regrettably poor behaviour from parties can be encountered more often than was the case in the past, it typically involves a claimant who has an impairment which affects their ability react proportionately and to use language which is measured and suitable for court and tribunal proceedings. In reality, many of these individuals would benefit from professional legal representation, but with limited personal resources and extremely limited availability of publicly or alternatively funded representation, they proceed as litigants in person.[98]The claimant in contrast, has not presented any impairment that affects her ability to engage with the process. While not attending hearings, there is no evidence that would inform me that the intransigent way in which the claimant has conducted this case, arises from some sort of mental health or other health issue. The claimant has asserted that no hearings can be attended, but has actively engaged to a degree which indicates that she could have progressed her case to a point where there was at least clarity regarding the list of issues and disclosure addressed.[99]I have been dismayed how the claimant has conducted herself in these proceedings and how she continuously failed to react to patient attempts by numerous Judges (in the way that I have described above), to accept the reality of the situation and focus upon advancing her case. She appears to have stalled at providing limited disability impact evidence and spent considerable time challenging each element of case management while actually failing to engage with the hearings in a meaningful way.[100]The claimant undoubtedly has health issues, and I am mindful that longstanding back pain can be extremely frustrating. But despite this factor being taken into account, considering the medical evidence and all relevant circumstances, I must conclude that the claimant has satisfied the test for unreasonable behaviour in terms of the way in which she has conducted the proceedings.[101]Unfortunately, it has become apparent in recent years, that a small, but significant number of claimants present a claim and then adopt an approach where they seek to control the Tribunal process. Typically, this involves them behaving in a way which makes it difficult for the usual procedural steps in case management such as identification of issues, disclosure and exchange of witness evidence from taking place within a reasonable period. Some will send numerous items of correspondence to the Tribunal and make disproportionate and numerous applications thereby preventing the necessary progress from taking place.[102]The Employment Tribunals are a jurisdiction which are free at the point of access to parties. They are generous in terms of the time afforded by judiciary and staff. They often permit numerous allegations to be advanced requiring many witnesses to be called and final hearings running over many days or even weeks. Costs are not usually awarded against parties and while sanctions such as strike out and deposit orders can be imposed, they must be considered as draconian steps imposed only where absolutely necessary.[103]I acknowledge that as the Tribunal’s jurisdiction has widened it has become necessary and appropriate to carry out more detailed case management and to identify complicated allegations, especially where parties are unrepresented.[104]Regrettably however, a few parties can behave in a way which displays a lack of cooperation in furthering the overriding objective and which eventually this amounts to unreasonable behaviour. The Tribunal process can be a daunting one for litigants who have no experience in terms of how it works and Judges are trained and empathetic in dealing with these circumstances.[105]In this case however, I have reflected upon the claimant’s unrepresented status, that English is not her first language and her chronic health condition. But taking this into account, I must conclude that the way that the claimant has conducted herself in these proceedings satisfies the test of unreasonable conduct.[106]Indeed, the way in which the claimant has continuously challenged every occasion where a Judge has tried to progress case management as described above, I must conclude that her behaviour has been vexatious as well. This is in the sense that the claimant’s behaviour has tended to cause annoyance, frustration and worry for the Tribunal and also the respondent, amounting to a disdain for the judicial process. Rule 38(1)(c) – failure to comply with Judge Dunlop’s Order (7) & (8)[107]Finally, I have considered whether the claim should be struck out because of the claimant’s failure to comply with Judge Dunlop’s case management orders (7) and (8) and provide further information and/or an application to amend her claim. The claimant has been reminded of the need to deal with this matter, and it was part of the strike out warning given within the Fearon Note of PH (paragraph 2.1.4).[108]I have already explained, the claimant’s activity within the proceedings, has demonstrated that she could have applied her mind to this outstanding matter and instead has seemingly withheld her cooperation so that she can strengthen her position regarding a process being determined without hearings. The claimant has over a period of more than a year, failed to provide particulars that she was able to provide, and which did not require attendance at a hearing. Considering the stage of the proceedings that have been reached and the additional time allowed by Judge Eeley on 3 October 2025, I must conclude that the case should also be struck out on ground within Rule 38(1)(c).
Conclusion
[109]Accordingly, my decision in this preliminary hearing is as follows: i) The claim is struck out under Employment Tribunal Rule 38(1)(b) because the manner in which the proceedings have been conducted has been unreasonable and vexatious, and/or; ii) The claim is struck out under Employment Tribunal Rule 38(1)(c) for noncompliance with the Order of Judge Dunlop made in paragraphs (7) and (8) of the Note of Preliminary Hearing dated 27 September 2024, and/or; iii) The claim is struck out under Employment Tribunal Rule 38(1)(d) because it it has not been actively pursued, and/or; iv) The claim is struck out under Employment Tribunal Rule 38(1)(e) because it is no longer possible to have a fair hearing in respect of it.