[1]The claim is struck out in its entirety under rule 38(1)(b) of the Employment Tribunal Rules of Procedure on the basis that the manner in which the claimant has conducted proceedings has been scandalous, unreasonable or vexatious.[2]Further, or alternatively, the claims are dismissed under rule 47 on the basis that the claimant has failed to attend or be represented at this hearing.
REASONS
[1]Most unusually, this case is being struck out without a final hearing. It follows an order made by Employment Judge Ramsden at a preliminary hearing on 4 June 2025 that such an order was being considered. Since this is a public document, I will summarise the relevant background to that order.[2]The claim was brought on 22 June 2024. It is primarily a claim of constructive dismissal and sex discrimination although the relevant boxes on the claim form for whistleblowing and discrimination on grounds of age are also ticked, together with boxes for a statutory redundancy payment, notice pay, holiday pay, unlawful deduction from wages and other payments.[3]It followed Miss Ashwell’s resignation on 3 June 2024, after three years’ service as a Portfolio Manager for the respondent, which is a company in Horsham promoting financial investments in wine.[4]According to the claim form, despite being the top performer Miss Ashwell was repeatedly overlooked for promotion; in fact, two other men whom she says did not perform nearly as well were promoted to Senior Portfolio Manager; she then became demotivated and was, she says, unfairly put on a performance review process.[5]The response from the company sets out in detail the experience and qualifications of the promoted managers are set out and made the point that Miss Ashwell would have been well-placed for promotion but for the fact that she was a remote worker, based in the West Midlands, rather than in the Horsham office.[6]Nevertheless, it is apparent from all this that there was a dispute about these matters, that Miss Ashwell was off sick for about six months, that she raised a grievance which was not upheld, and that she resigned shortly after receiving that decision. All of that is the type of dispute that Employment Tribunals are used to resolving. Unfortunately, matters soon began to deteriorate.[7]The claim form states that she started new employment on 21 June 2024, three weeks after her resignation. It appears that her new employer was a competitor. Miss Ashwell’s position is that the respondent was in fundamental breach of contract so she was no longer bound by any of the restrictive covenants or obligations of confidentiality in her contract and she wrote to the Tribunal on 13 August 2024 to complain, among other things, that the respondent had written to her new employer about these restrictions. She protested about the effect this was having on her ability to earn her living and that she was facing eviction. She does not say so but it appears from this that she had lost her new job.[8]In the course of that email, she made many requests for documentation and also made a number of further allegations, including one of the most serious kind, that a former broker at the company had been bullied into committing suicide. This was said to have been done ‘at the behest of’ a senior figure in the company, whom she named, and about whom she made other serious accusations of financial misconduct.[9]On seeing this allegation the respondent told the Tribunal that it was untrue and hurtful and that they had blocked the claimant’s email address as a result. They asked permission to communicate only by post instead. After some exchanges, it was agreed that the respondent nominate an email account and that the parties would correspond with each other via the Tribunal.[10]A preliminary hearing was then listed for 4 June 2025. Two days beforehand the respondent (Mr James Shakeshaft) wrote to the Tribunal, to say that: “Miss Ashwell has been arrested twice for harassment to the Vin-X director, its staff and its family members. For the information of the tribunal this has included both death and grievous bodily harm threats. The Police are currently searching for her in order to re-arrest and charge her. The CPS has advised the police that she will be charged.”[11]That information was supported by an email he disclosed from West Midlands Police, who also informed him that Miss Ashwell was believed to have fled the country.[12]That, therefore, was the background to the last hearing. The Tribunal wrote to the parties on 3 June 2025, saying that the hearing would go ahead. Miss Ashwell emailed the Tribunal at 6.27 am on the morning of the hearing to say that she had been just heard about it, that she had not had time to complete an agenda and requested an adjournment. Employment Judge Ramsden was satisfied that the agenda had been sent out long in advance and was not in any event essential, and so proceeded with the hearing.[13]Mr Shakeshaft attended on behalf the respondent, as he did for this hearing. He informed Employment Judge Ramsden that the decision to block emails from Miss Ashwell had been taken on police advice, that the case against the company was unclear and that staff would not feel safe attending any hearing in person with her. As a result, the following Strike Out warning was given. 26. On the Tribunal’s own initiative, the Tribunal is considering striking out the claim because the Tribunal considers that it is no longer possible to have a fair hearing in respect of it, in light of the facts that:26.1 Criminal proceedings for harassment are expected to brought by the Crown Prosecution Service against the Claimant in respect of her conduct towards the Respondent and its personnel;26.2 The Claimant has been instructed by the Police not to contact the Respondent, which will significantly impede the progression of her claim against the Respondent; and26.3 The Respondent is intimidated by the prospect of contact with the Claimant, which will inhibit its resistance of the Claimant’s claim. 27. If the Claimant wishes to object to this proposal, she must write to the Tribunal by the date that is 14 days from the date these Orders are sent by the Tribunal, giving her reasons for objecting, or requesting a hearing at which she can give them.”[14]That order was then sent to Miss Ashwell, including the background information about the police statements on which it was based. She responded on 12 June 2025, although in keeping with the arrangements put in place by the Tribunal, it was not copied directly to the respondent.[15]It is a long response, of 14 pages, but none of the three issues set out in the strike out warning has been addressed. In essence, her position is that the case should proceed to a final hearing because of the seriousness of the allegations, but does not say how that can be managed in the circumstances.[16]Instead she has raised a number of further allegations against the respondent. Without giving any unnecessary detail, she says that she was raped in a hotel at a work function about six-months before her resignation, that she was drugged beforehand, and that this was orchestrated by senior people at the company, that afterwards she was intimidated into silence via means of various threats and by her arrests, which were co-ordinated by the respondent. Other allegations range far and wide, and include human trafficking, and drug trafficking, even that she was sexually assaulted while in custody by the police officers who arrested her. Even this is said to be only the tip of the iceberg. None of these allegations however had been raised in the claim form.[17]Among all this, Miss Ashwell did confirm that she is no longer at her previous address and would like all future correspondence to be sent to her by email. The only clue to her whereabouts was that a family member had told the respondent that she was in Portugal, based on her location data, even though Miss Ashwell had tried to throw this family member off the scent by telling her that she was in Italy. She also accepts that her electronic and data storage devices have been seized by the police.[18]Subsequently, I issued an Unless Order, on 17 June 2025. The above paragraphs repeat much of that order. The central difficulty was that Miss Ashwell wanted to continue to conduct these proceedings by email and by video hearing so that she did not have to answer to the warrant. As explained in that order, it is not part of the Tribunal’s function to assist a claimant in evading the police and she was directed as a minimum to provide to the tribunal her current address. That is an essential requirement of every claim that is submitted. The order also advised that the next hearing would be a public hearing to be held in person in Croydon and that the hearing would be to consider whether to strike out the claim and if not whether to amend her claim to include these new allegations and generally for case management.[19]On that basis this hearing has been listed and Miss Ashwell has failed to attend. In the meantime she has applied for the hearing to be by video and also that I recuse myself from many involvement in the proceedings. The last such email was sent last Friday, 12 September 2025. In it she states that she is entitled to a fair and public hearing before an impartial tribunal, by virtue of Article 6 ECHR, but has not set out on what basis she regards my involvement in the hearing as partial. It is clear from the order made at the last hearing that a strike out order was in contemplation before my involvement in the case. I have responded to the original application by later on 3 September 2025, declining to recuse myself, and I see no reason to do so now. It is important that such applications are not yielded to without proper reason otherwise parties would be in the position of choosing their own judge.[20]In that letter I also explained to Miss Ashwell that it was not necessary for her to run the gauntlet of the police by arriving at a hearing in Croydon, The proper thing to do would be to return to the UK and answer to the warrant in good time so that on her release she could attend and take part in her claim. Of course if she were detained that would present a difficulty but it would be difficult to refuse a request for an adjournment in those circumstances.[21]As it is, she has not attended. The position remains therefore that she is wanted by the police for intimidation of the respondents’ witnesses in this case.[22]Rule 38 of the Employment Tribunal Rules of Procedure provides that: (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).[23]Sub-paragraph (b) above is the appropriate section. There's no question but that the manner in which the proceedings have been conducted by Miss Ashwell has been scandalous, unreasonable or vexatious. At a very basic level she has failed to attend two hearings. Despite a good many letters from her over the last few months she has not disputed the fact that there is a warrant or taken issue with the reason given by the respondent as to why it was issued. Accordingly the test in rule 38 is more than met.[24]However, as the Court of Appeal held in Blockbuster Entertainment Ltd v James [2006] IRLR 630 (CA), this power is not to be exercised readily. “5. … The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.”[25]This has indeed been a deliberate and persistent disregard of required procedural steps, such as attendance at a hearing or providing an address to the Tribunal. The fact that direct communication between the parties is impossible is itself an extraordinary feature of the claim. But the overriding concern is about intimidation of the respondent’s witnesses, which directly affects the potential fairness of any hearing.[26]It also seems to me that it is a proportionate response in this case. No progress can be made towards resolving the issues in dispute unless and until Miss Ashwell surrenders herself to justice, and she has given no indication that she is prepared to do so. Even if she were it is far from clear that the situation is salvageable given the real apprehension on the part of the respondent about her conduct. Apart from inviting me to recuse myself she has put forward no factors or reasons which would lead to another conclusion. She has not in fact addressed the reasons for a potential strikeout order at all, focusing her attention instead on ways of continuing the litigation remotely. In all the circumstances I can see no realistic alternative to a strikeout order at this stage.[27]If that conclusion is wrong for any reason the Tribunal also has power under rule 47 to dismiss a claim if a party fails to attend or to be represented at a hearing. The only caveat is that before doing so it must ‘consider any information which is available to it, after any inquiries that may be practicable, about the reasons for the party’s absence.’[28]The reason for her absence is clearly her reluctance to answer to the warrant. Once again, it is no part of the tribunal’s function to assist claimants in evading the police and so that is not a good reason for her absence. It is also the second occasion on which she has failed to attend and so if there is any question about the appropriateness of a strike out order, the claim is dismissed on that alternative basis. Approved by: