Mr K Raftery v Lynx Projects Ltd and Mr D Walsh: 6005683/2024

EMPLOYMENT TRIBUNALS

Case No 6005683/2024

Between

Mr K RafteryClaimant

Lynx Projects Ltd and Mr D WalshRespondent

Before

Employment Judge Eeley

In person for claimant

Mr D Jones (instructed by counsel) for respondent

Date 2 July 2026

JUDGMENT

[1]The claimant’s application to strike out the response to the claim pursuant to Employment Tribunal rule 38 (1)(b) or (c) (made orally on 22 June 2026) is refused.

[2]The claimant’s application to strike out the response to the claim pursuant to Employment Tribunal rule 38 (1)(b) or (c) (made orally on 24 June 2026) is refused.

[3]The claimant’s application for a preparation time order pursuant to Employment Tribunal rule 74(2)(a) and/or 74(3) is refused.

[4]The claimant’s claim is struck out under Employment Tribunal Rule 38(1)(b) because the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious.

[5]The respondent’s application for a costs order is granted pursuant to Employment Tribunal rule 74(2)(a) on the basis that the claimant has acted vexatiously, abusively disruptively or otherwise unreasonably in the way that the proceedings, or part of them, have been conducted.

[6]The claimant shall pay the respondents’ costs in the summarily assessed sum of £10,800 inclusive of VAT. Payment to be made within 28 days of the date that the judgment is sent to the parties.

REASONS

JUDGMENT with summary reasons was given at the hearing on 29 June 2026. The Tribunal considers that it is appropriate to provide written full reasons, and the following written full reasons are therefore provided: Procedural chronology

[1]By a claim form presented to the Tribunal on 13 July 2024, the claimant pursued the following claims against the respondents:• Protected disclosure detriment and dismissal

• Health and safety detriment and dismissal

• Wrongful dismissal

• Harassment related to race

• Harassment related to disability

• Direct race discrimination

• Direct disability discrimination

• Breach of the duty to make reasonable adjustments

• Breach of contract.

[2]The parties attended four preliminary hearings for case management purposes:(a) 14 January 2025, before Employment Judge Dunlop,

(b) 28 March 2025, before Employment Judge Holmes,

(d) 10 November 2025, before Employment Judge Kenward.

[3]The Employment Tribunal was copied in on considerable amounts of inter partes correspondence as well as correspondence which was directly addressed to the Tribunal. What follows is a small selection of the correspondence which is to be found on the Tribunal’s electronic case file.

[4]On 4 August 2025, the respondent applied to vary the deadlines set out in various case management orders because of the problems it had encountered in finalising an agreed List of Issues for use at the final hearing. The respondents’ representatives sought to delay exchange of witness statements and suggested a new deadline of 26 January 2026. The claimant’s response to this was dated 5 August 2025. He disagreed with the proposed delays and asserted that the respondent was attempting to disrupt the case management deadlines. The claimant confirmed that he had not agreed the full hearing bundle, which had been provided by the respondent. The claimant alleged that the respondent was amending the claimant’s documents. There was a series of further emails from the claimant repeating similar complaints (three emails on 6 August 2025 alone.) The claimant threatened to report the respondents’ solicitors (Mills and Reeve) to the SRA.

[5]Subsequent to this correspondence the parties attended the two preliminary hearings before Employment Judge Kenward.

[6]On 27 February 2026, the claimant sent an email to the Employment Tribunal and the Employment Appeal Tribunal asking for strike out of the respondents’ defence to his claim. He also asked the Employment Tribunal to impose a fine on the respondents (pages 18-19 of the supplementary correspondence bundle produced on 23 June 2026.)

[7]The respondents’ solicitors provided their substantive response on 10 March 2026 (at p18 of the supplementary bundle.) They set out their chronology of events. In particular they noted that:• Employment Judge Kenward required the respondents to send the claimant copies of documents relevant to the List of Issues in the case. At paragraph 2.1 of his order, he indicated that electronic copies may be provided. The deadline for compliance was within 7 weeks of the case management order being sent to the parties. It was sent out on 9 January 2026 so the deadline for electronic disclosure was, therefore, 27 February 2026.

• The respondents provided disclosure of copy documents electronically by ShareFile on 27 February 2026. Consequently, there was no disruption to case management as alleged by the claimant.

• The activity log on the ShareFile suggested that the claimant had downloaded the documents on 27 February 2026, five hours before he made the strike out application. As a result, any assertion that the claimant could not view the documents appeared baseless. The activity log showed that they were downloaded and viewed more than once.

• The respondents’ solicitor made it clear that this was not the first time that the claimant had been sent the documents. A hard copy had been provided on 15 July 2025, and a draft hard copy of the bundle had been sent to the claimant on 5 August 2025. The claimant had therefore received both ‘hard’ and ‘soft’ copies of the documents.

• The respondents’ solicitors maintained that the respondents had not failed to comply with case management orders and, as a result, they resisted the application for strike out of the defence.

• The respondents’ representative also made the point that the claimant had already tried to strike out the defence on a number of previous occasions. They warned that such continued unfounded applications ran the risk that proceedings became unnecessarily protracted and unnecessarily increased the respondents’ legal costs every time that they had to provide a response.

• The content of the respondent representative’s letter of 10 March 2026 tends to suggest that the claimant had deliberately mischaracterised and misled the Tribunal in relation to the respondents’ compliance the Tribunal orders.

[8]Subsequent to this, the claimant made approximately four further strike out applications in various items of correspondence.• The claimant repeated the strike out request in an email dated 11 March 2026 at 19:46:58 and again on 28 March 2026.

• The respondents’ representative says that they provided a substantive response on 1 April 2026 at 10:38, although the Tribunal struggled to locate this on the Tribunal’s electronic file.

• In correspondence on 2 April 2026, the claimant asserted that the respondent had now been removed from the case for noncompliance, made repeated references to the respondents’ ‘underhand tactics’ and suggested that the respondents should be fined and/or subject to a costs order.

• The claimant’s correspondence repeatedly referred to the respondents’ ‘fraudulent’ behaviour repeatedly asserted that the respondent was “cherry picking” documents, removing documents and not complying with orders. (The Tribunal notes that the fact that the claimant continued to repeat those assertions did not automatically mean that they were true and accurate. That is why, during the hearing, the Employment Tribunal was at pains to ask the claimant for specifics (i.e. identifiable documents) so that the Tribunal could see for itself whether claimant’s allegations about the respondents’ conduct were substantiated.)

• On 16 May 2026, the claimant repeated his assertion that the respondents’ defence should be struck out.

[9]On 19 May 2026, a letter was sent to the parties at the direction of Employment Judge Butler. It stated: “Employment Judge Butler directs that any application for strike out, if maintained by the claimant, may be raised on the first day of the final hearing. However, the claimant must bear in mind that strike out will only be considered if a fair hearing is no longer possible. And the Tribunal may decline to hear the application if it appears misconceived. Employment Judge Butler also reminds the party for the need to co-operate. And they must ensure that this case is ready to be heard for the hearing listed to start on 22 June 2026. The respondent must send to the claimant both an electronic copy and a hard copy of the final hearing bundle as a matter of urgency. And the parties must exchange witness statements no later than 08 June 2026. The parties must write into the Tribunal to explain whether all directions have been complied with by that date, and if not, why not.” The claimant made a further strike out application against the respondents on 19 May 2026, amongst various emails sent on this date. The final hearing

[10]The claimant’s case was listed for a final hearing before a full Tribunal panel from 22 June 2026 for 7 days.

[11]At the start of the first day of the hearing, the Tribunal set out the ground rules for how the hearing would be conducted, including reminding the parties of the need to ‘take turns’ in talking and to refrain from interrupting other participants as far as possible. The Tribunal also set out the agenda for the preliminary discussions portion of the hearing, including ensuring that the List of Issues was complete and up to date before the Tribunal started to read the evidence. Within moments, the claimant started to interrupt the Tribunal in order to make a series of complaints. He was asked to wait, and the Tribunal reminded the claimant that the panel was interested in what he had to say and wanted to hear what he had to say but that speakers had to ‘take turns’ so that the Judge could keep track of the proceedings and the submissions that were being made. From the start of the hearing the claimant made complaints that the hearing bundle was not complete, that the respondents had made a threat (in October 2025) to get him to drop the case, that the respondents had deliberately removed documents from the bundle, that the respondents had unreasonably redacted documents and had provided copies of documents that were illegible. Mr Raftery said that he was being put at a disadvantage by the respondents and was being “led up the garden path.” The Tribunal reminded the claimant that it needed to deal with one issue at a time so that the case did not become unmanageable. The Tribunal made strenuous efforts to reassure the claimant about the process and that what he was saying was being listened to and would be heard and considered. The Tribunal needed to be able to deal with one issue at a time at the start of the hearing and needed to be able to cross refer to the relevant part of the documents in order to understand the parties’ representations. Otherwise, the impact on the Tribunal panel would be that it would quickly be bamboozled and confused and the case would not progress in an orderly fashion to address and decide the claimant’s legal claims. Hence, from the start of the hearing efforts were made to try and obtain clarity and keep matters on track.

[12]The claimant sought repeatedly to divert the Tribunal away from the documents which were actually before the panel by reference to other, unspecified documents. This set the tone for the hearing. A pattern quickly developed where the Tribunal repeatedly had to ask the claimant to clearly identify which documents he was referring to in his representations so that the panel could understand precisely what had happened and what allegations the claimant was making. The claimant repeatedly resisted the Tribunal’s attempts to address the specifics by making generalised allegations and frustrating the Employment Tribunal’s attempts to address the concerns that he purported to raise. This was a pattern which was set within minutes of the start of the hearing, and which was ever present for the remainder of the of the hearing, to a greater or lesser extent.

[13]The first task for the Tribunal was to check the List of Issues to ensure that the Tribunal was working from the correct version. Prior to the start of the hearing, the panel had identified a List of Issues at page 248 of the bundle (attached to Employment Judge Kenward’s most recent case management order). Later in the bundle (page 261) there was a further List of Issues which appeared, on its face, to have been produced later than the one attached to Employment Judge Kenward’s case management order document. The Tribunal asked the parties to confirm which version of the List of Issues was the relevant version for the purposes of the final hearing.

[14]Respondents’ counsel confirmed that the version attached to the case management order at page 248 was the last in time and was the version that was approved by the Tribunal at the last hearing. The document at page 261 was actually produced by the respondents’ solicitor in preparation for the last preliminary hearing. Following a discussion, the Tribunal secured agreement from the parties that the correct List of Issues was the one at page 248 but that it needed to be read alongside the claimant’s document dated 27 February 2025 (referred to at paragraph 2 at page 249). This was because the List of Issues referred to the protected disclosures by number and did not set out the substance of the protected disclosures. Hence, it was necessary to refer to the claimant’s document of 27/02/25 to see the narrative in relation to each numbered protected disclosure. If these two documents were read alongside each other, then the Tribunal would be considering the complete and up to date List of Issues in the case. A lengthy discussion was required in order to arrive at this point. During this part of the hearing the claimant asserted that he has been ‘led up the garden path’ in this case.

[15]This was the first example of the Tribunal’s efforts to get clarity from the claimant about his own claims and the decisions that the Employment Tribunal was going to have to make at the end of the final hearing. It was also the first example of the repeated difficulties that the Employment Tribunal had in getting the claimant to respect the processes of the Tribunal so that parties did not talk over each other, did not unnecessarily or unmanageably interrupt, and did not raise their voices unnecessarily. The Tribunal was mindful, from the outset, that the claimant has an accepted disability of depression and anxiety, and was concerned to ensure that he had ample opportunity to consider his position and give informed consent where necessary. However, the Tribunal also had to ensure that there was a fair hearing for both parties and that the Employment Tribunal maintained control of the procedure and managed proceedings appropriately.

[16]The Tribunal asked if the document dated 27/02/25 was actually in the hearing bundle. At that stage respondents’ representative did not think that it was, so the Employment Judge asked respondents’ counsel to email a copy of the document to the Tribunal during the course of the day so that it could be read in line with the agreement referred to above. Counsel did email a copy of the document during the course of the morning and the claimant subsequently complained that this was inappropriate and counsel should not have done this (and that the Employment Tribunal should not have asked him to do so, notwithstanding that the claimant was the author of the document.) It subsequently transpired that the document was, in fact, included within the hearing bundle at page 625.

[17]Once the Tribunal had addressed the List of Issues, the Judge raised the fact that a brief review of the Tribunal’s file suggested that the claimant probably wished to pursue a strike out application against the respondents. The claimant confirmed that he did still wish to make this application. The Judge asked the claimant whether there was a particular written strike out application document which we needed to look at in order to hear and decide his application. Rather than answer the question, the claimant referred to having to ‘critique’ the List of Issues and that it was ‘terrible’ and he was on the ‘back foot’ He referred to respondents’ counsel and commented, “He wants to win.” The Judge reminded the claimant of counsel’s professional role and that he was putting his clients’ case rather than stating his personal opinions. The Judge also explained the process which would be used for making a strike out application and made it clear that each party would have their say with an appropriate ‘right of reply.’ The Judge referred to the Tribunal rules and the need to satisfy the panel that a fair trial is not possible as part of the strike out application.

[18]As the claimant had not directed us to a written strike out application, counsel suggested that the written starting point might be the claimant’s 11 March email (document 155 on the Employment Tribunal’s ECM file). The claimant disagreed. I asked the claimant if we should read any document in particular or would he be making solely oral submissions. He confirmed that it would be solely oral submissions. The Tribunal asked if the claimant wanted some time in order to gather his thoughts and prepare to make the submissions in support of the application. The claimant answered, yes. He was offered 20 minutes and was asked if that was sufficient. He confirmed that it was. The Tribunal took the 20-minute adjournment so that the claimant could prepare. Prior to the adjournment, respondents’ counsel indicated that he had located the 27/02/25 document (referred to above) and would email it to the Tribunal.

[19]Upon resuming the hearing at 11.05am the claimant started to make his submissions. He asserted that his version of the List of Issues was not included in the hearing bundle. He asserted that documents which he had sent to the respondents on 13 March 2026 needed to be in the bundle but were not. (He referred in particular to documents relating to appointments in relation to his leg injury and invitations to job interviews.) He asserted that at the previous preliminary hearing in October there were also issues with the hearing bundle and he explained that he had had to start copying the Tribunal into correspondence because of the respondents’ “underhand tactics.” He appealed the October decision and started to contact the Employment Appeal Tribunal. He said that the respondents’ representative refused to include the 13 March 2026 documents in the bundle. He explained that he had needed to contact the top person at Mills and Reeve (the respondents’ solicitors), Claire Clarke. He was dissatisfied the with fee earner with conduct of the case (Laura Molloy) and therefore did not want to correspond with her. The documentation showed that he had been asked to correspond with Ms Molloy rather than Ms Clarke- who was later identified as the firm’s Managing Partner. The claimant suggested that the respondents had not disclosed his wage slips and this had impacted on his ability to complete his schedule of loss. (It later transpired that there had been a delay, but the documents had been disclosed, and the claimant had been able to update his schedule of loss accordingly.)

[20]The claimant then went on to explain that ACAS got involved in the case to try and reach a resolution. The Tribunal explained that if there were “without prejudice” discussions via ACAS, then the Tribunal panel should not be told about them as this would undermine the without prejudice principle and might undermine this panel’s ability to conduct the final hearing in this case. Despite the warning that the Tribunal should not be told about without prejudice matters, the claimant proceeded to assert that the respondent had ‘cut down’ the document so that only the top corner was legible/visible. Nevertheless, he maintained that he had sent the whole document to the Tribunal himself. He said this was “part of a trend” whereby the respondents’ representative would ‘cut down’ the claimant’s documents. He made submissions that the respondents had made a threat that he should drop the case. Ther Judge again referred to the without prejudice principle attaching to ACAS documents and negotiations. The Judge explained that where there is without prejudice privilege it can only be overridden in very specific and limited circumstances, such as where the claimant has established “unambiguous impropriety” so as to pierce the protection of the without prejudice principle. The claimant continued to characterise the respondents’ actions as a “threat.” He was reminded that if he introduced without prejudice documentation this would imperil the Tribunal’s ability to hear his case this week. The Tribunal remained keen to hear the substance of the claim and to decide it.

[21]In response, the claimant argued that the respondents had included some without prejudice documents in the hearing bundle and that the respondent should be allowed to have it both ways. The Tribunal asked which documents he was referring to, so that it could examine whether the respondents’ representative was, in reality, applying a double standard in relation to this issue. The claimant initially directed us to a copy of a pay slip. It then became clear that he was attempting make a different point about this (despite the Tribunal’s question). He was asserting that the respondents had included very small print outs of his documents within the hearing bundle and that this put him at a particular disadvantage in relation to his evidence. Despite the Tribunal’s request, it did not get a page reference to one of the without prejudice documents which the claimant said the respondent had included in the bundle.

[22]The claimant then moved on to say that the respondents had not removed the redactions from the documents as required by the previous Employment Judge. He maintained that he had provided clear documents as requested. He then started to criticise the respondents’ representatives, saying that he ‘would be embarrassed’ if he had done what they had done. The claimant then returned to the theme of the List of Issues again. He sought to suggest that at the last preliminary hearing not much work needed to be done with the List of Issues but that the respondents had made “so much commotion” as a tactic to deflect the Employment Tribunal from looking at what the case was actually about. He then asserted that the Tribunal should not get sidetracked and that the “only way it is fair is what Judge Kenward did.” He asserted that the respondents’ representative was making it as difficult as possible for him. He alleged that the respondents had taken his words out and put their words into the List of Issues. (The Tribunal noted that this could not be correct given what the claimant had agreed at the start of the final hearing i.e. that the List of Issues attached to Employment Judge Kenward’s order, read together with the claimant’s 27/02/25 document, amounted to the complete and up to date list of issues.) The claimant reneged on what he had said earlier in the final hearing. The Tribunal reminded the claimant that the documents which pre-dated Employment Judge Kenward’s list were irrelevant, as it superseded them and was the last document approved by the Tribunal. The claimant then started to talk about the respondents’ ‘threat’ to him to drop the case and said that “they know exactly what they are doing- making it as difficult as possible for me.”

[23]Mr Raftery then told the Tribunal that an asbestos report was absent from the bundle despite his request to have it included. He insisted that it needed to be included in the bundle to show that he was correct when he said that there was asbestos present on particular premises. However, at around 11.30am the Tribunal reminded him that the Tribunal would not be called upon to decide whether he was correct in what he said about the presence of asbestos. Rather, we would be considering what disclosures he had made and whether they constituted protected disclosures/health and safety activities, which caused him to be subjected to detriment or dismissal. Further, Mr Jones pointed out that it was the respondent who, in reality, took the evidential risk by not including such a document in the bundle. If it was in the respondents’ power to prove the claimant wrong by producing the report, then the Tribunal could legitimately draw an adverse inference from their failure to include the report, if it became necessary and relevant to do so.

[24]The claimant then moved on to talk about the audit report evidence. One of the claimant’s alleged protected disclosures related to his suggestion that Ms Hesketh had improperly altered an audit report that had been written by an independent third party. The final hearing bundle already contained the audit report and some associated email correspondence between the report’s author and the respondent, referring to proposed amendments. The respondents’ position was that nothing improper was done but that the respondent proposed amendments (not to the substance) to the author to see if they were acceptable. It was for the author to decline or accept the proposed amendments. The claimant maintained that this was improper and that the respondent was undermining the integrity of the report. He was adamant that there must be further documents to prove his point, which had not been disclosed or included in the bundle. The respondents’ representative thought that all relevant documents on this topic had been included in the bundle and noted that the version of the report in the bundle had sections highlighted for proposed amendment.

[25]The claimant referred to an email that he had sent to Ms Molloy on 13 March 2026 at 12.29. He maintained that the attachments to that email were not in the bundle and that they should have been.

[26]The claimant complained that the respondent had not provided a cast list and chronology and was in breach of the orders. He also complained that the respondents’ witness statements were not yet signed and dated. He argued that the respondents wanted to pad the bundle out with irrelevant documents. He said he had told them to remove the scaffolding report from the bundle, but they had not. He complained that they had included their documents but not his and that they had not updated the index to reflect the changes. He said he had been sent a number of insertions to add to the bundle. He maintained that he had tried to communicate by verbal means, emails, and case management orders but the respondents do not want to proceed, they have said ‘drop the case.’

[27]At the conclusion of the claimant’s representations, the Tribunal recapped the list of difficulties and issues that the claimant had raised. The relevant tests for strike out at rule 38 of the Tribunal Rules were outlined so that the claimant understood the test that the Tribunal would have to apply to his application. The claimant effectively confirmed that his application should be considered under rule 38(1)(b) or (c).

[28]Mr Jones, for the respondents, responded to the application. The claimant sought to interrupt his submissions when he was unhappy at the submissions which were being made. The respondents made the following points:• There were concerns that the claimant had not yet provided a witness statement specifically in preparation for this final hearing. The respondents were concerned that the claimant was indicating that he intended to provide a fresh witness statement during the course of the hearing and that the respondents would be prejudiced as a result.

• At page 243 there was no Tribunal order for a chronology and cast list. Mr Jones would be happy to draft these documents for use during the hearing if it would be of assistance, although the claimant’s employment with the respondent lasted for less than a month and the cast list is likely to contain very few people given that there are only three main protagonists in the case.

• Witness statements are often unsigned and undated and are then sworn as true when the witness gives evidence on oath/affirmation.

• The respondents’ solicitor has generally taken the path of least resistance in relation to documents and but had left the scaffolding report in the bundle as this was more straightforward than disrupting the pagination/indexing of the bundle by removing it.

• The respondents’ representative had sent a number of additional documents to the claimant on 15 April 2026 to be included in the bundle. These included the ‘decimal point’ documents to be inserted between existing pages in the bundle. These adopted the pagination in Ms Hesketh’s witness statement to ensure that the Tribunal could read the witness statement and associated documents (e.g. paragraph 34 of the statement referred to p291.1-291.7). The documents were, in fact, already in the bundle in a different page and were cross referred to in Mr Walsh’s statement. The new pages were added to make it easier to navigate through the witness evidence and did not make a material or substantive addition to the contents of the bundle. The latest additional documents were sent to the claimant on 15 April 2026 and so he had been in receipt of them for some time.

• The claimant has not shown that he has been prejudiced by the respondents’ approach.

• Depending on developments over the rest of the hearing, it may start to be difficult to have a fair hearing within the trial window. At present there is nothing preventing the case from going ahead fairly, save that the claimant does not accept that the papers are adequate. The respondents maintained that the bundle was sufficiently comprehensive to continue with the hearing.

• Is the claimant intending to serve a further witness statement at some point? If so, the respondents may be prejudiced by that.

[29]Before Mr Jones could finish his submissions, the claimant started to interrupt him again. The Tribunal reminded the claimant not to do this and that the Tribunal needed to hear from both parties in order to have a fair procedure. The Tribunal recognised that the claimant did not agree with what counsel was saying but reminded him of the need to let us listen to counsel too. The claimant started to refer to it being “lies.” He continued to talk over counsel. At one stage counsel was trying to answer questions that had been asked by the Judge, and the claimant was talking over him so that the Tribunal could not hear counsel’s answers to the question. Despite being reminded of the appropriate way to conduct himself, the claimant apparently struggled to change his approach. At a result of this series of interruptions Mr Jones explained to the Tribunal that his instructing solicitor had taken a decision that the firm would no longer answer the claimant’s phone calls and deal with him by phone as a result of his behaviour. A decision had been taken that the respondents’ solicitors would only deal with the claimant in written correspondence. As Mr Jones was making this submission the claimant repeatedly pointed at him and started to make allegations that counsel had behaved inappropriately outside the Tribunal hearing room by coming to speak to him before the hearing. He maintained that “that’s wrong.” The Judge explained to the claimant that parties and their representatives regularly have conversations, in person, outside the hearing room and that this was not inappropriate. Counsel was subject to professional obligations and would act accordingly. The Judge reminded both parties of their duty to co-operate and assist the Tribunal in furthering the overriding objective. The claimant’s response to that was, “it’s gone beyond that.” In light of the claimant’s demeanour and response, Mr Jones felt it necessary to put his version of events on the record. He indicated that he had made the approach to the claimant via the Tribunal clerk rather than in person. He had asked to speak to the claimant to see if procedural issues could be addressed prior to the start of the hearing. The claimant refused to speak to Mr Jones, and this was conveyed to him by the Tribunal clerk and so that was the end of the matter. Mr Jones did not pursue any direct interaction with Mr Raftery thereafter.

[30]The Tribunal addressed the issue of the claimant’s witness statements and queried whether, if the additional documents he was asking for were provided, he would then need to do a supplemental statement in order to address the extra documents. The claimant continued to talk over the Judge so that meaningful two-way communication was not possible. The claimant confirmed that it was not just a question of pagination and that he intended to do a completely fresh witness statement addressing the whole case rather than a supplemental witness statement addressing new matters. The claimant then started to talk in critical terms about the second respondent’s character and started to direct the Tribunal to consider that Mr Walsh’s insurance had been revoked. He asserted that the second respondent was “corrupt.” The claimant was keen to make personal criticisms of the respondents.

[31]In an effort to move matters forward, Mr Jones suggested that the respondents’ representative would be prepared to do a supplemental bundle of additional documents if that meant that the substantive hearing could commence. However, he made it clear that, at that stage, the respondents remained unclear as to what precisely the claimant was asking for in the way of additional documents. The respondents had not got a list of the documents which the claimant would want to have included in a bundle. The Judge asked the claimant for a list of what he said was missing. His response was to allege that “it’s not fair.” The Judge reminded the claimant that in order to be fair, the Tribunal needed to understand what both parties were saying. The claimant interrupted the Judge again. The Judge asked the claimant to be courteous by listening to what the Tribunal was trying to say to him and not interrupting the Judge again whilst she was talking to him. The Judge pointed out that the claimant was interrupting the Tribunal, talking over the Judge and the respondents’ representative, and diverting the Tribunal’s attention away from the matters that it was seeking to consider and address. The Judge asked the claimant whether he had a list of the documents that he needed to have included in order to have an adequate bundle for the hearing. He said that he did not have a list. He gave some examples of the documents that he was talking about. He then reverted to asserting that the respondents were ‘fudging their insurance.’ The Tribunal pointed out that it was considering the claimant’s Employment Tribunal claims rather than wider matters. The claimant asserted that the respondent had taken documents out and ‘fiddled with them.’ In an effort to establish if this allegation was material to the matters before the Tribunal, the Judge asked whether there were different versions of the emails and reports associated with the audit. Various page references were supplied. The claimant then made an unprovoked allegation about one of the respondent’s employees talking about smoking drugs in the office. The claimant’s tone was combative.

[32]By 12.40pm the Tribunal had gone as far as it could in getting the parties’ submissions on the claimant’s strike out application. The Tribunal adjourned until 3pm in order to make a decision on the application.

[33]At 3:05 pm the Tribunal started to give its conclusions and decision on the application. At 3.10pm the claimant interrupted the Judge’s oral judgment and reasons to point out that there was, in fact, a case management order requiring a cast list and chronology and that the respondents were in fact in breach of that. (He had not referred the Tribunal to the relevant order during his submissions that morning.) There was a lengthy pause in the judgement and reasons whilst the Tribunal tried to establish to which document the claimant was referring. The claimant suggested that it was an order from the first preliminary hearing. In the end, counsel gave the Tribunal the correct page reference, which related to the second of four preliminary hearings. Mr Raftery took the opportunity to make his views on the matter clear. The Tribunal left the hearing room to discuss the page reference and then re-entered to resume the judgment and oral reasons. (The reasons for that decision are set out in a separate section below.) The process of giving the verbal decision and reasons was somewhat obstructed by the claimant’s lengthy and increasingly vocal interventions and references to certain matters as “child’s play.”

[34]Mr Jones subsequently intervened to explain that the Tribunal might have noticed that the second respondent and the respondents’ witness had not come back into the Tribunal room after the lunch break because of the claimant’s conduct and his habit of making wild accusations during the morning session. He confirmed that no disrespect to the Tribunal was intended by this. Rather, it was hoped that by absenting themselves it would take some of the ‘heat’ out of the room. The claimant interrupted to assert that Mr Walsh (the second respondent) should never have been in the hearing in the first place and was just present to “have a good nosey.” At that stage, the Tribunal Judge reminded the claimant that he had chosen to include a claim against the second respondent as an individual despite previous Tribunal discussions about whether this was necessary given that the first respondent would be liable for any breaches by the second respondent. Thus, Mr Walsh was not ‘having a nosey,’ he was attending the hearing as an individual respondent to a claim that the claimant had chosen to pursue. It was entirely appropriate for Mr Walsh to hear the allegations that the claimant was making about him and the first respondent. Having failed to get Mr Raftery to stop making this sort of intervention, the Employment Tribunal therefore adjourned briefly to consider its position. There was a break in the hearing from 3.20 until 3.32pm. Mr Raftery interrupted again at 3.40pm. The Tribunal concluded its oral decision and reasons at about 3.55pm.

[35]At the conclusion of the judgement, the claimant said that he did not agree with the decision and wanted to appeal. The Tribunal confirmed that he was entitled to raise an appeal to the EAT if he so wished.

[36]The Tribunal then attempted to make a list of case management orders in order to get substantive hearing up and running and fill in any gaps in the documents. The Tribunal asked the claimant for a complete list of the documents that he thought needed to be added to the bundle, so that the respondents’ representative could provide a supplemental bundle to ensure that he had everything that he said he needed in order to proceed with the hearing. The Tribunal also wished to give the claimant the opportunity to provide a supplemental witness statement to address any new additions to the bundle. The Tribunal also required the respondents to make a further disclosure search in relation to the correspondence about the audit report and the various different versions of the report itself and to disclose anything additional. Alternatively, a disclosure statement, verified by a statement of truth, would confirm that the search had been carried out and that there was nothing further to disclose. In addition, the respondents’ representative could consider the redacted documents and update us as to whose documents they were and who had the ability to provide an unredacted copy. As the Tribunal discussed these matters with the parties, the claimant became increasingly aggressive in his demeanour. The claimant’s view was that he should not have to provide a list of what he thought was missing from the bundle. Rather, the respondents’ representative should go and look through emails to see what might be missing in effort to speculate on what the claimant thought should be included in the hearing bundle. Mr Raftery became increasingly agitated. The Tribunal was not prepared to make a case management order without knowing what it was ordering the respondents to do. The claimant’s agitation levels increased to the point where the Tribunal decided to adjourn the hearing for 10 minutes at 4.05pm.

[37]The hearing resumed at 4.15pm in an effort to make case management orders so that the substantive hearing could commence on day 3 after the Tribunal’s reading time on day 2. (Due to dealing with preliminary matters, the Tribunal had not yet had its reading day, as set out in the proposed case timetable.)

[38]The Tribunal informed the claimant that the first task was for the claimant to check his emails and specify a list of the further documents which he said were required in order to have a complete hearing bundle. (The claimant had indicated that he had sent numerous emails to the respondents’ representative with attachments containing the documents that he wanted in the bundle but felt that the respondents’ representative should be able to understand which emails these were, out of the totality of the correspondence, without the claimant identifying the relevant emails and their attachments.) In response Mr Raftery said that he was not doing that and asserted that he was being penalised for “their incompetence.” He referred to the pressure that he was under. The Tribunal reminded him that these were his emails- he sent them and would know what they are. The task for the respondents’ representative would then to be to update and prepare a supplemental bundle. The Tribunal pointed out that it was trying to ensure that the claimant was given what he said he needed in order to have a fair trial.

[39]There was then a lengthy debate about times for compliance with the case management orders. The claimant alleged that the respondents were “getting away with it.” When the Judge indicated that he should provide his supplemental witness statement by 1pm the next day, he indicated that, “it won’t be 1pm,” that he needed an extension and he was “not on an even footing.” The claimant then said, “I’m going to see the boss fella upstairs in this building.” (Presumably, a reference to the Regional Employment Judge.) The Judge told him that he could raise whatever complaints he wished but that the Tribunal needed to make the case management orders and progress the case. The Tribunal asked him by what time he would be able to present his supplemental witness statement. The claimant just objected to 1pm without giving an alternative time, despite being asked more than once. The claimant became increasingly agitated and aggressive in demeanour. Mr Raftery seemed to be under the impression that he would need to be at the Tribunal whilst the Tribunal did its reading on day 2 and so would not be able to comply with case management orders. When the Tribunal confirmed that the parties would not need to attend on day 2, the claimant then asked what was required. The Tribunal set out an overview of the procedure to be adopted for the remainder of the hearing. When the Tribunal explained what Mr Raftery needed to do, he objected and said, “this is child’s play I’m doing their work.” The Tribunal reiterated the times for compliance for both parties. (Supplemental witness statement by 1pm. Audit report disclosure statement by 4pm. The respondent needed additional time to do this as the relevant fee earner was leaving the firm at the end of day 1 of the final hearing so a new person would have to do this.) The claimant objected to the two different deadlines. The Tribunal asked Mr Raftery to consider the way in which he was communicating with the Tribunal and that he needed to “help up us to help you.” The Tribunal asked him to be a little more polite and to have some respect for the Tribunal’s procedures.

[40]There was a further discussion about redaction of documents. The respondents’ representative would make further enquiries about this. The claimant indicated that this had been asked for in October 2025 and why had it not been done then?

[41]At 4.40pm Mr Jones indicated that he felt he needed to ‘put a marker down’ given that he and his clients (professional and lay) had been subject to a barrage of criticisms and slurs. He indicated that he had been trying to be pragmatic and get the case ready to start. The respondents were committed to getting the case heard but that it was becoming increasingly difficult to do so. He indicated that if matters continued in this way it might jeopardise a fair trial. He indicated that not all of the redacted documents were the respondents’. Some of them were the claimant’s and he was the only one with access to unredacted versions (e.g. medical documents.)

[42]At 4.42pm the claimant interrupted again. The Judge told him to be quiet so that the Tribunal could hear what Mr Jones was attempting to say to it. The claimant repeated that this was “a joke” and he would be making a complaint. Mr Jones indicated that if the disparity in the case management order deadlines for the claimant and respondents was seen as a problem, he was happy comply by 2pm on both sides in order to avoid further argument (although one of the tasks might take longer as it would be being done by a new fee earner.) The Tribunal was content to give both sides the same deadline. At 4.50pm the claimant indicated again that he wanted to go and see ‘the boss’ in this building. Mr Raftery was unwilling to listen as the Tribunal set out the case management orders and times for compliance. In the end, the Tribunal restated the case management orders for the record even though the claimant seemed reluctant to take a note of them. The hearing was adjourned for the parties to comply with the orders and for the Tribunal to read into the case before resuming with the parties on day 3 of the final hearing.

[43]The claimant sent an email to the Tribunal and the EAT at 18:01 on day 1 stating that he was appealing the decision on the strike out application and complaining about the timelines for compliance with the case management orders. Day 3 of the hearing

[44]The Tribunal spent day 2 of the hearing reading witness statements and associated documents in the bundle in preparation for starting witness evidence on day 3. The claimant provided his list of documents via email at 9.59 am. The respondents’ representative provided the supplemental bundle of documents as indicated at 3.03pm and it appeared that everything on the list provided by the claimant had been included. The claimant provided a supplemental witness statement just before 2pm and the respondents provided the disclosure statement and documents (with updated bundle index) together with an update on the position in relation to the redacted documents by email at 10.48am. By the end of day 2 it appeared that the final hearing was back on track and that the claimant would start to give evidence on day 3.

[45]Just before the start of the hearing on day 3, the claimant sent three further emails to the Tribunal and the EAT (at 09.20, 09.20.43 and 09:22.) In the first email the claimant indicated that he was again applying to strike out the respondent’s response to the claim. The second email indicated an intention to appeal against the Tribunal’s earlier decision on the first strike out application. The third email asserted that the respondents had not included all the documents which the claimant had requested.

[46]At the start of day three of the hearing, the Tribunal Judge set out the necessary ground rules for a fair hearing as the panel had reflected on the events of day 1 of the hearing including the repeated interruptions, diversions and the claimant talking over other people during the hearing. The Tribunal explained that such an approach got in the way of the Tribunal managing the hearing. The Tribunal reiterated that both parties have the right to as fair hearing and the Tribunal needs to be able to manage the proceedings appropriately. The Judge reminded the parties that everyone would have fair opportunities to make submissions and to ask questions and answer questions in the course of the hearing. The Tribunal reminded the parties that if a fair hearing becomes impossible then the Tribunal has the power to strike out a claim or response on the basis that a fair hearing is no longer possible. The Tribunal indicated that it was restating the position so that the parties could consider how best to proceed during the remainder of the hearing and so that they understood the what the Tribunal required of them in order to manage the proceedings appropriately and maintain good order in the Tribunal hearing room.

[47]The Tribunal proceed to label/number the new documents provided by the parties since day 1 of the final hearing (C1, R1 etc.) The Judge advised that this was necessary so that everyone in the hearing understood which documents they were being asked to consider and to avoid unnecessary confusion. The Judge advised the claimant to number the documents too. He did not do so. The claimant did start to interrupt and argue with the Tribunal at around 10.30am and complained that he had not been provided with a copy of his document dated 27/02/25 (which was to be read alongside the List of Issues). The Tribunal indicated that a further copy would be provided during an adjournment but, in the end, this did not happen given the later developments during the hearing.

[48]The Tribunal’s intention was to start hearing witness evidence and the claimant was reminded that he would be first to give evidence. The Tribunal gave the claimant the opportunity raise any outstanding issues before we started to hear his evidence. The claimant repeated his concern that there were no “C numbers” in the hearing bundle. He suggested that his “C bundle” should have been incorporated in full into the final hearing bundle.

[49]The Judge referred the claimant to relevant case management orders at page 206 paragraphs 66-71. This indicated that Judge Kenward did not order the respondents to include the whole of the claimant’s preliminary hearing bundle in the final hearing bundle. Rather, the index to the bundle was intended to have standard pagination and then a second column reflecting the pagination in the claimant’s preliminary hearing bundle so that the claimant could navigate within his earlier bundle as well as the final hearing bundle if he needed to. The resolution to the claimant’s apparent difficulties had been to include the second set of page references in the index as a sort of ‘key.’ The respondents had done this. The Judge asked Mr Raftery if this was clear and his response was, “It’s not unclear if it works but it doesn’t.” He then referred to what he said was a missing document referring to Harriet Smith at Companies House. He said this was not in the bundle. Mr Raftery asserted that the hearing bundle was still not complete (even though it appeared to be) even after the respondents had done the extra work.

[50]In order to understand whether Mr Raftery had legitimate grounds for complaint and to show the Tribunal if the respondents were not doing as they were told by the Tribunal, the panel asked the claimant give specific information so that the Tribunal could identify any gaps before deciding what to do about them. It appeared that the simplest way to establish whether relevant pages from the “C bundle” had not been included in the hearing bundle, was to ask the claimant for page references from his claimant preliminary hearing bundle so that we could double-check whether they were missing from the final hearing bundle, as he alleged. Mr Raftery was asked to identify an example of a missing page at about 10.50am. The Tribunal waited until 10.55 before asking the claimant whether he wanted a short adjournment to locate the document. He said this was not necessary and he might have it. The claimant was given a few minutes more and the Tribunal then left the room at about 10.58 so that he could find it without the Tribunal watching him. The Tribunal went back into the hearing room at about 11.07am. The Tribunal asked the claimant if he needed more time and indicated that the parties might wish to go to the waiting room whilst he looked for the documents. Mr Raftery indicated that he needed more time. The Tribunal asked if 15 minutes was sufficient and the claimant agreed. The Tribunal adjourned for 15 minutes and resumed the hearing at about 11.22am.

[51]Upon resuming the hearing Mr Raftery directed us to consider an email referring to the preliminary hearing bundle. At about 11.25am the claimant indicated that he was looking on the Employment Tribunal portal for the document. The Tribunal sought to clarify what he was looking for. There was a discussion about two different versions of the preliminary hearing bundle (one prepared by the claimant and another from the respondents). The Tribunal asked Mr Raftery to explain which document on the list was missing. The claimant then alleged that he was being put on the back foot again and that the screen on his laptop had now gone black. The Judge explained that the Tribunal needed to understand what the claimant says is and is not in the bundle. The Tribunal needed to satisfy itself that the respondents had deliberately withheld the ‘C page’ or omitted it, if that was Mr Raftery’s contention. The Tribunal needed to be able to see if the claimant had legitimate grounds for complaint on that point.

[52]Mr Raftery again indicated that he was trying to look at the Employment Tribunal’s portal in order to locate the relevant document. He was struggling to gain access to the portal. He was given some further time to locate the document. By 11.30am the claimant had not been able to identify the document. Mr Raftery suggested that he need to look at the preliminary hearing bundle before he could tell the Tribunal which documents with ‘C page numbers’ had been omitted from the final hearing bundle. At this point, the Tribunal explained the usual differences between the contents of a preliminary hearing bundle and those of a final hearing bundle. The final hearing bundle contains predominantly evidential documents to be referred to in order to decide the issues in the case, whereas a preliminary hearing bundle often contains predominantly procedural documents and correspondence which are unlikely to be used to resolve the issues in the case at the final hearing. This was explained in order to clarify whether the documents that the claimant was looking for were actually the evidence on which the case was likely to be decided, or of more procedural interest.

[53]At this stage, the claimant again raised the issue of the List of Issues for the final hearing to suggest that the correct List of Issues was not in the bundle. The Tribunal reiterated that the latest List of Issues, as agreed with Judge Kenward, was already in the bundle, as discussed on day 1 of the final hearing.

[54]The Tribunal noted that Mr Raftery was consistently submitting that the respondents have deliberately excluded information/evidence from bundle but that, so far, the claimant had not been able to satisfy the Tribunal that there was a deliberate and material omission from the bundle. The Tribunal referred to the fact that the hearing had reached 11.35am on day 3 of the hearing and that the Tribunal’s normal approach would be, if the missing documents could not be identified with reasonable precision, to start to hear the witness evidence. If, during the course of witness evidence, it became clear that a relevant document was missing and was now identifiable, the witness could raise this with the Tribunal and the Tribunal could take steps to ensure that a copy of the document was obtained so it could be referred to before the witness concluded their evidence to the Tribunal. The Tribunal noted that the Tribunal and the parties had now spent considerable time looking for missing documents and were no closer to identifying exactly what documents were missing from the bundle. The Tribunal had diverted from its normal approach in order to accommodate the claimant. The claimant again interrupted at this point. The Tribunal again indicated that if the claimant wanted documents in the hearing bundle, he needed to be able to identify, whether by date, or title etc, the documents which needed to be included. Mr Raftery disagreed and confirmed his view that he had done everything which was required. The Tribunal clarified on a number of occasions what it required from the claimant and the participants went over the same issues more than once.

[55]The Tribunal then looked at the claimant’s email where he indicated the list of documents to be included in the supplemental bundle (C1 at 09.59 23/06/26). The respondents’ representative had used that as the basis for compiling the supplemental bundle and the respondents’ covering email to the supplemental bundle confirmed the approach that it had taken and that the respondents’ representative thought that all of the requested documents had now been included. It had certainly appeared to the Tribunal that the documents requested had been included in the supplemental bundle (145 pages). During the course of discussions, it appeared that the main ‘attachment’ to the emails referenced by the claimant, was actually the claimant’s preliminary hearing bundle as he compiled it and which had been discussed at length already. The claimant maintained that the respondents’ representative had deliberately excluded the claimant’s preliminary hearing bundle. He said it was unfair, slapdash, and deliberate. He maintained that he knew the bundle inside out. (The Tribunal had already explained that the preliminary hearing bundle as a whole did not need to be included in the final hearing bundle, by reference to Employment Judge Kenward’s earlier case management summary and case management orders.)

[56]Mr Jones intervened to indicate that the claimant’s preliminary hearing bundle had not been incorporated into the final hearing bundle in full for the reasons already explained. However, in an effort to move forward and start the evidence, Mr Jones indicated that he would have no objection to a copy of the claimant’s preliminary hearing bundle being made available during the claimant’s evidence so that he could refer to it if this were needed. He suggested that it should be for the claimant to provide copies of the bundle for the Tribunal etc but the Tribunal ‘parked’ the practicalities of the suggestion whilst it clarified whether this would adequately address the claimant’s concern and facilitate a start to the Tribunal hearing the evidence in the substantive case. (The claimant indicated that he would not provide copies of his preliminary hearing bundle).

[57]The Judge asked the claimant whether, if his preliminary hearing bundle were available as well as the final hearing bundle, would this satisfy him to the extent that he would be able to give his evidence to the Tribunal? He maintained that this was not adequate. The Tribunal asked whether the Tribunal also needed a copy of the respondents’ preliminary hearing bundle too. The claimant maintained that this was necessary and referred, for the first time to the absence of the “C document” (as distinct from the C bundle/claimant’s preliminary hearing bundle.) He suggested that he now needed to “critique” the “C document.” The Tribunal asked what he meant when he referred to the “C Document.” After spending some time exploring this issue, the best understanding that the Tribunal could get was that the claimant was, in fact, now referring to his pack of documents, sent to the respondents’ representative during the disclosure process (i.e. the pack of documents with a list of contents sent prior to collating the final hearing bundle.) The Tribunal took the claimant to the case management order at p243 to clarify whether he was referring to the disclosure process. The claimant then started to refer to a document which he provided to the respondent the day after the preliminary hearing. This did not seem to align with the process of sequential disclosure and the deadlines set out the in the case management order. It appeared that the claimant had provided some disclosure before the respondents. The Tribunal tried to get clarity on whether the claimant had complied with the sequential disclosure order provided for by the case management order. It did not prove possible to establish a consistent answer to this question.

[58]There was a short pause for the claimant to plug in his computer. The Tribunal asked whether, if this main pack of disclosure were added to the bundle, would the Tribunal then have enough for the claimant to start giving his evidence to the Tribunal. The claimant then directed our attention away from that to the email he had provided earlier in the week and maintained that the respondents had not complied and included the documents on his list. It appeared that the Tribunal and the parties were back where the discussion had started. The claimant then indicated that his computer was updating and so he could not use it at that point. At about 12.05pm the Tribunal left the hearing room to allow the claimant to update and reboot his computer as necessary and then identify what was still missing from the bundle. The Tribunal returned to the room at about 12.20pm. The claimant maintained that there was still ‘a lot to go through and critique.’ The Tribunal reminded the claimant that he was not being asked to critique anything, just to tell us what documents were still missing, and which prevented him starting to give evidence. Mr Raftery suggested that the Tribunal was putting him under unnecessary pressure.

[59]At that stage, as no further progress was being made, the Tribunal told the claimant that he would be given a further half hour outside the hearing room. During that time, the claimant could identify the remaining missing documents, if he was able. At 12.50pm the Tribunal would ask him to indicate which of the following options he wished to take:• He could start his witness evidence and cross examination this afternoon and steps could be taken to provide copies of the preliminary hearing bundles and the claimant’s “C document” for the claimant to refer to in answering questions and for the Tribunal to look at. Whilst this could not be achieved today, those documents would be made available the next day so that the claimant would not complete his oral evidence without having the chance to take us to the documents in those bundles.

• Alternatively, if the claimant maintained that he wanted to make a further application to strike out the respondents’ response to the claim, he could make submissions on that application this afternoon, and the Tribunal would decide the application.

[60]At 12.50pm, when the hearing resumed, Mr Raftery gave the Tribunal a couple of examples and cross referenced the attachments to the emails listed in his email of 23 June. He maintained that the attachments to the emails were not in the bundle. He maintained that he had not had sufficient time to locate and identify the other examples. He then made further remarks about redacted documents. He cross referenced to attachments to emails by paragraph number and said they were not there. He alleged that he had not had time to identify the other examples. He went on to deal with the issue of redactions.

[61]Mr Jones intervened on the subject of the redacted documents and pointed out that two of the documents referred to were provided by a third party HR provider by the name of Progeny, rather than by the respondents.

[62]The Tribunal asked the claimant to tell us which of the two options previously outlined he wished to take. Instead of answering the question, the claimant asked the Judge to outline the plan for the hearing and how the Tribunal would hear evidence, cross examination, and submissions etc. The judge gave an overview of the likely format of the hearing. The Judge again asked the claimant whether he wanted to start the witness evidence or renew his strike out application. The claimant then asked for clarification of the process if the respondents’ response were struck out (the Tribunal already having indicated that this would not result in an automatic default judgment without need for the tribunal to consider the claimant’s evidence.) The claimant asked whether he would be cross examined and if so, by whom. He was informed that the Tribunal would likely have questions for him but would not be cross examining him as the Tribunal is not the respondent to the claim.

[63]Eventually the claimant confirmed that he was not prepared to start to give his evidence after lunch. He would renew his strike out application instead. Mr Jones indicated that he was likely to be instructed to make an application to strike out the claim on the basis of the way that the claimant has conducted the proceedings and his apparent attempts to derail the final hearing and waste time. Before the hearing adjourned for lunch, Mr Jones indicated that the documents which the claimant maintained were not included in the hearing bundle were in fact at p10 and 13 of the supplemental bundle and he also directed the tribunal to page 73 of the supplemental bundle. He still struggled to see what was missing. He indicated that the preliminary hearing order did not indicate that the preliminary hearing bundle should be included in the final hearing bundle. He asserted that the Tribunal was not receiving any meaningful cooperation from the claimant. He asserted that the claimant was unwilling to engage to help ensure that the hearing was effective. He indicated that as well as a strike out application he was likely to make an application for the respondents’ costs.

[64]The Tribunal confirmed that, after the lunch adjournment, the Tribunal would hear:• The claimant’s submissions on his application to strike out the response to the claim.

• The respondents’ reply to the claimant’s application.

• The respondents’ submissions on the application to strike out the claim.

• The claimant’s response to the respondents’ application.

[65]The hearing resumed at 2.45pm and the Tribunal received the parties’ submissions and then adjourned to deliberate. The parties next attended the hearing on day 6 of the listing (Monday 29 June). The Tribunal gave summary oral reasons for its decisions. The law Strike out

The law

[66]Rule 38 of the Employment Tribunal rules of Procedure 2024 sets out the Tribunal’s strike out powers. It states:(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).

[67]The relevant grounds for strike out in this case are those set out at (1)(b) and (c).

[68]When considering striking out for unreasonable conduct under rule (2)(b) there is a three-stage test as set out in Bolch v Chipman, namely:• Has there been unreasonable conduct? The Tribunal must first find that a party or their representative has behaved scandalously, unreasonably, or vexatiously when conducting the proceedings.

• Is a fair trial still possible? The Tribunal must consider, whether a fair trial is still possible because, unless there are exceptional circumstances, a strike-out order is not regarded as a punishment. If it is possible, the case should continue.

• Is there a less draconian alternative sanction? Even if a fair trial cannot be achieved, the Tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, such as a costs or preparation time order against the party, rather than striking out their claim or response.

[69]For a Tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response ( Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA.)

[70]Scandalous or vexatious have specific meanings within the context of rule 38. In Bennett v London Borough of Southwark

[2002] EWCA Civ 223

, Sedley LJ said that the meaning of "scandalous" in the ground for strike out was "not the colloquial one", explaining that the word "scandalous" has two "somewhat narrow" meanings:• The misuse of the privilege of legal process to vilify others;

• The giving of gratuitous insult to the court during those proceedings.

[71]In Attorney General v Barker

[2000] EWHC 453

, Bingham LJ considered the meaning of "vexatious" and identified three key hallmarks of a vexatious proceeding:• It has "little or no basis in law" or at least no discernible one.

• Regardless of the claimant's intention, the effect is to subject the defendant to inconvenience, harassment and expense wholly disproportionate to any benefit the claimant is likely to gain.

• It constitutes an abuse of process, which means that the court's process is being used for a purpose or in a manner that departs significantly from its ordinary and proper use.

[72]A claim or response can also be struck out if it has been conducted in an "unreasonable" manner.

[73]When considering whether to strike out on this ground, it will often be relevant for the tribunal to also consider rule 38(1)(e), that is, whether a fair hearing is still possible, taking into account the conduct in question. In De Keyser Ltd v Wilson

UKEAT/1438/00

, the EAT held that in ordinary circumstances, neither a claim nor a response should be struck out on the basis of a party's conduct, unless a fair trial is no longer possible. Therefore, even if a Tribunal finds there to have been scandalous, unreasonable or vexatious conduct of the proceedings, it will have to go on to reach a conclusion about whether a fair trial is still possible, considering both rule 38(1)(b) and similar considerations to a strike out under rule 38(1)(e) of the Employment Tribunal Rules 2024.

[74]In Leeks v University College London Hospitals NHS Foundation Trust

[2024] EAT 134

, the EAT commented on the interaction between what is now rule 38(1)(e) of the Employment Tribunal Rules 2024 and the other grounds of strike-out in rule 38(1). It considered that it may be that, where there is conduct that falls within rule 38(1)(b)–(d), the likelihood of recurrence is relevant to the possibility of a fair trial, while a claim could be struck out under rule 38(1)(e) even where the party against whom the application is made has done nothing wrong. The EAT also suggested that there might be a lesser test where conduct falling within rule 38(1)(b)–(d) has been established than where the party relies on rule 38(1)(e) alone, with strike-out under rule 38(1)(b)–(d) generally only requiring that there is a "significant risk" that a fair trial could not take place, whereas rule 38(1)(e) requires it to be established that it is not "possible" to have a fair hearing.

[75]If a fair trial is still possible, the case should continue. Even if it is not possible, the Tribunal will need to consider the appropriate sanction in the circumstances (which might, for example, involve debarring a respondent from defending a claim on liability, but allowing them to participate on the question of compensation).

[76]When considering whether a fair trial is still possible, it is relevant to consider whether a fair trial is still possible within the current trial window (Emuemukoro v Croma Vigilant Scotland) Ltd

2022 ICR 327

.) The EAT held that it was not necessary to find that a fair trial had not been possible at all; it was enough for the power to be exercisable that, as a result of a party's conduct, a fair trial was not possible within the trial window. The Tribunal had been right to take into account the delay and hardship which the claimants had already experienced; any further delay would be contrary to the interests of justice.

[77]In Smith v Tesco Stores Ltd [2023] EAT, the EAT upheld a Tribunal decision striking out Mr Smith's claim given the claimant's refusal to co-operate with the respondent and the Tribunal. There had been difficulty, evidenced despite several preliminary hearings, in identifying the issues in the case which resulted from a course of conduct in which Mr Smith (a litigant in person) had shown that he was not prepared to co-operate with the Tribunal process. The Tribunal concluded that he would not abide by his obligation to assist in achieving the overriding objective and that his disruptive conduct was likely to be repeated. One listing of the full hearing had already been lost and no progress was being made in preparing for the second hearing listed. Mr Smith was not working towards a trial that was fair in the sense of avoiding the undue expenditure of time and money, taking into account the demands of other litigants and the finite resources of the Tribunal. The EAT found no error in the Tribunal's finding that Mr Smith had acted in a manner that was scandalous, unreasonable or vexatious, that a fair trial was no longer possible and that a strike out of the entire claim was proportionate.

[78]The judgment at paragraph 47 of Smith stated: "Strike out is a last resort, not a short cut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have been taken by the tribunal in seeking to bring the matter to trial is likely to have been as much as would have been required, if the parties had cooperated, to undertake the hearing. This case [was] exceptional because, after conspicuously careful, thoughtful and fair case management, the claimant demonstrated that he was not prepared to cooperate with the respondent and the employment tribunal to achieve a fair trial. He robbed himself of that opportunity."

[79]The EAT set out the principles for Tribunals to apply when considering whether to strike out a claim in Weir Valves & Control (UK) Ltd v Armitage

[2004] ICR 371

.• If the unreasonable conduct does not involve breach of an order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible.

• Even if a fair trial as a whole is not possible, the question of remedy must still be considered to ensure that the effect of a strike-out is not disproportionate. For example, it may still be just to allow a defaulting party to take some part in the remedies hearing.

• When an order has been breached, the Tribunal must be able to apply a sanction in response to wilful disobedience of an order. However, it does not always follow that disobedience should mean a strike-out. The guiding consideration is the overriding objective to do justice between the parties. A Tribunal should therefore consider all the circumstances when deciding whether to strike out or whether a lesser remedy would be an appropriate sanction. Relevant factors will include: i. the magnitude of default; ii. whether the default is that of a party or their representative; iii. what disruption, unfairness or prejudice has been caused; and iv. whether a fair hearing is still possible. The tribunal must always guard against allowing its indignation to lead to a miscarriage of justice.

[80]In Baber v Royal Bank of Scotland

UKEAT/0301/15

and 0302/15, claims were struck out for non-compliance with orders made at a case management hearing. Simler J emphasised that strike-out decisions are not automatic or punitive, and Tribunals must consider the overriding objective of dealing with cases fairly and justly. The judgment outlined several factors to be considered when a Tribunal is deciding whether to strike out a case for non-compliance:• The magnitude of the non-compliance.

• Whether the failure was the responsibility of the party or their representative.

• The extent to which the failure causes unfairness, disruption or prejudice.

• Whether a fair hearing is still possible.

• Whether striking out or a lesser remedy would be an appropriate response to the disobedience in question. The decision in Baber stressed that, even in cases of deliberate failures, the fundamental question for a Tribunal is whether the parties' conduct has rendered a fair trial impossible. Costs and preparation time orders

[81]The relevant Tribunal rule in relation to the parties’ costs and preparation time order applications is rule 74 as follows:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.

(4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent's failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.

[82]Rule 82 is also relevant. It states: In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.

[83]The fundamental principle remains that costs orders are the exception rather than the rule

[84]Where the conduct of a party (or of his or her representative) is ‘vexatious, abusive, disruptive or otherwise unreasonable’, rule 74(2)(a) provides that the Tribunal must consider whether to make a costs order or preparation time order. Therefore, it has a duty to consider making an order but has discretion as to whether or not to actually make the award. The Tribunal Rules impose a three-stage test: first, the Tribunal must ask itself whether a party’s conduct falls within rule 74(2)(a). Is its costs jurisdiction engaged? If so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party. The third stage is the determination of the amount of any award.

[85]It is appropriate for a litigant in person to be judged less harshly in terms of his or her conduct than a litigant who is professionally represented.

[86]Even if the threshold tests for an order for costs are met, the Tribunal still has discretion whether to make an order. That discretion should be exercised having regard to all the circumstances. In this respect, it may be relevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This does not mean that lay people are immune from orders for costs. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.

[87]The term ‘vexatious’ was defined by the National Industrial Relations Court in ET Marler Ltd v Robertson

1974 ICR 72

, NIRC. The Court stated that: ‘If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously.’ What applies to an employee bringing a claim applies equally to an employer or other respondent resisting a claim. For conduct to be vexatious, there must be evidence of some spite or desire to harass the other side, or the existence of some other improper motive. Simply being ‘misguided’ is not sufficient to establish vexatious conduct. (AQ Ltd v Holden

2012 IRLR 648

, EAT.)

[88]A tribunal may also make a costs order or preparation time order against a party who has acted abusively or disruptively in bringing or conducting proceedings (or his or her representative has done so).

[89]A costs order or preparation time order may also be awarded against a party under where the party (or his or her representative) has acted unreasonably in bringing or conducting proceedings. ‘Unreasonable’ has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious.’

[90]In determining whether to make an order a Tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct (McPherson v BNP Paribas (London Branch)

2004 ICR 1398

, CA) The vital point in exercising the discretion to order costs is to look at the whole picture. The Tribunal has to ask whether there has been unreasonable conduct by the paying party in bringing, defending or conducting the case and, in doing so, identify the conduct, what was unreasonable about it, and what effect it had. Reasonableness is a matter of fact for the employment tribunal. A persistent failure to provide information may be held to be unreasonable. It may be that a party’s conduct, taken as a whole, amounts to unreasonable conduct.

[91]In D’Silva v NATFHE (now known as University and College Union) and ors EAT 0126/09 the EAT confirmed that it was not, in the light of McPherson, necessary to establish a direct causal link between particular examples of unreasonable conduct and the costs incurred by the respondent. Once a finding of unreasonable conduct is made, the question of costs is then very much within the discretion of the Tribunal. Similarly, in Salinas v Bear Stearns International Holdings Inc and anor

2005 ICR 1117

, EAT, the EAT held that there was no requirement to identify with any particularity a causal link between the unreasonable conduct and the amount of costs ordered.

[92]The purpose of an award of costs is to compensate the party in whose favour the order is made, and not to punish the paying party. Questions of punishment are irrelevant both to the exercise of a tribunal’s discretion as to whether to make an award and to the nature of the order that is made Given that costs are compensatory, it is necessary to examine what loss has been caused to the receiving party. The amount of loss will not necessarily be determinative, since a Tribunal may take into account other factors, such as the means and the conduct of the parties. Any Tribunal when having regard to a party’s ability to pay needs to balance that factor against the need to compensate the other party who has unreasonably been put to expense. The former does not necessarily trump the latter, but it may do so.

[93]A Tribunal is not obliged by rule 82 to have regard to ability to pay, it is merely permitted to do so. Where a Tribunal has been asked to consider a party’s means, it should state in its reasons whether it has in fact done so and, if it has, how this has been done. If a Tribunal decides not to take into account a party’s ability to pay after having been asked to do so, it should say why. If it does decide to take into account ability to pay, it should set out its findings on the matter, say what impact these have had on its decision whether to award costs or on the amount of costs, and explain why.

[94]Any assessment of a party’s means must be based upon the evidence before the Tribunal. However, the assessment does not need to be solely based upon a party’s means as at the date the order falls to be made. The fact that a party’s ability to pay is limited as at that date does not preclude a costs order being made against him or her, provided that there is a ‘realistic prospect that he or she might at some point in the future be able to afford to pay’ Vaughan v London Borough of Lewisham and ors

2013 IRLR 713

EAT. CONCLUSIONS Conclusions regarding the claimant’s first strike out application

CONCLUSIONS

[95]This is a decision and reasons on the claimant's application to strike out the respondents’ response to the claim which he made on day 1 of the final hearing (22 June 2026). The claimant made his application orally, having written to the Tribunal on a number of occasions previously to say that the response should be struck out. The claimant was asked whether he had a written application document that we should consider in making our decision and he confirmed that there was not. Rather, he made oral submissions and the respondents’ representative responded orally before the Tribunal adjourned to make its decision.

[96]In essence the claimant applied to strike out the response to the claim pursuant to rule 38(1)(b) (in relation to the conduct of the respondents or their solicitors) or rule 38(1)(c) (breach or non-compliance with Tribunal rules or orders.) In considering either part of the rule, the Tribunal is also bound to consider whether a fair trial is no longer possible.

[97]The Tribunal has to decide whether one or more of the grounds for strike out is established and then, if so, whether to exercise its discretion to strike out the response to the claim. In considering the second stage of the test the Tribunal also has to consider whether a fair trial is still possible and whether a lesser sanction is the appropriate and more proportionate response.

[98]The claimant asked the Tribunal to consider a number of pieces of information. The paragraphs below set out what the Tribunal concluded about each of those matters.

[99]Mr Raftery asserted that the respondents were in breach of the Tribunal orders in respect of the provision of a chronology and cast list for use at the final hearing. Before the Tribunal adjourned to consider its decision, reference had been made to the two preliminary hearings conducted by Employment Judge Kenward in October and November 2025. They did not include an order in relation to a chronology and cast list. In the middle of the Tribunal’s oral reasons Mr Raftery interjected to suggest that the order was made at the first preliminary hearing. Upon checking the correct position, it appears that an order was, in fact, made at the second preliminary hearing, conducted by Employment Judge Holmes.

[100]Employment Judge Holmes’s orders were made at an early stage of proceedings before the List of Issues for the final hearing had been agreed. There were two further preliminary hearings thereafter which gave renewed case management orders to prepare the case for a final hearing. To that extent Employment Judge Holmes’ orders were overtaken by events at the subsequent hearings. It is perhaps understandable that they were overlooked by the parties as they tried to comply with the subsequent orders and get the case ready for trial. As the chronology of events set out above makes clear, this case has a long and complex procedural history, and the most pressing issue has been to ensure that the List of Issues was clarified ready for use at the final hearing. Hence, Judge Kenward’s case management orders make no order for a chronology and cast list and, instead, focus on matters of disclosure, the hearing bundle, and the exchange of witness statements for the final hearing.

[101]Viewed in one way, there has been a technical breach of a case management order by the respondents in that Employment Judge Holmes’ order was not complied with. On the other hand, his orders may also be considered to have been superseded by Employment Judge Kenward’s subsequent orders. Taken at it its highest, the Tribunal concludes that it is, at most, an inadvertent breach of a case management order rather than a deliberate decision not to comply with a Tribunal order. It is not a repeated breach as the order has not been repeated by Judge Kenward’s later case management orders. The Tribunal also notes that counsel, today, has volunteered to prepare a chronology and cast list, should it be required. In short, it appears that the order has been overlooked rather than deliberately breached. The Tribunal also notes that this is a case where the claimant’s period of employment with respondent is less than one month, whereas chronologies are usually more often required in cases involving a lengthier period of employment as they assist the Tribunal by providing anchor points as they read into the papers in such a case. Likewise, a cast list is likely to be brief in this case, given that it concerns three main protagonists. The Tribunal also notes that chronologies and cast lists are not items of evidence in a case. Rather, they are tools which the Tribunal uses to assist in reading into the case papers at the start of the final hearing. It is possible to conduct a final hearing without such tools, although their inclusion is preferable.

[102]The second issue that the claimant raised with us related to two aspects of what he characterised as ‘threats’ or ‘improper conduct.’ The first related to an ACAS document. The second being a document wherein the claimant says the respondents made a threat to him to drop the case.

[103]Addressing the ACAS correspondence first, this appears to have been a without prejudice piece of correspondence sent via ACAS. That is a statutory procedure. The parties are able to correspond with each other through ACAS without the need to correspond directly with the other party to the proceedings. Such ACAS correspondence is, in effect, without prejudice correspondence. It is to be kept confidential from the Employment Tribunal, and in particular, should not be referred to in front of the Tribunal panel at the final hearing. There are a number of good reasons behind this. The most obvious is that the parties need to be able to negotiate without fear of undermining their litigation position before the Tribunal which decides the case at a final hearing. The Tribunal is unable to consider the contents of ACAS communications unless an applicable exception to the general rule is established. So far, the claimant has not established that this correspondence falls into any exception to the general rule. Hence, we are unable to find that it amounts to unreasonable conduct on the part of the respondents. We note that offers made in negotiations may, on occasion, include an invitation to drop a claim in exchange for some other step to be taken or not taken by the offering party. As a litigant in person, the claimant may not be aware of this.

[104]The claimant maintains that the respondents made a threat to him in correspondence that he should drop his case. It appears that this is without prejudice correspondence sent in or around September/October 2025. It is without prejudice and therefore not admissible in front of this Tribunal at this stage of the proceedings. The claimant says that he was told to drop his case, and we appreciate that Mr Raftery is a litigant in person without a lawyer to represent him or advise him. On receipt of such a piece of correspondence, a litigant in person may find it to be intimidating. However, it is part and parcel of normal litigation that offers of all sorts are made between the parties, in order to resolve the case without the need for a final hearing. The Tribunal cannot consider without prejudice correspondence unless an exception to without prejudice privilege is established. One such exception can be where there has been ‘unambiguous impropriety.’ In such circumstances, it may be appropriate to lift the veil of privilege to look at the document. However, it is for the claimant to establish such an exception to privilege, and he has not done so in this case. The burden would be on the claimant to show that this case fell within the scope of such an unambiguous impropriety exception. We cannot look at that documentation now. We also note that this correspondence was sent prior to the hearings conducted before Employment Judge Kenward, but the claimant apparently did not raise the issue during those preliminary hearings. This is regrettable and a little surprising. If he considered it to be a threat, he could have raised it at that stage and the Tribunal would have been able to arrange a procedure for a separate judge (i.e. not the one deciding the case at final hearing) to consider the issue and establish whether the document was privileged or not. This would not have disrupted progress at the final hearing. That was not done and so this Tribunal cannot risk looking at a without prejudice document at the final hearing as this would imperil our ability to continue to hear and decide the case if we were referred to a document which we should not have seen.

[105]The case management summaries and case management orders from Judge Kenward are the Tribunal's record of what has been discussed at the hearing and what applications were made and the Tribunal orders that have been made. This Tribunal panel has to work from the Tribunal’s written record of previous hearings. To the extent that the claimant says that matters were discussed or decided which are not included in the written record, this Tribunal cannot base any decision on such an assertion. The Tribunal will not go behind the written record of the hearing and will assume (unless and until the contrary is proven), that the earlier preliminary hearing case management orders and summaries are to be relied upon.

[106]The claimant complained about Mr Jones referring to ‘the rough and tumble of litigation’ during his Tribunal submissions. He took exception to this and asserted that it was inappropriate. He appeared to consider that Mr Jones was actually referring to physical ‘rough and tumble’ i.e. physical contact. It was apparent to the Tribunal that this was neither the context nor the meaning of the phrase, as used by Mr Jones. Rather, he was using a phrase which is not uncommonly used by lawyers in litigation. He was referring to the ‘back and forth’ of litigation, the application and counter application, offer and counteroffer, made by parties to a case. It was metaphorical. He was trying to express that parties seldom get to a final hearing without some form of interlocutory dispute. This phrase does not bear any literal connotations in this context, and it is unfortunate that the phrase has become lodged in the claimant’s consciousness.

[107]The Tribunal did not see the phrase in the way that the claimant apparently did. We are not satisfied that this could reasonably be characterised as unreasonable conduct on the part of the respondent or respondents’ counsel.

[108]Moving on, and the claimant asserted that there are some documents in the final hearing bundle which should not be there because they are marked “without prejudice.” The claimant suggests that the respondent cannot itself rely on without prejudice correspondence. However, the without prejudice doctrine states, amongst other things, that putting the without prejudice label at the top of a document does not convert it into a without prejudice communication if the content and character of the document is not ‘without prejudice.’ If the correspondence is not part of offer and counteroffer or an attempt to negotiate a resolution, then adding the words ‘without prejudice’ to it will not make it so. The Judge has looked at the pages that the claimant refers to (the other members of the panel did not.) The Judge appreciates that the claimant has applied the ‘without prejudice label’ to the top of the emails in question. Mr Jones says that in substance, the documents are not without prejudice. Mr Jones is correct in that assertion. The documents do not appear to be correspondence which is aimed at resolving the case by agreement or negotiation. Rather, they are a commentary on the respondent's actions and complaints about them. The label at the top does not convert that into without prejudice correspondence. The claimant has not established unreasonable conduct on the part of the respondents in that regard.

[109]The claimant complains that some of the documents he has provided for the bundle are illegible documents (e.g. page 670.) These appear to be documents which are in the claimant's possession and control. Both parties will have seen these documents. What seems to have happened is that they have been converted into PDF format for inclusion in the bundle. This process seems to have shrunk the documents and type face. That is not unreasonable conduct, it is an IT technical problem. The claimant has seen the documents and knows what they contain. To that extent he is not prejudiced by their current format. Furthermore, to the extent that it is necessary to do so, if the Tribunal is directed to consider those documents, arrangements can be made for an electronic version to be viewed. It should be possible to re-enlarge the document on the computer so that it can be read if there is a problem. The point is that the claimant has those documents in his possession originally, prior to them being shrunk to fit the PDF. Presumably, he will be able to read his original copies and consult them, as necessary. There is no material prejudice to the claimant by the inclusion of those documents within the bundle. This is not unreasonable conduct by the respondents.

[110]The claimant made submissions about redacted documents within the hearing bundle. Mr Jones rightly said that there is no Tribunal order permitting redactions. The Tribunal was taken to one document, at page 540, which appears to have the name or the subject matter of discussion redacted. It is an email sent by the claimant to the respondents’ solicitors. The claimant therefore sent the original, unredacted version. The Tribunal remains unclear at the extent of the redactions to relevant documents within the bundle. (Neither party could give us a complete list.) It should be possible to have those redactions removed from documents, if necessary, so that we can proceed with the hearing and with those parts of the document visible to both parties and without it prejudicing either party's position within the case. At this stage it is not altogether clear which party has made the redactions and the extent to which the parties have access to the unredacted versions. The claimant blames the respondents, but it appears that at least some of the redacted documents are the claimant’s own documents, which he will have access to in unredacted format. We are not persuaded that this amounts to unreasonable conduct or a deliberate breach of a Tribunal order by the respondents. Furthermore, the issue should be straightforwardly resolved by more proportionate means than strike out of the respondents’ response to the claim.

[111]The claimant also complained about the absence and/or provenance of an accident report which relates to an accident that he apparently suffered on the last day of his employment with the respondent. He has apparently launched a personal injury claim in relation to this accident. Those are proceedings in the civil courts and are not within our jurisdiction. A report about the claimant's accident is included in the final hearing bundle. The claimant suggests that it was not written at the relevant time but some time after the accident in question. He doubts its authenticity and accuracy. However, if this is relevant to the claim before the Tribunal, then the claimant can cross examine the respondents’ witnesses about it to test the reliability of the document. If it is relevant, the Tribunal can make a decision about it (i.e. whether it is contemporaneous and reliable). The Tribunal routinely has to assess and weigh the documentary evidence before it in order to resolve claims. That is not an obstacle. It is not unreasonable conduct by the respondents such as to suggest the response to the claim should be struck out. The Tribunal cannot assess the document before the witness evidence has been heard. It is not something the Tribunal can do at this stage in the hearing before a single witness has given evidence in the case.

[112]The claimant referred to attachments to an email which he sent to the respondents’ solicitor on 13 March 2026 at 12:29. He complains that these documents have been excluded from the final hearing bundle. The Judge has gone back through the Tribunal’s case file. There is a plethora of emails that were apparently sent on that date. However, none of them were sent at 12:29. The parties will therefore need to assist the Tribunal in locating the missing email and attachments. Without looking at the documents, it is not possible to see whether they are relevant and admissible evidence which should be in the bundle. The respondents have indicated that, should it be deemed relevant and necessary, those documents can be put into a supplemental bundle and referred to as needed during the final hearing.

[113]The Tribunal is not in a position to conclude that there has been any breach of an order or unreasonable conduct by the respondents in that regard. Further, the claimant clearly has copies of those documents as he sent them to the respondents attached to the email. He has not been deprived of access to evidence through a failure to disclose the documents. The respondents representative has said that, as far as they are aware, the documents in question are not relevant to the issues in dispute in these proceedings, the issues that the Tribunal will need to decide at the conclusion of the hearing.

[114]This is something which can be addressed via action short of a strike out. The claimant maintained a wider assertion that there were other documents missing from the bundle. The difficulty with this submission was that the claimant was unable to tell us exactly what it was that he thought was missing. The Tribunal does not have a list of the missing documents that it can look at and consider. In those circumstances, the most that the Tribunal can say is that if something arises during the course of the hearing and one or other of the parties becomes aware of a document which is relevant and necessary for the Tribunal to see, then we will deal with an application in relation to that document on its merits, as it happens. However, in advance, without a list of documents, the Tribunal is not able to base a decision to strike out the response on that.

[115]The claimant referred to the absence of certain asbestos reports from the bundle. Looking at the List of Issues in the Tribunal case, the Tribunal has concluded that it does not need to see the asbestos reports in order to determine the claims that the claimant pursues here. The asbestos report is not relevant to the issues that we have to decide. The Tribunal appreciates that they are relevant to the claimant’s lived experience and his experience of working with the respondent but that is not what the Tribunal is here to adjudicate on. We are here to adjudicate on the List of Issues and legal complaints in the claim.

[116]The claimant also made submissions in relation to an audit report. This relates to the first of the protected disclosure. The claimant says that it came to his attention that Ms Hesketh was in some way seeking to tamper with, alter or edit, the audit report produced by a third party. The Tribunal was directed to consider page 305 as well as page 314. The audit report itself has apparently been disclosed and is available in the bundle, as is an email or series of emails where Ms Hesketh and asks the author of the report whether she considers that some proposed amendments or corrections to the report are appropriate and approved by her. The respondents’ position is that these are all the available and disclosable documentation on the issue. The Tribunal cannot easily go behind that assertion. Furthermore, the evidence already disclosed shows that Ms Hesketh did contact the author to see if changes could be made to the report. If the claimant believes that there are, in fact, other versions of that report, or further emails, the Tribunal will consider making an order to the effect that the respondents or their solicitor should review their disclosure search to ensure that there is nothing more to disclose on the topic. If there are additional documents, then they should be disclosed. If not, there needs to be a disclosure statement, verified by a statement of truth, confirming that a proper search has been made and there is nothing further available to disclose. That is as far as this tribunal will be able to take the matter. It is not grounds to strike out the response. The Tribunal just needs to hear from the respondent about whether additional documents exist or not. After that, it will be a matter for cross examination of the relevant witnesses.

[117]Mr Raftery complained that the respondents’ witness statements were not signed or dated. The claimant may not be aware of this, but this is common practice in the Tribunal. Very often, the witness will either sign and date the statement whilst in the witness box or will verbally confirm that the document is true and accurate to the best of their knowledge and belief, after they have sworn an oath or made an affirmation to tell the truth. That is not anything for the claimant to be concerned about. As long as the version of the statement used during the hearing is the same as the version provided to the claimant, then there is no difficulty with that. So, again, that is not unreasonable conduct by the respondents.

[118]The claimant also complained about some further documents that were passed on to the Tribunal via the clerk this morning, the so-called “decimal point documents.” Respondent's counsel tells us that they are cross referred to in Ms Hesketh’s witness statement using that numbering system. There is another version of the documents already in the bundle which is cross referred to in Mr Walsh’s statement. Effectively the respondents seek to add a copy of a document that is, in substance, already present in the bundle but with page references to assist comprehension of Ms Hesketh’s witness statement. Mr Jones indicates that these documents were sent to the claimant on 15 April 2026 so that he has had sight of them and should be in a position to deal with them. He has not been taken by surprise by them at the hearing.

[119]In short, and taking everything into account, preparation for a final hearing is seldom perfect. Any shortcomings that the claimant has identified, such as they are, do not amount to material non-compliance with Tribunal orders or rules. Still less do they contribute to a finding of unreasonable conduct on the part of either the respondents or their representatives. We are not satisfied that the grounds for strike out at rule 38(1)(b) or (c) are made out in this case. Even if we had been satisfied that those grounds were established, the Tribunal is required to consider whether a fair trial remains possible and whether the breaches relied upon mean that that is no longer possible. The Tribunal is not satisfied that a fair trial is no longer possible. We would also be required to consider alternative and less draconian solutions than strike out. For example, we can consider further case management orders to obtain the inclusion of specified documents into the bundle or a disclosure statement in relation to documents associated with the audit report (as discussed above.) A supplemental witness statement may also be needed. This is something for the Tribunal to discuss further with the parties. However, the Tribunal’s conclusion on the claimant’s application is that it is refused. The Tribunal will not strike out the response to the claim. The applications made on day 3 of the hearing The claimant’s application to strike out the response to the claim

[120]The majority of the claimant’s application to strike out the response was a repetition of his earlier strike out application which had already been heard and determined on day one of the final hearing. The applicable legal principle is that, unless there is a material change of circumstances, the Tribunal does not have to go back and make that decision again. The previous decision does not have to be revisited in that respect. However, the Tribunal does wish to reiterate a number of the conclusions from the previous decision, for the record. (Where our earlier conclusions are not explicitly repeated, the Tribunal nevertheless relies on its reasons in relation to the day 1 application where it overlaps with the day 3 application.)

[121]The events which took place in the run up to the preliminary hearings before Employment Judge Kenward are not the subject of this application, even though the claimant sought to rely upon them. Those issues were addressed in the two preliminary hearings that Employment Judge Kenward conducted in these proceedings. The Tribunal’s decisions and the discussions during the hearings are recorded in the case management summaries and the case management orders provided by the Judge following those hearings. Furthermore, the claimant has indicated that he has appealed Judge Kenward’s earlier decisions. Pending any EAT decision to the contrary, this tribunal panel has to work on the basis that the previous case management orders and case management summary are correct and also that they constitute the definitive written record of those proceedings. That is the basis on which we have proceeded.

[122]In his submissions, Mr Raftery complained about a change in the identity of the solicitor representing the respondents. He suggested that this had caused disruption. Parties in proceedings are entitled to be represented by their representative of choice. That is a matter for the party in question. The respondents retained the same firm of solicitors throughout but changed individual fee earner at the end of day 1 of the final hearing. The fee earner with conduct of this case was leaving the firm at the end of day 1 of the hearing. This was unrelated to these proceedings. In any event, the change of fee earner proved to be irrelevant and caused no disruption to these proceedings. The respondents’ solicitors complied with the deadlines attached to the case management orders which the Tribunal made on day 1 of the final hearing. At one stage on day one, counsel requested that they be given a few more hours for the new fee earner to review the file. In the end, however, counsel agreed to match the claimant’s deadlines insofar as possible in an effort to remove any perception of unfairness or preferential treatment of the respondents as compared to the claimant.

[123]The claimant alleged repeated breaches of the case management orders by the respondents during the final hearing. The Tribunal spent a considerable amount of time going through its notes of the final hearing and has concluded that this allegation is not correct. The respondent is not in breach of the orders that this Tribunal made during the course of the final hearing. The respondents have done what this Employment Tribunal has asked them to do. The claimant was unable to show us the breaches during the course of the final hearing. The respondents have, in fact, tried to resolve problems, provide solutions, and take a pragmatic approach to the proceedings. They met the Employment Tribunal's deadlines. They volunteered solutions. Every time that Mr Raftery sent them looking for documents, they have provided what has been asked of them by the Tribunal. Mr Raftery has not been satisfied with this but that is not the same thing as saying that the respondents are in breach of the case management orders. The case management orders were based on the most specific and up to date list of missing documents that we could obtain from the claimant during the course of the final hearing, and the respondents have complied with that.

[124]The issue of the missing chronology and cast list was raised and addressed as part of the claimant’s original strike out application on day 1 of the hearing. During the course of the final hearing Mr Jones did volunteer to try to provide chronology and cast list if it would assist the Tribunal. However, the Tribunal did not make any further case management orders requiring him to do so. In the event, Mr Jones was diverted away from that task when the respondents were sent to obtain further copies of documents to add to the hearing bundle and review the redacted documents and provide a disclosure statement. Mr Jones was evidently engaged in assisting his client to comply with the case management orders on day 2 of the final hearing. This culminated in the provision of the supplementary bundle, etc. It is important to note there is no breach of any further case management order and no unreasonable conduct in this regard. Furthermore, as we indicated in our decision on the first strike out application, the absence of a chronology and cast list would not have prevented us from having a fair trial, even if it were never done. Such documents are tools to assist the Tribunal and not evidence in themselves.

[125]There was no requirement placed on the respondents to include the preliminary hearing bundles within the final hearing bundle. There was also no specific need or requirement to include the claimant's disclosure pack (the “C Document”) within the final hearing bundle. The disclosure pack is a precursor to the hearing bundle and not the bundle itself. There were further complaints in relation to the absence of wage slips. However, on testing this assertion it became apparent that the request for wage slips was in fact complied with and an updated schedule of loss was done by the claimant before the start of the final hearing. The Tribunal cannot see that there was a breach of the case management order in this regard. In any event, later in the week, the respondents’ representative actually suggested that the preliminary hearing bundles could be made available to assist Mr Raftery in order to see if he would be prepared to start his witness evidence if he had access to these documents that he said were missing from the agreed final bundle. The Tribunal gave Mr Raftery a choice to make, either to make a start on his evidence with access to those extra documents, or to pursue his second strike out application in relation to the respondents’ response to the claim. He chose the latter option and specifically chose not to start his evidence on the afternoon of day 3 of the hearing.

[126]The Tribunal also notes and reminds itself that the documents that the claimant said were missing from final bundle were all documents which the claimant had seen and which were in his possession as part of the disclosure process. This was not an application for specific disclosure of documents which had not yet been disclosed. Rather, the issue was whether the disclosed documents were all within the trial bundle. It was not a question of a failure of disclosure, but an argument about what should be in the bundle, in what format, and at what page. I also record that the Tribunal had pointed out to the claimant that the final hearing bundle is an evidential bundle. It contains the evidence that will be used (in addition to the witness evidence) to determine the issues in the case and that preliminary hearing bundles are usually (although not exclusively), more procedural in nature and content. Hence there is no need, generally speaking, to incorporate a whole preliminary hearing bundle into the final hearing bundle in its original form.

[127]In his submissions to the Tribunal, the claimant also alleged that details of his complaint had been removed from the bundle. This is not correct. The ET1 form (and attachments) and the relevant List of Issues are in the final hearing bundle. At the very commencement of the final hearing, the parties agreed that the approved and definitive List of Issues was that which was attached to Judge Kenward's case management order, as supplemented by the claimant's document of 27 February 2025. The respondents’ representative was later able to confirm that the 27 February 2025 document was page 625 in the bundle. The claimant persisted in his submission that documents and his details of claim had been removed and amended “at free will” by the respondents. This is not correct. The presence of Mr Raftery's earlier or subsequent critiques/working versions of the List of Issues is irrelevant if it is not the final version that was approved at the preliminary hearing. The claimant’s personal versions are not the versions to be used at the final hearing. Of course, the claimant can use them to assist him in his preparation for the hearing if he wishes. However, they are not the agreed List of Issues that the Tribunal will be addressing and deciding at the conclusion of the final hearing. Thus, it is counter-productive and unnecessary to include them in the final hearing bundle. It is only likely to lead to further confusion.

[128]The claimant says that there were problems with his witness statements for the final hearing because he was not able to provide page references because of the absence of certain document from the final hearing bundle. The reality, the Tribunal concludes, is that any difficulties with the claimant's witness statements are because the claimant did not update his witness statement after the List of Issues was approved and in line with Judge Kenward's timetable of case management orders. The case management orders made provision for the agreement of the final hearing bundle after the agreement of the List of Issues, with exchange of witness statements to take place after that. That is the timetable that the respondents used to prepare the case. The claimant chose not to do so, for reasons which are unclear. The claimant had the opportunity to update his witness statement or provide a specific final witness statement for use at the final hearing in line with the case management orders and did not do so. (Indeed, he could be said to be in breach of case management orders in that regard.) In any event, the witness statements that he had previously provided were included in the papers for the final hearing and the Tribunal read them. The Tribunal went further and allowed the claimant the opportunity to provide a supplemental witness statement to address any additional documents which were added to the final bundle as a result of the developments on the first day of the hearing. The claimant wanted the opportunity to provide a wholly fresh witness statement to replace the earlier ones that he had provided in 2025. The Tribunal did not grant permission for this as it was not necessary to do so in order to address the developments in the papers during the final hearing. A supplemental witness statement would address the relevant changes to the bundle. Given the limited scope of the proposed supplemental witness statement, the claimant was given adequate time to prepare the supplemental statement. In fact, he complied with the deadline. In short, any difficulties that the claimant has encountered with his witness statement are nothing to do with the way that the respondent has conducted the hearing or any breaches of case management orders or unreasonable conduct by the respondents. Rather, they are the product of his own choice not to update his witness statement after the preliminary hearing.

[129]The claimant complained about the absence of his own preliminary hearing bundle from the final hearing bundle. The reality is that this is a misreading of the Tribunal’s previous case management orders. The respondents did what Employment Judge Kenward asked of them. He asked the respondents to provide something akin to a ‘key’ to the claimant's personal page numbering in the form of the index to the final hearing bundle so that, where applicable, each document had two page references (final hearing bundle page and claimant’s preliminary hearing bundle page.) It was expected that with such an index, the claimant would be able to navigate between his own papers and those which were before the Employment Tribunal. There was no breach of an order on the part of the respondent and in any event, as previously indicated, the respondent volunteered to proceed on the basis that the preliminary hearing bundles could be referred to during the final hearing if the claimant would then make a start on giving his witness evidence. However, the claimant refused to take that option.

[130]The Tribunal encountered the issue of redacted documents. The respondents’ position was that it had provided what it could in unredacted form. Some of the documents in question were the claimant’s and he was the party who would have access to the unredacted version. The claimant characterised the respondents as deliberately deciding to redact the respondent's documents in order to protect the second respondent.

[131]As the hearing never started to hear witness evidence, the parties have not yet shown us the potential relevance of some of the redacted documents to the issues in the case. It may be that the documents in question are not relevant to the issues that we would have to determine in order to decide the claim. However, the Tribunal has examined this issue on the assumption, for present purposes, that the redacted documents do contain relevant evidence for the final hearing which will assist in addressing the list of issues.

[132]Mr Jones asked us to consider two attachments to the email which the claimant sent to the Tribunal at 9.20am on day 3 of the hearing. The attachments were labelled “image0.png.” The first of these attachments was a letter dated 5 September 2024 from the respondents’ HR provider “Progeny”. It was addressed to the claimant and related to the claimant’s DSAR. The first paragraph of the letter makes it clear that the claimant sent his DSAR request to Progeny (rather than the respondents) requesting access to all the personal data that Progeny held. Progeny received the request on 8 August and was providing copies of the documents in paper format as requested by the claimant. The letter gave contact details for the claimant to use if he had any concerns about documentation which he wanted to address with Progeny. In addition, it gave contact details for the Information Commissioner’s Office. The content of the letter demonstrates that the claimant addressed his DSAR to Progeny, not to the respondents. It suggests that documents provided in redacted form are likely to have come from Progeny rather than the respondents and that it is likely to have been Progeny who made the redactions rather than the respondents. If an unredacted copy is required, then that is likely to be held by Progeny rather than the respondents. Therefore, if the claimant has not got an unredacted copy, he would need to ask Progeny for it. To that extent, the solution is in the claimant’s hands rather than the respondents’.

[133]If the respondents were to intervene or interfere in the DSAR process which was taking place between the claimant and Progeny, the claimant would likely complain about this and characterise it as the respondents (inappropriately) tampering with the process in some way. Consequently, the solution to the problem would lie with the claimant and Progeny, rather than with the respondents. The claimant does not accept that the respondents do not have unredacted copies of the documents. However, the letter suggests that this is likely to be the case in some cases, and that the respondents will already have provided what they are able to provide in unredacted form.

[134]The second attachment had what appeared to be felt tip redactions. It was an email dated 10 June 2024 which appeared to be a brief email update recording ‘who said what’ at the dismissal meeting. I note, for the record, that this was not a minuted disciplinary hearing. It was literally a summary dismissal discussion on the day of the alleged misconduct. From the Tribunal’s pre-reading, it appears that three people were present at that meeting. The substance of the conversation is not redacted in the email, only the identity of the speakers and the sender and recipient of the email. It is reasonable to conclude that someone within the respondent company has updated Progeny with details of what happened during this dismissal discussion. Whilst, in principle, there should not be any redacted documents, the Tribunal failed to see that the redactions in this document formed a barrier to the parties having a fair hearing. The respondents said that the document was not theirs and they did not have an unredacted version of it. It may be the case, given the nature of the email, that someone within the respondents composed and sent the email such that it would originally have been within their possession, but it is just as likely that the only remaining unredacted copy is held by the recipient, (probably Progeny.) Taking a step back and keeping this in perspective, the Tribunal and the parties can see the contents of the document, just not the names. Questions could easily be asked in cross examination about the contents of the record and who wrote it if this is relevant to the issues to be determined by the Tribunal. The respondent’s witnesses address what was said at the dismissal meeting in the course of their witness statements. The consistency of the document with the contents of their witness statements can be tested through cross examination. If, for argument’s sake, it became apparent that an unredacted version was essential for a fair hearing, further steps could potentially be taken to obtain it from Progeny during the course of what was listed to be a multi-day hearing. This is not a good reason to stop the hearing before the evidence has started or to debar the respondents from actively defending the claim. That would be disproportionate.

[135]The real issue is where all of this leaves the Tribunal. The claimant is saying that this all amounts to unreasonable conduct and is grounds to strike out the respondents’ response to the claim. The reality is that, as outlined, this should not prevent a fair hearing. The tribunal should be able to start the witness evidence. If further problems were to arise in relation to a redacted document, the Tribunal would have to address it at that stage and obtain an unredacted copy. If that were to prove impossible, the Tribunal would be in a position to draw adverse inferences from this, as appropriate. It is part and parcel of the Tribunal’s task of evaluating the evidence in a case. It is something that this Tribunal is well-versed in doing on a daily basis. We cannot say that it stops a fair trial from proceeding. The claimant, Mr Raftery, is rather overstating the position by stopping us from making a start on hearing the witness evidence and, instead, asking us to strike out the response before we have heard the evidence.

[136]In summary, we are not satisfied that the matters relied upon by the claimant amount to unreasonable conduct by the respondents. Nor are we satisfied that they amount to material breaches of the Tribunal’s orders, or that such would be repeated in the future. The respondents have given reasonable explanations for their actions during the litigation. Most significantly, none of this means that a fair trial is no longer possible. Striking out the respondents’ response to the claims would be a wholly disproportionate reaction to the respondents’ conduct in these proceedings. The Tribunal has not been directed to consider any redacted documents which cannot be dealt with in an appropriate and fair manner whilst still making a start on the evidence in the case. Nor are we persuaded that only the respondent can access the unredacted documents. At least some of the unredacted documents would be accessible to the claimant, either from his own records or by making a direct request to Progeny.

[137]In his submissions the claimant then proceeded to question the validity of the disclosure statement which had been prepared (in response to the Tribunal's orders) by Charlotte Hesketh. This was produced in relation to issues that the claimant raised about how complete the disclosure of documents in relation to the audit report was. The claimant is unhappy with it and its reliability. However, this is again a matter to be tested in cross examination. It is a disclosure statement which is designed to enable the case to get started and to clarify what the respondents say about the existence and disclosability of further documents in relation to the audit report. The Tribunal would be in a position to draw inferences from any answers given in response to questions put in cross examination. We would be able to assess if there was something ‘underhand’ in this, as the claimant suggests. However, striking out the response to the claim would prevent us from carrying out such an assessment.

[138]The claimant sought to suggest that the respondents were deliberately exacerbating the effects of his disabilities. The Tribunal could find no evidence of that, from its own observations during the hearing and its review of the documents.

[139]The claimant characterised some of the correspondence from the respondents as a ‘threat.’ For the reasons already stated in our decision on the claimant’s initial strike out application, this cannot properly be characterised as a ‘threat.’ Rather it is a without prejudice document, and the claimant has not established any grounds to pierce the protection offered by without prejudice privilege. He has not, for example, established unambiguous impropriety. The tribunal should not have been referred to without prejudice correspondence in the absence of such an exception.

[140]In his submissions the claimant repeated his reference to small photocopies of documents which he said were illegible. We have previously addressed that in our decision on strike out on day one of the hearing. Suffice it to say, that criticism is not well placed.

[141]The claimant also criticised the Tribunal for asking Mr Jones for a copy of the claimant’s document dated 27 February 2025 and criticised counsel for sending it to us. We have to say that that criticism is totally without merit, particularly as it was the claimant’s document which was sent to us. In any event, its location was subsequently identified within the hearing bundle.

[142]In terms of the documents which the claimant maintained have still not been provided, the Tribunal quite literally spent hours trying to identify them with the claimant and the respondents’ representative. We were not able to identify what the missing documents were, over and above the preliminary hearing bundles and disclosure pack, which were not intended to be included in the final hearing bundle in any event (in line with Judge Kenward’s order

[143]The Tribunal appreciates that it can be difficult for a litigant in person in such circumstances. However, we observe that Mr Raftery must have known that he was saying that documents were still missing. We query why he had not used some time on day 2 of the hearing to locate some references to the specific missing documents so that he could clarify his position reasonably quickly on the resumption of the hearing on day 3. He did not do this. Mr Raftery was adamant that documents were missing and when we tried to establish the correct position we struggled to do so and the claimant was unable to assist us.

[144]Mr Raftery made a further complaint that the respondents’ representative was not adequately prepared for the hearing. Again, this was apparently a criticism and an allegation made without foundation. We observed the process whereby counsel had to adapt and respond to matters as they developed and arose during the hearing, and we are satisfied that he did so in a professional and pragmatic way. He was appropriately restrained in his responses in the face of the somewhat intemperate criticisms that were levelled at him and about him by the claimant.

[145]In light of the above and our conclusions in relation to the first application, the Tribunal is not satisfied that the any of the grounds for strike out at rule 38 are established in this case. There has been no further breach of case management orders and there has been no unreasonable conduct by or on behalf of the respondents. Furthermore, the Tribunal is satisfied that, based on the respondents’ conduct, a fair hearing remains possible in this case. (We will address the possibility of a fair hearing in light of the claimant’s conduct in the paragraphs below.)

[146]The grounds for strike out at rule 38 of the Tribunal Rules of Procedure are not established in this case. The Tribunal will not strike out the respondents’ response the claim.

[147]As the claimant has failed to show the relevant unreasonable conduct to underpin the strike out application, it is also the case that the claimant has failed to satisfy us that there are grounds to make a preparation time order pursuant to the rules. The claimant's application for a preparation time order is based on unreasonable conduct and that, in essence, stands or falls with the application for strike out of the response to the claim. We have found no such unreasonable conduct and therefore we have not been in a position to make a preparation time order. (For the record we did locate (as requested) the claimant's most recent version (number 4) of his schedule of loss. This included a request for 100 hours of preparation time at £46 per hour. We considered that document but, for the reasons stated, the Tribunal will not be making preparation time order. Respondents strike out application

[148]The respondents’ strike out application was made pursuant to rule 38(1)(b) on the basis that the manner in which the proceedings have been conducted by the claimant is scandalous, unreasonable, or vexatious. Counsel referred the Tribunal to the repeated allegations made by the claimant that documents had been removed and redacted by the respondents and that there were repeated breaches of case management orders by the respondents. The Tribunal’s conclusion has been that there is no concrete example of that in the correspondence and documentation that we have gone through over the course of the last few days. In reality, the claimant makes repeated applications for strike out of the response to the claim without providing evidence that the respondents are, in fact, in breach of case management orders to substantiate his assertions. During the course of the chronology of events in these proceedings the claimant made repeated personal allegations against individual solicitors representing the respondents and threatened to refer them to the Solicitors Regulatory Authority. It is fair to say that the claimant is disparaging about almost every individual that he corresponds with in the course of these proceedings. He repeatedly refers to “underhand tactics” being used to support the respondents in their “fraudulent” activities. A litigant is entitled to make such assertions about the other party to a claim (and their representatives), but only if there is evidence to substantiate them. Otherwise, it amounts to repeatedly attacking the integrity of legal professionals without good cause to do so.

[149]A review of the Tribunal's own file of correspondence reveals a remarkable pattern of correspondence from the claimant where he repeats and recycles the same allegations and assertions without particulars and specifics which would make the allegations meaningful and substantiated. For example, a repeated refrain from the claimant has been that the respondent has removed documents or deliberately chosen not to include them in the final hearing bundle. As already stated, the Tribunal this week had to work remarkably hard to get a list from the claimant of what he said was missing. He did that, somewhat begrudgingly, by 10am on Tuesday (day 2 of the final hearing.) By 3:03pm that same day, the respondents’ solicitor had located, collated, and paginated the documents on the list and updated a supplemental bundle for use during the final hearing. There was every reason to believe that this was now a complete collection of documents according to the claimant's own specification. However, on Wednesday morning of the hearing (day 3) we saw the claimant once again assert that the relevant documents were not before the Tribunal. The claimant came into the hearing ready to say that the respondents had breached the case management order, but was not similarly prepared to say which documents remained missing. Hence, the Tribunal spent several hours trying to give the claimant various sorts of opportunity to fill in the gaps to show us what the remaining problem was. The claimant has sought to characterise this as the respondents (and indeed the Tribunal) putting him under unreasonable pressure, whereas in fact, as set out above, it was a genuine attempt to explore and establish what the remaining problem was. The Tribunal was taking care to explore whether there were other steps which could be taken in order to get the case started, so that we could hear the evidence and decide whether the claimant's claims should be upheld. The claimant seemed determined to avoid this, to the extent that when the respondents agreed to allow the claimant and the Tribunal to refer to the claimant's preliminary hearing bundle during the final hearing, the claimant still maintained that this would not be sufficient or acceptable in order for him to start giving his witness evidence. When the Tribunal indicated that there were alternative ways to deal with redacted documents (for example, to wait until they were referred to in the course of the hearing and explore ways to get unredacted copies or, indeed, to draw inferences from the absence of unredacted copies) the claimant still did not accept that the trial could start.

[150]When given the explicit choice between starting his evidence and renewing a strikeout application which had been determined on day 1 of the final hearing, the claimant maintained that the evidence could not start, and the Tribunal should hear and decide these applications instead.

[151]In short, both the respondents and the Tribunal sought to find ways to start the final hearing and decide the substantive case, and it was the claimant who put a block on this. At that point, given the Tribunal's extensive efforts to engage with the claimant and resolve the issues, it became abundantly clear that nothing would remove the roadblocks, so that the substantive case could be heard. Frankly, the Tribunal has explored every option that it could think of to “get the show on the road.” The respondents repeatedly took a pragmatic approach in an effort to further the overriding objective and tried solutions in order to start the case, to no avail.

[152]This Tribunal has reluctantly come to the conclusion that all alternatives to strike out of the claim are effectively doomed to failure. It is not even the case that, if the Tribunal postponed the hearing and explored further case management options, the hearing could go ahead without difficulty at a later date. The chain of correspondence indicates that (at a relatively early stage) the claimant has formed the immutable view that the respondents are “up to no good” and that the respondents should not be allowed to participate in the final hearing and put forward their defence to the claims. That is the substantive block to progress in these proceedings.

[153]This Tribunal discussed and reminded itself that it is expected to have broad shoulders and to provide a forum for all types of litigants, without fear or favour. The Employment Tribunal wants to make it abundantly clear that its decision to strike out the claim is not a thin-skinned reaction to the claimant’s manner of presentation, rather it is the last resort, all of the options having been exhausted.

[154]The claimant was repeatedly assured that the Tribunal wanted to hear the substance of his claims and decide them. The parties were both reminded of their duty to cooperate in furthering the overriding objective. The judge reminded the parties that the procedure and the process had to be manageable in order for both parties to have a fair hearing (which both claimant and respondents are entitled to.) The Judge reminded the parties that if the conduct of a party shows that a fair trial is no longer possible, then either a claim or a response to it can be struck out. Both parties can have been in no doubt, therefore, of the potential consequences. The Judge indicated that the parties should reflect on how they conducted themselves in the proceedings. With that in mind, and bluntly put, the Tribunal’s conclusions are that there has been a repeated pattern of unreasonable conduct by the claimant over time, culminating in the way that he has conducted the proceedings during the final hearing and, therefore, the grounds to strike out at rule 38(1)(b) are established.

[155]There have been repeated personal attacks on all, including the respondents themselves, the solicitors representing them, the barrister representing them and, one might say, a wholesale lack of respect for the authority of the Tribunal in managing its own proceedings. The fact that the claimant refused to stop contacting the managing partner at the respondents’ solicitors, rather than engage with the fee earner in the employment department, is indicative of his approach. Likewise, the fact that the respondents’ solicitors took the decision to refuse to take the claimant's phone calls and instead insisted on written communication tells its own story. We note that whilst the Tribunal was adjourned (on day 4) to deliberate and decide the applications, the Tribunal was copied in on two further emails from the claimant to the Tribunal and the EAT. Amongst a repetition of matters which had already been raised, the claimant indicated within those emails that he had lost faith in the Judge and considered that this Judge should have no further involvement with his case. For the avoidance of doubt, the claimant did not make any form of recusal application to the Tribunal during the hearing and did not indicate in any way that he intended to do so. Rather, he sent this email correspondence whilst the Tribunal was deliberating on both parties’ applications, and before he knew our decision. This additional correspondence was not addressed during the hearing and, therefore, formed no part of the decision-making process for the Tribunal on these applications. However, the correspondence does tend to suggest that, were this Tribunal to re-list the final hearing at a later date, the claimant would inevitably ask for a differently constituted panel to hear the case and read into the papers afresh, with the attendant duplication of work that that would entail.

[156]We record that there has been a repeated lack of cooperation, interruptions, and deflections from Mr Raftery. When solutions have been presented, the claimant has not volunteered to do the necessary in order to start the hearing. He characterises this as being required to “do the respondents’ job for them.” The reality is that he is being asked to do his fair share of preparation for the hearing, which is, in fact, the culmination of the proceedings that he chose to initiate in 2024. He has chosen not to provide a final hearing witness statement after Judge Kenward’s case management orders provided for this. This led to the Tribunal giving him an additional opportunity to provide a supplemental statement to deal with new documents in the bundle.

[157]The Tribunal has concluded again, reluctantly, that a fair trial is no longer possible, certainly not within the current trial window. We note that, given the way that matters have progressed this week, cross examination of the claimant is likely to take considerably more than the two days previously estimated. We would then need to provide adequate time for the claimant to cross examine the respondents’ two witnesses and for the Tribunal to receive the parties’ closing submissions. The Tribunal is confident that, even if the case were re-listed, this pattern of conduct is now so well established that it is likely to be repeated by the claimant. A fair trial at some future date is also not possible, given the likelihood of repetition of the claimant’s conduct. We record the fact that there have been four previous preliminary hearings in this case prior to the start of the final hearing. Those preliminary hearings have not resolved the problems in the case and a fifth such hearing is unlikely to do so.

[158]The Tribunal has concluded that there is no more proportionate sanction open to the Tribunal apart from striking out the claim. The first three days of the final hearing amounted to an exploration of alternatives to strike out through the provision of documents and exploring other options. Those alternatives have been explored and the exercise ultimately proved fruitless. Furthermore, any later trial would now be listed in late 2027 or early 2028 and the further passage of time would further degrade the quality of the witness evidence on all sides.

[159]Whilst the claimant is a litigant in person, due consideration has been given to this. The Tribunal has not expected the claimant to behave as a professional representative. The Tribunal's expectations have been appropriately adjusted to take account of his litigant in person status. However, it is the Tribunal's experience that litigants in person can (and frequently do) manage to comply with Tribunal procedures and participate fairly proceedings up to, and including, in the final hearing. The claimant's status as a litigant in person is not the reason that his case is being struck out. The unreasonable conduct is not attributable to a lack of legal advice or legal knowledge, rather to an unwillingness to follow the Tribunal’s instructions and directions during the proceedings and to cooperate with the Tribunal’s procedures to ensure a fair hearing for all.

[160]Likewise, the Tribunal is aware that the claimant is disabled by reason of anxiety and depression. It has been mindful of this fact throughout and has sought to accommodate the claimant's needs. For example, he has been offered breaks and time out of the hearing room in order to locate documents without the presence of the other parties or the Tribunal. Even allowing for the claimant's disability, it has still been impossible to progress the case. The claimant was not required to attend the tribunal premises on the second day of the hearing and so had the opportunity to prepare what he wanted to say on day 3 and to locate the documents that he wanted us to consider. He did not do that, and so we took all morning on day 3 so that he could identify the particular documents that we should be considering. The Tribunal's experience is that litigants with the claimant's stated disabilities are also able to participate fairly in Tribunal proceedings and assist in furthering the overriding objective. The Tribunal has taken all reasonably practicable steps to avoid the disability forming a barrier to the claimant's fair participation in the proceedings. We have concluded that there has been a deliberate and persistent disregard for the Employment Tribunal’s orders and procedure. We have reached the point of no return.

[161]The Tribunal is satisfied that the claimant’s conduct in the proceedings has been repeatedly unreasonable. It is unlikely to improve. A fair hearing is no longer possible. A lesser sanction is not sufficient or appropriate in this case. On that basis, and having considered all alternatives, we have concluded that the claim should be struck out. The respondents’ costs application

[162]The Tribunal has also concluded, for the same reasons as we have set out above, that this amounts to unreasonable and disruptive conduct by the claimant (rule 74(2)(a).) The respondents have established one of the permitted grounds for making a costs order. The respondents have limited the amount of costs claimed to reflect the time that has effectively been wasted during this ineffective final hearing. The respondents sought counsel’s brief fee for day 1 of the hearing plus two refresher fees for attendance on days 3 and 6 of the hearing. VAT is claimable. This is a claim for £6000 plus two refreshers of £1500. With VAT that gives a total of £10,800.

[163]The Tribunal has reminded itself that an award of costs is not automatic. First, the grounds for a costs order need to be established (which the respondents have done.) Then the Tribunal has to decide whether to exercise its discretion to make an award of costs and, if so, in what amount. Rule 82 provides that we may take into account the paying party’s ability to pay. The parties were reminded to bring any relevant evidence of financial means for the Tribunal to consider in relation to the costs application by an email sent on Friday 26 June, before the Tribunal reconvened with the parties to make a decision on Monday 29 June.

[164]The Tribunal invited the claimant to present any documentary evidence in relation to his ability to pay during the hearing. He emailed a letter from the DWP confirming that he was entitled to contributory Job Seekers Allowance of £92.05 per week from 9 October 2025. The claimant confirmed that his JSA entitlement ended on 8 April 2026 and that he remained unemployed and had a disability.

[165]The claimant was reluctant to elaborate further on his financial circumstances. The Tribunal asked him a number of questions verbally in order to glean what it could about his ability to pay. He was reluctant to answer some questions and refused to answer some. The information that the Tribunal had was:• The claimant maintained that he was not in receipt of any other state benefits (e.g. disability or housing related.)

• The claimant said that he had some savings but would not tell us how much money had saved.

• The claimant says that he is supported financially by family and friends but would give no further details of this.

• The claimant would not tell the Tribunal whether he rented his home or owned it via mortgage. He also would not tell us how much he had to spend on living accommodation.

• The claimant confirmed that he has £6000 debt on a credit card but did not tell us the credit limit and did not suggest that he had used the full credit facility. He did say that the credit limit had been reduced, (this would be understandable, given his employment status.) It is possible that he has access to additional credit on the credit card.

• When asked if he could tell us any more about his circumstances the claimant appeared to read from his mobile phone and told us that he paid Council tax £2000 p.a. (approx.), car insurance of £700 p.a. (approx.), broadband charges of £300, mobile phone at £120, road tax £250, MOT £50, fuel £2000 p.a. (approx.), utilities (gas, electric water etc) £3000 p.a. (approx.) He also pointed out that he had to pay for medication, toiletries, food, opticians, dentists and the like. (The claimant reading from his phone tends to suggest that the claimant had access to other documents which he did not share with the Tribunal).

• The claimant was reluctant to tell us whether he owned a vehicle. Upon enquiry he confirmed he had a 21-year-old Ford Focus.

• When asked how he was supporting himself financially, he referred to the support of family and friends. He had one other person who was supporting financially in the household.

• He maintained that he was not about to start any new employment and that he had no job interviews in the near future.

[166]The claimant’s schedule of loss also indicated that he had been in a temporary health and safety job between 9 September 2024 and15 January 2025 and he gave credit for £19,855.31 earnings in that role.

[167]The Tribunal observes that it has very little information provided to it to assist in assessing the claimant’s means to pay costs. The claimant was markedly reluctant to provide such information, despite the Judge explaining that this was ultimately to his benefit so that we could consider whether he would be able to afford any costs order. He did not wish to answer some questions, and he is entitled to withhold information should he choose to do so. The Tribunal noted that the claimant was less reluctant to supply details of his financial outgoings than of his income and financial assets. Given the claimant’s approach to the process, the Tribunal is not able to make a meaningful assessment of his ability to pay a costs order. We merely observe that the claimant has an unspecified amount of savings and access to a credit card facility. He has the usual financial outgoings, although we do not know the amount of his accommodation costs, (which are usually the biggest item of monthly expenditure.) The Tribunal gave the claimant every opportunity to help it understand his financial circumstances, with only limited effect.

[168]In the circumstances the Tribunal was not meaningfully able to assess the claimant’s ability to pay because the claimant has not furnished us with that information. The Tribunal cannot say that the claimant would be unable to pay the full amount claimed by the respondents. Nor can we be sure that he can afford it. The claimant has obstructed our efforts to take this into account. The Tribunal notes that the respondents have already reduced the amount of costs that they could have claimed significantly. For example, they have claimed nothing prior to the final hearing. They have claimed nothing for the solicitor’s time and have claimed nothing for counsel’s time away from the hearings when he was addressing issues of disclosure, hearing bundles, and otherwise responding and adapting to the developments in the case. The amount claimed reflects the time spent on the ineffective/wasted days during the final hearing. It is proportionate.

[169]Taken in the round, the Tribunal has decided that it is appropriate to exercise the discretion and make a costs order in the respondents’ favour. This is not a punitive step, to punish the claimant. The order is designed to compensate the respondents for the costs thrown away by attending at a final hearing which was not effective, as a result of the claimant’s unreasonable conduct of the proceedings. It does not compensate them for the costs of having to defend the case as a whole. We have considered whether it is fair and just to impose a costs order on the claimant in circumstances where his claim has been struck out. However, we are mindful that the claimant has been given adequate warning of the risk of costs, and he has been advised how he needed to change his approach in order to have his claim heard and further the overriding objective. Repeated interventions from the Tribunal did not bear fruit. When given the choice to start the evidence or pursue a strike out application which was, in the main, a repetition of an application which had already been heard and decided two days before, he chose the latter course. It was not possible to manage the tribunal proceedings fairly as a result of the way that the claimant chose to engage with the process. On balance, and giving due weight to the claimant’s status as a litigant in person and someone with a disability, the Tribunal decided, unanimously, to make an award of costs to the respondents in the full amount claimed, which has been assessed on the standard basis. Approved by: