Mr J Goodheart v Sunrise Records and Entertainment Ltd: 6006290/2024
EMPLOYMENT TRIBUNALS
Case No 6006290/2024
Between
Mr Jasper GoodheartClaimantSunrise Records and Entertainment LimitedRespondent
Before
Employment Judge Jones KCIn person for claimantMr Piers Chadwick for respondentDate 30 April 2025
REASONS
[1]The Claimant has made an application for the response to his claim to be struck out. Initially, at least, the application was put before me on the basis that: - The Respondent had repeatedly failed to comply with disclosure directions, including right up to current events, a few weeks before the tribunal. - The Respondent had misused the DSAR process as a proxy for litigation disclosure. - There was a pattern of selective and obstructive behaviour on the part od the Respondent.[2]In the course of submission, the first ground expanded to include failure to comply not just with the disclosure direction but with the bundle and witness statement directions too. It also encompassed alleged failures to comply with directions made by EJJ Sudra and Abbot.[3]The first ground invokes Rule 38(1)(c) – “non-compliance with … an order of the Tribunal”. The second and third grounds are best understood as falling within Rule 38(1)(b), i.e. that the “manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious”. I deal with each in turn. (a) Non-compliance[4]From the perspective of a litigant-in-person, there is no reason to think that a failure to comply, to their satisfaction, with an order should not be punished swiftly and severely. It is true that a party who fails to comply with an order “is at the mercy of the tribunal” (Harris v Academies Enterprise Trust [2015] IRLR 208) and that the red card of strike out is available without there having been the yellow card of an unless order.[5]However, as the overriding objective makes clear, the aim is to “[avoid] unnecessary formality and [seek] flexibility” so as to deal with cases fairly and justly. Because fairness and justice is the overriding objective, the Tribunal has to be satisfied not simply that there has been a breach of one or more rules or orders but that striking out is a proportionate response. Paragraph 12 of Guidance Note 12 of the Presidential Guidance on General Case Management also warns against too strict an approach to compliance: “In some cases parties apply for strike out of their opponent at every perceived breach of the rules. This is not a satisfactory method of managing a case.” The purpose of Tribunal orders is to ensure that disputes can be resolved fairly. They are not an end in themselves. Strike out is a draconian measure. It can prevent a party from being able to advance their case at all which has an obvious impact on fairness of the proceedings. The case for a strike out will be clearest where refusals or failures to comply are deliberate; where their aim is to place the other party at a disadvantage; or where they make it impossible for there to be a fair hearing. At the other end of the spectrum are cases where there has been a “technical” breach, i.e. a breach that could not reasonably be understood to adversely impact the other party or the proceedings. Between those poles are of differing degrees of seriousness.[6]The approach required of the Tribunal here is to ask first whether there has been a breach by the Respondent of one or more orders and, if that threshold condition is met, whether strike out is a proportionate response. (i) Has there been non-compliance and would strike out be proportionate?[7]I set out below a short chronology of the disclosure process to date:7.1 The claim was presented on 21 July 2024;7.2 A notice of claim was sent on 22 July 2024. It contained certain directions, including a direction in respect of disclosure: “By no later than 16/09/2024 – The claimant and respondent must send each other copies of all the documents they have relevant to the claim …” The directions contained the standard non-compliance warning: “If any of these orders is not complied with, the Tribunal may:(a) waive or vary the requirement;(b) strike out the claim or the response;(c) bar or restrict participation in the proceedings; and/or(d) award costs in accordance with the Employment Tribunal Rules.” The directions did not suggest that the parties were able to agree short extensions to deadlines between them. Instead, it is said that “anyone affected by any of these orders may apply for it to be varied, suspended, or set aside”.7.316 September 2024 came and went without either party complying with the direction and, so far as the Tribunal’s records reveal, without either party having made an application to extend the deadline. It seems that the parties agreed between them to extend the deadline to 24 January 2025. That is, of course, more than 4 months after the original deadline and almost half of the time allocated for preparation ahead of the April 2025 final hearing date. Although this did not in and of itself make the loss of the final hearing dates inevitable, it did mean two things:7.3.1 That the other, dependent, deadlines were missed. The parties were directed to agree upon what documents should be used at the final hearing, with the Respondent preparing a bundle (30 September 2024). They were also to exchange witness statements (14 October 2024); and7.3.2 Leaving matters late meant that if there were disputes over disclosure, there was a real risk that they would not be resolved in time for the final hearing.7.4 On 18 January 2025, the Claimant made an application to extend the deadline for “submitting [his] evidence” by which I understand him to mean provide his disclosure from 24 January 2025 for a further period of “at least another 3 weeks”. At that point, therefore, the Claimant’s position was that he needed significant extra time to comply. The Respondent’s assumption was that in the light of the application, the deadline for exchange would be further extended.7.5 On the same day, the Claim ant made what is, in substance, an application to the Tribunal in the form of a data subject access request. The Claimant specifically evoked the GDPR and the Data Protection Act 2018. He also wrote directly to the Respondent’s HR department making a request. The Respondent’s position is, in effect, that the DSAR exercise was significant and resource-intensive and that a decision was taken to roll the disclosure exercise into the response to the DSAR.7.6 Again on 18 January 2025, the Claimant wrote to the Tribunal “seeking guidance”. In the course of the communication the makes a “[formal] request” for a video that he says would significantly support his case. The video is said to be owned by an individual whom he does not identify at that point but who is now known to be Romi Scott who still works for the Respondent. He also says that he is unsure whether the video still exists and “if possible” would like it to be determined whether the Respondent has influenced the employee to withhold or delete the video.7.7 Notwithstanding his own application for an extension, the Claimant then provided his disclosure on Friday 24 January 2025. Taken by surprise, the Respondent then provided its own disclosure on Monday 27 January 2025, the next working day. However, in the light of the DSAR request, the Respondent accepted that there would have to be a review of the material produced in response to the request.7.8 On 29 January 2025, the Claimant contacted the Tribunal by telephone, amongst other things, he touched on the issue of disclosure saying that he had now received some documents from the Respondent, but he was unsure whether that was late disclosure or a response to his specific request. He also suggested that he thought that the disclosure provided had been incomplete.7.9 On 30 January 2025 EJ Sudra extended the disclosure deadline to 14 February 2025. The letter also dealt with the video: “If the Claimant is seeking documents/a video from the Respondent, he must make a request directly to the Respondent. The Respondent must provide the documents/video requested by the Claimant within 14 days of the request having been made or, explain why it cannot provide the material requested.” The effect of the Tribunal direction was that the Respondent would have 14 days from the date that it received any specific disclosure request from the Claimant to respond. That would not be sooner than 13 February 2025 (given the date of the Tribunal letter), but might, of course, be longer.7.10 On 13 February 2025 Mr Chadwick, acting on behalf of the Respondent, wrote to the Claimant saying that he could not be satisfied that the Respondent would have complied with its disclosure obligations until he had seen what documents were produced in response to the DSAR. Anticipating that that would take time, he raised the prospect of postponing the trial to allow disclosure to be properly completed and for witness statements to be prepared. The Claimant’s response was to insist on disclosure being completed by 18 February 2025.7.11 On 14 February 2025, the Claimant wrote again to the Tribunal summarising discussions with the Respondent. The immediately relevant points are:7.11.1 The Claimant says the Respondent’s initial disclosure was “late and incomplete” identifying as missing the video referred to above and “internal correspondence regarding [his] grievances”;7.11.2 The Claimant says that a “final disclosure deadline” had been set (he does not say by whom) and that he would not be prepared to agree to any further extensions; and7.11.3 The Claimant complains that the Respondent has used the DSAR exercise as an excuse to “delay fulfilling their responsibilities”. The Claimant threatens to “escalate” in the event of further failure to comply.7.12 On 19 February 2025 the Claimant wrote to the Tribunal making a specific disclosure request for four categories of document:7.12.1 The video referred to above which is now identified as having been in the possession of Romi Scott;7.12.2 “All internal emails and correspondence (including WhatsApp messages) related to the [the Claimant’s] grievance, absence and signed-off illness”;7.12.3 Payroll records (including SSP calculations and deductions); and7.12.4 Any internal investigation notes or witness statements regarding complaints against [the Claimant’s supervisor, Mr Batchelor].7.13 On 4 March 2025, Mr Chadwick told the Claimant that the Respondent had been told by Romi Scott that there was “no recording on their phone in relation to the issue [the Claimant had] referred to.”7.14 On 13 March 2025, the Claimant requested a strike out of the ET3. His application contains the following summary: “The respondent’s response should be struck out under Rule 38 due to: - False and misleading claims in their ET3, making their response vexatious and lacking reasonable prospects of success. - Unreasonable and obstructive conduct, including selective disclosure, suppression of evidence, and delays. - Failure to comply with tribunal orders, repeatedly missing deadlines and withholding crucial documents. - The inability to have a fair hearing, given the respondent’s obstruction and suppression of key evidence.”7.15 The Respondent wrote in response on 17 March 2025. In relation to disclosure the Respondent said: “The Claimant is fully aware that the Respondent has made full attempts to comply with their obligations regarding disclosure. The Claimant has submitted an extensive DSAR and as part of that process the Respondent is required to analyse over 20,000 lines of messages to determine which message and documents are relevant to the disclosure request and relevant to these proceedings. The Claimant has been clearly advised that there are finite resources within the Respondent to carry out this exercise and they are working as quickly as possible to ensure that both the DSAR and ET disclosure process is completed fully. Had the Claimant not submitted a DSAR these resources could have been allocated to work exclusively on the ET disclosure. This process is continuing and as soon as practically possible the Claimant will be provided with the disclosure that he has requested.”7.16 On 24 March 2025, the Claimant contacted the Tribunal and complained that the Respondent had not yet provided their “full disclosure evidence”.7.17 On 31 March 2025 Employment Judge Abbot directed the Respondent to confirm within 7 days that it: “has provided all documents that are relevant to the issues in this case, and when it did so. If it cannot provide that confirmation, it must explain why it has not complied with the Tribunal's order”. Any question of strike out was to be held over for consideration on 24 April 2025.7.18 On 6 April 2025 the Claimant wrote to the Tribunal to say that the Respondent had provided what it described as its “full disclosure”. This appears to have consisted of the material generated by the DSAR exercise. As the Respondent now accepts that had the consequence that there had been redactions which were perhaps appropriate for a DSAR response but were inappropriate for a disclosure exercise. A further problem was that there was a great deal of material and both parties would need to review it carefully in order to be satisfied that disclosure obligations had been complied with. The Claimant also points out that sending him documents would not meet the requirement imposed by EJ Abbot to confirm to the Tribunal that disclosure had been made.7.19 On 7 April 2025 the Claimant wrote again to the Tribunal complaining of an ongoing failure on the Respondent’s part to comply with disclosure obligations and identifying a number of specific documents with which the Claimant wished to be provided. Three of them are of particular significance because they formed the basis of the specific disclosure application that I heard:7.19.1 “Sick Note Metadata”. On 4 April 2024, the Claimant submitted a fit note. He says that Mr Batchelor’s behaviour had caused him to have a breakdown. Notwithstanding the note he was then chased by the store manager who had not seen the note and believed that the Claimant was failing to follow sickness reporting procedures1. The Claimant says that he logged into the email system and found his email in the “spam” folder. He believes that the metadata will help establish whether the system directed his email to that folder or whether, as he suspects, someone moved it there.7.19.2 WhatsApp Communications - Private chats where he is discussed. The Claimant believes that his regional and store managers, his supervisor and the HR manager talked about him in private chats (and not just workgroup chats).7.19.3 Video evidence The video taken by Romi Scott (and, at that point, any documentation relating to it). The Claimant protests the conflation of DSAR response and disclosure and reiterates his desire for the Tribunal to strike out the defence albeit on slightly different grounds. The three grounds now relied upon were: 1 That being the “last straw” identified above. - Repeated failure to comply with disclosure directions, including right up to current events, a few weeks before the tribunal. - Misuse of the DSAR process as a proxy for litigation disclosure. - Pattern of selective and obstructive behaviour.7.20 On the same day the Respondent wrote to the Tribunal confirming that it had provided the Claimant with its disclosure on 7 April 2025. It suggested that the better course was now to postpone the hearing. It defended combining the DSAR and disclosure processes on the basis that the DSAR request had been “extensive” and that “resource availability” had meant that it had not been possible to undertake separate exercises.7.21 The Claimant wrote to the Tribunal on 10 April 2025 complaining that the documents had been redacted so as to remove every name other than his own which he considered to be obstructing access to evidence that was critical to his case. He once again requested that the defence be struck out.7.22 On 17 April 2025 Mr Chadwick made a renewed application for a postponement saying that neither he nor the Claimant had been able to review the “vast” quantity of disclosure that the Respondent had provided on 7 April 20252. He posints out that a hearing imminent there is no bundle and witness statements have not been finalised. The Claimant wrote the same day confirming that he was still working through the material which he suggests was “in a heavily redacted, disorganised, and incomplete format”.7.23 On 22 April 2025, Mr Chadwick chased the postponement application.[8]In this case neither party complied with the original direction. The Claimant says he has a good excuse and the Respondent does not. I have not had to consider that issue because the parties agreed an extension between them. That sort of co-operation is what the overriding objective anticipates and encourages. There is always a need, within reasonable bounds, for flexibility. I observe that, given how long the extension was, it would have been better if an application had been made to the Tribunal by one or both parties. Neither, initially, did so. However, given that the Claimant agreed an extension (and, indeed, needed one himself) I do not consider I can count the Respondent’s failure to comply with the original deadline as the sort of default that might justify a striking out.[9]Next it is said that the Respondent missed the extended deadline by three days. In fact, it was missed by one working day. That delay seems to have arisen because the Claimant had himself asked for a significant further extension and the Respondent was anticipating (perhaps optimistically) that the deadline would be likely to move back. Taking it at its highest, I do not consider a three day delay to be sufficient to make strike out begin to look like a proportionate response.[10]Then it is said that such disclosure as had been given in January 2025 was incomplete partly because the DSAR response included material that had not been included in the original disclosure and partly because both sets of disclosure documents excluded those 2 The email refers, in error, to 6 April 2025 now sought by means of an application for specific disclosure. I do not consider that either contention makes this a suitable case for strike out. The disclosure obligation is not to find every relevant document but to carry out a proportionate search. That even a significant document emerges in response to the DSAR does not necessarily indicate that earlier disclosure has been improperly selective. In fact, the material disclosed following the DSAR points the other way. If a party were acting in bad faith it is hard to understand why it would supress a document during an initial disclosure exercise only then to send it out in response to a DSAR.[11]Parties often disagree about whether a particular search is proportionate or whether a particular category of documents is relevant. Such disputes lead to specific disclosure applications. If a party has resisted performing a particular search or disclosing a particular document and the Tribunal compels them to do so it could be said that there had been an earlier failure to comply with the general disclosure obligation. However, successful specific disclosure applications do not usually lead to strike out applications. Specific disclosure is precisely one of the tools available to a tribunal to ensure that the proceedings overall are fair and just. It is part of the flexibility that the overriding objective requires. I do not consider that the further specific disclosure volunteered or ordered is suggestive of the sort of default that could justify striking out the defence. The Claimant is himself now the subject of a specific disclosure order relating to personal WhatsApp messages on his phone. I would be equally disinclined to entertain a suggestion that his own late disclosure justified a strike out.[12]A further criticism is that in so far as the DSAR was relied upon as a litigation disclosure exercise that was inappropriate and resulted in inappropriately redacted documents. This criticism is well-founded. The Respondent says in reply that it simply did not have the resources to do both a DSAR and disclosure exercise. As the DSAR request was made shortly before initial disclosure occurred, there was insufficient time to review the DSAR documents to determine whether any fell to be disclosed in the litigation. In the light of EJ Abbot’s order, the Respondent seems to have taken the view that the safest course was simply to send everything. The implicit suggestion is that the Claimant created the situation with his DSAR request and that it is unfair of him then to complain that the Respondent did what it reasonably could in the very little time it had available. The Respondent had tried to meet the difficulty by suggesting an adjournment of the hearing, but the Claimant had not engaged with the proposal. I have some sympathy for the Respondent’s position. The DSAR request appears to have been made less than a week before the extended deadline for disclosure was due to expire. Where I think the Respondent can properly be criticised, however, is in respect of the provision of redacted documents. Unless the Respondent, unusually, redacted the only copies of the documents that they had, an unredacted set of documents was available for disclosure at the same time as the DSAR response. The redactions are relevant for another reason. The redaction process requires at least some level of review of the documents. It has not been explained to me why the documents could not have been reviewed for relevance at the same time that they were reviewed for redaction. The correspondence seems to suggest that the former process was being reserved to Mr Chadwick whereas the latter was performed by the Respondent directly, but that was not the only possible division of responsibilities.[13]Whilst I am critical of this aspect of the disclosure process, I do not think it would justify striking out the defence. That would not, in my view, be proportionate to the seriousness of the breach. That is also true, in so far as any breach of the orders made by EJJ Sudra and Abbot can be made out, of those breaches.[14]As disclosure was the first direction, the late compliance has meant that other directions have also inevitably not been met, but it seems artificial to me to look on them as distinct breaches as the Claimant invites me to.[15]It is necessary to take a step back and look at all the breaches contended for in aggregate as well as individually. Even then, I do not consider that they establish a pattern of noncompliance that puts in danger the fairness of any final hearing, nor are they, in my view, indicative of an attempt to “game” disclosure so as unfairly to disadvantage the Claimant. The Claimant, I appreciate, feels very differently. From his perspective strike out is a just and necessary sanction. I am not persuaded that it is. (b) Unreasonable conduct of proceedings[16]The first ground relied upon under this heading is that the Respondent had misused the DSAR process as a proxy for litigation disclosure. I have already dealt with this at paragraphs 12 and 13 above.[17]The second ground relied upon is that there was a pattern of selective and obstructive behaviour on the part of the Respondent. The behaviour relied upon appears to consist largely of the matters dealt with above. The Claimant has not identified any other behaviour that would, in my view, justify the draconian sanction of strike out.
Conclusion
[18]The Claimant’s application for a strike out is rejected.[19]I deal with two other matters very briefly. First, after I announced my decision on strike out, the Claimant sought to persuade me that an exchange of WhatsApp messages between his Regional Manager and the HR Manager meant that the defence had no reasonable prospect of success. That was not a ground pursued before me prior to my decision, at least as I had understood the Claimant’s submissions. However, I do not think it would have made a material difference to outcome if it had been. Taking the messages at their highest they would suggest that the HR Manager had an antipathy towards the Claimant and thought his grievances against the Regional Manager were groundless. That, the Claimant says, establishes that she lacked neutrality. Assuming that that proposition were to be established, would that dispose of the defence? The short answer is no. At the hearing before me the conduct relied upon in support of the Claimant’s contention that he was constructively dismissed was clarified. The conduct that he relies upon does not, as matter presently stand, include the manner in which his grievances were handled. Instead, his claim is focused on the conduct investigated. The document he showed me does not go to that issue.[20]Second, failure to comply with tribunal orders has resulted in a lost hearing. That has meant the hearing having to be relisted in 2026 and two days of tribunal time being wasted. From the Claimant’s perspective, that is entirely the fault of the Respondent. I do not think that is entirely fair. For instance, the Claimant’s wish to introduce a discrimination claim would likely have been sufficient on its own to have lost the fixture. However, at this point, the precise distribution of blame is less important than the need for both parties to commit to co-operating to ensuring that there is no further unnecessary delay to the proceedings.