Employment Judge MidgleyIn person for claimantMiss Iqbal (instructed by Counsel) for respondentDate 31 March 2026
REASONS
[1]It is necessary to set out the background to the application before I address its substance.
The claim
[2]The claims arise from the claimant’s employment with the respondent but predominantly events in the period June and July 2024. The details of the claim are set out in the case management order which is of even date to these reasons. The claimant began conciliation on 23 August, obtained a certificate on 25 September and presented the claim on 29 September 2024. The Amendment Application[3]On 6 March 2025 the claimant sent a 30 page document to the tribunal, which contained an amendment application. The claimant had presented a new claim form, which referred to an updated particulars of claims. Amongst the attached documents was a document entitled ‘Particulars of Claim’ which the claimant confirmed contained the amendment application.[4]During the course of the hearing on 17 July I sought to clarify with the claimant the claims and issues contained in the claim form. I took time to read the documents attached to the claim in their entirety and to identify the factual allegations and legal claims identified in them so as to assist the claimant. I then discussed the resulting list of claims with the claimant, explaining the component elements of the various legal claims and seeking clarity from him as to which claim he was making in relation to each of the factual allegations. The claimant was compliant and polite during that process.[5]I then sought to clarify the details of the amended claim with the claimant. He told me that: 5.1. The additional six corporate respondents were added in relation to the blacklisting claims; 5.2. The nine additional individual respondents were added in relation to the blacklisting and disability discrimination claims (which he sought to add by amemdment).[6]I sought to clarify the precise details of the claims he wished to add by amendment, which were limited to claims of victimisation and blacklisting.[7]The claimant was not able to provide me with the details of the detriments he asserted had resulted from his black listing or, in relation to the victimisation claims, the details of protected acts or the detriments, so as to flesh out the very bare details contained in the application.[8]I then heard argument from the claimant and the respondent in relation to the claimant’s application. I asked the claimant to address me on why the application was made on 6 March 2025 and not before, what the reason for the delay was given the complaints related to events which appear from the application to have occurred in the period June to July 2024, but the application was made on 26 June 2025. Lastly, I asked him to address me on the balance of prejudice caused by permitting or refusing the application.[9]The claimant stated that he had only discovered the facts that gave rise to the black listing claims when an offer of employment which he had received was withdrawn following a request to for reference to the respondent; after which he said that he had not even been able to secure an offer of an interview from any application he made. He said that he had experienced poor health and poverty which had affected both him and his family.[10]In relation to the balance of prejudice the claimant stressed that he was a disabled litigant in person, the respondent had been aware of the allegations at the time and refusing the application would have the effect of denying him the opportunity to recover losses reflecting the severe consequences of the blacklisting, namely that he could not secure a new role in the sector in which he was trained.[11]Miss Iqbal stressed that even at the time of the application the precise allegations were wholly unclear and would require further hearings and thus tribunal resource to clarify, causing further cost to the respondent. Critically, she pointed to the fact that the claimant could not articulate the detriments he relied upon for any Regulation 9 claim against his employer. She argued that the claimant would not be denied a remedy if the application were refused because several of his complaints relating to his dismissal were already before the Tribunal. She stressed that the claims, if permitted, would be significantly out of time.
The Applicable Law
[12]The law is well known and only the key authorities will be referenced in this Judgment. First, Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 at 657BC: “In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”[13]Secondly, Selkent Bus Co Ltd v Moore [1996] ICR 836 at 843D: “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”.[14]The relative injustice and hardship (often referred to as the balance of prejudice) are the paramount considerations, but others factors include the nature of the amendment, whether the amended claim would be in time and the timing and manner of the application (i.e. the reasons for the delay, including whether the claimant had been provided with legal advice).[15]In relation to the nature of the amendment, a distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without attempting to raise a new distinct head of complaint;(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often called “relabelling”); and(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.[16]Mummery J in Selkent suggests that this aspect should be considered first (before any time limitation issues are brought into the equation) because it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from “relabelling” the existing claim. If it is a purely relabelling exercise than it does not matter whether the amendment is brought within the timeframe for that particular claim or not – see Foxtons Ltd v Ruwiel UKEAT/0056/08. Nevertheless whatever type of amendment is proposed the core test is the same: namely reviewing all the circumstances including the relative balance of injustice in deciding whether or not to allow the amendment (that is the Cocking test as restated in Selkent).[17]The factors are neither an obligatory checklist or a straight-jacket for a Judge when exercising their discretion (see Safeway and Abercrombie and others v Aga Rangemaster Ltd [2014] ICR 209 at paragraph 47).[18]A judge may produce a list of the factors, identifying those pointing towards permitting the amendment and those against it, and determine where the balance lies, but is not obligated to. The nature of the enquiry is always a balancing act; no one factor is always to be treated as carrying any particular weight: “It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice” (Vaughan v Modality Partnership UKEAT/0147/20/BA at 26)[19]Where an amendment takes form of relabelling or providing more detail of an existing claim the prejudice caused to the respondent is likely to be limited indeed; where a new claim is introduced it is more likely to be considerable. Always, however, the focus must be not on the classification but rather: “… on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.” (Ambercrombie at 48)[20]The fact that an amendment will introduce a claim which is out of time is a factor, but is not determinative (Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07). The balance of justice is always key.[21]The burden of persuading the Tribunal that amendment is in the interests of justice rests on the party making the application, and it is helpful to remind oneself of the comments in Vaughan at para 22 in relation to that issue: “Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need. This requires an explanation of why the amendment is of practical importance because, for example, it is necessary to advance an important part of a claim or defence.”[22]Langstaff P made the following observations in Chandhok v Tirkey [2015] IRLR 195 EAT from paragraph 16: “The claim, as set out in the ET1, is not something to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning … the claim as set out in the ET1. [17] … If a claim or a case is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendment; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in light of the identification resolving, the central issues in dispute. [18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time ground; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand-in-hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverting into thinking that the essential case is to be found elsewhere than in the pleadings.” Discussion and conclusion[23]The blacklisting and victimisation claims are new claims. The claimant has not hitherto identified any blacklisting claims within the pages of his claim form or the nine page particulars attached to it. In relation to the victimisation claim, it is impossible to ascertain whether the substance of the factual matrix relied upon by the claimant already forms the substance of his existing claims because the amendment contains no particularisation of the detriments or the protect acts. I note that there can be no overlap between the protected interest disclosures themselves and the protected acts as the former relate to specific technical aspects of the claimant’s role, and the latter would have to relate to his disabilities which formed no part of his protected disclosure.[24]The victimisation claims are necessary therefore ‘new claims,’ although I am prepared to accept that in the articulation of the detriments it is possible (but not certain) that the claimant might rely matters which are already identified as complaints of other forms of discrimination under the Equality Act, and might therefore involve the ‘relabelling’ of existing fact/allegations. The difficulty is that there is no clarity as to what the detriments are.[25]In relation to the blacklisting claims, these clearly consist of entirely new causes of actions and new factual allegations will be needed to be included to rely upon them. The claims will require extensive further particularisation: it is not clear and the claimant could not clarify: 25.1. Whether the claims were pursued under Regulations 5, 6 or 9 25.2. If the claims were pursued under Regulation 5, whether the claims were pursued against R or one of the six additional corporate respondents, 25.3. If the claims were pursued under Regulation 6, which employment agency was alleged to have withdrawn an offer of employment 25.4. If the claims were pursued under Regulation 9, what the details of any detriment were, and who was said to have done the act constituting the detriment or when they did it.[26]The claims of victimisation must, on any basis, have been presented significantly out of time, given the claimant’s employment ended in July 2025, and the amendment application was made in March 2025, but was to be determined in July 2025, a year after the employment ended. Whilst allowance would be made for the fact that the determination of the amendment was delayed between March and July 2025, it must also be borne in mind that parties to litigation should understand that applications to amend cannot be heard and determined simultaneously with any application and the pressure on Tribunal resources means that there will necessarily be some delay before they can be determined.[27]The black listing claims appear to have been presented out of time given the claimant’s employment ended in July 2024 and his efforts to secure a new role would have occurred in the months after that. The precise dates of the alleged breaches and, indeed, the conduct said to represent the breaches, is not immediately clear.[28]That they are out of time is one factor to be considered, but is not determinative. It does, however, sound in relation to the prejudice to the claimant if the application is refused – what he is losing is the right to bring claims which are out of time.[29]I next consider the claimant’s explanation for the timing of the application. Whilst I am sympathetic to the personal circumstances which have affected the claimant and his family, I am not persuaded that those circumstances have had the effect that he could not have presented the claims by amendment earlier and in time. First, he has produced no medical evidence which demonstrates that he could not present the claims in the period July 2024 to October 2024. Secondly, the claimant could have included the victimisation claims in the claim form he presented in September 2024. I remind myself that that claim was 9 pages long. I further note that between September 2024 and July 2025 the claimant corresponded with the Tribunal when he required to. He was therefore clearly able to present the claims by amendment in that period ending in October if he wished.[30]Lastly, the balance of prejudice. In the column supporting the granting of the application lies the fact that there may some overlap with the factual matrix of the existing claims. The respondent is therefore likely to rely upon the evidence of the same witnesses it is already proposing to call to address the breach of contract allegations.[31]However, the column addressing the factors against granting the application is significantly larger and consists of the following: 31.1. The blacklisting claims are significantly out of time, even were they to be added by amendment they are likely to be found to be out of time at the final hearing. The respondent would therefore be put to considerable additional cost in defending claims which are likely to be dismissed at the conclusion of the final hearing because the claimant has little reasonable prospect of demonstrating that it was not reasonably feasible to have presented them in time. There is no just and equitable discretion that can be called upon. The victimisation claims would be found to be out of time (if they relate to events during the claimant’s employment) and it is unlikely that time would be extended on the basis of the evidence currently presented to me. 31.2. The claims are poorly particularised and difficult to understand; even at the date of the application, the claimant was unable to identify the specific details of the allegations (i.e. who did what and when, which constituted a breach of contract). Consequently, further time and resource would be required to be used to clarify the claims. 31.3. The victimisation claims will be unlikely to add to the value of the claimant’s existing claims but will only operate to consume more of the limited resources of the Tribunal and the Respondent, the latter of which is a public body. 31.4. The only prejudice that that claimant can identify is that he will be denied the opportunity to seek the vindication of his rights that he wants and to claim losses flowing from his failures to secure further employment; that is not the equivalent of being denied the opportunity to present an essential element of his claim. The claimant already has substantial claims which have been validly presented to the Tribunal and, if they succeed, he will be entitled to losses flowing from his dismissal, including loss of earnings. He will need to show that he has made reasonable efforts to secure new employment to mitigate his losses; he is not therefore without remedy for the loss of earnings.[32]Weighing all those matters in the balance, I unhesitatingly concluded that it the balance of prejudice favours refusing the application.[33]The application to amend is therefore dismissed. Approved by
The Applicable Law
[1]The Claimant was employed by the Respondent as an electrician at a civil engineering project, Hinkley Point C. He brings claims for unfair dismissal, disability discrimination, whistleblowing and wrongful dismissal (notice pay).[2]On 10 March 2025 the Respondent applied for the claims to be struck out in their entirety under Rule 38(1)(a), (b) and (e) of the Employment Tribunal Procedure Rules 2024. The Respondent relies on a series of intimidating messages sent by the Claimant to the Respondent’s employees after his dismissal.[3]On 17 July 2025 there was a case management preliminary hearing before Employment Judge Midgley, who directed that a public preliminary hearing should take place on 4 March 2026 to determine the Respondent’s strike-out application and various other matters. The background to the substantive claims is set out in EJ Midgley’s case management order.[4]At the start of today’s hearing, Ms Iqbal (counsel for the Respondent) clarified that the strike-out application was based only on Rule 38(1)(b). She argued that the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious. Evidence and procedure[5]The parties were unable to agree a joint bundle of documents for the hearing. The Respondent submitted a 251-page bundle and provided witness statements from Christopher Bains, Head of Legal, and Jayne Sims, Workforce Lead. Both these witnesses are employed by Laing O’Rourke Services Limited, a company connected with the Respondent through a joint venture set up to operate Hinkley Point C.[6]The Claimant submitted his own 269-page bundle on 2 March 2026, and a replacement 447-page bundle at 2.05 am on the day of the hearing. There was no adequate explanation for the late submission of these bundles. Because of their lateness, I was unable to consider their contents in any detail, although I did skim-read them during the hearing. I explained this to the Claimant.[7]The Claimant also provided various documents containing lengthy written submissions. Seven documents (83 pages in total) were emailed to the tribunal on 2 March 2026; ten more documents (141 pages in total) were submitted at 2.05 am on the day of the hearing. In view of the Claimant’s status as a litigant in person and his ADHD – which is likely to have affected his ability to prepare for the hearing and to comply with the time limits set out in EJ Midgley’s case management orders – I decided to take these late submissions into account in so far as I was able to digest their contents on the day of the hearing. Ms Iqbal also reviewed them and addressed their contents orally at the hearing, so there was no undue prejudice to the Respondent. Some of the Claimant’s written submissions were irrelevant to the strike-out application and are therefore not addressed in this decision – for example, his reliance on the equitable doctrine of ‘clean hands’.[8]The Claimant requested reasonable adjustments at the hearing. He needed clear explanations, additional time to process information, and a short break every 45-60 minutes. He declined to make detailed oral submissions, relying instead on the written submissions he had prepared in advance, and he said that he was content to proceed on that basis. His written submissions were very detailed and so I did not consider him to be disadvantaged by that approach. I suggested that he could also make use of the chat box in the CVP hearing room if he so wished.
Legal framework
[9]When considering whether to strike out a claim, an employment tribunal must apply a two-stage test – see HM Prison Service v Dolby [2003] IRLR 694, EAT, at para 15, and Hasan v Tesco Stores Ltd EAT 0098/16. First, it must consider whether any of the grounds set out in Rule 38(1)(a)–(e) of the Tribunal Rules 2024 have been established. Secondly, having identified any established grounds, it must decide whether to exercise its discretion to order strike-out. The tribunal should have regard to the overriding objective of dealing with cases fairly and justly, set out in Rule 3 of the Tribunal Rules 2024. In considering whether the claim should be struck out, it must consider whether a fair trial is still possible – De Keyser Ltd v Wilson [2001] IRLR 324, EAT.[10]Rule 38(1)(b) of the Tribunal Rules 2024 provides that a claim, response or reply to an employer’s contract claim (or part) may be struck out if ‘the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent… has been scandalous, unreasonable or vexatious’. The word ‘scandalous’ in this context means irrelevant and abusive of the other side. It is not to be given its colloquial meaning of signifying something that is ‘shocking’ – Bennett v Southwark London Borough Council [2002] ICR 881, CA.[11]Witness intimidation may amount to ‘scandalous, unreasonable or vexatious’ conduct in that it tends to subvert the process of justice and has the potential to impair the fairness of the trial. For example, in Force One Utilities Ltd v Hatfield [2009] IRLR 45, EAT, an employment tribunal was justified in striking out an employer’s defence to a claim of unfair dismissal in circumstances where a witness for the employer had threatened the claimant with physical harm, telling him that he should be careful how he slept at night, and had blocked his attempt to leave the tribunal car park. The conduct of the witness had made a fair trial of the issues impossible. The EAT commented that where a tribunal has found intimidation of this kind, it would be ‘very exceptional’ for that finding to be held to be perverse. However, witness intimidation does not automatically mean that a fair trial is no longer possible; the tribunal must still direct its mind to that question – A v B EAT 0042/19.[12]In Bolch v Chipman [2004] IRLR 140 (approved by the Court of Appeal in James v Blockbuster Entertainment Ltd [2006] IRLR 630, at para 5) the EAT held that, in ordinary circumstances, the correct approach to the then equivalent of Rule 38(1)(b) was to(a) decide whether a party’s conduct of the proceedings had been scandalous, unreasonable or vexatious;(b) if so, decide whether a fair trial was still possible;(c) even if a fair trial was not possible, consider the appropriate remedy, which must be proportionate; and(d) if a striking-out order was proportionate, consider the consequences of that order.[13]In Bailey v Aviva Employment Services Ltd [2025] IRLR 831, EAT, His Honour Judge Auerbach stated at para 45 that ‘in general, if the tribunal has found in the given case that the conduct of a party crosses the threshold of being scandalous, vexatious or otherwise unreasonable, then it must go on to consider whether, nevertheless, a fair trial, is, or may still be, possible. As part of that, it must also consider what alternative ways, short of a strike-out, there may be of reasonably managing, mitigating or addressing the conduct of the party concerned, or the impact which it threatens to have on the possibility of there being a fair trial, so as to avoid it having that effect.’ HHJ Auerbach added at para 47 that ‘in cases where the strike-out threshold has been crossed on account of a party’s conduct of the litigation, the question of whether a fair trial is still possible, and the question of whether there is an alternative proportionate measure short of strike-out that the tribunal should adopt, often go hand in hand and are intertwined.’[14]In Leeks v University College London Hospitals NHS Foundation Trust [2025] ICR 87 the EAT commented that where a party has conducted proceedings in a manner that has been scandalous, unreasonable or vexatious, that may be relevant to the possibility of a fair trial because, if there has been repeated default in the past, it is common for it to be repeated in the future. Strike-out under Rule 38(1)(b)–(d) generally only requires that there is a ‘significant risk’ that a fair trial could not take place.
Discussion and conclusions
[15]In support of its strike-out application, the Respondent relies on a series of emails and messages sent by the Claimant to various individuals within the Respondent’s organisation during the period 6–9 March 2025. Many of these individuals are key witnesses in relation to the Claimant’s tribunal complaints. They include Stuart Griffiths, who heard the Claimant’s appeal; Osian Ap Rhidian, the Claimant’s supervisor; James McDonnell, the Claimant’s manager; and Jayne Sims, Workforce Lead, who was involved with the Claimant’s performance improvement plan. These individuals are specifically named at several points in EJ Midgley’s list of issues.[16]On 6 March 2025, the Claimant emailed the employment tribunal attaching various documents in connection with his claim. He copied in 23 other organisations or individuals, including many employees of the Respondent and/or the companies involved in the joint venture that operated Hinkley Point C. He signed off with a series of proverbs and quotations, many of which were of a hostile or critical nature, and finally with the phrase, ‘You cunts – Kind reminder’.[17]On 7 March 2025, the Claimant sent the following email to nine colleagues (James McDonnell, Robert Greene, Peris Ap Rhidian, Neil Lott, Stuart Griffiths, Simon Dumbleton, Connor Quinn, John Eddleston and Jayne Sims): ‘You people know where my family live. At this point, you did your very best to remove my ability to provide shelter and food for me and my family. Time to start using your brains and calculate your actions, there’s no mercy from me anymore. Stay away from me and my family. Reply with “Yes, I swear to stay away from you and your family” for confirmation. If you don’t reply, I'll have to wait for you, cunts.’[18]Later that day, a series of messages from the Claimant was sent or forwarded to Mr McDonnell, including the following: ‘You incompetent cunt, if you and your brother try something again, you better use your brain, I have children in my house, no mercy for none of you puppets.’[19]In a series of WhatsApp messages sent to Mr McDonnell on 9 March 2025, the Claimant stated: ‘You and your mates haven’t replied to my email. You want to come near me or my family. I’m ready for you… You incompetent envious little cunt. It’s my family, you little shit… You’ll never have the chance ever again to have any power of this kind to do it to no-one ever again, you short little shit… You cunts are planning something… You idiots think about it, stay away.’[20]The Claimant also sent a series of WhatsApp messages to Osian Ap Rhidian on 9 March: ‘Make you and your other cunts think twice before coming close to me or my house… I’ll stop your breath before you do any more damage… You cunts… Do you understand, you fucking virgin?... All you incompetent puppets stay away… You’re too weak to be safe or helping for no one… I’ll never let you win… Cunts… I never give up.’ The Claimant sent further WhatsApp messages to Simon Dumbleton on that date, stating (among other things): ‘None of you cunts are replying, don’t do something stupid, I’m ready for all of you cunts... You got it?’[21]Later that day, the Claimant emailed the nine colleagues who had been the recipients of his earlier messages as follows: ‘I apologise if my previous emails appeared overly emotional. These communications were driven by extreme stress due to my difficult financial situation and emotional distress. Moving forward, all my communications will remain strictly professional and related directly to legal proceedings. I expect the same professional conduct in return.’[22]The Respondent took steps to deal with the threat posed by the Claimant. It reported the abusive messages to the police, who spoke directly to Osian Ap Rhidian about the Claimant’s threat to kill him. The Respondent also rerouted the Claimant’s emails directly to its legal team so as to prevent further harassment of individual employees.[23]The conduct described above took place over a period of four days. It does not appear to have been repeated in the 12 months since the messages were sent (although it should be noted that members of Mr McDonnell’s team have blocked the Claimant’s phone number, so he is no longer able to contact them directly). EJ Midgley’s case management order records that the Claimant became angry and frustrated when his amendment application was refused at the case management hearing in July 2025. Nevertheless, it is not clear that the Claimant’s conduct crossed a line on that occasion.[24]The messages sent by the Claimant to his colleagues in March 2025 contained foul language and threatening content. There were implicit threats of violence (‘I’ll have to wait for you… no mercy for none of you puppets… I’m ready for you’) and a threat to kill (‘I’ll stop your breath before you do any more damage’). I accept that these threats were such as to place potential witnesses in genuine fear of the Claimant and the steps he might take by way of retaliation if they gave evidence in connection with the tribunal claim. I do not accept the Claimant’s assertion that his messages were simply a defensive plea for his former colleagues to stay away from his home and family; in my view, they amounted to a threat of violence if anyone spoke out against him or otherwise damaged his interests. This was not an isolated incident, but a series of messages sent to numerous individuals over a period of several days. I have no hesitation in concluding that the Claimant’s conduct crossed a threshold and that he has conducted the proceedings in a scandalous, unreasonable or vexatious manner.[25]The next question is whether I should exercise my discretion to order strike-out. I bear in mind that strike-out is a severe sanction that will deprive the Claimant of the possibility of airing his complaints before an employment tribunal. It may be that there is merit in his claims; it will all turn on the evidence, and if his claims are struck out, the evidence will never be heard. I must consider whether a fair hearing is still possible and whether the sanction of strike-out would be proportionate.[26]The impact of the Claimant’s conduct on the witnesses is, I accept, that they are scared to give evidence. In his witness statement, Mr Bains states that he is concerned for members of Mr McDonnell’s team, who are provided with accommodation by the Respondent because of the remote location of the site where they work. The Claimant is aware of the location of their workplace and living accommodation, their start and finish times, and the routes of the parkand-ride buses they take to work. Peris Ap Rhidian, Osian Ap Rhidian and Simon Dumbleton have expressed fear that the Claimant will target them during their commute. Mr Bains expresses his ‘sincere belief’ that the Claimant would act on his threats if he came into face-to-face contact with his former colleagues. On 16 September 2025, during a Teams call, Mr McDonnell told Mr Bains that he was not comfortable providing a statement for this preliminary hearing owing to his belief that the Claimant might threaten him and his young family; Mr McDonnell, as the Claimant’s manager, is a key witness in these proceedings. Mr Bains concludes his statement by saying that he is concerned that he and others would be at risk if they were to attend a hearing, and that witnesses would fear for their safety even if the hearing were conducted remotely.[27]Mr Bains’ concerns are echoed in the witness statement of Ms Sims. Following receipt of the email from the Claimant on 7 March 2025, Ms Sims felt genuine concern for the safety of herself and her colleagues. She believed the Claimant would act on his threats and might attend the site or find out where his colleagues lived and lie in wait for them. Ms Sims concludes by stating that she is afraid to give evidence at a final hearing as a result of the Claimant’s threatening and intimidating behaviour. She fears for her safety and she is concerned about a possible escalation of the Claimant’s conduct.[28]In the circumstances of this case, I consider that it was not appropriate for me to hear oral evidence from these witnesses; EJ Midgley recorded in his case management order that they were not required to attend the strike-out hearing. I am satisfied that the fears expressed in their statements are genuinely held and are reasonable in the circumstances. The Claimant’s apology and the fact that there has been no repetition of his conduct over the past 12 months must be seen in context: the Claimant knows that any further threats would be likely to weigh in favour of the Respondent’s strike-out application. I consider it possible that the threatening conduct would resume against the stressful backdrop of a substantive hearing, or subsequently if the claims were unsuccessful.[29]An important consideration is whether measures could be taken to mitigate the impact of the Claimant’s conduct and ensure a fair hearing. For example, the witnesses could be permitted to give evidence behind a screen or by video, and the tribunal could tightly manage the Claimant’s cross-examination of them. I do not think this would address the problem: today’s hearing took place online but the witnesses were still afraid to attend. I have considered the possibility of the tribunal issuing further warnings to the Claimant or making a deposit order or a costs order against him. I do not think these measures would be effective against the perceived threat of physical violence and the deterrent effect on the witnesses, who fear repercussions from the Claimant if they give evidence, especially if the claims are unsuccessful. The damage has already been done; they are afraid for their own safety and that of their families. The Claimant knows where the members of Mr McDonnell’s team live and work. He now lives 55 miles away, but it is reasonable to suppose that he could travel to their workplace or homes if he chose to do so.[30]I also bear in mind that the Respondent has a duty to protect the safety and wellbeing of its staff. Requiring them to give evidence at a tribunal hearing would be problematic and might amount to an unreasonable management instruction. There is a possibility that it would give rise to a breach of trust and confidence. This puts the Respondent in an untenable position: it cannot legitimately require these witnesses to attend but it will be unable to defend the claims in their absence. For the tribunal to put the Respondent in this position would be contrary to the overriding objective, placing the parties on an unequal footing. The prejudice to the Respondent is, I consider, irremediable.[31]I have not discounted the Claimant’s difficult circumstances at the time he issued the threats. He had lost his job; he was likely to lose his home; and he was unable to secure other employment. He blamed the Respondent for his circumstances. It was undoubtedly a period of extreme stress and anxiety for him. There are references in the Claimant’s response to the strike-out application to a letter from a wellbeing advisor in July 2025 and a psychiatric referral in October 2025, but was no direct medical evidence as to the Claimant’s mental state at the time when he sent the threatening messages. However, he has an ADHD diagnosis and there is an indication in his response to the strike-out application that he may also have PTSD. I am prepared to accept that these matters may have affected his conduct.[32]The appendix to the Equal Treatment Bench Book lists some of the possible symptoms of ADHD. They include mood swings, irritability, a quick temper, and an inability to deal with stress. I might have been prepared to view an intemperate outburst or foul language in this light and to treat it more leniently, but threats of physical violence are a different matter. I was not referred to any medical evidence to suggest that the Claimant’s messages were a direct result of his ADHD or that he was suffering an acute mental health episode at the time, as he alleges. But even if there had been such evidence, in my view this does not detract from the content of the messages, which reasonably caused the Respondent’s witnesses to fear for their physical safety such that a fair trial is no longer possible. The critical factor is the impact that the threats have had on the Respondent’s witnesses, and therefore on the Respondent’s ability to defend these claims.[33]In all the circumstances, I consider that a fair trial is not possible. In the exercise of my discretion, I have concluded that the appropriate and proportionate remedy is a striking-out order. The claims are struck out under Rule 38(1)(b) and will not proceed to a full hearing. This is a draconian step, but it is a consequence brought upon the Claimant by his own conduct. Given the outcome of the strike-out application, it is not necessary for me to address the other matters raised by the parties. Among other things, the Claimant applied to strike out the Respondent’s response on the ground that it had no reasonable prospect of success. I would not have granted his application: the claims are highly fact-dependent and if they had proceeded to a final hearing everything would have turned on the evidence. Approved by: