Employment Judge McCooeyIn person for claimantMrs Holden (instructed by Counsel) for respondentDate 15 June 2026
JUDGMENT
[1]The respondent’s application for strike out in respect of Claim 2 on the grounds it is an abuse of process is refused.[2]The respondent’s application for strike out in respect of Claim 3 on the grounds it is an abuse of process and/or scandalous or vexatious is refused.
REASONS
[3]This PPH was listed to consider the following applications indicated in a CMO dated 25 October 2025 (as amended), as follows: i. The respondent's application to strike out claim 6018893/2024 for the reasons set out in the response to that claim; ii. Whether the Tribunal has jurisdiction to hear claim 6018893/2024 because it is time-barred - was the claim presented in time and if not should time be extended; PHCM Order 1 of 6 September 2023 iii. Whether the above claims should be consolidated and if so whether the current two-day time estimate for the final hearing is sufficient; iv. Any other appropriate case management orders.[4]The respondent also sought to make an additional jurisdiction point for the first time in Counsel’s Skelton Argument uploaded to the portal on the evening before the hearing.[5]Regrettably, I was only able to determine the respondent’s strike out applications and a number of case management points; the remaining matters I have set out in my CMO dated 20.3.26. Law[6]The power to strike out part or all of a claim is contained in r.38 of the Employment Tribunal Procedural Rules 2024 which says: 38.—(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).[7]The power involves a two-stage test. Firstly, one or more grounds in r.38 must be established; if they are, a decision must be made as to whether to exercise the discretion in the particular case.[8]For discrimination claims, the starting point is Anyanwu and anor v South Bank Student Union and anor [2011] ICR 391 UKHL. Here, the House of Lords emphasised that discrimination claims are often fact-sensitive and require close examination of the evidence at a full merits hearing.[9]Further caution has been advised in Bahad v HSBC Bank plc [2022] EAT 83 against striking out claims before a full merits hearing. PHCM Order 2 of 6 September 2023[10]There are nonetheless caveats to the general approach of caution. In Ahir v British Airways plc [2017] EWCA Civ 1392 CA, Underhill LJ said at [16]: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”[11]The principles gleaned from more recent cases, such as Cox v Adecco & Others [2021] ICR 1307 and Xie v E’quipe Japan Ltd [2024] EAT 176 are: i. Strike out is draconian and is only appropriate in clear cut cases; ii. There is a public interest in discrimination claims proceeding to a full hearing, nevertheless there is no bar to strike out in appropriate cases; iii. Where there is a core dispute of fact, strike out is generally inappropriate; iv. The claimant’s case should generally be taken at its highest; and v. Taking a discrimination case at its highest involves assuming that the facts will be established but not necessarily that an inference of discrimination will be made out. Postions[12]The Respondent’s position, as set out in full in its skeleton argument was that due to the incorrect reliance by the claimant on the second ACAS certificate, all claims in respect of Claim 2 (6006286/2025) ought to be struck out for lack of jurisdiction.[13]The Respondent in its submissions initially accepted jurisdiction in respect of the unfair dismissal brought in the second claim however says it’s now also recognised reliance on the second ACAS certificate as a jurisdictional bar.[14]The Respondent’s case is that claimant is only entitled to rely on one conciliation process per ‘matter’, that term it acknowledged as a broad one.[15]The claimant initially relied on his first ACAS certificate to bring his first claim (6018893/2024) and the Respondent says he intended to rely on that for all matters.[16]That first claim was then withdrawn, though not formally dismissed.[17]R says that whilst the Claimant was entitled to contact ACAS for a second time, as he did, he is not entitled to rely upon any ACAS extension resulting from that second certificate. The respondent said he incorrectly referenced his second certificate in the ET1 of his second claim (he should have referenced his first). PHCM Order 3 of 6 September 2023[18]The claim, in any event, got through the initial gateway and so any consequence of non-compliance fell to be resolved under the Tribunal’s case management powers.[19]The Respondent says those case management powers should be used to strike out the claim.[20]The claimant understandably opposed the application.
Discussion
[21]There appears to be no appellate authority on this precise point.[22]Initially, the Claimant followed the correct process, and the claim was entered into on time by the ET1 Dated 17.11.24 using the first ACAS certificate ending 24/88. He then filed his second ET1 on 24.2.25 using the second ACAS certificate[23]The difficulty is caused by his subsequent withdrawal of the first claim, as he thought he would streamline his case by serving a second ET1. However, despite withdrawal, his first claim was not ultimately dismissed by the tribunal.[24]In the absence of any case law, rule or regulation before me to prohibit this, I do not see reliance on the first certificate as a cause for strike out on jurisdiction grounds.[25]I am not persuaded that the claimant issued his second claim to avoid time limit issues or was otherwise misusing the process.[26]The case of Reynolds v Abel Estate Agent Ltd and ors 2025 EWCA Civ 1357, CA establishes that where the claim has passed the initial gateway, as this case has, the strict consequences of procedural failures regarding ACAS do not apply. This includes jurisdictional points. Instead the tribunal must consider how best to resolve the matter using its case management powers and that involves discretion.[27]I consider strike out would be a draconian measure at this stage and in these circumstances where the claim has been accepted by both the Tribunal and by the Respondent until today as in time and has been prepared for and indeed set for final hearing on that basis.[28]Disclosure efforts have been undertaken (albeit with deficiencies, the Claimant says) and parties are due to exchange witness statements at the end of this month.[29]To strike out on an ACAS certificate point alone would not be in accordance with the overriding objective and the need to deal with cases justly and fairly. PHCM Order 4 of 6 September 2023[30]Strike out is rarely appropriate where there remains key factual disputes that need to be determined. The claimant’s dismissal (whether constructive or automatic, if that amendment is allowed) is the essence of his complaints.[31]For these reasons I allowed the constructive unfair dismissal to proceed and refused the respondent’s application to strike it out on the ACAS certificate point. The respondents indicated they wish to pursue a time limit point regarding the ACAS certificate, depending on which certificate is now in operation. That falls to be considered at the next PH.[32]The WTR and BOC claims in Claim 2 were withdrawn by the Claimant at the hearing, and he should notify the Tribunal in writing if that remains the case. He accepts they are out of time and would have required an application to extend time in any event. Claim 3[33]The next Strike Out application was made in respect of Claim 3 because there were no particulars attached to the third claim; it should have been rejected under r.13.1 (b); and should now be struck out in any event as an abuse of process or as scandalous or vexatious.[34]The claimant said he had ticked the box for automatic unfair dismissal (whistleblowing) but not disclosed grounds at that point of filing the ET1 Abuse of process is a high threshold to meet.[36]I accept from the ET1 itself that information required to understand the claim is not there, which is undesirable; it is contained in the further and better particulars of claim which followed later in June. The respondent now has that information and the defect has been remedied. I do not consider it to be an abuse of process to allow the claim to proceed, particularly in the absence of any wilful or malicious failure to provide those particulars, I do not find the claimant’s conduct to be ‘vexatious nor an abuse of process in the way suggested.[37]The claimant’s position is that the facts of his complaints have remained the same throughout.[38]I reject the argument that, even if there are now particulars, it is an abuse of process for the claim to continue as the matter should have been included in the previous two ET1s.[39]Again, whilst clearly an inconvenience, it is a high threshold to establish an abuse of process. I bear in mind the claimant is a litigant in person and says his claim has always been about whistleblowing, as he mentions this in his redundancy letter, which the respondent acknowledged. He also appears to have evidence of alleged protected disclosures made, and gave dates to confirm them. PHCM Order 5 of 6 September 2023[40]The claimant seems to have obtained unhelpful legal advice and the procedural journey of his claims is unnecessarily complicated. However, it is not an abuse of process for the claim to continue.[41]The respondents also argued the claimant is estopped (Henderson v Henderson) from bringing Claim 3. However that relates to proceedings that have been wholly and finally determined before, unlike the position here, where the final hearing has not yet taken place and there has been now determination of the matters.[42]For completeness, I do not consider, looking at all of the circumstances, that the claimant is misusing/abusing the process by seeking to raise an issue they should have raised earlier. There was no evidence of that before me.[43]The claimant’s amendment application, if required, in respect of Claim 3 falls to be determined at the next PH. Approved by:
Background
[1]The Claimant was employed by the Respondent from 10 January 2022 until his resignation on 14 October 2024. He had not been at work since 9 May 2024 by reason of sick leave and a period of unpaid sabbatical leave.[2]His complaints about his employment concern alleged excessive working time, health and safety issues, and the handling of a grievance and appeal.[3]ACAS conciliation took place between 6 August – 17 September 2024, and an Early Conciliation (EC) certificate was obtained (“the first ACAS certificate”).[4]Following the Claimant’s resignation on 14 October 2024, further ACAS conciliation took place between 15 October - 26 November 2024, and a second EC certificate was obtained. (“the second ACAS certificate”). 1 of 8[5]On 17 November 2024 claim number 6018893/2024 was filed (“the first claim”), referencing the first ACAS certificate.[6]That claim ticked boxes in respect of complaints of unfair dismissal, for unpaid notice pay, arrears of pay and other payments. In his particulars of claim the Claimant said he was bringing complaints of constructive unfair dismissal, breach of the working time regulations, breach of contract and breach of the implied contractual term of mutual trust and confidence.[7]On 21 November 2024 the Claimant wrote to the Tribunal withdrawing the first claim.[8]On 17 December 2024 and 31 January 2025, the Claimant informed the Tribunal that he had wrongly withdrawn his first claim on the basis of legal advice, and he had now received legal advice that he should get his first claim reinstated. He asked if the case was still active and could be reinstated.[9]On 24 February 2025 claim number 6006286/2025 (“the second claim”) was filed, referencing the second ACAS certificate. The particulars set out the same legal heads as in the first claim. However, the claimant stated that while the issues raised in the first claim “were related to a protected disclosure, breach of contract, non-compliance with the Working Time Regulation… due to delays and unforeseen circumstances [he] had [in the second claim] “specified only constructive unfair dismissal to comply with the time limits”.[10]On 18 March 2025 EJ Tynan informed the parties that the Tribunal had no power to set aside a withdrawal or revive a withdrawn claim but that the first claim would not be dismissed on withdrawal in accordance with the decision in Khan v Heywood & Middleton Primary Care Trust [2006] EWCA Civ 1087. Accordingly, there is no final determination of the first claim from which abuse of process arguments can flow.[11]On 19 March 2025 claim number 6009466/2025 was filed (the third claim) referencing the second ACAS certificate. The Claimant indicated that he wished to bring a whistleblowing complaint in box 8 of the ET1 but provided no particulars whatsoever.[12]On 6 June 2025, after the Respondent had raised the issue, the Claimant provided particulars. Those particulars included the same heads of claim as in both the first and second claims but also included the statement “unfair treatment due to whistleblowing”. As far as I can tell (and no submissions were made to the contrary) save for that statement the substance of the particulars were the same as those that had been lodged in respect of the second (and first) claim.[13]On 28 September 2025 the Claimant made an application to amend the third claim to include further particulars of whistleblowing detriment and to make a complaint of automatic unfair dismissal pursuant to s.103A Employment Rights Act 1996 (ERA). This application was opposed by the Respondent.[14]The matter was set down for a Public Preliminary Hearing (PPH) on 18 March 2026, and a Final Hearing was listed for 15 and 16 June 2026. 2 of 8[15]At the PPH the Respondent took the following position:[16]In respect of the second claim:(i) First, whilst it acknowledged that it had accepted jurisdiction in respect of the complaint of unfair dismissal, it submitted this position had been mistaken. Since the Claimant had relied on the first ACAS conciliation certificate to bring his first claim on 17 November 2024 the certificate was intended to, and did, cover all matters up to the Claimant’s resignation on 14 October 2024. Claimants were only entitled to rely upon one conciliation per “matter” for the purpose of extension of the relevant time limits which meant that while it was open to the Claimant to contact ACAS for a second time, he was not entitled to rely upon any ACAS extension resulting from this second certificate. Accordingly, all the claims in the second claim were out of time.(ii) Secondly, the Claimant had referred to the second ACAS certificate, when he should have referred to the first. Although the claim had passed the “gateway” stage, this was nevertheless a defect which should be dealt with under the Tribunal’s case management powers, and the claim should be struck out on this basis.(iii) The complaint of breach of the Working Time Regulations (assumed to be a complaint based on reg. 30) was in any event out of time, because the Claimant did not carry out any active work for the Respondent after 8 May 2024.(iv) The Tribunal did not have jurisdiction to consider the complaints of breach of contract in respect of being overworked/breaching daily working hours, since they related to the Claimant’s active working situation in May 2024 and were not claims that were outstanding or arose on the termination of his employment.[17]In respect of the third claim:(i) Since the Claimant had failed to file any particulars, the claim should have been rejected, and the Tribunal should exercise its discretion to strike it out on this basis.(ii) Any complaints appearing in the particulars to the third claim that were already within the second claim were an abuse of process and should be dismissed.(iii) The Claimant’s amendment application to provide particulars in respect of the whistleblowing complaint was opposed; it was a new head of claim which was out of time and there was no good reason for this.[18]At the PPH on 18 March 2026 the Claimant indicated that he wished to withdraw his Working Time Regulations claim and breach of contract claim so points 16(iii) and 16(iv) fell away. 3 of 8[19]EJ McCooey dealt only with points 16(ii) and 17(i) above and refused the Respondent’s applications to strike out on grounds of abuse of process and/or being scandalous or vexatious.[20]In respect of the remaining matters, a further PPH was set down for 28 May 2026, at which EJ McCooey stated “the following matters may be considered”:(i) Whether the first or second ACAS certificate was “in force” in these proceedings;(ii) Regarding the second claim, whether any time limit issues arise if the first ACAS certificate is “in force”, and if so, whether an extension of time ought to be granted;(iii) Whether the third claim requires an amendment application, and, if so, whether it should be granted.(iv) Whether the third claim is out of time and whether an extension of time ought to be granted.(v) Any other case management order that the Tribunal considers it appropriate to make, including whether to vacate or adjust the time estimate of the final hearing and remaining disclosure issues.[21]The Final Hearing remained listed for 15 and 16 June 2026.[22]On 17 April 2026 the Claimant lodged a witness statement in respect of the upcoming PPH. He also made a disclosure application.[23]On 27 May 2026 the parties were informed that the PPH would be postponed because of lack of judicial resources.[24]On 10 June 2026 the parties were informed that the Final Hearing listed for 15 and 16 June 2026 was adjourned and that a PPH of 1 day would be listed on 15 June 2026 to deal with “all outstanding issues”.
Conclusions
[25]At the hearing today I heard submissions from the Claimant and Ms Cheng and was referred to a bundle of documents running to 369 pages and a supplementary bundle of 224 pages, which included the Claimant’s witness statement. Ms Cheng did not seek to cross-examine the Claimant. (i) The time limit issue in respect of the second claim[26]I decided that the first issue I should consider was whether the second claim, which comprises a complaint of constructive unfair dismissal, had been brought within the primary time limit of three months (as varied by any ACAS EC extension) given, in particular the existence of the first ACAS certificate. If not, whether the primary time limit should be extended.[27]In this respect I would not myself phrase the question as whether the first or second ACAS certificate was “in force”, but rather whether the second ACAS certificate had the effect of extending the primary time limit for bringing the second claim given the existence of the first ACAS certificate. If the second ACAS certificate did have the effect of extending the primary time limit, it was 4 of 8 common ground that the deadline for bringing the second claim was 24 February 2025, which was when it was lodged, and the second claim was in time. If the second ACAS certificate did not have that effect, then the deadline for bringing the second claim was 13 January 2025 and it was, on the face of it, out of time.[28]Section 18A of the Employment Tribunals Act 1996 (ETA) provides, so far as material: “(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. … (4) If -(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or(b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. … (8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4). …”[29]In this case the Claimant complied with that process between 6 August and 17 September 2024, obtained an Early Conciliation (EC) certificate, and was therefore able to present a claim in the Tribunal relating to any matter about which he had provided prescribed information to ACAS. In this respect the word “matter” in section 18A(1) ETA is construed very broadly and can embrace a range of events, including events that had not yet happened when the EC process was completed (Compass Group UK & Ireland Ltd v Morgan [2017] ICR 73.[30]I therefore accept the Respondent’s submission that the Claimant’s first ACAS certificate was intended to cover, and indeed, covered, all matters up to the point of his resignation on 14 October 2024, even though the termination of his employment post-dated the first ACAS certificate. I note, in this respect, the similarity with the facts of Commissioners for HM Revenue and Customs Commissioners v Serra Garau UKEAT/0348/16 (see below) in which the termination of the claimant’s employment also post-dated his first ACAS certificate.[31]In reliance on that first ACAS certificate the Claimant lodged the first claim on 17 November 2024.[32]While that claim was subsequently withdrawn (but not dismissed), the withdrawal did not change the fact that the Claimant had complied with the requirement to undertake ACAS conciliation in respect of all matters up to the point of his resignation.[33]It follows that there was no statutory obligation on him to pursue a further EC procedure prior to him lodging his second claim on 19 March 2025. The second 5 of 8 ACAS certificate was therefore unnecessary, and because it was unnecessary it had no effect on the running of time for limitation purposes. In this respect in Commissioners for HM Revenue and Customs Commissioners v Serra Garau UKEAT/0348/16), Mr Justice Kerr stated at [25]: “… a voluntary second certificate does not trigger the modified limitation regime in section 207B or its counterpart in the Equality Act section 140B. Such a second voluntary certificate is not required under the mandatory early conciliation provisions and does not generate the quid pro quo of a slightly relaxed limitation regime.”[34]Since in this case the second ACAS certificate had no effect on the application of the relevant time limits, the primary time limit of 3 months expired on 13 January 2025. The claim of constructive unfair dismissal brought in the second claim on 24 February 2025 was therefore 6 weeks out of time.[35]Section 111(2) ERA provides that a Tribunal may nevertheless consider such a complaint if satisfied it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months and it was presented within such further period as the Tribunal considers reasonable.[36]The starting point is that it is difficult to see why it was not reasonably practicable for the second claim to have been presented in time since it is essentially the same claim as the first claim, which was presented in time.[37]I have nevertheless considered the broader picture of the reasons for the withdrawal of the first claim and the timing of the lodging of the second claim to see if this aids the Claimant.[38]In his witness statement the Claimant said that withdrawing his first claim was a mistake, and that he received advice that he understood to mean he should proceed with a constructive dismissal claim only and that since he understood his first claim principally to be a complaint about the Working Time Regulations and breach of contract he believed he needed a separate dismissal focused claim and should withdraw the first claim to avoid confusion. However, that explanation is difficult to reconcile with the fact that the heads of claim and the particulars of his first claim are essentially the same as his second claim and as much about constructive dismissal as those in the second claim.[39]In the hearing today, the Claimant said he had wanted to pursue a complaint of whistleblowing and that was the reason why he had withdrawn his first claim. However, this explanation is difficult to reconcile with the fact that the second claim does not bring a whistleblowing complaint, rather in the second claim the Claimant specifically states he is only bringing a complaint of constructive unfair dismissal.[40]The Claimant also said that after he was informed by the Tribunal on 18 March 2025 that it had no power to revive the withdrawn claim he had acted quickly in submitting a claim on 19 March 2025, but this was the third claim, not the second claim, which had been lodged on 24 February 2025. 6 of 8[41]In summary the reasons why the Claimant did not bring the second claim in time (and/or withdrew the first claim) appear to be confusion by him as to the appropriate way forward together with legal advice which was either incorrect or unhelpful, or which he misunderstood.[42]As regards evidence of the alleged unhelpful advice the Claimant directed me to an email in the bundle from Irwin Mitchell dated 24 February 2025 which states: “I appreciate this is a stressful process but the decision on whether you submit another claim form is entirely yours. If you do wish to submit a second claim for constructive dismissal alone by the deadline of today (24 February 2025), please ensure that it is done by 11.59pm. If the deadline is missed, it will eliminate all possibility of bringing your claim on time.”[43]I note that this email suggests the Claimant may have been told he had until 24 February 2025 to lodge his claim (although it is not clear whether the problem in respect of the Claimant having already obtained the first ACAS certificate had also been drawn to his attention), however it is dated after the Claimant withdrew his first claim and does not imply the Claimant received advice (at least from Irwin Mitchell) that he should withdraw that claim.[44]In any event the basic principle as regards incorrect of unhelpful advice is as set out by Lord Denning MR put it in Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA: ‘If a man engages skilled advisers to act for him — and they mistake the time limit and present [the claim] too late — he is out. His remedy is against them.’[45]As regards the Claimant’s own confusion around the withdrawal of the first claim and his ignorance of the implication of having obtained the first ACAS certificate, I have considered whether his confusion (or ignorance) was reasonable. In this respect I find it hard to say that it was reasonable, given that his explanation for what he did has been inconsistent and remains very confused.[46]I also note that when he first decided that withdrawing the first claim had been a mistake, namely 17 December 2024, he was still within time for presenting a second claim to the Tribunal (since the time limit did not expire until 13 January 2025), and his evidence was that he was in receipt of legal advice by then. Although it is not clear what that advice was or who it was from, broadly speaking, I nevertheless consider it would have been reasonable for the Claimant, or whoever was advising the Claimant, to have researched the position sufficiently to understand that he could not rely on the second ACAS certificate to extend the time limit and that the time limit for submitting any further claim expired on 13 January 2025. (ii) The time limit issue in respect of the third claim[47]As regards the third claim, this was presented on 19 March 2025, making a whistleblowing complaint but without any particulars of that complaint being 7 of 8 provided. In his witness statement the Claimant stated that now he did not wish to pursue a whistleblowing detriment claim, but he did wish to pursue a s.103A ERA claim for automatic unfair dismissal.[48]In any event the particulars provided on 6 June 2025 were essentially the same particulars as those contained in the first and second claim and, for the same reasons as set out above, any whistleblowing complaint in the third claim (whether of whistleblowing detriment or automatic unfair dismissal pursuant to s.103A) was therefore covered by the first ACAS certificate.[49]It follows that the third claim is about 9 weeks out of time.[50]For the same reasons as above, I cannot say that it was not reasonably practicable for the third claim to have been presented in time, and the Claimant has not advanced any proper arguments to say it was not. To the contrary I note that in his witness statement at paragraph 30 he states: “The later whistleblowing pleading does not depend on a different factual history. It reflects further particularisation and legal characterisation of the course of events already in issue between the parties”. There is therefore no reason why the claim of whistleblowing could not therefore have been brought in time. (I also note that the third claim would also have been, on the face of it, out of time, even if the second ACAS certificate had had the effect of extending the time limit.)[51]I appreciate the Claimant is, at least now, a litigant in person, and has been genuinely confused by the appropriate course of action to take, nevertheless, time limits exist for important reasons of legal certainty and it is also not fair on the Respondent to have to respond to an unfolding succession of delayed claims. Nor is it a proportionate use of Tribunal resources.[52]It follows that the second and third claim are struck out on the grounds they have been brought out of time and the Tribunal has no jurisdiction to hear them. Approved By: