Employment Judge AhmedMs Emma Christie (instructed by counsel) for claimantDate 18 March 2026
JUDGMENT
The Judgment having been sent to the parties on 23 February 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Procedure Rules 2024, the following reasons are provided.
REASONS
[1]This was a preliminary hearing to determine the following applications:1.1 The Claimant’s application to amend the claim;1.2 The Respondent’s application for the claim to be struck out or for a deposit order for failure to comply with a case management order;1.3 The Claimant’s application for an unless order for failure by the Respondent to comply with an order for disclosure of documents.[2]The first and third applications can be dealt with simply. The Claimant withdraws her application for an unless order. The application to amend was effectively to withdraw the pregnancy and maternity discrimination complaint and to add a complaint of indirect sex discrimination instead. Ms Christie for the Respondent accepted that the amendment application did not however reflect what was fully intended and the application to amend is for the moment at any rate, not being pursued. The application to amend is therefore dismissed. Page 1 of 5[3]Before I set out the details of the only outstanding application I should say that no oral evidence was taken at this hearing and the decision on the Respondent’s application was made on submissions only. I mention that as Mr Morehead’s request for written reasons asked for findings of fact but there are no factual findings as such.[4]The background to the application relates to the case management Preliminary Hearing on 25 April 2025 and the Order made by Employment Judge Brewer on that date (hereinafter the “Order”). The Order was sent to the parties on 26 April 2025.[5]Mr Morehead makes certain observations in his application as to what Judge Brewer is alleged to have said to the Claimant’s representative about the nature and strength of parts of the claim. Those comments are not set out in the Order. I should make it clear that these alleged comments are purely Mr Morehead’s observations and I do not necessarily accept that he is correct in relation to them. The parties should not therefore assume that merely because I make no finding as to his observations that it is implicitly accepted that Mr Morehead’s comments are agreed or accurate – it is just that are wholly irrelevant to the application he makes.[6]Paragraph 8 of the Order states: Further information[8]The claimant must write to the Tribunal and the other side by 23 May 2025 with the following information in relation to the claim for automatic unfair dismissal,8.1.1 confirmation that the claimant’s maternity leave ended when she returned to work in April 2024,8.1.2 confirmation that the claim is made under s.99 Employment Rights Act 1996 (ERA) and if not, which section of the ERA is relied upon,8.1.3 assuming s.99 is the applicable law, and given the timings set out above, confirmation that the claim is brought under s.99(3)(a), and if not which section is relied upon, but if so,8.1.4 confirmation that the relevant prescribing regulations in this context are the Maternity and Parental Leave Regulations 1999, and if so,8.1.5 the factual basis upon which it is asserted that the claimant was automatically unfairly dismissed by reason of redundancy including where relevant identifying the suitable alternative vacancy it is asserted the claimant was not offered. 7. Paragraph 27 of the Order contains the usual strike out warning in the following terms: 27. 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. 8. On 4 June 2025 the Respondent made the present application to strike out or for a deposit order. Having set out the background (with reference to the Page 2 of 5 Order of 25 April 2025) the Respondent set out the reasons for the application as follows: “ In light of the above, the Respondent reminds the Claimant and her representatives of the need to exercise extreme caution when advancing wholly unfounded bases and invites the Claimant to withdraw her claims in their entirety on this basis. If the Claimant refuses, the Respondent asks that the Tribunal, in line with the case management orders and the overriding objective, strikes out the Claimant’s claim in its entirety, for non-compliance with the Case Management Orders; and for the manner in which the proceedings are being conducted by the Claimant’s legal representatives, it being both scandalous and unreasonable. If the Tribunal is unwilling to strike out the claim, the Respondent requests that the Claimant’s representatives are barred from participating further in the proceedings, due to their scandalous and unreasonable conduct; and that a deposit order of £1,000 against each claim advanced by the Claimant is made.”[9]The Respondent goes on to say that it is content for the application to be dealt with on the papers. Having considered the position, no doubt in the light of several applications, the Tribunal listed the matter for a preliminary hearing to deal with all three applications.[10]On 6 June 2025, after the date by which the Claimant was required to supply the information at paragraph 8 of the Order, the Claimant produced an amended draft list of issues. That document withdraws the pregnancy and maternity complaint.
THE LAW
[11]Rule 38 of The Employment Tribunal Procedure Rules 2024 (“the Rules”) deals with strike out applications and is as follows: “(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).”[12]Rule 40 (so far as is relevant) states: “(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[13]In James v Blockbuster Entertainment Ltd (2006) IRLR 630 the Court of Appeal made it clear that the Tribunal must consider whether striking out is a Page 3 of 5 proportionate response to any unreasonable conduct or breach of an order.
CONCLUSIONS
[14]It is not appropriate to either strike out the claim or order a deposit for the following reasons:14.1 Whilst the fact of non-compliance is not in dispute it would be disproportionate to strike out for a relatively minor breach.14.2 The delay in dealing with the matter by the Claimant was relatively short; 14.2 There is no prejudice to the Respondent because of the delay. As the order for further information was entirely to do with the maternity and pregnancy complaint, and that complaint has now been withdrawn, there is no need for the Respondent to have that information in preparing its defence.14.3 A fair hearing is still possible;14.4 I do not find that the Claimant or her representative has acted scandalously or unreasonably. Other than the delay point the Respondent has failed to set out any reasons why the conduct is said to be scandalous or unreasonable.[15]For those reasons the application to strike out of the Claim or for a deposit order is dismissed. Approved by: