Employment Judge WrightMr O Issacs - counsel for claimantDate 22 May 2025
JUDGMENT
The respondent’s response is struck out per Rule 38 of the Employment Tribunal Procedure Rules 2024.[1]This case was listed for a final two day hearing on 23/12/2024. It was converted to a three hour preliminary hearing by the Regional Employment Judge on the 21/5/2025. The hearing was floated and as such, it was not allocated to a specific Employment Judge on the 21/5/2025.[2]The reason for the conversation was to hear the claimant’s assertions of alleged multiple instances non-compliance with the Tribunal’s Orders by the respondent.[3]The history was set out by Mr Issacs and it was not disputed by Mr Tyndall. [1…6] Procedural Chronology[7]The parties were obliged to follow the ET orders given on 23rd December 2024. These gave dates for disclosure of “all documents” by 17th February 2025, for R to prepare a bundle by 3rd March 2025, and for witness statements to be served by 17th March 2025. [25][8]On 9th February 2025, C set out a detailed list of information that he would expect to see in disclosure. [226 – 230]. That included requests for internal correspondence, emails, text messages or meetings where dismissal was discussed, information relevant to any investigation which took place before dismissal, internal policies and procedures that govern holiday (either the taking or recording), board meeting minutes regarding the “clawback.”[9]R suggested in its application for a stay on 12th February 2025, that the “issues in the case will generate a substantial volume of documentary disclosure” and sought to have the hearing of 22 and 23rd May 2025 vacated [255].[10]On 13th February 2025, C wrote to the ET noting that R remained bound by the Tribunal’s orders and that an unilateral refusal to engage in disclosure was “procedurally improper.” [559][11]R’s solicitors stated on 13th February 2025 that they did not “consider that the current case management orders…are adequate.” [261].[12]C provided his disclosure in accordance with the Tribunal Directions on 13th February 2025. [550][13]On 17th February 2025, R’s solicitors suggested that the “Respondent does not consider it is in a position to carry out disclosure at this time.” [262][14]On 18th February 2025, C made an application for an unless order [265].[15]Following a further application to stay proceedings made by R [281 – 283] the ET on 25th March 2025 noted that it did not understand “the respondent’s election not to comply with case management orders.” As to disclosure, the ET noted- The respondent knows what documents it holds which are relevant to the unfair dismissal and wages claim. The ET made a specific direction for witness statements to be disclosed “no less than 2 weeks before the final hearing.” [51 – 52]. The ET noted:-[16]If the final hearing arrives and a fair hearing is not possible because one or other party has not complied with directions, there is the possibility that the claim or response will be struck out. The Respondent in particular is warned, given its unilateral decision not to comply with directions.[17]A formal order following the dismissal of the application for a stay followed. [53 – 56][18]On 26th March 2025, C repeated his request for disclosure. C indicated that he expected “full compliance.” [270][19]On 14th April 2025, C wrote to R’s solicitors advising that the Tribunal’s order was clear – that each party was required to disclose relevant documents. [689 – 690][20]On 15th April 2025, R’s solicitor served a disclosure list. [687] R’s disclosure list appears at [695 – 698].[21]On 16th April 2025, C noted that R had failed to provide disclosure in accordance with the orders. [681 – 684]. C noted that R’s “list” which it had prepared omitted key documentation (such as documentation evidencing the process or rationale for dismissal, internal decision making or relevant internal communications or Board level material).[22]On 22nd April 2025, C complained to the ET, that R had still not served documents. C noted that the ET order of 25th March 2025 required documents to be disclosed by 15th April 2025 but that this had not happened. [678][23]On 28th April 2025, the ET ordered that R “must disclose to the claimant all documents identified as relevant in the list provided to him within 3 days….My direction was for documents to be disclosed within 3 weeks, not a list.” 57 – 58] The ET went on:-[24]I have already found that the respondent has failed to comply twice with case management orders. It seems to me that this will be a relevant factor in considering where responsibility lies if a fair trial cannot take place in the trial window. It seems to me the parties may benefit from consideration of Emuemukoro v(1) Chrome Vigilent (Scotland) Ltd(2) Anr (EA-2020-6-JOJ)[25]On 1st May 2025, R finally provided disclosure. [701] No explanation was given for late compliance but suggested that it was doing so “in accordance with the recent clarification from the Tribunal.”[26]On 1st May 2025, C noted that the disclosure was 16 days after the deadline but that more importantly the disclosure was presented “without an index, without pagination, and in no discernible order.” It was noted that there were omissions namely “no contemporaneous documents evidencing the decision to terminate my employment.” C noted the significant task required of him as a litigant in person, “to attempt to review this volume of unstructured material alone.” [700][27]On 5th May 2025, C wrote to the ET regarding R’s failure to disclose “all documents identified as relevant in the list.” [704] C noted that R had failed to provide material documentation in a number of key respects. [705][28]R failed to engage with that correspondence. That resulted in further correspondence with the Tribunal on 9th May 20225. [711 - 712]. C noted that the “continued non-compliance is obstructing the preparation of this case and undermining fairness of the process.”[29]In response on 9th May 2025, R sought deflect attention from their own wrongdoing and to complain about C’s disclosure. R’s solicitors inferred that that could explain non-compliance with providing a statement. [713 - 714] This was despite C’s confirmation that he had fully complied with his obligations [690 and 700]. If R was in any doubt as to C’s position, he made it plain in his response on 12th May 2025 that there was nothing further to disclose. [713][30]On 15th May 2025, C wrote to the ET complaining that “the failure was making it “almost impossible for me to prepare adequately.” [721][31]No trial bundle was prepared by R.[32]R finally sent to C an email enclosing a statement at 11:13pm on 20th May 2025. C’s direct access counsel prepared a bundle containing both party’s disclosure.[33]No explanation for the delay was provided or why it had taken so long to “complete” the statement. 4. The hearing had been re-timed to 2pm and at 1.55pm, Mr Tyndall sent an email to the Tribunal which said that: the respondent has conceded this claimant’s dismissal was unfair; the responded concede that the Tribunal will make an award of compensation in accordance with s.118 to s.126 of the Employment Rights Act 1996; the respondent has agreed to pay the claimant’s holiday pay in the sum of £9,2331.60; and the respondent has agreed the claimant’s entitlement under s.24(2) Employment Rights Act 1996, any breach of the Acas Code and any issue of costs will be determined a the final hearing. 5. Mr Issacs orally supplemented his six-page skeleton argument. 6. In response Mr Tyndall said the respondent was in the position to proceed with the final hearing. He said that it was the Tribunal’s decision to remove from the list the full hearing and that its two witnesses were ready to attend that hearing. He said that he did not excuse the respondent’s negligence in respect of disclosure, however, he had not personally been involved in the original directions or the failure to respond. He sought to blame the claimant for not expressly confirming, in breach of an Order, that he had no further documents relating to his recruitment by Henley. 7. It is not accepted that the respondent was in a position to proceed with the final hearing. Firstly, the respondent did not state this at any time in advance of the hearing, for example in response to the claimant’s letter of the 5/5/2025 or 15/5/2025. The respondent did not respond to the Tribunal’s letter of the 21/5/2025 to ask for the decision to convert the final hearing to be reconsidered as contrary to the claimant’s assertion, the respondent had complied with the Tribunal’s Orders and was in fact fully prepared for the final hearing. Secondly, the respondent was asked to upload to the Document Upload Centre the: bundle for the final hearing; witness statement bundle; and bundle for his hearing which Mr Issacs had prepared. Mr Tyndall was asked to do so once this hearing finished. 8. The bundle for the hearing hearing was not uploaded until lunchtime the following day and it bore all the hallmarks of a hastily complied bundle. 9. Rule 38 provides: Striking out 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— that it is scandalous or vexatious or has no reasonable prospect of success;a. (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;b. (c) for non-compliance with any of these Rules or with an order of the Tribunal;c. (d) that it has not been actively pursued;d. (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). 10. The Tribunal is required to consider Rule 3, the overriding objective, when deciding whether or not it is proportionate to strike out the response. 11. Mr Issacs referred to Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327. No witness statements had been prepared in that case, the trial bundle was incomplete and the Tribunal found that a fair trial could not be concluded within the trial window (the five-day listing of the final hearing). 12. Mr Issacs also referred to De Keyser Ltd v Wilson [2001] IRLR 324 which held that ‘wilful, deliberate or contumelious disobedience’ can lead directly to whether it is proportionate to strike out a party, irrespective of whether or not a fair trial is possible. 13. In the Emuemukoro case, it was accepted that the respondent’s failure to prepare for the final hearing was an oversight due to the former case handler having left the respondent’s representatives. 14. It goes onto set out that there are two conditions for exercising a power to strike out a response. That the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible (quoting from Blockbuster Entertainment v James [2006] EWCA Civ 684). It noted the two conditions are in the alternative. 15. It is accepted that striking out a claim or a response is a draconian power. It is also accepted that the authorities provide for the Tribunal having to decide whether the respondent’s conduct was deliberate and persistent disregard of required procedural steps and that striking out is the only proportionate response. 16. A fair trial was not possible within the two day trial window as the respondent was simply not prepared for the final hearing and it had not demonstrated anything to the contrary. The respondent seems to rely upon the lack of judicial resources, however, the parties were only told that there was not a Judge available to hear the converted public preliminary hearing. Not that there was no Judge available to hear the two day final hearing. Judicial availability is fluid and this was demonstrated by a Judge becoming available to hear the application. Cases settle at all points of a hearing (for example, a four-day case was heard in three-days, a costs application was made which would have been heard on the fourth day, which then itself settled, thus releasing that Judge on day four, which would have been day one of this hearing). 17. As set out in Emuemukoro, it will almost always be possible to have a trial at some future point; that however, does not pay regard to the consequences of delay and costs for the other party. It is inconsistent with the notion of fairness generally and the overriding objective and consideration should be had to those maters. 18. Turing then to proportionality, of course the ‘less draconian’ option is not to strike out the response. In the chronology set out above the respondent has taken a contumelious stance in these proceedings. Unlike the Emuemukoro authority, there was no benign explanation by the respondent and indeed the respondent’s explanation was that it was in fact ready for the final hearing; yet it was not able when asked, to demonstrate its readiness. The respondent had taken an arrogant approach to this litigation and has demonstrated its wilful, deliberate and contumelious disobedience. It was not prepared to engage with the claimant in order to progress matters and it did not comply with the overriding objective in that besides the other failings, it did not co-operate with either the claimant or the Tribunal to further the overriding objective. 19. For those reasons, the claimant’s application to strike out the respondent’s response succeeds. As discussed at the hearing, the claim will now be listed for a half-day remedy hearing. The parties are however encouraged not to need the indulgence of further Tribunal time and should be capable of agreeing remedy in light of the concessions the respondent has already made. ___________Approved by[1]The Respondent shall pay the claimant the following sums:(a) A basic award of £19,150.94 (14.5 weeks x £700 (Cap) (£10,150 net)(b) A compensatory award of £158,912.38 This is subject to the statutory cap of £115,1151 (as of 6 April 2024)[2]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the claimant by 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. The uplift equates to £28,778.75.[3]The total compensatory award including uplift is £143,893.75.[4]The Claimant’s application for his professional legal costs is granted. The Respondent shall pay to the Claimant £14,100 including VAT.[5]The total award payable by the Respondent to the Claimant is £273,108.75[6]The Respondent’s application for a postponement is refused. 1 This was not discussed at the hearing but was noted when drafting this judgment.
REASONS
[1]This was a hearing to consider the remedy following the judgment of Judge Wright dated 22 May 2025. At the hearing the response was struck out because the Respondent failed to comply with Tribunal orders making a fair trial not possible. The notice of this remedy hearing was sent to the parties on 20 June 2025 using the portal. This is the usual method of communication between the Tribunal and the parties on reform cases.[2]One of the major reasons why the Reform project was introduced was to provide legal representatives with a powerful tool to track all cases in which they represent a party in all cases anywhere in UK.[3]The representative has to be registered with MyHMCTS failing which communication remains via email. Individual users can only access their particular case. The notification, with a link to the correspondence, is emailed automatically to the solicitor by the portal. Mr Tim Tyndall of GunnercookeLLP is the registered user of the portal. He would have received notification of the Notice of Hearing being put on the portal by email.[4]Gunnercooke LLP have been registered with MyHMCTS since May 2025 which means the attached Notice of Hearing sent via the portal to both parties on 20 June would have been received by them. The Respondent received the Notice of Hearing for the preliminary hearing in May and attended the OPH hearing on 22/5/25. The notice was also clearly received by the Claimant also via the portal notification.[5]On 24 September 2025 Mr Tindall wrote to the Tribunal as follows: We refer to our email of earlier today. The Tribunal’s email which prompted it was received by the writer shortly before boarding an international flight. Since landing he has been able to establish the following : 1. That the letter purported to have been sent to our London Office (and which was attached to the email ) was never received. We record and scan each item of post and we have no record of ever having received the letter. 2. All previous correspondence in respect of this matter was sent by email. The writer has checked and can find no trace of an email attaching the notice of hearing . We respectfully request that the Tribunal office check to establish whether an email was sent and also to establish why the customary means of communication (by email) was not adopted in this case . Clearly, were we and the Respondent to have been made aware of the hearing we would have prepared representations in respect of it and moreover to the extent allowed by the Claimant attempted to enter into a dialogue with a view to avoiding it. In this regard, the Respondent’s County Court claim against the Claimant and his substantial Counterclaim in the same proceedings is ongoing and unresolved which significantly impacts upon any attempt to resolve this matter , (relating to the same factual circumstances), by agreement. The Respondent is not in a position to compromise these Employment Tribunal proceedings by agreement as suggested in the Judgment until resolution of those County Court proceedings and the lack of knowledge of the remedy hearing has prevented any representations which would have been made in respect of its timing. Whilst the Claimant is entitled to expect the Tribunal office to communicate details of hearings to us , the first communication we have received from him since the Judgment was yesterday evening (and read by the writer today) which makes no reference to a hearing date on 25th September 2025 and simply attaches a revised schedule of loss. Such reference would clearly have alerted us to a hearing of which we had no knowledge until receipt of the Tribunal’s email of late afternoon today. Neither have we heard from any professional representative of the Claimant who might be acting for him . In terms of attendance at the hearing, as stated above the writer is abroad and regrettably in a location without sufficient access to internet to make attendance by CVP or telephone possible or indeed to instruct a colleague. (The sending of this email has required a 16km round trip to a hotel with communal wi fi. Accordingly, we will not be able attend at the hearing tomorrow. No disrespect is intended to the Tribunal, the Claimant or any professional representative he has instructed. We repeat the request that the hearing be adjourned for 14 days to facilitate our taking instructions. Should the hearing continue the Respondent will have been prejudiced by its lack of awareness of the hearing in the context of the other proceedings afoot between the parties and, of necessity the subject of appeal . We are aware that this is an unacceptable state of affairs to the Claimant (and Counterclaimant in the County Court proceedings) but in the circumstances the cause of any delay is clearly not that of the Respondent or this firm[6]I do not accept the proposition that the Notice of Hearing was sent by post. It was clearly communicated to the parties via the portal. The hearing clerk checked the portal and confirmed this was the method of communication.[7]I do not accept that Mr Tindall could not have asked a colleague to attend this hearing. He could have sent an email at the same time as he sent the email to the Tribunal. It appears from his email he was able to communicate with his office to get information. This would have been a reasonable step to make given the late request for a postponement.[8]I do not accept that the Respondent is prejudiced. The Respondent has had sight of the Claimant’s schedule of loss since week commencing 15 May 2025 which was before the strike out judgment which was made on 22 May 2025. The only additional matter in the final schedule of loss relates to mobile phone costs which are minimal in comparison to the rest of the schedule. There has been no counter schedule provided. Had one been provided it would have been taken into account.[9]The Respondent suggests that it could not compromise these proceedings whilst County Court proceedings are ongoing. Whilst this was a suggestion is in the liability judgment to save time and expense; this remedy hearing is not about compromise but about giving judgment on remedy. There was no suggestion in the hearing when the response was struck out, that remedy should be postponed due to the County Court proceedings, and no application on that basis since the liability judgment. There was previously an application to stay proceedings pending other litigation. This was dealt with and refused by Judge RiceBowyers on 28 March 2025.[10]I note the contents of the liability judgment which struck out the response. This catalogues a litany of failures by the Respondent throughout the litigation. That judgment is to be read in conjunction with this judgment. I will not repeat the contents save to say that the reason for striking out the response was given as: “Turning then to proportionality, of course the ‘less draconian’ option is not to strike out the response. In the chronology set out above the respondent has taken a contumelious stance in these proceedings. Unlike the Emuemukoro authority, there was no benign explanation by the respondent and indeed the respondent’s explanation was that it was in fact ready for the final hearing; yet it was not able when asked, to demonstrate its readiness. The respondent had taken an arrogant approach to this litigation and has demonstrated its wilful, deliberate and contumelious disobedience. It was not prepared to engage with the claimant in order to progress matters and it did not comply with the overriding objective in that besides the other failings, it did not co-operate with either the claimant or the Tribunal to further the overriding objective”.[11]Gunnercooke is a specialist employment law firm. It should be aware how communication of reform cases is done.[12]I do not consider it is in the interests of justice for this remedy to be postponed and the Respondent’s application if refused.
Remedy
[13]The Respondent has conceded parts of the remedy2: “The Respondent has conceded that it deducted the sum of £18,333 (£10,257 holiday and £8,076 bonus) from the Claimant’s final salary and that it must pay to the Claimant the amount of the deduction. The Respondent has agreed to pay the Claimant's Holiday Pay in the sum of £9,231.60. The Respondent has agreed that the Claimant’s entitlements under s24(2) ERA 1996, any breach of the ACAS Code and any issue of costs be determined at the final hearing.”[14]I had sight of documents (which had been provided to the Respondent by the Claimant on 19 May 2025) providing a payslip to confirm his salary, his contract of employment with the Respondent and with his new employer, quotes for life insurance and medical insurance which were both provided by the Respondent but are not provided with his new employer. I can see that in relation to pension, the Claimant did not contribute when employed by the Respondent but does contribute to his pension in his new employment.[15]I can see that the Claimant mitigated his loss within seven weeks. I consider this to be good mitigation and there is no deduction for failure to mitigate his loss.[16]I have considered the schedule of loss which is appended to this judgment together with the documents. I agree with the schedule and award remedy in accordance with it.[17]In relation to the ACAS uplift, this is awarded at the maximum 25%. There was a total failure by the Respondent to comply with the Code of Practice. The Respondent is a large and well-resourced firm with access to specialist legal advice. The Claimant has 14 complete years of service with the Respondent. There is no reasonable excuse with not complying with the ACAS code of practice and 25% uplift is proportionate and just and equitable to 2 Respondent’s email to Tribunal dated 22 May 2025 increase the compensatory award payable to the claimant in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. Costs 76. The amount of a costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) ………[18]The Respondent has acted unreasonably in the conduct of the proceedings. This is amply evidenced by the Judgment of Judge Wright some of which is quoted above. The Claimant has represented himself with the use of professional legal assistance and advice. He is claiming for the costs of the professional advice and representation only. The Claimant is an individual and not able to claim back VAT and therefore VAT is also awarded.[19]I award the fees of Mr Issacs for the May 2025 hearing (£8,000 + VAT = £9,600 including VAT) and Mr Palmer for this hearing (£3,750 + VAT = £4,500 including VAT). The total costs award is £14,100. Approved by: