Ms A M O Masillal v Defence Equipment and Support: 6023572/2024

EMPLOYMENT TRIBUNALS

Case No 6023572/2024

Between

Ms A M O MasillalClaimant

Defence Equipment and SupportRespondent

Before

Employment Judge Ferguson

In person for claimant

Ms S Cummings (instructed by counsel) for respondent

Date 9 July 2026

REASONS

[1]The Claimant was employed by the Respondent, which is an arm of the Ministry of Defence, between 4 March 2024 and 3 September 2024 as an L1 Finance Technician – Senior Technical Specialist.

[2]By a claim form presented on 31 December 2024, the Claimant brought the following complaints: 2.1. Unfair dismissal 2.2. Whistleblowing- detriment and automatic unfair dismissal 2.3. Race discrimination (direct and indirect) 2.4. Harassment related to race 2.5. Victimisation 2.6. Breach of contract

[3]She also sought to bring a number of claims including defamation and data protection claims, in respect of which the Tribunal has no jurisdiction.

[4]The Claimant attached to her claim form a 56-page narrative document.

[5]By a response presented on 17 March 2025, the Respondent resisted the claims.

[6]A preliminary hearing for case management was listed to take place on 14 October 2025.

[7]On 11 May 2025, Employment Judge Self noted that the claim was in an “unmanageable form” and directed the Claimant to identify from it the precise allegations of detriment and discrimination which she was pursuing by 22 May 2025. The Claimant was directed to provide: “a numbered chronological list of each claim he wishes to bring identifying what claim under the Equality Act he [sic] seeks to rely upon i.e., direct discrimination, harassment etc. He must only refer to matters already pleaded in his Claim Form and the Claimant should focus on what is considered the strongest claims. An example of what is required is: 1- On (insert date) (insert person) directly discriminated / harassed against me because of my race when he/ she (insert brief description of act of discrimination).”

[8]On 1 June 2025 the claimant served a 96-page document entitled “Particularised Claim Form”. That document referenced the following claims: 8.1. Claims under Health and Safety at Work Act 1974; 8.2. Constructive dismissal 8.3. Disability discrimination 8.4. Failure to make reasonable adjustments 8.5. Misfeasance in public office 8.6. Breaches of mutual trust and confidence, 8.7. Duty of care, and duty to provide tools for work. 8.8. Fraud by false representation (s.2 of the Fraud Act 2006) 8.9. Forgery (Forgery and Counterfeiting Act 1981 s.1) 8.10. Perverting the course of justice

[9]On 26 June 2025, Employment Judge Bax wrote to the parties: “The Judge is … concerned about the number of allegations being made. The Claimant should be aware that if there are a great number of allegations the lengthier and more complex the final hearing becomes. Further there is a risk that if there are a large number of weak allegations, they can mask stronger ones. The Claimant is referred to the guidance in Hendricks v Commissioner of Police for the Metropolis

[2002] EWCA Civ 1686

, that attempts should be made to keep discrimination claims within reasonable bounds by concentrating on the most serious and more recent allegations. This guidance also applies to whistleblowing claims. The Claimant should think carefully about which allegations she can prove and wants to rely upon. The parties shall seek to agree a list of issues to be determined at the final hearing. The list should identify each allegation relied upon (for each allegation it shall include: the date, who was involved and a brief description of what happened). If there is a dispute about the inclusion of an item, the list shall be annotated accordingly. The draft list of issues shall be sent electronically to the Tribunal, as a Word document, 3 working days before the case management preliminary hearing.”

[10]On 10 October 2025, the Claimant filed and served two documents entitled Draft List of Issues (3 pages) and Claimant’s Consolidated Case Summary (2 pages) which limited the claims to s.103A ERA 1996, direct race discrimination, harassment and victimisation.

[11]On 25 July 2025, the Claimant had applied for strike out of the Response, accompanied by around 140 pages of evidence. She failed to copy in the Respondent, who did not receive the application until 17 September 2025. On 13 October 2025, Employment Judge Midgley dismissed the Claimant’s application, referred her to the overriding objective, and warning her that although she could renew her application and request that it be determined at a hearing, she may be at risk of costs if a judge determined that it was without merit.

[12]At the preliminary hearing on 14 October 2025, Employment Judge Midgley confirmed an agreed list of issues and made orders for the Claimant to provide further information. The Claimant was ordered to “stipulate each protected disclosure which occurred between March and April 2024, detailing the date and the person to whom it was made”. She was also ordered to provide specific information related to the alleged detriments and acts of direct discrimination, harassment and victimisation. The Claimant was ordered to identify, when providing the further information, where the information was referenced in the document attached to her claim form.

[13]A further preliminary hearing was listed to take place on 23 January 2026, to finalise the list of issues and list a final hearing.

[14]Employment Judge Midgley’s order was sent to the parties on 10 November 2025.

[15]On 19 November 2025, the Claimant applied for “reconsideration” of the case management order suggesting, amongst other things, apparent bias. The application was treated as an application to vary the case management orders and was dismissed, with Employment Judge Midgley noting that it was “misconceived and entirely without merit”. The Claimant was warned that “if she makes further meritless and misconceived applications in respect of case management orders she risks a Judge considering whether the conduct of the proceedings has been unreasonable for the purposes of Rule 38”.

[16]The Claimant did not comply with the order for further information and instead produced a document entitled “Schedule of Particulars” on 27 November 2025, which ran to 26 closely-typed pages and contained many complaints outside the scope of the list of issues, as well as a large amount of information that went beyond what had been ordered. It also did not crossrefer to the ET1, contrary to Employment Judge Midgley’s order.

[17]The Respondent produced a draft list of issues based on that document and the Claimant produced her own draft list of issues. At the hearing on 23 January 2026 Employment Judge Gray determined that it would not be possible to finalise the list of issues in the time available. He noted that the Claimant had not complied with Employment Judge Midgley’s order and explained what she needed to do. He ordered her to provide the information by 20 March 2026. He also listed today’s hearing for a full day by video.

[18]Unfortunately, due to what appears to have been administrative oversight, or possibly a technical problem with the Tribunal’s case management system, the case management order was not sent to the parties until 16 April 2026.

[19]It is also unfortunate that on 24 January 2026, the day after the hearing, the Tribunal sent the parties a letter with directions from Employment Judge Self (conveying directions which had in fact been issued by him on 6 January 2026). Those directions said, among other things, that “The Claimant's recent document will be considered at the upcoming Case Management Hearing.” That was meant to refer to the hearing on 23 January 2026.

[20]Thereafter the Claimant maintained that she had already provided all of the information ordered by Employment Judge Midgley. The Respondent explained to the Claimant on 24 March 2026 that the letter from Employment Judge Self must have been drafted before the hearing on 23 January 2026, and that the orders of Employment Judge Gray still needed to be complied with.

[21]On 31 March 2026 the Claimant wrote to the Tribunal asserting that there was no requirement to provide further particulars and that she had provided “more than sufficient detail and clarification of my claims”.

[22]On 9 April 2026 the Respondent applied to strike out the claim on the basis that: 22.1. the manner in which the proceedings had been conducted by the Claimant had been scandalous, unreasonable or vexatious, 22.2. the Claimant had not complied with the Rules or with an order of the Tribunal, and/or 22.3. the claim had not been actively pursued.

[23]On 16 April 2026, at the same time as responding to the Respondent’s strike out application, the Claimant provided a document entitled “master cross-reference”, which she claimed was in compliance with the order of Employment Judge Midgley, indicating where the further information she had supplied was contained in the document attached to her claim form.

[24]On 21 April 2026 the Tribunal directed that the Respondent’s application would be determined at the start of today’s hearing.

[25]On 23 April 2026, the Claimant submitted a further response to the strike out application. She also applied to strike out the response on the basis that the Respondent had not complied with an order to submit an amended response. That was wholly misconceived because Employment Judge Self had already confirmed that the Respondent was released from the obligation to provide an amended response. The Claimant also applied to amend her claim to add a complaint of victimisation, arguing that an email from the Respondent of 15 January 2026 which referred to its costs incurred to date was an act of victimisation.

[26]I heard submissions from the parties on the Respondent’s strike out application. THE LAW

[27]Rule 38 provides: 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;

(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

[28]Rule 38 requires a two-stage approach. The Tribunal must first consider whether one or more of the specified grounds for striking out have been established. If that threshold is met, the Tribunal must then consider whether to exercise its discretion to strike out the claim.

[29]In deciding whether to order strike-out, the Tribunal must have regard to the overriding objective of dealing with cases “fairly and justly”. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, avoiding delay and saving expense.

[30]The word “scandalous” in Rule 38(1)(a) and (b) 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).

[31]As for “vexatious”, in Attorney General v Barker

2000 1 FLR 759

, QBD, Lord Chief Justice Bingham (as he then was) said that the hallmark of a vexatious proceeding is that it has “little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.

[32]For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response (Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA).

[33]In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a tribunal must consider whether a fair trial is still possible (De Keyser Ltd v Wilson

2001 IRLR 324

, EAT). If a fair trial is still possible, the case should be permitted to proceed. Even if a fair trial is unachievable, the tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, for example, by making a costs or preparation order against the party concerned rather than striking out his or her claim or response (Bolch v Chipman

2004 IRLR 140

, EAT).

[34]In Smith v Tesco Stores Ltd

2023 EAT 11

HHJ Tayler upheld the tribunal’s decision to strike out a claim, which included a finding that there could not be a fair trial because the claimant refused to cooperate with the employer and the employment tribunal. In that case there had been difficulty, despite several preliminary hearings, in identifying the issues. This resulted from a course of conduct in which the claimant, a litigant in person, had shown that he was not prepared to cooperate with the tribunal process. The tribunal concluded that he would not abide by his obligation to assist in achieving the overriding objective and that his disruptive conduct was likely to be repeated. The claimant was not working towards a trial that was fair in the sense of avoiding the undue expenditure of time and money, taking into account the demands of other litigants and the finite resources of the tribunal. The tribunal concluded that the claimant had acted in a manner that was scandalous, unreasonable or vexatious, that a fair trial was no longer possible, and that a strike-out of the entire claim was proportionate.

[35]The EAT upheld that decision, while observing that the case should not be seen as a “green light” for routine strike-out of cases that are difficult to manage. HHJ Tayler commented: “Strike out is a last resort, not a short cut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have been taken by the tribunal in seeking to bring the matter to trial is likely to have been as much as would have been required, if the parties had cooperated, to undertake the hearing. This case [was] exceptional because, after conspicuously careful, thoughtful and fair case management, the claimant demonstrated that he was not prepared to cooperate with the respondent and the employment tribunal to achieve a fair trial. He robbed himself of that opportunity.” CONCLUSIONS

[36]I must consider whether the Claimant’s conduct of the proceedings has been scandalous, vexatious or unreasonable, whether she has failed to comply with orders of the Tribunal, and whether she has not actively pursued the claim.

[37]It was made clear to the Claimant from the outset of the proceedings that the document attached to the claim form was unmanageable in that it was too long and did not clearly identify the alleged acts of discrimination.

[38]The Claimant’s response, to submit a 96-page document, closely typed, failing to follow the form of the example given by Employment Judge Self, was unreasonable. This document is also unworkable as a basis for the claim.

[39]Following further warnings from the Tribunal, the Claimant then produced the documents on 10 October 2025. These were capable of forming the basis of a claim that the Respondent could respond to, albeit some further clarification was required. At the hearing on 14 October 2025, Employment Judge Midgley, understandably, treated that document as confirmation of the complaints the Claimant wished to pursue. However, the Claimant’s conduct since then has demonstrated that she has no intention of limiting her claims to the matters in the list of issues, and wants to rely on the document attached to the claim form and the “Particularised Claim Form” documents in full. The Claimant confirmed that today. She said, for example, that she seeks to rely on 14 protected disclosures, not just the four referred to in the list of issues document. The document is therefore of no assistance whatsoever to the Tribunal or the Respondent in those circumstances. Despite a great deal of correspondence with the Tribunal and work done by the Respondent to understand the claim, and two preliminary hearings, over the course of 16 months, we are essentially back to square one.

[40]I find that the Claimant has essentially refused to comply with Employment Judge Midgley’s order to provide further information, because she was seeking to resile from her list of issues document and wanted to revert to pursuing all of the matters set out in the claim form and “Particularised Claim Form”. She applied to vary the case management order on that basis, and alleged an appearance of bias. The application was rejected on 16 December 2025. The Claimant has not appealed that decision, but it is clear that she still does not accept Employment Judge Midgley’s framing of her claim per the list of issues attached to his order.

[41]The schedule of particulars document, submitted on 27 November 2025, does not comply with Employment Judge Midgley’s order, and the Claimant cannot genuinely have believed that it did. It is not only the absence of crossreferencing to the claim form, but as the Respondent fairly submits, even if some of the information ordered is there, it is so obscured by all of the other information that was not requested, that it is virtually impossible to identify.

[42]Notwithstanding this, the Respondent made extensive efforts to try to understand the claim and approached the hearing on 23 January 2026 in good faith, hoping that a list of issues could be finalised. It even appears to have been willing to dispense entirely with the draft list of issues in Employment Judge Midgley’s case management order and start from scratch.

[43]A list of issues could have been agreed at that hearing if the Claimant had cooperated with the Respondent. Instead, she produced yet another confusing document, her own list of issues. The first nine pages of this related to the whistleblowing complaints. The last two and a half pages listed allegations of discrimination, harassment and victimisation, without the dates, names and details which had been specifically ordered by Employment Judge Midgley. That made it impossible for a list of issues to be finalised and agreed at a one-hour preliminary hearing. Employment Judge Gray explained to the Claimant why her schedule did not comply with the order, and effectively extended the deadline to 20 March.

[44]It is very unfortunate that the written record of that hearing, confirming that order, was not sent to the parties until 16 April. It is also unfortunate that a letter was sent on 24 January with a direction from Employment Judge Self, which had in fact been given on 6 January and was intended to be sent out before the hearing on 23 January.

[45]Given that the Claimant is a litigant in person, and noting that she has asked the Tribunal to take into account that English is not her first language, I accept that that is likely to have caused some confusion to the Claimant. However, that confusion should not have extended beyond 23 March, when the Respondent explained the situation to the Claimant. The Claimant’s consistent position, even after that, has been that she has already complied with Employment Judge Midgley’s order. Even after receiving Employment Judge Gray’s order, which makes it clear she had not done so, the only thing she has done is to send the cross-referencing document. This does not comply with the order either. I agree with the Respondent that it takes matters no further.

[46]Against the background of all of that, the Claimant has made numerous unfounded allegations against the Respondent and made unmeritorious applications. In her response to the strike out application, she made her own application to strike out the ET3 on a completely misconceived basis. Even after that was pointed out to her, she maintained the application, relying on matters in an earlier application to strike out the response made in July 2025, which had already been rejected.

[47]I find that the Claimant’s conduct of the proceedings has been persistently obstructive, causing disproportionate inconvenience and cost to the Respondent. It has also used a disproportionate amount of the Tribunal’s resources.

[48]I take into account the fact that the Claimant is a litigant in person, but she has been given considerable help and guidance, by both the Tribunal and the Respondent, and has demonstrated she is either unable or unwilling to take it on board.

[49]I am satisfied that the Claimant’s conduct of the proceedings has been unreasonable and vexatious.

[50]The Claimant has also failed to comply with the order of Employment Judge Midgley. I consider she either knew or ought to have known what was required, especially after it was explained to her again at the hearing on 23 January 2026, and she has deliberately not complied. There is no good reason why she could not have simply provided the information requested in a straightforward way.

[51]I am not satisfied that the Claimant has not actively pursued the claim.

[52]I must also consider whether a fair trial is possible. A fair trial is not possible without clarity as to the complaints brought. It is conceivable that, with the Claimant’s cooperation at a further preliminary hearing, probably in person, it would be possible to finalise a list of issues by using the Respondent’s draft list of issues, the Claimant’s documents and with some further clarification from the Claimant.

[53]As explained in Smith v Tesco, however, there are other factors relevant to the question of fair trial, including the undue expenditure of time and money, the demands of other litigants and the finite resources of the court.

[54]As HHJ Tayler noted in Cox v Adecco Group UK & Ireland and ors

2021 ICR 1307

, EAT, strike out should not be seen as an alternative to trying to get to grips with the claim. However: “This does not mean that litigants in person have no responsibilities. So far as they can, they should seek to explain their claims clearly even though they may not know the correct legal terms. They should focus on their core claims rather than trying to argue every conceivable point. The more prolix and convoluted the claim is, the less a litigant in person can criticise an employment tribunal for failing to get to grips with all the possible claims and issues. Litigants in person should appreciate that, usually, when a tribunal requires additional information it is with the aim of clarifying, and where possible simplifying, the claim, so that the focus is on the core contentions. The overriding objective also applies to litigants in person, who should do all they can to help the employment tribunal clarify the claim. The employment tribunal can only be expected to take reasonable steps to identify the claims and issues.”

[55]It cannot be said that Tribunal or the Respondent has not tried to get to grips with this claim. Both have made extensive efforts. The discrimination complaints remain impossibly vague, and the Claimant has not provided the information needed, despite many opportunities.

[56]It would not be reasonable to expect the Tribunal to dedicate the further resources that would be required, and for the Respondent to incur the costs involved, to make sense of the extremely lengthy documents the Claimant has produced, and noting that she maintains she wants to rely on them in their entirety.

[57]I could also have no confidence that the Claimant would engage properly with the process at a further preliminary hearing, or that she would accept the outcome, without making further unmeritorious allegations or applications.

[58]In respect of the parts of the claim that depend on the further information ordered by Employment Judge Midgley, therefore, I find that there cannot be a fair trial.

[59]It should be noted, however, that the complaint of automatic unfair dismissal has already been fully identified, albeit that one of the protected disclosures required clarification. Provided that that protected disclosure is removed from the list of issues, I would not go so far as to say a fair trial is not possible. There is a straight dispute of fact as to the reason for the dismissal. The burden is on the Claimant to show that the sole or principal reason for dismissal was that she made a protected disclosure. Three alleged protected disclosures have been clearly identified. That complaint, notwithstanding the Claimant’s conduct of the proceedings to date, can proceed and a fair hearing of it is still possible. The Claimant should note, however, that if she seeks to expand upon the claim or make further misconceived applications, there may come a point where a fair trial is not possible even on that part of the claim.

[60]I must finally consider whether it is proportionate to strike out the remainder of the claim. I am satisfied that it is. I recognise that this is a draconian measure which prejudices the Claimant. But I must also consider the impact on the Respondent. We are now 16 months from the presentation of the claim and there is still no workable list of issues. The Respondent has had to attend three preliminary hearings and no real progress has been made. I am allowing part of the claim, which on the face of it appears to be the Claimant’s central complaint, to proceed. The Respondent will have to defend that claim, but it ought to be possible for that to be determined at a final hearing lasting around three days. If the whole claim were allowed to proceed, the Respondent would also incur the cost and time required before the issues were clarified, and a much longer final hearing would likely be required. Such a course could not be justified. Approved by: Employment Judge Ferguson Date: 9 July 2026 21 July 2026 Notes All judgments (apart from judgments under Rule 51) and any written full reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/