Mr B Khalid v Mr M Aslam and Wallyford Day Today Supermarket Ltd: 8000192/2025 and 8000213/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000192/2025, 8000213/2025
Between
Mr B KhalidClaimantMr M Aslam and Wallyford Day Today Supermarket LtdRespondent
Before
Employment Judge A JonesDate 6 October 2025
JUDGMENT
[1]The claimant’s claims against the first respondent are struck out and dismissed in their entirety in terms of rule 38(1)(a) and (c) of the Employment Tribunal Rules 2024.[2]The claimant’s claims against the second respondent are struck out and dismissed in terms of rule 38(1)(a) and (c) Employment Tribunal Rules other than in relation to unlawful deduction from wages in respect of hours said to have been worked for which the claimant was not paid.[3]Unless the claimant complies with the order set out at schedule 1 herein within 7 days of the date of the order being sent to him, his claim will be struck out without further procedure in terms of rule 39 Employment Tribunal Rules 2024. Background and reasons for orders[1]Orders were made following the last preliminary hearing requiring the claimant to specify his claims. The Orders were made by way of requiring answers to questions.[2]The claimant sent correspondence to the Tribunal on 1 April which he suggested was in compliance with the Order. Rather than answers to questions, the claimant provided a narrative under various headings he created such as “Ongoing threats and intimidation – an attempt to destroy my life”. One heading was “Unpaid hours – systematic exploitation over two years”. The claimant went on to list the months he worked and total number of hours he said he had worked in those months for which he was not paid. The total amounted to 2,575 hours. The claimant had been ordered to “provide specification of the dates on which he says he worked hours for which he was not paid. In relation to each date, he should set out the number of hours he says he worked and was not paid and the sums he says he was entitled to be paid.”[3]The claimant’s correspondence on 1 April did not comply with the Order in this or its other respects.[4]The claimant sent the same documents again on 2 April. The claimant did copy the respondent into the email and accompanying documentation.[5]On 17 April, the respondents submitted an application for strike out of the claimant’s claims and a skeleton argument in support of that application. The application was made on various grounds. Firstly it was alleged that the claimant had assaulted the husband of a witness the respondent intended to call to give evidence on their behalf on 11 April 2025 and that in doing so it was alleged that the claimant had said to the husband of the witness that he should get his wife to “step back from the case as witness” or he would kill him.[6]It was also said that the claimant had failed to comply with the Tribunal’s orders. Finally, it was said that aspects of the claimant’s claims should be struck out as having no reasonable prospects of success.[7]The claimant sent further correspondence to the Tribunal on 22 April enclosing various documents including what were said to be witness statements of potential witnesses. His email was not copied to the respondent.[8]The Tribunal wrote to the claimant on 22 April indicating that the claimant had failed to comply with the Order which had been made and that he should “comply with the Order by answering the Tribunal’s questions following the numbering of those questions by 4pm on 25 April.” The claimant was also required to respond to the allegation that he had sought to interfere with the evidence of a potential witness by that time. Parties were informed that the hearing on 30 April would consider the respondents’ application for strike out of the claimant’s claims.[9]The claimant did not comply with the Tribunal’s Orders. The Tribunal wrote to the claimant on 28 April indicating that he “should be aware that if he fails to comply with Orders of the Tribunal his claim may be struck out. He should respond to the Tribunal’s correspondence of 22 April by return.” 10.The claimant then sent an email on 28 April with various extensive accompanying documentation. The documents provided did not comply with the Order of the Tribunal. 11.The Tribunal then wrote to the claimant on 29 April stating “Despite reminders, the claimant continues to fail to comply with the Order of the Tribunal of 19 March 2025 to provide answers to questions. The claimant has failed to comply with the requirement to reply to the respondent’s allegation that he has sought to interfere with the evidence of a witness. The Tribunal will consider the respondent’s application to strike out the claimant’s claim and also whether the claimant’s claims should be struck out because of his failure to comply with the Orders of the Tribunal at the hearing on 30 April.” 12.A further email was received from the claimant on 28 April which enclosed the various documentation which had already been provided by him. The claimant continued to fail to copy his correspondence to the respondent. Submissions[13]The respondent’s agent made submissions in keeping with the terms of the skeleton argument provided in advance of the hearing. Reference was also made to Gainford Care Home v Tipple and anor 2016 EWCA Civ 382. 14.In response the claimant’s position was that he had not spoken to the witness’ husband on 11 April at all. He said the allegation was fabricated and that he had gone to the police station and been advised that the investigations had been completed and that the case was closed. 15.In relation to the failure to comply with the Tribunal Orders the claimant’s position appeared to be that he had difficulty in uploading sufficient pages to the Tribunal portal. He said that he had answered all the questions. He said he had not been able to hire a lawyer but would do so now. 16.In terms of the respondent’s position that the Tribunal did not have jurisdiction to deal with various of his claims and that others had not been adequately specified the claimant said that he had rotas which demonstrated the hours he worked. 17.I asked the claimant whether he accepted that the respondent had made a payment to him in lieu of annual leave entitlement on termination of his employment. The claimant accepted that this payment had been made but said that it was made so that he wouldn’t bring a claim. The claimant then went on to describe various occasions when he said he had not been well and had not taken been able to take time off. Discussion and decision[18]I was satisfied that the claimant had failed to comply with the Order of the Tribunal. I took into account that English is not the claimant’s first language an that he is representing himself. However, I also noted that the documents he had submitted displayed an excellent command of written English. He is clearly an intelligent and articulate individual. He had indicated previously that his written English was good but his spoken English was not so good. I accepted that position and it did not seem to me that this was a valid reason for failing to comply with the Order. 19.I was also mindful that the claimant had been given a number of reminders to comply with the Order of the Tribunal. He had also been reminded at the preliminary hearing, having failed to provide an Agenda that he needed to read directions from the Tribunal carefully. 20.I was also satisfied that in terms of the information the claimant had provided, he had failed to address the substantive issue, which was to explain what claims he was seeking to advance and the basis of those claims. At best all that could be determined from the narrative provided by the claimant was that he claimed: i. He had not been paid for hours worked ii. He had not been given rest breaks on unidentified occasions iii. He had been subjected to sex discrimination in that a female member of staff was not required to lift deliveries on unspecified occasions iv. He had not been permitted annual leave (although he now accepts that he was paid in lieu of annual leave on termination of his employment) v. He had complained to unspecified people on unspecified dates that the second respondent had done unspecified activities which were unlawful. 21.In terms of the application to strike out the claimant’s claims due to the intimidation of witnesses, it appeared to me that this matter could only be determined after hearing evidence. The claimant denied he had met the individual concerned on the relevant date at all and therefore I would have to hear evidence on oath from him and a witness from the respondent regarding the matter. This would only be feasible if I was satisfied that hearing such evidence would not interfere with any criminal proceedings. I therefore put that matter to one side and it is addressed further below. 22.It seemed to me that I would be entitled to strike out the claimant’s claims for having failed to comply with the Order of the Tribunal. I formed the impression that the claimant’s clear animus towards the second respondent and various other individuals who had worked with him was impacting on his willingness to state his claims in a clear manner. I concluded that his failure to comply with the order of the Tribunal was deliberate. There was no other reason why the claimant could not have complied with the order. 23.I then considered the extent to which it could be said that the claimant’s claims had any prospects of success. 24.In terms of the claimant’s claim for holiday pay, the claimant conceded that he had been paid in lieu of annual leave entitlement for the last year of his employment. On that basis there is no statable claim in terms of holiday pay for that year and the claimant has failed to provide any information on which any other claim in relation to holiday pay could be advanced. I therefore came to the view that his claim in relation to holiday pay has no prospects of success. 25.In terms of a claim in relation to rest breaks, the claim remains wholly lacking in specification. The claimant simply suggests he had to work throughout unspecified shifts with no break. The respondent’s position is that the claimant was entitled to a 30-minute paid break during each shift. On the basis of the current pleadings this claim has no prospects of success and should be struck out. 26.In terms of a claim of sex discrimination, the claim appears only to relate to an allegation that on unspecified occasions, the claimant was required to deal with deliveries while a female member of staff remained at the till. The respondent’s position is that there is a material difference in any comparison as the claimant’s English was such that the female member of staff should be required to carry out customer facing duties. Given the lack of specification by the claimant in relation to this allegation, and taking into account the respondent’s position, I came to the view that there were no prospects of success in the claimant succeeding in this claim. 27.I then considered the claimant’s claim in relation to whistleblowing. The only information the claimant had provided in support of any such claim was vague and unspecified. It did not seem to be to be sufficient to demonstrate that there were any prospects of success in the claim. There was no indication from the claimant on what basis he said he made a protected disclosure, to whom, when or what detriment he says he suffered as a result. 28.In addition, the claimant’s suggestion of a claim in relation to a failure to allow him to take paternity leave was woefully unspecified. He had not answered the questions asked of him in the Order and it did not seem to me that the Tribunal had any jurisdiction to determine any such claim. 29.In relation to the issue of a redundancy payment, the claimant had failed to answer the questions regarding this and had failed to say whether he accepted that another member of staff had been recruited to replace him. This claim is hopeless. 30.In any event, other than in respect of the claim of sex discrimination and whistleblowing, the claimant did not advance any basis on which the second respondent could be liable for any of the claims he sought to make. 31.However, I then went on to consider whether there would be a less draconian step which could be taken than to strike out his claims in their entirety. 32.The only claim which appeared to the Tribunal could be stateable was in relation to an allegation that the claimant had not been paid for hours worked by him. The claimant had failed to comply with the order in that the only information he provided was a total number of hours in each month for which he said he was not paid. He has not set out how much he said he was due to be paid, or the hours he says he worked on particular days. 33.Therefore taking into account the claimant’s failure to comply with the Order of the Tribunal, the lack of specification in relation to the claims he seeks to make, the lack of jurisdiction of the Tribunal for many of the claims the claimant seeks to make, I have determined that the claimant should have one final opportunity to set out a case in relation to unpaid wages. The claimant is therefore ordered to provide the information sought in that attached schedule within 7 days. If he fails to provide that information, his claim will be struck out without further procedure. 34.If the claimant complies with the order of the Tribunal, and the respondent is of the view that a fair trial remains impossible given the allegation of witness interference then a hearing will be listed to take place in person to hear evidence on that allegation and determine the application (subject to there being no ongoing police enquiries). 35.If the claimant complies with the order and the respondent is satisfied that a fair hearing can take place, the case will be listed for a 1-day hearing in person before the sitting judge on a date to be notified to the parties. 36.The claimant is also reminded that he should copy any correspondence regarding his claim which he sends to the Tribunal to the respondent’s representative. Employment Judge: A Jones Schedule Unless the claimant provides the information required below within 7 days of the date of this Order his claims will be struck out without further procedure in terms of Rule 39 of the Employment Tribunal Rules 2024.[1]On what specific dates does the claimant say he worked hours for which he was not paid.[2]How many hours on each date does he say he worked hours for which he was not paid and what was the time of those hours? For instance, if the claimant says that he worked 9am to 9pm on a day, he should state that and say the number of hours he was paid for on that date.[3]In relation to each date the claimant says he worked and was not paid for hours worked, how much does he say he ought to have been paid.[4]What documentary or other evidence does the claimant rely on in relation to his claim? He should provide copies of all documents on which he intends to rely.
REASONS
[1]The respondent made an application for strike out of the claimant’s claims on 17 April 2025. A skeleton argument was provided in support of the application. The application related to this case and another case the claimant had brought against an individual, Mr Aslam who is the Director of the remaining respondent. The claims against the individually named respondent were struck out following a hearing on 30 April. The claims against this respondent were struck out other than in relation to a claim for unfair dismissal and unlawful deduction from wages subject to the claimant complying with a further Order of the Tribunal. A Judgment was sent to the parties on 6 May 2025 setting out the reasons for these decisions.[2]The application for strike out now under consideration had been made on the basis of an allegation regarding the claimant’s intimidation of a witness. The Judgment of 6 May indicated that if the claimant complied with the Order and the respondent insisted on its application for strike out in this regard, then an in-person hearing would be listed to determine that matter.[3]The allegation was essentially that the claimant had assaulted and threatened the husband of a key witness to be called by the respondent at the final hearing. The claimant was alleged to have demanded that the husband of the witness ensure that his wife “stepped back from the case” or that the claimant would kill the husband. Parties were informed on 15 May that the claimant’s remaining claims were to be listed for a final hearing, and the respondent was asked to confirm whether the application for strike out was being insisted upon.[4]The respondent confirmed on 22 May that the application was being insisted upon. The claimant responded by email indicating that he denied the allegation and stated that did not meet the individual in question on the alleged date.[5]The respondent lodged a bundle of documents on 24 September for use at the hearing. This included sworn affidavits of Mr Abbas, the individual allegedly assaulted and his wife, Ms Dilawar, an employee of the respondent who was to be called as a witness at a final hearing. The respondent also produced an email form Deliveroo Rider Support to Mr Abbas making reference to an incident on 11 April and a Police Scotland Victim Care Card with a crime reference number relating to an allegation of assault on 11 April 2025.[6]The Tribunal heard evidence from Mr Aslam, the Director of the respondent who gave evidence about his knowledge of and involvement in the events of 11 April. Mr Aslam was cross-examined by the claimant, who then gave evidence himself and was cross-examined. Both parties then made submissions. Following the conclusion of the hearing the claimant lodged a skeleton argument on the application which had been made. There was no explanation as to why this had not been lodged in advance of the hearing, but the Tribunal took it into account in any event. Observations on the evidence and findings in fact[7]Mr Aslam was a credible and reliable witness. He made clear when he could not remember the exact detail of matters and was consistent in his evidence. The claimant’s evidence however was confusing and contradictory. He indicated that he had not been on Leith Walk at the time of the alleged incident on 11 April (which was where the assault was said to have taken place). He then said he was on a bus going down Leith Walk around that time. Subsequently he said he might have “been going” for a bus at the time of the incident. He said that he might have been walking to the Kirkgate (which the Tribunal knows to be at the bottom of Leith Walk) to get a bus around that time.[8]The claimant also suggested in evidence that he had been alerted to an incident by his cousin, who lives near where the incident took place and in a flat in which the claimant used to live. The claimant alleged that his cousin told him that Mr Abbas was in a car with Mr Aslam outside the flat on Leith Walk and that Mr Aslam was punching Mr Abbas and was going to frame him for the assault. The claimant said that because of his call, he went to the police station the following day to find out whether any allegations were being made against him and that he did so voluntarily. He also said that he was accompanied by a solicitor during an interview with the police (with the aid of an interpreter) which lasted around 4 hours, having been moved from the police station he attended to another police station.[9]The Tribunal found the claimant’s evidence to be incredible. The Tribunal did not accept that it was at all credible that Mr Aslam had been punching the husband of one of his employees in his car in order to allege that it was the claimant who had punched Mr Abbas. The claimant did not explain how a conclusion could have been drawn by his cousin in this respect and intimated to him regarding this matter. In addition, while the Tribunal could accept that the claimant went to a police station ‘voluntarily’ in that he was not taken to the police station by the police, it found it difficult to understand why someone would go to a police station simply to find out if anyone had made allegations against them. The Tribunal was also conscious that the claimant went to the police station the day after he was alleged to have committed an assault, and could not understand why he would be interviewed with a solicitor for 4 hours having been moved to a different police station for that purpose other than if the person had been invited for interview by the police.[10]The Tribunal did not accept the claimant’s evidence and did not find him to be either credible or reliable in relation to his version of events of 11 April. Unfortunately, the Tribunal was bound to conclude that the claimant created this fantastical version of events because he had indeed had an altercation with Mr Abbas. The Tribunal heard that both Mr Abbas and Ms Dilawar were too fearful to come and given evidence in person at the hearing and this was why sworn affidavits were lodged in relation to them. The Tribunal took into account, that while the affidavits were sworn, nonetheless, the claimant was not given an opportunity to cross examine them on their evidence.[11]However, the Tribunal also bore in mind that it was a rather catch 22 situation in that the application was being made on the basis that a key witness was fearful to come and give evidence, yet the extent to which that fearfulness was justified could not be challenged because the witness was said to be too fearful to give evidence. The Tribunal was therefore required to take into account what information it had before it, weigh up that information together with the evidence which had been led and reach such conclusions as it could taking into account the fact that some of the evidence could not be challenged.[12]The Tribunal did however have a first-hand account of some of the relevant events from Mr Aslam who said that he arrived on the scene after the alleged assault having been phoned by Mr Abbas, witnessed Mr Abbas appearing to be injured and had been told by Mr Abbas what had happened. He also explained that he had taken Mr Abbas to hospital and that they had both been interviewed by the police. He said his understanding was that no charges were brought against the claimant as the CCTV footage which was available put the claimant at the scene (or running away from it) but did not show the altercation itself. The Tribunal accepted this evidence.[13]Taking all these factors into account the Tribunal concluded on the balance of probabilities that the claimant had behaved in a manner which was intimidating and threatening towards Mr Abbas with the intention of dissuading Ms Dilawar from giving evidence at a final hearing. His conduct amounted to a serious attempt to intimidate a witness. Submissions[14]The respondent’s agent made submissions that the claimant should be struck in terms of rule 38(1)(b) and/or (e) of the Tribunal Rules. Reference was made to Gainford Care Home v Tipple and anor 2016 EWCA Civ 38; Bolch v Chipman 2004 IRLR 140; Force One Utilities v Hatfield [2009] IRLR 45. De Keyser Ltd v Wilson 2001 IRLR 324 and Abergaze v Shrewsbury College of Arts and Technology 2010 IRLR 238.[15]The respondent’s position was that there was evidence to demonstrate that the claimant had assaulted Mr Abbas, that Ms Dilawar was a key witness for the respondent and was now frightened of what the claimant might do to her husband if she gave evidence in support of the respondent and that this would mean that a fair trial was not possible. It was said that there was no other way of dealing with the issue and that the claimant should be barred from participating further in the proceedings and his claim be struck out.[16]In response, the claimant’s position was that he had not spoken to the witness’ husband on 11 April at all. He said the allegation was fabricated and that he had gone to the police station and been advised that the investigations had been completed and that the case was closed. He said that Mr Abbas and Ms Dilawar were like a brother and sister to him and that the allegations were being made by them because they were on visas supported by Mr Aslam and that they were only being made to distract the Tribunal from hearing evidence on the claimant’s claim. Relevant law[17]Rule 38 of the Tribunal Rules 2024 states that:(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).(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). Discussion and decision[18]In the first instance, it was necessary to determine whether the claimant had behaved in a scandalous, vexatious or unreasonable manner in conducting the proceedings.[19]Having carefully balanced the evidence available and taken into account that I had not heard directly from Mr Abbas or his wife, I concluded that the claimant’s conduct had been scandalous. While I could not make detailed findings about exactly what had occurred on 11 April 2025, between the claimant and Mr Abbas, I was satisfied the claimant had confronted Mr Abbas, and had physically and verbally assaulted him, and threatened him with a view to dissuade his wife from giving evidence in this case. I came to this conclusion on the basis of the general consistency of the oral evidence from Mr Aslam, with that of the sworn affidavits (to which he was not referred during evidence), that I accepted Mr Aslam as a credible and reliable witness, the content of the sworn affidavits and the evidence of the claimant, which was incredible. The claimant’s suggestion that Mr Aslam had assaulted Mr Abbas in his car outside a flat that the claimant’s cousins live in, that Mr Abbas had then called the police and had to be taken to hospital, and that Mr Abbas and his wife were prepared to participate in a conspiracy against the claimant to frame him for that assault, was simply incredible. I accept that the claimant was not charged by the police in relation to the incident. However, in his own evidence he conceded that he was interviewed for 4 hours while accompanied by a solicitor and interpreter. The respondent’s position was that Mr Abbas was informed that charges could not be brought against the claimant because while the CCTV which was available could place the claimant at the scene, it did not show any incident between the claimant and Mr Abbas but showed him running away and therefore there was no corroboration available for the actual assault. That position appeared to be credible to me.[20]Having concluded that the claimant’s conduct was scandalous, it was then necessary to consider whether a fair trial could take place. It should be borne in mind when considering this issue that strike out ought not to be a punishment for any such conduct and that notwithstanding such scandalous conduct, a fair trial might still be possible.[21]I concluded that a fair trial would not be possible. I considered whether ensuring that witness evidence could be given remotely might be an appropriate way of proceeding. However, I came to the view that it was likely that the evidence of Ms Dilawar would be affected however that evidence was to be given, because she was fearful of the claimant and his potential actions towards her and her husband. It appeared to me that this would inevitably impact upon her evidence. The respondent’s grounds of resistance had indicated that the claimant was dismissed following concerns raised by Ms Dilawar with Mr Aslam about the claimant’s conduct towards her when she was left in charge during Mr Aslam’s absence on holiday abroad in December 2024 in preference to the claimant.[22]In addition, the claimant suggests that Ms Dilawar was aware of the hours the claimant worked which is relevant to his claim of unpaid wages. It is clear therefore that Ms Dilawar is a key witness in the case. If her evidence were to be impacted, which I find it would almost certainly be by the claimant’s conduct, then a fair trial would not be possible. It would simply not be reliable evidence, whether in support or otherwise of the claimant or respondent.[23]Finally, it was necessary to determine whether even if a fair trial is unachievable, what the appropriate remedy would be. For instance, it may be appropriate to make an award of expenses against a party rather than strike out a claim or response. However, in the present circumstances, I could not see that any remedy other than strike out would be appropriate. I considered whether there might be limitations on the claimant’s conduct in the proceedings, but it appeared to me that any such limitations were themselves likely to have an impact upon whether a fair trial would be possible and therefore would be inappropriate and unworkable. I could not identify any way in which the situation was retrievable.[24]In all of these circumstances, I came to the conclusion that the claimant had acted in a scandalous manner, that a fair trial was no longer possible because of his conduct and that the only proportionate remedy was to strike out his claim in its entirely.