Mrs A Nesbitt v Glasgow Clyde College and Board of Management of Clyde College: 8000328/2025 and 8000964/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000328/2025, 8000964/2025Venue GlasgowHearing 10 November 2025
Between
Mrs A NesbittClaimant(1) Glasgow Clyde CollegeRespondent
Before
Employment Judge M WhitcombeDate 18 November 2025
JUDGMENT
(1) Both claims are struck out under rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024 because the manner in which they have been conducted by the claimant has been unreasonable, making a fair hearing impossible. The only proportionate sanction in all the circumstances is to strike the claim out.(2) Oral reasons were given in the presence of the parties or their representatives. The claimant requested written reasons, which will be provided as soon as practicable.
REASONS
[1]At the start of the hearing the claimant confirmed that she had been able to take legal advice since the preliminary hearing for case management on 1 September 2025. She referred to “my legal team”, although she was not represented at this hearing and no representative is on record as acting for her. She also brought two supporters or observers to the hearing, as she had done at the preliminary hearing for case management.[2]Full oral reasons for the judgment striking out both claims were given at the end of the hearing on 10 November 2025. The claimant made two requests for written reasons before leaving the hearing room and a third request by email later the same day. These written reasons are provided in accordance with rule 60 of the Employment Tribunal Procedure Rules 2024.[3]These reasons must be read together with my order following a preliminary hearing for case management on 1 September 2025. While I will refer to certain numbered paragraphs of that order, the full background is also important. I will refer to it below as “the PHCM Order”, although it was in fact the second preliminary hearing for case management.[4]The claimant appealed that case management order twice, in EAT appeal numbers EA-2025-SCO-000106-SH and EA-2025-SCO-000118-AW. At the time of the hearing on 10 November 2025 both appeals were still live and a “sift” decision was pending. However, since then both appeals have been rejected on the sift by HHJ Shanks in EAT orders dated 10 and 20 November 2025. In both cases HHJ Shanks found that the appeals were “totally without merit” under rule 3(7ZA) of the EAT Rules 1993, such that the claimant was not entitled to a hearing before a judge under rule 3(10). As far as I know, the claimant has not applied for permission to appeal to the Court of Session.[5]The preliminary hearing on 10 November 2025 resulted in the claims being struck out under rule 38(1)(b) of the Employment Tribunal Procedure Rules 2024 for unreasonable conduct of proceedings preventing a fair hearing, but it had not originally been listed for that purpose. Its purpose had been to decide the issues identified in paragraph 20 of the PHCM Order, essentially:a. whether any complaints should be struck out under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 on the basis that they had no reasonable prospect of success;b. alternatively, whether a deposit should be ordered under rule 40;c. jurisdictional time points, if the judge thought it fair and possible to do so.[6]The claimant’s approach to the hearing was problematic, just as it had been at the second preliminary hearing for case management (see for example paragraphs 33 to 35 and 52 to 55 of the PHCM Order for examples of behaviour similar to that set out below). The claimant was once again given a clear warning of the potential consequences (see also the warning in paragraph 58 of the PHCM Order). Despite warnings, it remained impossible to make any meaningful progress with this hearing, or future hearings, and eventually the respondent made an oral application for the claims to be struck out under rule 38(1)(b). The paragraphs below set out why I granted that application. The claimant’s conduct of the hearing Overview[7]It has become the claimant’s practice to devote a lot of space in repetitive correspondence to her “objections” to and “rejections” of Tribunal decisions, “protective reservations”, express reservations of appeal rights and assertions that the Tribunal was acting unlawfully or without jurisdiction. Often, that was based on the assertion that there was something wrong with “the record”, and that errors in “the record” deprived the Tribunal of the power to take any other step in the case (see also paragraphs 33 to 35 and 52 of the PHCM Order). The claimant also appears to think that decisions taken in those circumstances are either a nullity, or “voidable” at her option. She has used both terms in correspondence.[8]Both elements of that argument are wrong.a. First, there is no relevant or significant error in the written records of the decisions of the Tribunal, rather there are accurate records of decisions that the claimant disagrees with.b. Second, and even if there were any errors in written records of decisions, it would not mean that the Tribunal lacked the power to progress the case in accordance with the overriding objective in rule 3, including by deciding preliminary issues and making case management orders. Cooperation to produce a joint file of documents for the hearing[9]The claimant confirmed that she had received the file of documents prepared by the respondent for the hearing. However, I noted from the correspondence file that the respondent had said in the covering letter, “The Claimant was provided with the option to provide documents, but she stated that her view was that she is unable to do so.”[10]That echoed some of the pre-hearing correspondence. It is necessary to refer to some of that to explain the relevant background, but I will not attempt to summarise all of it. Pre-hearing correspondence[11]In an email of 15 September 2025, “submitted under protest and without prejudice”, the claimant asserted that the Tribunal had no jurisdiction to make the case management orders made on 1 September 2025, and “I continue to object and do not consent to any step treating Case No. 8000964/2025 as validly before the Tribunal on those dates.”[12]In an email of 16 September 2025, the claimant similarly stated that she was, “maintaining my jurisdictional objection and protective reservations already on record”. She then repeated her regular practice of making a “Protective Reservation” and reminded the Tribunal that she only provided clarification “under protest and without prejudice to my jurisdictional objection.” The rest of the email asserted various rights and objections, and that “I preserve this as a ground of appeal”.[13]In a letter written on my instructions, the Tribunal replied as follows on 18 September 2025: “It is not clear what application, if any, the claimant makes in her correspondence of 16 September 2025, but it appears to be another attempt to reiterate the themes of much past correspondence and to reopen issues that have been decided. Given the Tribunal’s previous clear warnings, Employment Judge Whitcombe is now becoming concerned that the claimant’s behaviour could be criticised as unreasonable, disruptive or even vexatious. Please reconsider your approach and avoid any such suggestion. You must comply with the orders made by the specified deadlines.”[14]On 29 September 2025 the claimant sent an email headed “JURISDICTIONAL OBJECTION AND PROTECTION FROM DISMISSAL (“THE CUT-THROUGH”)”. Once again, it was stated to be “submitted under protest and without prejudice”. The claimant objected to the Tribunal proceeding with the hearing of the preliminary issues because the respondent’s applications had been “premised on false particular document”, and the case management order had also relied on “false particulars” which the claimant had “consistently repudiated”. The claimant went on to refer to a “corrupted record” which was the subject of her appeals to the EAT as “judicial ratification of false particulars”. The email also asserted that the Tribunal had “repeatedly mischaracterised or refused to acknowledge these pleadings, an error now embedded in” the PHCM Order. The claimant asserted that any consideration of the respondent’s application to strike out under rule 38(1)(a) would be “inapt in law”, and that the claimant “cannot lawfully…’engage’ on the basis of false particulars – that would corrupt the record.” The claimant argued that proceeding on “inaccurate particulars” would inevitably breach various legal duties owed to her by the Tribunal and would amount to an error of law. The claimant asserted that case management could proceed only when “the record” was corrected under rule 62(3). The email concluded with another “Protective Reservation”, expressly reserving the claimant’s “right to challenge, by further objection or immediate urgent application to the Employment Appeal Tribunal, any attempt by the Tribunal or the Respondent to construe my lawful refusal to respond on repudiated or false particulars as “non-compliance”. Such a step would itself amount to a further error of law and denial of a fair process.”[15]On 9 October 2025 the claimant once again emailed the Tribunal with a “Formal Objection to Hearing and Application for Stay and Record Correction”. The essential point made was that the next preliminary hearing could not properly go ahead “until the Tribunal’s procedural record has been judicially corrected and all outstanding applications have been determined.” I have told the claimant several times that there are no outstanding applications and that I would not be making any retrospective changes to “the record”. For one example, see paragraph 52 of the PHCM Order. There are others in correspondence. The claimant went on to described 6 actions or decisions of the Tribunal as “false”, “invalid”, “fabricated” (twice), “misstated” and “fatally defective”, amounting to “usurpation of the Claimant’s Procedural Rights”. The claimant referred to “The Tribunal’s deeply corrupted record” which had produced “serious procedural prejudice”. The claimant concluded with the usual “Protective Reservation”, asserting among other things that any proceedings “while the record remains inaccurate” were “voidable”.[16]A second email of 9 October 2025 invited the Tribunal to “pause and reflect” and similarly asserted that “ongoing procedural defects in the Tribunal’s record” had become “the principal source of delay and unnecessary consumption of judicial resources”, and suggested that “proceeding on the current record, while such irregularities persist, would further risk procedural nullity, further appeals, and further significant waste of judicial time and public resources.” A failure to meet the claimant’s expectations in terms of “the record” would lead to an outcome which “will inevitably be subject to appeal and nullification.”[17]The claimant sought 7 orders which I refused, with reasons, in subsequent correspondence.[18]On 13 October 2025 the claimant wrote again in very similar terms, alleging that proceeding on a record tainted by false particulars, fabrications and misstatements would amount to a denial of natural justice, create avoidable appeals, waste judicial time and “override the fundamental duty to act lawfully”.[19]On 15 October 2025 the claimant wrote yet again in similar terms, seeking to “cure the corruption of the procedural record before any substantive hearing proceeds.” The claimant once again sought various orders including a “stay”, correction of the record, quashing of defective orders, transfer of the case to a new judge and confirmation that no further hearing would proceed until “corrective steps are complete and the file is judicially safe.”[20]I refused the claimant’s application for a sist (referred to by the claimant as a “stay”) pending resolution of the appeals to the EAT (or for any other reason) with reasons set out in correspondence dated 22 October 2025. The application for recusal, if that was the claimant’s intention, was also refused with written reasons.[21]On 22 October 2025 the claimant accused the Tribunal of having “created a false procedural record”, failing “to judicially acknowledge or determine my rule 31 application” and “further corrupting my case record” and “denial me procedural accuracy” [sic]. After returning to several familiar themes the claimant concluded, “These ongoing inaccuracies have rendered the case file procedurally unsafe and incapable of supporting a fair or lawful hearing.” Similarly, the claimant asserted that the Tribunal had “no lawful power or jurisdiction to conduct or continue a hearing while it relies upon a false and corrupted case record” and that the Tribunal “cannot lawfully proceed to determine any issue on the merits”. The email concluded with the usual “reaffirmation of procedural rights” in which the claimant purported to “reserve all objections and remedies”.[22]In correspondence dated 3 November 2025 I responded to the claimant’s assertion that I had wrongly treated her application as one for postponement, and that I had failed to deal with her application for a sist. The claimant was incorrect in both respects.[23]At 05:43 on Sunday 9 November 2025 (the day before this hearing) the claimant once again emailed a “Formal Protective Reservation” on the basis that the Tribunal was “leaving the case to proceed on demonstrably inaccurate records”. The email concluded with the customary reservation of rights, but I will set out section 3 in full, because it reflects the way in which the claimant decided to conduct the hearing on 10 November 2025. “3. Effect of the Lawful Bar I confirm and reassert that I attend the hearing of 10 November 2025 strictly under protest and without waiving any of my rights or challenges concerning the integrity of the Tribunal’s record. This attendance shall be treated solely as a procedural preservation of rights pending appellate determination. My participation does not constitute acceptance of the record’s factual or legal accuracy. I do not consent to the accuracy of the Tribunal record or to the legality of the direction to proceed. I maintain my Lawful Bar and Protective Reservation that I am unlawfully unable to engage in any substantive discussion at the hearing of 10 November 2025 until the integrity of the written record has been fully restored. Any adverse finding, sanction, or treatment of my lawful inability to engage on a false record as “non-compliance” will be deemed a further procedural error of law and an abuse of process, directly attributable to the Tribunal’s ongoing failure to correct its own corrupted records.” The hearing on 10 November 2025[24]The claimant conducted the hearing in the manner she had anticipated in her email sent on the non-working day prior (see above).[25]Once the claimant had confirmed that she had received the joint file of documents and that she had taken legal advice, she then said, “I cannot engage until the record has been fully restored, there are deeply corrupted records. I am not refusing to cooperate. Progress cannot be made. I cannot lawfully engage.” I asked whether the claimant was refusing to cooperate and participate in the hearing, and she said, “I am not refusing, you are forcing me”.[26]The claimant restated that position with only minor variations whenever I asked her a question, and whenever I encouraged her to engage with the hearing or warned her of the potential consequences of failing to do so.[27]A typical example is, “I am unable to lawfully engage with any substance of 8000328/2025 and 8000964/2025 until the written record is verified, and accurate, and has been restored, it is deeply corrupted. The tribunal inaccuracy is preventing me from lawfully engaging.”[28]When I asked the claimant if she was going to engage with the hearing she said, variously, “Yes, but the tribunal inaccuracy is preventing me from engaging lawfully”, “I am unable to lawfully engage, but I am willing to cooperate”, “lawful cooperation would be to deal with my unresolved applications submitted since April”. I pause there to observe that the claimant describes her applications as “unresolved” when they are not resolved to her satisfaction, for example when her applications are refused. She went on to say, “The Tribunal is trying to force me to proceed on a false record”, and “I am unable to discuss case number 8000964/2025. I am unable to lawfully discuss about it. Because of the Tribunal inaccuracy, I cannot lawfully engage. I am unable to lawfully engage with 8000328/2025.”[29]At this point I offered the claimant a 10-minute break to talk to the friends and supporters who had attended the hearing with her. After some encouragement, she took that break.[30]I then tried to hear the claimant’s submissions on the respondent’s application and the issues in the notice of hearing. Unfortunately, she maintained her policy of non-engagement and expressed herself in similar terms: “Tribunal inaccuracy is preventing me from lawfully engaging.”[31]The respondent then submitted that it wished to argue that in these circumstances the claim should be struck out, not only on the basis that it had no reasonable prospect of success (i.e. the ground in rule 38(1)(a)), but also because the manner in which it had been conducted by the claimant was scandalous, unreasonable and vexatious (i.e. the ground in rule 38(1)(b)). The latter point was a new argument raised in response to the way in which the claimant was conducting the hearing.[32]The claimant replied that the Tribunal had no legal power to determine any issue in case number 8000328/2025.[33]I encouraged the claimant to make her submissions on the respondent’s original application, i.e. the issues for which the hearing had been listed. The claimant’s position was effectively unchanged. She said, “I am unable to respond because the request is all based on a false record. I cannot engage on a false record. That is my position. That is my response. I maintain my position because of ET inaccuracy.”[34]I gave the claimant one final chance to engage with the purpose of the hearing and to make her submissions, otherwise I would hear the respondent’s application for her claims to be struck out under rule 38(1)(b). The claimant replied “The ET is making it impossible for me to engage lawfully. I am willing to engage, but the Tribunal inaccuracy is preventing me from doing that within the law.”[35]I then tried to work out whether the claimant’s stance would change in the foreseeable future. I asked her whether she would engage in case management in either claim, if that arose later in the day, or whether she would be saying much the same thing. The claimant replied, “That is my lawful position. The current inaccuracy means I cannot lawfully engage. My application has to be determined to correct inaccuracy. That is a direct violation of the overriding rule. I am not the one who is wasting people’s time. I do not consent to it. I cannot engage on a false record.”[36]The claimant then confirmed that she had completed her submissions on the issues for which the hearing had been listed. In truth, she had not made any, beyond repeating variations of the submission that she could not lawfully engage.[37]The claimant’s central assertion is incorrect. There is no legal principle which prevents her from engaging with the purpose of the hearing or from cooperating with the Tribunal. On the contrary, it is her duty to do so under rule 3. The claimant has chosen not to engage because she is unhappy with past case management decisions and believes that her lack of consent and/or errors in “the record” deprive the Tribunal of the power and obligation to advance the case. That is also incorrect. Submissions on strike out under rule 38(1)(b)[38]The respondent submitted that the claims should be struck out because the manner in which they had been conducted was scandalous, unreasonable or vexatious. The claimant had said many times that she was unable to engage, at this hearing, at the hearing on 1 September 2025 and in correspondence. It was false to say that she could not lawfully engage and there was no basis on which to maintain that stance. Allegations of an inaccurate record were explored at the last hearing. The claimant had not accepted that decision or other decisions of the Tribunal. It was difficult to see how the ET could proceed on that basis and the case was still at an early stage. The respondent was prejudiced by expense and time spent in defending a claim with which the claimant said that she could not lawfully engage. The respondent submitted that the situation was untenable and that there could not be a fair hearing in the future either if the claimant said that she could not lawfully engage. The claimant had been given ample opportunity to engage. She had been made aware of the consequences if she failed to engage. Matters had reached the point where there was a strong justification for the entire claim to be struck out because of the claimant’s conduct of proceedings. It could not proceed to a final hearing if the claimant would not comply with case management orders. When trying to agree the bundle the claimant had said that due to inaccuracies in the record she was unable to engage with preparation of the bundle. It was not possible to have a fair hearing in those circumstances.[39]I offered the claimant a break of 10 minutes to think about her reply, hoping that even at that late stage she might adopt a different approach. The claimant did not want a break, although I encouraged her to take it.[40]The claimant’s submission was that the respondent’s application was not lawful because it was made on a false record. The claimant was willing to engage, but only lawfully, when the inaccuracy in the record was corrected. Because it was not lawful she was unable to engage. She maintained her position until the record was corrected. There could not be a lawful decision based on a false record and there could not be a fair hearing based on a false record.
Legal principles
[41]Rule 38(1)(b) provides that 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 the ground 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.[42]Rule 38(2) creates a procedural safeguard: 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 a party, at a hearing.[43]I will focus on the “unreasonable” aspect of the test in rule 38(1)(b). The short point, taken from the IDS Handbook Vol 10, Chapter 8, paragraph 8.77, is that 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 striking out must be a proportionate response.[44]While certain conduct, such as the deliberate flouting of a tribunal order, can lead directly to striking out, in ordinary circumstances a party’s conduct will not lead to striking out unless the Tribunal concludes that a fair trial is not possible (Bailey v Aviva Employment Services Ltd [2025] EAT 109).[45]I will adopt the approach set out in Bolch v Chipman [2004] IRLR 140, EAT, which applied principles derived from De Keyser Ltd v Wilson [2001] IRLR 324, EAT and Bennett v Southwark LBC [2002] ICR 881, CA.a. Before making a striking out order an Employment Judge must find that a party or their representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings. The wording of rule 38(1)(b) is effectively therefore a threshold condition, but it is certainly not the complete test.b. If such a finding is made, the Tribunal must then consider whether a fair trial is still possible since, save in exceptional circumstances, a striking out order is not simply a punishment. If a fair trial is still possible then the case should be permitted to proceed.c. Even if a fair trial is unachievable, the Tribunal will need to consider the appropriate remedy in the circumstances. It might be appropriate to impose a lesser penalty (for example, an award of expenses) as an alternative to striking out.[46]In Bailey v Aviva Employment Services Ltd [2025] EAT 109, HHJ Auerbach observed that the second and third steps might in practice be intertwined.[47]The overriding objective in rule 3 applies to any exercise of powers under the Employment Tribunal Procedure Rules 2024. The Tribunal must deal with cases fairly and justly, which includes (so far as practicable), ensuring that the parties are on an equal footing, dealing with the case in a way that is proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with a proper consideration of the issues, and saving expense.[48]I have borne in mind the well-known observation of the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630 that courts and tribunals are open to the difficult as well as the compliant as long as they do not conduct their cases unreasonably. The same case reminds Tribunals that a decision to strike out a claim or response must explain why a strike out was the only proportionate and fair option.[49]Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327, EAT, shows that the question whether a fair trial is possible is not to be determined in absolute terms, i.e. whether a fair trial is possible at all. Where unreasonable conduct has resulted a fair trial not being possible within the allocated window, then the power to strike out is triggered. Whether that power should be exercised depends on whether it is proportionate to do so. The focus should be on the fairness or otherwise of the trial that is contemplated, and not some other hypothetical trial (Itulu v London Fire Commissioner EAT 0298/18).[50]The relevance of the overriding objective to the question whether a fair trial is necessary is demonstrated by the reasoning in Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167. At paragraph 55 Chadwick LJ said, “Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court.”[51]That authority was applied by Choudhury J in Emuemukoro v Croma Vigilant (Scotland) Ltd and by HHJ Tayler in Smith v Tesco Stores Ltd [2023] EAT 11. At paragraph 19 of Emuemukoro Choudhury J said, “It would almost always be possible to have a fair trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.”[52]I am conscious that the power to strike out is a drastic one reserved for exceptional circumstances, and that it should not be seen as a quick solution to cases that are difficult to manage. As HHJ Tayler observed in Smith v Tesco Stores Ltd [2023] EAT 11 it is a last resort and 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.[53]In the same case, HHJ Tayler said at paragraph 5, “Regrettably, those who are confused by, or disagree with, proper case management decisions that are fair to both parties, sometimes jump to the conclusion that the employment judge is biased and that the employment tribunal and its staff are adversaries to be challenged and attacked. If such a mistaken view results in a withdrawal from the required co-operation with the employment tribunal and the other party, necessary to advance the overriding objective, it puts a fair trial at risk.”[54]I have also considered the well-known comments of the House of Lords in Anyanwu v South Bank Student Union [2001] ICR 391 to the effect that it is important not to strike out discrimination claims where the facts are in dispute except in the most obvious cases, because there is an important public interest in the full examination of the allegations to make a proper determination. Although those comments were made in the context of a merits-based strike out (i.e. the ground now contained in rule 38(1)(a)), I think there is still room for those policy considerations to influence my discretion in an application under rule 38(1)(b). Reasoning and conclusion (1) Whether the test in rule 38(1)(b) is met[55]Unfortunately, I have concluded that the claimant has conducted these proceedings in an unreasonable manner, so the threshold condition for striking out the claim is established. While it may be the claimant’s subjective belief that her actions are reasonable, I have assessed that question objectively. I find that the claimant’s conduct of the litigation has been unreasonable when measured against the standard of ordinary, reasonable litigants representing themselves in the Employment Tribunal.[56]I have considered the overall background picture as well as the specifics of the most recent hearing. Conduct of proceedings prior to 10 November 2025[57]As for the background, it is difficult to identify a case management decision that the claimant has not disputed and continued to dispute. The PHCM Order summarises some of the relevant conduct up to 1 September 2025, and it is necessary for me to refer to all of that order to avoid adding unnecessarily to the length of this judgment.[58]Since then, the claimant has continued to make repetitive applications which seek to reopen issues decided at that hearing, or in correspondence. The accuracy of “the record” has become the claimant’s focus. It is that which causes her to mark correspondence “submitted under protest and without prejudice”, and which causes her to make routine “protective reservations” and anticipatory references to errors of law and her right of appeal before decisions have even been taken.[59]However, when the claimant refers to a “corrupted record”, she means a record which reflects decisions that she disagrees with. There is nothing incorrect about the record. The claimant just objects to the decisions themselves. Similarly, the claimant has sometimes alleged that the Tribunal has failed to resolve certain applications, but the truth is that they have been considered and refused. When the claimant says that applications are unresolved, she really means that they have not been resolved to her satisfaction.[60]The claimant has the right to challenge case management decisions by appealing to the EAT (as she has done, twice), but not by refusing to acknowledge and abide by them at this level, or by disengaging from or obstructing the process. That would be unreasonable, and that is what she has persistently done. It is the opposite of what the overriding objective in rule 3 requires. I find that the claimant’s assertion that she cannot lawfully engage with the hearing is simply an unconvincing attempt to justify a deliberate and unreasonable withdrawal of cooperation. The hearing on 10 November 2025[61]As for the most recent hearing, the claimant’s approach reflected the way in which she conducted some aspects of the second preliminary hearing for case management (see paragraphs 33 to 35 of the PHCM Order). It also reflected the claimant’s stance in pre-hearing correspondence and preparation. It was a conscious and considered approach, but not a reasonable one. The claimant was warned by the President of the consequences of carrying out her threat not to attend a hearing at an early stage of these proceedings (see paragraph 44 of the PHCM Order). While the claimant certainly attended the hearing on 10 November 2025, she did nothing more than that to progress the case. She gave a superficial appearance of participation and cooperation, but in substance she did quite the opposite.[62]The claimant maintains, quite wrongly, that inaccuracies in “the record” prevent her from engaging with the hearing, or even saying much more than that. She says that she cannot lawfully do anything else. While the claimant attended the hearing and spoke, she did nothing whatsoever to make submissions on the issues for determination. She could easily have made submissions and engaged with the process while reserving her right to appeal. Indeed, she had reserved that right many times, although there was no need for her to do so. Appeal rights exist whether someone expressly reserves them or not. The claimant’s refusal to engage meaningfully with the hearing was her choice. It was not a matter of legal obligation, as she has maintained.[63]The claimant’s conduct of the proceedings was intended to, and did, prevent progress with the preliminary issues which were to be determined on 10 November 2025. It was conscious and deliberate. It frustrated the overriding objective, wasting time and increasing expense without bringing the proceedings any closer to a fair conclusion. In less legalistic terms, the claimant’s conduct of proceedings was uncooperative, obstructive and disruptive.[64]Those are the reasons why I find the claimant’s conduct of proceedings, both on 10 November 2025 and prior to that, to have been unreasonable. Whether a fair trial is still possible[65]The real issue is the claimant’s co-operation, both now and in the future. A fair trial might still be possible if she were now to cooperate with the respondent and the Tribunal and comply with her duty to assist the Tribunal to further the overriding objective. Conversely, a fair trial would certainly be impossible if she did not. It was clear to me that the claimant’s obstructive stance applied not only to the preliminary issues for consideration on 10 November 2025, but to any progression of the case at all.[66]Conspicuously, the claimant gave no undertaking to cooperate and no hint that she might alter her approach even when warned of the potential consequences of her stance, or when she had heard the respondent’s oral application to strike out under rule 38(1)(b). Conspicuously, the claimant just repeated the same formula of words (see paragraph 35, above). In those circumstances and given also the history of this litigation as summarised in the PHCM Order, I conclude that the claimant’s unreasonable conduct of proceedings has made a fair trial impossible and will continue to do so.[67]That is especially so when it is remembered that for these purposes “a fair trial” is not merely a theoretical concept, it is a practical concept echoing features of the overriding objective. I have set out above the observations of Chadwick LJ in Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167, Choudhury J in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327, EAT and HHJ Tayler in Smith v Tesco Stores Ltd [2023] EAT 11.[68]HHJ Tayler suggested that for it to be said that a fair trial is no longer possible the effort invested might be of a similar order to that necessary to undertake the hearing, if both sides had cooperated. I doubt whether he intended that to be an additional test or even necessarily a rule of thumb in every case, but it is instructive to carry out a similar analysis.[69]As the allocated case management judge, I can say that the case has reached that point. The first claim form was received on 7 February 2025. Little meaningful progress has been made in the following 9 months. Given the rapid listing which is usually possible in the ET in Scotland, the entire litigation might well have been concluded within a similar period if the claimant had cooperated. There have been three preliminary hearings (and one more postponed), and yet important preliminary issues are still outstanding. At its heart, the claimant’s complaint of direct race discrimination is conceptually simple, even if it is necessary to survey a long period of employment. I suspect that a 3-day final hearing might well have been sufficient to decide all the issues in both claims fairly. The parties have not even begun to prepare for that, because the case has become bogged down in repetitive disputes and applications. That is attributable to the claimant’s conduct of proceedings. The volume and frequency of correspondence and the sheer number of applications have consumed excessive and disproportionate resources, to the detriment of other cases and other litigants as well as the respondent. As a very crude measure of the resources allocated to this case, the Tribunal’s case management file for both claims now totals over 1000 pages. I can say from experience that it would be unusual for the correspondence file to be so large even once a comparably complex case had been completed, and the final judgment promulgated.[70]A fair trial is one which is conducted without undue expenditure of time and money. A fair trial is one which is conducted with proper regard to the demands of other litigants upon the finite resources of the Tribunal. Once the concept of a fair trial is understood in that way, I am driven to the conclusion that the claimant’s conduct makes it impossible, and will continue to make it impossible. Whether some less drastic measure would suffice, or whether strike out is the only fair and proportionate response[71]Regrettably, I am unable to identify any less drastic approach that would move the case forward to a “fair trial”, in the sense explained above. The last two hearings included clear warnings to the claimant of the potential consequences if her conduct continued in a similar fashion. I gave a similar warning in the PHCM Order, and in correspondence dated 18 September 2025. The claimant has also had access to legal advice.[72]The claimant has not responded appropriately to warnings, and she has not even responded appropriately to warnings of the possibility that her claims might be struck out. Ultimately, there is no case management power which can compel a litigant to cooperate if they choose not to do so. The power to make an award of expenses in the respondent’s favour might compensate it for some of the wasted expenditure (subject to the claimant’s ability to pay), but it would not actually move the case forward to a fair hearing in which both sides participated meaningfully, cooperating with the Tribunal to minimise delay and expense. The problems caused by the claimant’s unreasonable conduct of proceedings would remain.[73]I doubt whether any judge enjoys using the power to strike out a claim or response for unreasonable conduct of the proceedings and the power is exercised much more rarely than many people imagine. The primary purpose of every court and tribunal is to hear and decide cases which are capable of being heard and decided. Almost all of them are, but there are exceptions. Strike out should be an option of last resort. Regrettably, that is the point this case has reached. The respondent is being put to trouble and expense without any realistic possibility of a fair trial. Further, the Tribunal’s limited resources are being consumed at an alarming rate, to the detriment of other litigants and the public finances that fund the service. In those circumstances, I find that this is one of the rare cases in which it is fair and proportionate to strike the claims out. A fair trial cannot be achieved by applying any less drastic sanction or by exercising any less drastic power, so with great regret, I strike out both of the claims under rule 38(1)(b) because of the unreasonable way in which the claimant has conducted them.