Employment Judge Rejects Claimant’s Application to Set Aside Previous Judgment

OUTCOME: Dismissed

Case Number: 1306955/2023

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Tribunals, Birmingham, on the papers, without a hearing

REASONS

Introduction 1. On 22 September 2025 I [Employment Judge Camp] made the following order: [NAME_1] application of 25 July 2025 to “Set Aside the Judgment …. sent to the parties on 15 July 2024 … in accordance with rule 70” (which is in practice, and is treated as, an application under rule 39(2) of the Employment Tribunal Procedure Rules 2024 to set aside an unless order, the decision of 2 July 2025 that there was not substantial compliance with that unless order, and the consequent dismissal of part of his claim) is refused.

2. Due to other judicial commitments, I was not able at the time to give written reasons. My priority was to get a decision sent to the parties so that they knew where they stood and so that they could get on with preparing for a Dispute Resolution Appointment (which was due to take place on 29 September 2025 and which I had had to postpone) and the final hearing.

3. These are the written reasons.

4. On 2 July 2025, I made a number of decisions about whether the Claimant had complied with a series of unless orders that Employment Judge Faulkner made in February 2025. I decided he had not substantially complied with one of them, my decision being that, “The Claimant failed to comply with the unless order for the provision by 4 pm on 31 March 2025 of further information in relation to an alleged instance of “racial aggression” by [NAME_4] on 8 July 2022 at an ABCD review meeting. Any complaint about that alleged racial aggression has therefore been dismissed.” Written reasons were given for that decision at the time.

5. On 25 July 2025 (which was within 14 days of my decision of 2 July 2025 being sent to the parties) the Claimant wrote, “to formally submit an Application to Set Aside the Judgment … sent to parties on 15 July 2024, and in accordance with Rule 70 of the Employment Tribunals Rules of Procedure 2013, I now apply for it to be set aside on grounds that it is in the interests of justice and that I have a

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2 of 10 reasonable prospect of success if the case is re-heard.” The Respondent opposed that application in an email of 5 August 2025 and the Claimant made further submissions in support of his application in an email of 18 August 2025, headed “Reply to Respondent’s Objection”. No further submissions have been received from either side and (due to delays by the Tribunal administration) nearly two months passed between the Claimant making his application and the application being referred to me. In the circumstances, I was satisfied that both sides had had ample opportunity to comment and did not need to be given a further chance to do so. I was also satisfied, for much the same reasons, that having a hearing to decide the application was unnecessary. Indeed, my view was and is that having a hearing would have been positively undesirable, as it would have led to further delay, potentially jeopardising the trial dates and certainly affecting the feasibility of having a meaningful DRA. 6. [NAME_1] application and submissions read as if the old, 2013 Rules still applied; and as if the Claimant thought that part of his claim had been struck out for non-compliance with a Tribunal order, whereas what had in fact happened was that it had been dismissed for breach of an unless order pursuant to rule 39 of the Employment Tribunal Procedure Rules 2024 (the “[NAME_5]”). I therefore, in fairness to the Claimant and as set out in my order of 22 September 2025, treated his application as an application under rule 39(2) of the [NAME_5] to set aside an unless order, the decision of 2 July 2025 that there was not substantial compliance with that unless order, and the consequent dismissal of part of his claim. Background 7. The background to and reasons for making the unless order, and those to and for my decision of 2 July 2025 are important and I refer to and repeat the written reasons I gave on 2 July 2025 as well as the written reasons of 25 February 2025 given by Employment Judge Faulkner for making unless orders on 25 February 2025 and the contents of the written record of the preliminary hearing of 24 February 2025. The facts and matters set out in the paragraphs immediately below are particularly relevant to [NAME_1] application that I am dealing with here.

8. The claim form was presented on 26 October 2023 and the information the Claimant failed to provide related to something that happened over a year before that.

9. In so far as the Claimant is suggesting that he substantially complied with the relevant unless order, I remain of the view that he did not, for the reasons given in writing on 2 July 2025. One of the main points of the unless order, which was an order to provide information about an allegation that he was subjected to “racial aggressions”, was to compel him to state, “the nature of the aggression (including any words used or the gist of any words used)”. Manifestly, he failed to do that. The relevant information he provided was that on 8 July 2022: “During the ABCD review meeting, [NAME_4] made several subtle but hostile comments. He went out of his way to highlight his power and influence within the organisation, trying to show me that I, as a Black individual, did not belong in a predominantly white business. His comments, though not explicitly racist in language, carried a strong undertone of exclusion. It felt as though he was trying to make me feel unwelcome,

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3 of 10 as if my presence was inappropriate in a senior-dominated, white space. This behaviour was not only dismissive but racial in its undertone.” Without knowing what “comments” were allegedly made, it is not possible for the Tribunal or the Respondent to make sense of that allegation, for the Tribunal to judge its merits, or for the Respondent properly to respond to it.

10. The claim was poorly particularised in the claim form and no specific allegation about the meeting on 8 July 2022 was made in it. The Claimant was ordered to provide further particulars of his claim at a preliminary hearing in June 2024 and did so in a draft list of issues on 6 August 2024. This included no allegation about that meeting either. At a preliminary hearing on 8 November 2024, after considering those further particulars and discussing [NAME_1] case with him, Employment Judge Faulkner produced a list of issues, which also did not contain any allegations about the meeting. The Judge noted in his reasons for making the unless order that, “The Claimant had the opportunity to provide details of [all relevant] complaints at a preliminary hearing on 8 November 2024. He did not do so.” 11. Although at that hearing in November 2024 the Respondent made a very generous concession that it did, “not say that the Claimant requires permission to amend his Claim in relation to any of the complaints in the List of Issues below to the extent that they were fully and precisely identified”, the allegation relating to the meeting on 8 July 2022 was not “fully and precisely identified” – it wasn’t “identified” at all. In the circumstances, notwithstanding that concession, there is no complaint at all before the Tribunal about the meeting on 8 July 2022, because (see Chapman v Simon [1994] IRLR 124 & Chandhok v Tirkey [2015] IRLR 195) it is not in the claim form and the Claimant has not been given permission to amend to add it to the claim. The Claimant would, then, have to have applied successfully to amend his claim form in order to be able to pursue that complaint even if he had substantially complied with the unless order.1 12. The unless order the Claimant failed to comply with was a follow up to an order Employment Judge Faulkner made on 8 November 2024 which required the Claimant by 17 January 2025 to provide further details of “The dates on which the Claimant says he was subjected to any other racial aggressions … than [those he was ordered to provide details of in other orders] …. In relation to each such date, the Claimant shall specify who subjected him to racial aggression, where it took place, in what context (for example, at a meeting or in a one-to-one discussion), the nature of the aggression (including any words used or the gist of any words used) and, if there were any witnesses to it, the identity of those witnesses”2. He did not comply. (He did not comply with any of the further information orders that were made in November 2024 until 31 March 2025.)

1 Arguably, the same could be said for many of the other allegations / complaints he made in the further information he provided in response to the unless orders on 31 March 2025; but whether that is indeed the case in relation to any particular allegation / complaint will be something for the Tribunal at the final hearing to decide. 2 He was separately ordered to provide, “The dates, other than 18 July 2022, on which the Claimant says [NAME_4] made racial remarks to him…”, information he provided on 31 March 2025. The information he provided did not include anything about a meeting on 8 July 2022.

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4 of 10 13. The Claimant was effectively given a further chance to provide the necessary details between 17 January 2025 and the preliminary hearing on 24 February 2025, in response to the Respondent’s application of 31 January 2025 for an unless order. He had yet another opportunity at the hearing itself. Employment Judge Faulkner noted when making the unless orders that the Claimant had not “provided a satisfactory explanation for that failure [to comply]. I do not accept his assertion that the Respondent has failed to comply with the Orders I made requiring it to provide information and documents to the Claimant. I do not accept either that the Claimant has provided evidence supporting his contention that he is medically incapable of providing the details of his complaints”.

14. Further, Employment Judge Faulkner refused a postponement application the Claimant made at the hearing on 24 February 2025 on medical grounds.3 He was clearly satisfied that the Claimant was capable of fully participating in that hearing and was choosing not to do so. It is noteworthy that the Claimant has, to my knowledge, never provided medical evidence that supports his assertions that he has been prevented or inhibited from complying with Tribunal orders because of ill-health. This is notwithstanding the fact that the Claimant (or purportedly family and friends on his behalf) wrote on a piece of paper which the Claimant held up in front of his face throughout the hearing [by video] on 24 February 2025 that his “doctor has advised that they will provide a formal medical letter confirming my health status, but this will take a few days to prepare. …This letter will be submitted to the Tribunal once available to the Tribunal”.

15. The first time during the Tribunal proceedings that the Claimant mentioned a meeting on 8 July 2022 (or any specific relevant interaction with [NAME_4] other than a WhatsApp call on 18 July 2022) was when he purportedly complied with the unless orders, on 31 March 2025.

16. By my count, before I made my decision on 2 July 2025, the Claimant had had ten opportunities to provide adequate particulars of any allegation he was making about what [NAME_4] supposedly said or did at a meeting on 8 July 2022 that was racially discriminatory and had not taken any of them, those opportunities being: 16.1 in his claim form of 26 October 2023; 16.2 at or prior to the first preliminary hearing on 10 June 2024; 16.3 in his further particulars of August 2024; 16.4 at the preliminary hearing on 8 November 2024; 16.5 in response to Employment Judge Faulkner’s order requiring him to provide them by 17 January 2025; 16.6 before the hearing on 24 February 2025, in response to the Respondent’s application of 31 January 2025 for unless orders (which the Claimant did respond to in writing on the same date);

3 Two previous postponement applications had already been refused.

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5 of 10 16.7 at the hearing on 24 February 2025; 16.8 in response to the unless order requiring him to provide them by 31 March 2025; 16.9 in response to the Respondent’s submission of 31 March 2025 that he had not complied with unless orders (which, again, the Claimant responded to in writing, on 1 April 2025); 16.10 between 19 May 2025, when Employment Judge Faulkner directed that there should be a hearing on the papers to decide whether the unless orders had been complied with, and 27 June 2025, when that hearing on the papers took place (the Claimant provided written submissions for that hearing, on 20 June 20254). Relevant law 17. As already mentioned, the Claimant made his application and put forward submissions in support of an application to set aside a strike-out judgment; and his complaint about [NAME_4] and the meeting on 8 July 2022 was not struck out, but dismissed for non-compliance with an unless order. The law relating to strike- outs for breach of orders is not quite the same as the law that applies in the present situation. The law that applies here was helpfully summarised by Eady J in paragraphs 40 to 44 of Chumbu v The Disabilities Trust [2024] EAT 113, which I adopt with gratitude and which should be deemed to be incorporated into these reasons.

18. I note that [what is now] [NAME_5] rule 39(2) read literally provides for an application to be made simply to set aside the unless order, but that that is not how the rule is to be interpreted. When deciding an application under rule 39(2), as well as considering the unless order itself and whether it was appropriate for it to have been made, the Tribunal has to make a broad assessment of whether it was and would be fair and just in accordance with rule 3 for the part of the claim that was dismissed to remain dismissed.

19. I also note that it will not necessarily (or even presumptively) be the case that an unless order / the dismissal of the claim or part of it will be set aside if a fair trial remains possible. If it were so then unless orders would lose all or most of their meaning and power. All the circumstances must be taken into account and whether a fair trial remains possible is just one factor, albeit a very important one.

4 Not 2026, as typographically erroneously stated in the written reasons of 2 July 2025.

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6 of 10 Decision on the application 20. The reasons for my decision not to set aside the dismissal of any complaint about an alleged instance of “racial aggression” by [NAME_4] at a meeting on 8 July 2022 are: 20.1 given the history (see above) it was, in my respectful view, entirely appropriate for the unless orders to be made when Employment Judge Faulkner made them, for the reasons he gave at the time; 20.2 the unless orders Employment Judge Faulkner made were sufficiently clear and he gave the Claimant a relatively large amount of time to comply with them to take into account (as the Judge put it) “[NAME_1] non- participation (he says on medical grounds) in the Hearing on 24 February 2025”, notwithstanding [NAME_1] failure to provide medical evidence. The fact that the Claimant understood what was required of him and had enough time is shown by the fact that he substantially complied with every part of all nine of the unless orders apart from in relation to this one allegation / complaint; 20.3 the sanction for non-compliance with the unless order the Claimant did not comply with was a proportionate one, being simply the dismissal of any complaint that was not adequately particularised in accordance with the order.5 If the Claimant has lost anything at all by the unless order taking effect (see paragraph 20.4 immediately below), all he has lost is one complaint amongst a great many, including several other allegations relating to [NAME_4], and seemingly not one of the most significant complaints. It is very unlikely indeed that the absence of this complaint at the final hearing will have any impact on the overall outcome. The submission the Claimant makes in his application of 25 July 2022 that “The Complaint is Central to My Discrimination Claim” is objectively unfounded; 20.4 on my analysis (see paragraph 11 above), he has not in fact lost anything at all, because the complaint that has been dismissed was not a complaint that was properly before the Tribunal; 20.5 above, I set out the many opportunities the Claimant has had to provide the necessary information. From 31 March 2025, when the Respondent sought confirmation of the dismissal of claims, and probably before, and certainly from when he received my order of 2 July 2025, the Claimant knew that all he had to do to comply with the unless order was to write down what comments [NAME_4] allegedly made that the Claimant believes were ‘racial aggressions’. I imagine he could provide this information in one or two sentences. Despite writing to the Tribunal at some length at least four times since 31 March 2025 and twice since 2 July 2025, he still hasn’t done this. There comes a point where the Tribunal stops giving the benefit of the doubt to a party who knows what they have to do to comply with a Tribunal order and keeps not doing it. In the present case, that time is past. There has been deliberate and persistent failure to comply;

5 See paragraph 20 of the reasons for my order of 2 July 2025.

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7 of 10 20.6 in so far as the Claimant has put forward possible explanations for his non- compliance – ill-health, ignorance of what was required of him and the fact he is a litigant in person, confusion because of the “overlapping and repetitive factual matrix” – I do not accept them. I repeat that he has provided no relevant medical evidence, and that he showed he understood and was able to comply with the unless orders by substantially complying with all of them except in this one respect; 20.7 dealing with [NAME_1] non-compliance with orders to provide further information has already taken up a considerable amount of Tribunal / judicial time and resources, and no doubt the Respondent has had to devote time and costs to it too. Granting ‘relief from sanctions’ would necessitate even more time, resources and legal costs being expended checking whether what the Claimant eventually produced in purported compliance with the order did in fact comply with it. That would be unfair to other Tribunal users and to the Respondent; 20.8 it is probably true that a fair trial would still be possible if I granted his application and that the Respondent would not be unduly prejudiced by my doing so, but these considerations are in my view outweighed by the other factors. Inaccurate references to caselaw 21. Finally, I move onto something that has not in practice affected my decision on [NAME_1] application (in that I would have made the same decision even if it had not been a factor), but is of great concern.

22. In his application and further submission, the Claimant has referred to a number of cases that either do not (as far as I can tell) exist, or that do not say what the Claimant has suggested they do. I cannot be sure that this has come about because the Claimant has used some kind of AI to help create his application and submission, but I strongly suspect that that is what has happened. Using AI is not in and of itself a problem, but what is a problem is if someone puts before a Court a submission using AI which they haven’t checked is accurate and which tells the Court things that are not true. See R ([NAME_6]) v London Borough of Haringey, Al-Haroun v Qatar National Bank QPSC [2025] EWHC 1383 (Admin).

23. In his application, the Claimant wrote: “[NAME_7] v London Borough of Harrow (UKEAT/0439/03) – A technical omission should not override the importance of hearing serious allegations of discrimination.” Although this case exists, and was decided by the EAT in 2003: 23.1 I am fairly sure the EAT reference given is wrong. The reference given in the EAT’s judgment is PA/1281/02/MAA; 23.2 what the Claimant wrote about the decision is wrong too. In [NAME_7], the EAT decided almost the opposite of what the Claimant suggests. It was a case to the effect that although, on the particular facts, the appellant’s appeal was appropriately accepted a day late, the EAT’s time limits rules were to be applied strictly other than in exceptional circumstances. The EAT

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8 of 10 said nothing in particular about discrimination cases – I cannot tell from the EAT’s decision whether or not it was a discrimination case.

24. The Claimant also wrote: “De Keyser Ltd v Wilson [2001] IRLR 324 – Health- related non-compliance may justify relief from sanction.” This case exists and is about strike-outs, but is not about health-related non-compliance. It was not about non-compliance or relief from sanctions at all; it involved a strike-out for alleged scandalous conduct.

25. The Claimant goes on in his application to refer to “[NAME_8] v London Borough of Hammersmith and Fulham (2024)” which he writes is, “A recent case affirming the Tribunal’s responsibility to accommodate procedural missteps in complex discrimination matters”. There is a decision of an Employment Tribunal following a final hearing in 2021 and a remedy hearing in 2024 substantially in favour of the claimant and which received quite a lot of publicity (because the claimant was awarded a large sum of money) called [NAME_8] v London Borough of [NAME_8] (case number 2206237/2018). It is a first-instance decision on its facts which does nothing to affirm any “responsibility to accommodate procedural missteps in complex discrimination matters”. As far as I can tell, there has been no appeal, so no one affirmed the Employment Tribunal’s responsibility to do anything.

26. The Claimant refers to “[NAME_3] of Commerce v Burton [2013] IRLR 214” (said by the Claimant to be to the effect that, “A strike-out should not occur unless necessary and proportionate”), which appears not to exist. Page 214 of the 2013 Industrial Relations Law Reports is part of the way through the judgment in a case called Haq & others v Audit Commission, which is an equal pay case and says nothing about strike-outs. There are hardly any cases of any kind in any of the law reports, or unreported but available through any of the many online databases of legal authorities I have access to, where the [NAME_3] of [NAME_3] is a party, and no case at all where it is a party that is reported in the Industrial Relations Law Reports for any year. There is no case in the 2013 Industrial Relations Law Reports involving a party with the word “[NAME_9]” in their name either. There seem to be just six cases in the Industrial Relations Law Reports for any year where one of the parties has the surname [NAME_9]. None of them concerns strike-outs.

27. In his second email concerning his application, of 18 August 2025, the Claimant wrote, “As recognised in Chapman v Simon [1994] IRLR 124, discrimination claims are often inherently difficult to particularise without disclosure”. [NAME_10] v [NAME_10] is a well-known case and is mainly about how claimants may not pursue complaints that are not in their claim forms (or originating applications, as they were at the time of the decision). It does not support the proposition that “discrimination claims are often inherently difficult to particularise without disclosure”. It is not about particularisation of claims, nor is it about disclosure; the word “disclosure” and its variants do not appear even once in the judgment.

28. Also in that email, the claimant wrote: “In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, the Court of Appeal confirmed that Tribunals should adopt a flexible and supportive approach where a claimant’s health conditions affect compliance”. This case did concern a claimant who was affected by ill-health in connection with a Tribunal claim, but

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9 of 10 was not about compliance with orders, nor did the Court of Appeal confirm “that Tribunals should adopt a flexible and supportive approach” when dealing with claimants affected by ill-health. It was about time limits for bringing claims and one of the things the Court decided was that the Employment Tribunal had been entitled to extend time partly on the basis that the claimant had been very unwell. Although the difference between what the Claimant suggested this decision was about and what it is in fact about is not as stark as in relation to [NAME_7], [COMPANY_10] v [NAME_10] or [NAME_10] v [NAME_10], it is yet another inaccurate and potentially misleading reference to a case put forward by the Claimant. 29. [NAME_1] position may be that he did not use AI to help produce his application and submission. If he did not then what he did is, potentially, if anything, more blameworthy than if he did. 29.1 If he did use AI, then he evidently did not check the accuracy of what AI produced and was therefore reckless as to whether the information he gave the Tribunal was true and as to whether he was in danger of misleading the Tribunal. 29.2 If he did not use AI, then I struggle to think of any explanation for what he wrote other than that he simply made things up. This does not just apply to the non-existent case “[NAME_3] of [NAME_3] v [NAME_9]”. With the possible exception of Abertawe Bro Morgannwg University Local Health Board v [NAME_11], it is not credible that anyone could read reports of the other cases the Claimant has referred to and genuinely think they say what the Claimant has submitted they do.

30. Either way, there was a risk that the Tribunal would be misled. Moreover, either way the Tribunal – I – have had to spend a great deal of time trying to find a non- existent case in order to satisfy myself that it definitely does not exist and even more time reading (or re-reading) from beginning to end the other cases the Claimant has referred to in order to make sure that there was not something in them, tucked away somewhere, that I was not previously aware of and that supports [NAME_1] submissions about them. It is not usually necessary for the Tribunal to do this, because normally people refer to cases reasonably accurately. If they refer to one I am familiar with, I don’t need to look it up in order to know that the reference is accurate (for example, [NAME_1] references to [NAME_12], [NAME_12] v [NAME_12] and [NAME_12] v [NAME_12] in his email of 18 August 2025). If they refer to one I am not familiar with, I can look it up and quickly see that it says what it is alleged to say.

31. The total time I have spent on this point is literally hours. It is a waste of my time and means I have less time to deal with the cases of other Tribunal users, which is not fair to them.

32. I have given some thought to what I should do about all this. What I have decided to do is not to make any orders on my own initiative. The main reason for my decision is that I think for me to take action at this stage – such as requiring the Claimant to explain himself and/or show cause why his claim should not be struck out for unreasonable conduct – would in practice not achieve anything other than unnecessarily to take up more of the time and resources of the Tribunal and the

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10 of 10 Respondent and to disrupt preparation for the DRA and final hearing, which has already been disrupted significantly.

33. I should make clear to the Claimant, however, that if in the future he makes further seriously inaccurate references to caselaw, or does anything else of a similar kind, this will be treated by the Tribunal with the utmost seriousness and could result in his whole case being struck out for scandalous and/or unreasonable conduct, in accordance with rule 38 of the Employment Tribunal Procedure Rules 2024.

34. If the Respondent wants to make an application in relation to this, I am not stopping it doing so; and I am neither encouraging nor discouraging it from doing so; although I would urge the Respondent to consider whether any application is likely in practice to help its position in these proceedings. Employment Judge Camp Approved on 30 September 2025

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EMPLOYMENT TRIBUNALS

BETWEEN

Claimant:

[redacted]

Respondent: [redacted] Birmingham

ON:

16 and 17 March 2026

BEFORE:

Employment Judge G Smart

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

With no attendance from the Claimant and upon hearing [NAME_13] for the Respondent:

[redacted] The Claim is dismissed under rule 47 of the Employment Tribunal Procedure Rules 2024.

2. I did not therefore need to decide the Respondent’s other applications.

3. The decision was given by oral summary reasons at the hearing on 17 March 2026.

4. The Respondent has made a costs application orally at the hearing. Directions have been made about that application.

Request for reasons

5. The Claimant became aware that a judgment had been given dismissing his claim and indicated that he wanted a copy of the written judgment and reasons for it by email of 30 March 2026 before the written confirmation of the judgment had been sent to the parties.

6. The judgment was sent to the parties on 31 March 2026.

7. Once the judgment had been received by the Claimant, he reiterated his request for written reasons on 1 April 2026 by email and submitted a request for reconsideration.

8. The written reasons request was therefore submitted in time and I provide

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those reasons below.

9. In my view, it is likely that full reasons will be requested if I provide summary written reasons and this is also a judgment dismissing the case as a whole with the Claimant being absent from that hearing.

10. I have therefore decided that it is appropriate to exercise my discretion under rule 60 (4E) to provide full written reasons despite summary reasons being given at the hearing and requested by the Claimant.

FULL WRITTEN REASONS

The relevant procedural background

11. The Claimant presented his ET1 26 October 2023.

12. The Respondent presented its ET3 response form and Grounds of Resistance on 27 November 2023.

13. On 6 February 2024, [NAME_1] unfair dismissal claim was struck out by EJ Gaskell because the Claimant did not have sufficient continuous service to bring that claim.

14. There was due to be a preliminary hearing for case management on 5 March 2024. However, that hearing was postponed due to insufficient judicial resources being available.

15. There was a Preliminary Hearing before EJ Murdin on 10 June 2024. The hearing was attended by the Claimant, but did not clarify any of the claims in any real detail. The Claimant is documented as having attended that hearing in person.

16. The Claimant then submitted a lengthy additional information document and draft list of issues referring to various parts of the Equality Act 2010 statute.

17. This triggered an amended Grounds of Resistance to be sent by the Respondent.

18. Further detailed correspondence was sent by the Claimant to the Respondent on 6 November 2024 at 00:33. Of note is the start to the email where the Claimant said “Sorry for the delay. I have been poorly with several issues including severe mental health caused by revisiting my experience when I was employed by the defendant, further I have a child that has been poorly for a while, I have been in and out of hospital, I have just arrived home from [NAME_14].”

19. On 8 November 2024, a further preliminary hearing for case management took place before EJ Faulkner. The Claimant is documented as attending the video hearing.

20. At that hearing, despite the detailed document sent to the respondent by the Claimant in early August 2024, it still did not properly clarify the claims being

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brought. EJ Faulkner then attempted to clarify those claims.

21. By the end of that hearing, the claims that were in the ET1 were identified and clarified but there was still some information missing. There was also still an issue about whether whistleblowing and any resultant claims had been pleaded in the ET1 and whether an amendment application was needed for those allegations to progress.

22. A further preliminary hearing was then fixed for 24 and 25 February 2025 to take place before EJ Faulkner.

23. That hearing would determine:

23.1. any amendment issues and further clarification of the claims; 23.2. Whether any of the unparticularised claims should be struck out; 23.3. Whether a deposit order should be made for any of [NAME_1] allegations or claims; 23.4. Fixing dates for the final hearing; 23.5. Any further case management as necessary.

24. Before the next preliminary hearing took place, the Claimant made two unsuccessful attempts to postpone that hearing.

25. The first postponement decision was made by EJ Faulkner on 17 February 2025. He refused the application as follows:

“1. [NAME_1] application to postpone the Public Preliminary Hearing listed for 24 and 25 February 2025 is refused. This is because:

a. This Claim was presented in October 2023 and is still at the stage of identifying [NAME_1] complaints. Further delay is neither fair on the Respondent nor in the interests of justice generally.

b. Whilst the Claimant has provided a fit note referring to “depression”, this is not sufficient evidence that he is unable to effectively participate in the Hearing, which will principally be concerned with finalising the identification of his complaints, dealing with any strike out or deposit applications and fixing dates for a Final Hearing. As at the previous Hearing, [NAME_1] essential task at the Hearing will be to explain the factual basis of his complaints. There is no evidence to suggest that he is unable to do so.

c. The Claimant has been able to prepare correspondence to the Tribunal between 29 January and 17 February and has done so promptly and (in the case of his letter dated 31 January 2025) in detail and with reference to case law. This is inconsistent with his contention that he is not well enough to attend and conduct the Hearing.

2. The Public Preliminary Hearing therefore remains listed for 24 and 25 February 2025, by video. If the Claimant wishes at the outset of that Hearing to make a further application to postpone, supported by additional evidence, that is a matter for him.”

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26. The second postponement decision was made on 21 February 2025 by EJ Akhtar. She refused the application as below:

“Employment Judge Akhtar has considered your request to postpone the preliminary hearing and has refused it.

The Judge’s reasons for refusing the request are as follows:

[NAME_1] postponement request has previously been refused on 19 February 2025 by Employment Judge Faulkner, with detailed reasons being provided at that time. The only new evidence presented by the Claimant in support of his postponement request dated 21 February are 25 pages of medical records from [NAME_15]. The medical notes do not address [NAME_1] fitness to take part in the preliminary hearing. As such, these notes do not evidence a material change in circumstances since [NAME_1] first application for a postponement.

In those circumstances, it would not be in the interests of justice or in accordance with the overriding objective for the preliminary hearing scheduled for 24 & 25 February to be postponed . As set out in Employment judge Faulkner’s refusal of 19 February, if the Claimant wishes at the outset of the hearing to make a further application to postpone, supported by additional evidence that is a matter for him.

The case remains listed for hearing on 24 and 25 February 2025.”

27. The hearing went ahead on 24 February 2025 before EJ Faulkner. The Claimant attended the hearing but did not speak, did not engage with it at all and instead simply held up a piece of paper for the whole duration of the hearing in front of his face which had writing on it.

28. EJ Faulkner asked the Claimant to email a copy of the document to him at the start of the hearing, which the Claimant did. The document was a further application for an adjournment. It read as follows:

““URGENT NOTICE TO THE TRIBUNAL Case No: 1306955/2023 [NAME_1] v [COMPANY_3] CLAIMANT MEDICALLY UNFIT TO PARTICIPATE I am clinically depressed and currently experiencing extreme low mood. I am unable to engage in these proceedings due to my medical condition. My doctor has advised that they will provide a formal medical letter confirming my health status, but this will take a few days to prepare. This letter will be submitted to the Tribunal once available. REQUEST TO THE TRIBUNAL Given my medical incapacity, I respectfully request that today’s hearing be immediately adjourned pending the submission of my medical confirmation. Proceeding under these circumstances would be unfair and inconsistent with the Employment Tribunal Rules of Procedure 2013, which require cases to be handled fairly and justly. Presented by [NAME_1] on behalf of [NAME_16]”.

Case Number:1306955/2023

29. EJ Faulkner again refused the adjournment application. The Claimant left the hearing part way through without any further explanation as documented by EJ Faulkner in the resultant Case Management Order.

30. Nine separate unless orders were issued for the Claimant to provide the further information previously requested.

31. The application to amend the claim to include whistleblowing claims was refused.

32. There were arguments about the compliance with unless orders and an “on the papers” hearing to deal with that issue, was listed before EJ Faulkner on 27 June 2025.

33. On 27 June 2025, that hearing took place before EJ Faulkner and all but one of the unless orders had been complied with.

34. The Claimant failed to comply with the provision of further information about racial aggression by a colleague on 8 July 2022 at an ABCD review meeting and all complaints about such aggression were therefore dismissed.

35. The Claimant applied to set aside that order for dismissal quoting the Tribunal rules and relevant case law. The Respondent objected to the application.

36. On 22 September 2025, another “on the papers” hearing took place before EJ Camp, who refused to set aside the judgment.

37. A further amended Grounds of Resistance was then presented to the Tribunal in response to the clarified claims on or around 8 October 2025.

38. A Dispute Resolution Appointment was due to take place on 28 January 2026. That hearing was converted into a case management hearing by EJ Camp.

39. The Hearing was presided over by EJ Faulkner. He summarised the situation after EJ Camp had issued his case management orders as follows, and which I adopt as accurate:

“18. Also on 22 September 2025, EJ Camp:

a. Relisted the DRA to take place today, 28 January 2026.

b. Amended the date for mutual disclosure of documents to 13 October 2025.

c. Amended the date for the parties to try to agree the file of documents for the Final Hearing to 3 November 2025.

d. Amended the date for provision of the file to the Claimant to 10 November 2025.

e. Amended the date for exchange of witness statements to 16

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December 2025.

f. Made orders for preparation by the Respondent of a chronology, cast list, reading list and list of issues two weeks before the Final Hearing.

19. On 21 November 2025, the Respondent’s solicitors provided the Respondent’s, disclosure documents to the Claimant (page 239). I do not know why this was not done by 13 October as ordered by EJ Camp. In any event, the Claimant has not provided his disclosure documents to the Respondent at all.

20. On 16 December 2025, the Respondent’s solicitors wrote again to the Claimant (page 240) reminding him that they were due to exchange witness statements that day, asking for him to disclose documents by 2 January 2026 and suggesting exchange of witness statements by 9 January 2026.

21. The Claimant replied, in an email marked “without prejudice”, on 6 January 2026 (page 241). Most of the email is redacted, but it can be seen that the Claimant said, “I am currently extremely unwell and may have difficulty accommodating the proposed dates”. No details or evidence regarding his health was provided to the Respondent, the Claimant had made no application to vary EJ Camp’s Orders, and he gave no indication of when he would be able to comply with them. He has not told the Respondent he is ready to provide documents or exchange statements.

22. On 13 January 2026, the Respondent’s solicitors wrote to the Tribunal (pages 242 to 243) seeking an unless order to compel document disclosure by the Claimant and requesting that the DRA be postponed and relisted.

23. On 14 January 2026, the Tribunal received an email from [NAME_1] email address, but purportedly from his wife, [NAME_1] (pages 244 to 245), stating the following:

a. The Claimant was currently unwell and unable to correspond directly due to his “ongoing disability”.

b. “Comprehensive medical evidence confirming his ongoing disability and the impact on his ability to comply with procedural deadlines has already been submitted to the Tribunal”.

c. He will “comply with the disclosure within a reasonable timeframe, health permitting [emphasis original], either by serving any documents in his possession or, if appropriate, by formally confirming that he has no further documents to disclose”.

d. “He will cooperate in agreeing the bundle and in exchanging witness statements according to any revised timetable set by the Tribunal”.

e. “He will engage constructively in any ADR process once procedural steps have been completed”.

f. “[NAME_1] medically documented disability, it is

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particularly important that any ADR listing is likely to be constructive and not merely procedural, to avoid unnecessary stress and ensure Tribunal time is not wasted”.

24. As already noted, on 21 January 2026, EJ Camp converted the DRA to a Case Management Hearing. He noted the email purporting to be from [NAME_1] and dated 14 January 2026, and said, “[[NAME_1]] condition must have deteriorated significantly since the Summer, when he communicated directly with the Tribunal a number of times. If the Claimant wants the Tribunal to accept the truth of that allegation [that he is unable to communicate directly due to his disability], medical evidence of that deterioration must be provided to the Respondent and the Tribunal”.

40. A further two unless orders were made by EJ Faulkner. One was because the Claimant had completely failed to provide any disclosure. The second was because the Claimant had also failed to provide a witness statement. Both failures were in breach of the Tribunal’s orders and if he failed to comply with the unless orders, then his entire case would stand dismissed.

41. It is also noted in Judge Faulkner’s order that the list of issues was not complete because of outstanding compliance by the Claimant with the tribunal’s orders.

42. The Claimant complied with those unless orders.

43. The Respondent attempted to produce a final list of issues in February 2026.

44. In correspondence of 19 February 2026, the Claimant disputed the list of issues the respondent provided stating:

“I confirm that I have carefully reviewed the Respondent’s proposed List of Issues. I respectfully make clear that I do not agree that the List, as drafted, fairly or accurately reflects the nature of my claims or the issues the Tribunal is required to determine.

In particular:

1. The [NAME_17] of Issues fragments my case into a very large number of isolated sub-allegations and individual remarks. My claim is not advanced on the basis of any single comment viewed in isolation, but on the cumulative pattern of conduct, including exclusion, stereotyping, marginalisation, denial of progression, and ultimately dismissal, which I contend was because of my race and/or because I raised protected concerns.

2. The List places disproportionate emphasis on the precise wording of alleged remarks. I rely on the substance, context, and effect of what was said and done, rather than asserting verbatim quotations in every instance. The Respondent’s drafting risks mischaracterising the case as a series of disconnected factual disputes rather than a coherent discrimination claim.

3. The dismissal of my employment, which is the most serious detriment relied upon, is treated as only one allegation among many. My case is that

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the dismissal was the culmination of the discriminatory and retaliatory treatment complained of, and it should be considered in that context.

4. The List does not adequately capture the systemic and cultural context in which the conduct occurred, nor the link between my raising concerns about unequal treatment and the subsequent treatment I received.

I therefore respectfully invite the Tribunal to note that, while the [NAME_17] identifies the pleaded causes of action, I do not accept its framing of the issues and rely instead on the narrative and case advanced in my pleadings and witness evidence.”

45. Clearly then, the case the Respondent had to meet whilst clarified to some extent, was still not fully clear and I had intended to clarify the issues, as I am required to do, at the start of the final hearing before hearing any evidence to ensure that everyone knew what the claim was, what the defences were and what the factual issues were in their entirety.

46. On 20 February 2026, the Claimant applied for reasonable adjustments to be made for the final hearing and for that hearing to be heard by video. He also requested to be recognised as a vulnerable witness.

47. The email was considered first by EJ Perry. He stated that the request for a video hearing needed to be supported by medical evidence and requested the same.

48. On 2 March 2026, medical evidence was provided in a short GP letter. That letter stated:

“[NAME_1] is a patient registered at [NAME_18], he suffers with anxiety and depression for a few years, has been stressed due to a tribunal hearing and feels upset, this is affecting him at home by struggling to engage with family or go out, no drugs or alcohol involved. On today's assessment I have started him on sertraline and on assessment he seems to be suffering with severe depression and anxiety, he is concerned this stress may make it physically difficult for him to attend the tribunal, please do take this into consideration.”

49. I note that the letter concerns [NAME_1] feelings that he won’t be able to attend the final hearing, it does not state that the GP believes that the Claimant cannot attend a hearing and does not diagnose severe depression and anxiety only that he “seems” to have those conditions. In my view, this letter must be treated with scepticism given the words used by the doctor in it.

50. Despite the above letter and its contents, on 4 March 2026, the Claimant was able to produce a detailed, clear, relevant and focused objection to the Respondent’s application, submitted a few days earlier, to adduce supplemental statements.

51. Also on 4 March 2026, the Claimant was able to write a separate detailed, clear, relevant and focused application to strike out the respondent’s case because it had failed to comply with the order to exchange witness statements on 20 February 2026 and a separate email objecting to the

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inclusion of additional documents disclosed late by the respondent.

52. On 13 March 2026, EJ Flood wrote to the parties as follows:

“[NAME_1] email dated 4 March 2026 with the attached GP letter and the respondent’s email dated 13 March 2026 have been referred to the Employment Tribunal Judge.

Employment Judge Flood has determined that the parties will be required to attend the hearing starting on Monday 16 March 2026 in person. The first part of the hearing has already been timetabled to discuss preliminary matters and during that part of the hearing, [NAME_1] request for adjustments can be discussed in detail and any arrangements put in place for the remainder of the 8-day hearing, including any possibility of remote attendance.

The medical evidence provided by the claimant will be discussed during this part of the hearing and the various requests made can be assessed to ensure that the arrangements that are in place are appropriate and necessary to assist his full participation in the hearing.”

53. The Case then came before me sitting alone on 16 and 17 March 2026 for trial.

The hearing before me

54. The Claimant did not attend the final hearing. That meant that I was unable to properly do the following without [NAME_1] direct input:

54.1. Finalise the list of issues; 54.2. Consider what adjustments could be made for the Claimant; 54.3. Consider the evidence, because the issues were not fully clarified and the list of issues I did have was disputed by the Claimant.

55. At 09.25 on day one, [NAME_1] emailed the Tribunal using [NAME_1] email address, and stated as follows:

“Dear Sir or Madam,

Case No: 1306955/2023 [NAME_1] v [COMPANY_3]

I write to inform the Tribunal that the Claimant, [NAME_23], is currently in hospital and is therefore unable to deal with correspondence or participate in the proceedings at present.

This email is sent on his behalf to ensure that the Tribunal and the Respondent are aware of the situation. Further information will be provided as soon as possible once his condition allows.

Kind regards,”

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56. This email did not give the reason why the Claimant was in hospital, whether it was the Claimant who was ill or someone else, such as his child for example, as previously mentioned in earlier correspondence. However, it did refer to [NAME_1] condition but does not state what condition is being referred to.

57. I treated the email as an application for a postponement of the hearing, even though it does not expressly request one. I did that because the Claimant was not legally represented despite it being fairly obvious from past correspondence that he had access to legal advice from an unknown source.

58. In the circumstances, rule 47 of the Employment tribunal rules of procedure was triggered for the non-attendance by the Claimant.

59. I heard submissions from the respondent about the situation, who helpfully went through the timeline of hearings and submissions about rule 47, it also made an application to strike out [NAME_1] claim and made additional submissions about that.

60. I decided that further information was needed before any safe decisions could be made. I therefore directed that the Claimant and his wife be sent the below correspondence which, in my view, it is important to quote in full:

“Dear Claimant and [NAME_1],

The tribunal is grateful for your recent correspondence sent today (16 March 2026) at 09.25, which was referred to Employment Judge Smart and discussed at length in your absence at the start of today’s trial listed for 8 days. We understand, but have no confirmation, that [NAME_1] is your wife.

Postponement application

Judge Smart treated that email as an application to postpone the hearing. The difficulty with the email is as follows:

1. The email does not state when or why the Claimant is in hospital.

2. It does not provide any medical evidence at all;

3. It does not give any idea of a prognosis 4. It lacks even the illness or injury that the Claimant says has caused him to be in hospital or whether he is simply present there or has been admitted himself.

5. This does not comply with the presidential guidance about applications for postponement of hearing which can be accessed through the below link: https://www.judiciary.uk/wp-content/uploads/2014/08/Presidential-guidance- postponement.pdf

The relevant rule for the postponement application is rule 32 of the Employment Tribunal Rules. A copy of the rules can be found here:

The Employment Tribunal Procedure Rules 2024 [link]

Judge Smart therefore decided to give you the opportunity to provide

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medical evidence and has set a deadline for doing so below.

Rule 47

When a party does not attend a hearing, rule 47 is automatically triggered and this gives the tribunal two options should any postponement application fail.

Option 1: To continue the hearing in the absence of the Claimant Option 2: To dismiss the claim, which means the claim would not be heard, it would fail and the proceedings would come to an end about the claims the Claimant has raised. When considering the options available, the Tribunal has to take into account information that may be obtained by taking any steps that may be practicable to try to find out what has happened that has caused the non-attendance.

As a result, Judge Smart is allowing both or either of you, the opportunity to write into the Tribunal to provide further information about your situation. What is requested is listed below later in the email.

Strike out application made by the respondent

In [NAME_1] absence at the hearing, the Respondent applied for [NAME_1] claim to be struck out (which essentially means cancelled) because he has conducted the proceedings unreasonably, has failed to actively pursue them or it is no longer possible to have a fair trial. The rule about that application is rule 38 of the Employment tribunal rules.

Judge Smart has decided that because the Claimant is absent, he will give you the opportunity to make written submissions about the strike out application.

The Respondent’s arguments

The Respondent made the following points about all of the postponement, rule 47 and strike out. I provide their points below in summary:

1. [NAME_1] conduct of the proceedings is unreasonable because he has failed even by the final hearing to properly clarify his case;

2. The Claimant has failed to cover various parts of his claim in his witness statement at all, so it makes no sense at least in part for those allegations to continue because it would be unfair for the respondent to guess [NAME_1] case. In some cases, he mentions a person who does not exist (namely [NAME_19]) who the respondent submits has never been an employee of the Respondent and wasn’t present at any material time for any part of the claims.

3. At least 11 unless orders have needed to be ordered by the Tribunal for the Claimant to properly comply with its orders and some claims are still not clear. There is a clear history of poor behaviour by the Claimant when preparing this case for trial.

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4. The reasons for [NAME_1] absence should be treated with scepticism because the Claimant has been found by a previous Tribunal to lack credibility and by a second Tribunal to be a demonstrably dishonest individual in the written reasons of two other Tribunal Judges (cases against [COMPANY_20]).

5. The Respondent alleges that the Claimant has responded to correspondence and orders but not sufficiently or properly in a repeated pattern of behaviour. He is therefore failing to adequately pursue the claim.

6. It is unreasonable for the Claimant to have provided no medical evidence supporting his email of today at 09.25, when he knows, because he has been told in previous postponement application that they must be supported by medical evidence if ill health is the reason for the application to postpone.

7. The Respondent argues that a fair hearing is no longer possible within this 8 day hearing window because the evidence will become stale with fading memories when a number of the allegations date from 2022 when it is now 2026, the Respondent’s witnesses have serious allegations of race discrimination hanging over their heads without a definitive date in sight for when these claims would be determined, which infringes the respondent’s right to a fair trial within a reasonable timeframe (article 6 [NAME_26]) any postponement will cost them more money in terms of legal fees and the time taken out of the diaries of several senior managers within the Respondent.

8. The Respondent says that it will be more prejudiced than the Claimant should the hearing be postponed for the above reasons. It still doesn’t know the full case it has to meet about several of the allegations.

9. When the Claimant has been asked to provide medical evidence to support his substantive claims or his applications in the past, he has either failed to provide that evidence or it has not been sufficient. More of the same will happen if the Claimant is given the opportunity to provide further medical evidence now.

10. There should be no postponement because the email provides no detail about what is wrong with the Claimant and fails to comply with the presidential guidance.

11. It is not appropriate to hear the claim in [NAME_1] absence, because for all his claims, he has at least initially, the burden of proof. To hear simply from the respondent would therefore be unnecessarily hearing evidence that does not greatly assist the Tribunal in deciding the issues and the only evidence the Claimant would have is an unsworn statement.

12. There were no written complaints made at the time about the race harassment allegations in the case. Consequently, the evidence is based on two people with one person’s word against the others for incidents that happened 4 years ago in some cases. That evidence would be compromised by further delay.

13. Consequently, the Respondent objects to postponement because relisting the case would mean hearing it again in 12 to 18 months’ time, it

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objects to hearing the claim in the absence of the Claimant because he has the burden of proof and the Claim should therefore be dismissed or struck out.

14. If the Tribunal did not strike out or dismiss the claim, then the Respondent asks for an unless order that unless medical evidence supporting todays’ non- attendance at the hearing, the reason for it and a suggested time for when the Claimant might be able to attend, then the claim be dismissed.

What the Claimant or [NAME_1] need to do

The Claimant and/or [NAME_1] must provide the following information by 13.00 on 17 March 2026 (tomorrow):

1. Medical or any other evidence showing the reason why the Claimant is in hospital, absent from the hearing and/or cannot take part in the proceedings;

2. Evidence showing whether the Claimant is admitted to hospital or simply visiting it due to ill health of another;

3. If he is unwell, medical evidence showing how long the Claimant is likely to be unwell for and stating that he is unfit to attend the hearing AND unfit to engage with the hearing at all even with reasonable adjustments such as regular breaks, his attendance by video or anything else he considers he needs to enable the hearing to continue;

4. Any medical or other evidence detailing when the Claimant first became unwell during this current period of ill health (if he is unwell) or when the person he may be visiting in hospital became unwell (if applicable).

If the Claimant is able to, he can choose to do the below

If the Claimant and/or [NAME_1] are able to, please provide written responses to the arguments put forward by the Respondent above about the postponement application, the rule 47 issues, the Respondent’s application to strike out the claim and/or the respondent’s application for an unless order.

Consequences of non-response or not responding fully

Judge Smart is considering all of the above information in this email. He is very conscious that you were not present to even know about the Respondent’s applications or their submissions about them. If you fail to respond to this email or do not respond fully, it is possible that [NAME_1] case may be dismissed or that it may be struck out. It is also possible that the claim will be heard in [NAME_1] absence.

Time is therefore of the essence, and it is very important that you respond to this email if possible and, if you do respond, that you respond as fully as you can and provide documentary medical or other evidence to support your responses.

Case Number:1306955/2023

Judge Smart realises that this is a lot of information, but he thinks this is the only way to try to ensure that you are on as equal a footing as you can be and have had a reasonable opportunity to respond to the applications, in the circumstances, given the Respondent’s applications need to be heard straight away.

The deadline to respond to this email is by no later than 13.00 on 17 March 2026, and any response needs to be received on or before that time.

Judge Smart will be making a decision about all the applications tomorrow at 14.00 in public at the hearing.

We look forward to hearing from you.”

61. I was content to address this email to both the Claimant and his wife because his wife had corresponded with the Tribunal previously on [NAME_1] behalf and the Claimant had raised no concerns and indeed had permitted such correspondence to be referred to previously.

62. The next day, an email signed off by [NAME_1], sent a detailed response to the letter. The key points form the response are as follows:

62.1. The Claimant was expressly denying that there was any application to postpone the hearing made in his email the previous day;

62.2. The Claimant had allegedly been in Accident and emergency since Monday (namely before 09.25 on day one of the hearing until 08.36 when the email was sent to the tribunal on day two).

62.3. The submissions alleged that the Claimant had suffered from “clinically diagnosed severe depression which had repeatedly been referenced throughout these proceedings”.

62.4. That “the hospitalisation had been triggered by the acute psychological distress caused by reliving the discriminatory treatment forming the subject of this claim.”

62.5. That the Claimant was currently under suicide watch and that any participation in the proceedings would pose a serious risk to his health and safety.

62.6. That the information provided about his condition was supported by medical evidence.

62.7. The Claimant understood and accepted that he would not give oral evidence, be cross examined and the tribunal would therefore attach appropriate weight as it considered appropriate to his written evidence.

62.8. That [NAME_1] absence was the only viable way for the case to proceed without causing him serious harm.

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62.9. That the case can be fairly heard, in his view by reference to the documents, the detailed pleadings a detailed witness statement and given his prior engagement with the proceedings throughout.

62.10. There was no basis for striking out the claim because the Claimant had behaved unreasonably.

62.11. The Claimant denied a lack of clarity in the case given his witness statement, the detailed pleadings and that the Respondent had filed a full detailed response. The argument that the Respondent did not know the case it had to meet was therefore “unsustainable”.

62.12. The previous findings of other tribunals were not determinative of the case and were irrelevant to the present situation. He argued each case must be determined on its own facts and evidence.

62.13. That it was demonstrably false that the Claimant had failed to pursue his claim. The Claimant had progressed the case to final hearing, complied with orders and prepared and served evidence. His absence was mental health not his lack of intention to pursue the claim.

62.14. One piece of medical evidence was provided with the claim. This was a photograph of what appeared to be a wristband. I say that because it appeared to have in the photo, the zigzag lines on it where the two ends of a paper strap are glued together to created the closed band around the wrist. It had the following information on it:

62.14.1. [NAME_1] full name;

62.14.2. His date of birth which matched other medical records and the ET1;

62.14.3. His NHS number which appears to match that on GP records disclosed to the tribunal previously;

62.14.4. It has an item called “Adm Date: 16/3/2026” and “Site: NMG”, which I believe is [COMPANY_21] by judicial note.

62.15. The band does not say that it is a band for admitting him to hospital. It has an item called Adm Date, but the email sent with it said the Claimant had simply been in [NAME_14] and not on any particular ward or admitted to any particular department.

62.16. The band does not state what is wrong with the Claimant or that any particular treatment was afforded to him by anyone, whether it be a general medical practitioner or a mental health practitioner.

62.17. It gives no information about the severity of any condition or prognosis.

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The medical evidence before me.

63. I had the following evidence before me:

Medical notes

63.1. [NAME_1] medical notes between 27 August 2019 and 1 January 2022 (25 pages).

63.2. In January 2020, the Claimant was referred to a counsellor for reasons that have been redacted in the records.

63.3. This confirmed that the Claimant suspected he had depression and this started in 2011/2012 after he closed his start up business. In August 2020 he had no suicidal thoughts.

63.4. By September 2020, he was more calm and therapeutic self-care strategies were working.

63.5. By October 2020, the Claimant was taking anti depressant medication and that this was working for him.

63.6. There were some good periods and bad periods thereafter but by May 2021, the Claimant stated that everything was going perfectly in his life.

63.7. Between July 2021 – September 2021, his mood had deteriorated again where he was feeling irritable and frustrated with working from home.

63.8. The remainder of those documents were simply letters confirming appointments with the counsellor.

Wrist band photo

63.9. This has been discussed above.

Fit note

63.10. I had a fit note in the hearing bundle at page 350 dated 22 May 2023 and citing depression as the reason the Claimant was unfit for work between 13 April 2023 and 26 May 2023.

The GP letter of 2 March 2026

63.11. This has also been discussed earlier.

THE LAW RULE 47 OF THE EMPLOYMENT TRIBUAL RULES OF PROCEDURE

64. Rule 47 says:

“Non-attendance 47. If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that

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party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”

65. Consequently, the Tribunal has two choices under this rule. It may either dismiss the claim or continue to hear it.

66. Of course, nothing in this or any other rule prevents the Tribunal from considering the postponement of the hearing subject to rule 32’s requirements.

67. A dismissal of the Claim can only be relevant where the Claimant is the party that fails to attend or be represented at a hearing.

68. Before either option is considered, the Tribunal must consider any information available to it about the reasons for the absence. No other enquiry is provided for by rule 47. That means, in my judgment, that where a Claimant does not attend, it must consider rule 47 otherwise, simply carrying on without doing anything else, would be in breach of the mandatory requirement to make enquiries about the reasons for the absence expressly provided for in rule 47.

69. In addition, before considering the information available about the reasons for the absence, there is an obligation on the Tribunal to make practicable enquiries about the reason for the absence.

70. In all cases, the tribunal must consider the overriding objective contained in Rule 3 when coming to a decision.

71. When considering the relevant case law, there does not appear to be any authority directly analysing the application, relevant principles and/or use of rule 47 as it is now worded in the 2024 rules as amended.

72. A number of cases are of persuasive authority because of similar versions of the rules of procedure. I discuss these in the analysis and conclusions section below.

ANALYSIS AND CONCLUSIONS

73. One case which is often cited about how to approach the application of the rule that I was taken to by Counsel was Roberts v Skelmersdale College [2003] EWCA Civ 954.

74. Care must be taken here. That case was decided on the following wording of what was then rule 9 (3) of the Employment Tribunal rules of procedure 1993:

“If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

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75. Consequently, there are some significant differences to this rule. I analyse them now.

76. Rule 9(3) refers to an originating application. That was the terminology used for what is now the ET1. It was the document that started the Tribunal proceedings.

77. It gave the Tribunal three options expressly in the rule namely to adjourn the case, dismiss it, or dispose of the case in the absence of the missing party. These are identical it to the options already identified as open to Tribunals in these situations namely, to postpone the case if that is possible in accordance with rule 32, dismiss the claim or continue to hear it and dispose of it in the party’s absence.

78. More helpfully, the rule expressly makes clear that if the party is an applicant then all three options are available. If the party was a respondent then clearly an originating application or in our case an ET1 cannot be dismissed because the Respondent failed to attend. Without something very drastic having taken place such as, and I admit this was the only realistic example that came to me, the Claimant physically assaulting the Respondent (if they are an individual) and that was the reason for a Respondent’s non-attendance.

79. The key differences however here are that rule 9(3) apparently required a more involved consideration of information before the tribunal could decide what should be done about the applicant’s absence. That consideration was three fold, namely consideration of the originating application, the notice of appearance (old terminology for the ET3) any representations made pursuant to then rule 8(5) and any written answer furnished to the Tribunal pursuant to rule 4(3).

80. Rule 8(5) said:

“(5) If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application he shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy to each other party.”

81. Rule 4(3) said:

“(3) A tribunal may, on the application of a party made by notice to the Secretary or of its own motion, require a party in writing to furnish to the tribunal a written answer to any question if it considers–

(a)that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and

(b)that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing,

and may appoint the time within which the written answer is to be furnished. Upon the imposition of such a requirement, the Secretary shall send a copy of the requirement to each other party; and he shall send a copy of the

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answer to each other party.”

82. Rule 8(5) of the 1993 rules was equivalent to what is now rule 42 of the 2024 rules, which says:

“Written representations 42. The Tribunal may consider any written representations from a party, including a party who does not propose to attend the hearing, if they are sent to the Tribunal and the other parties, and must do so if they are sent to the Tribunal and the other parties not less than 7 days before the hearing.”

83. Rule 4(3) of the 1993 rules, is now encapsulated in rules 30 and 31 giving the Tribunal its general case management powers, one of which can be to require a party to answer questions or provide information, or partly in rule 33 of the 2024 rules which gives the tribunal the power to order any person in Great Britain to provide information.

84. Consequently, rule 9(3) that [NAME_22] was interested in, required the tribunal to consider the claim, the response, any written representations received no later than 7 days before the hearing and any responses to any Tribunal orders to provide further information provided by either side.

85. Therein lies the difference between rule 9(3) of the rule in [NAME_22] and rule 47. Rule 47 requires the tribunal to do nothing more than consider and make practicable enquiries about the reasons for the delay to include any information about the reasons for the delay that was already before the Tribunal when the party became absent.

86. In considering those items, under Rule 9(3) of the 1993 rules, the Court of Appeal in [NAME_22] decided as follows:

86.1. Rule 9(3) conferred a very wide discretion on the Tribunal to deal with cases when a party does not attend.

86.2. The rule imposed no duty on the Tribunal to investigate the case before them.

86.3. The rule imposed no duty on the Tribunal to consider the merits of the case and in particular whether the Claimant had a good claim or the respondent had a good defence. The rule does not place any duty on the Tribunal to hear evidence about the merits of the case before coming to its decision.

86.4. Tribunals may ask for evidence in their discretion before coming to a decision but there is no duty on it to do so.

87. First, when considering the breadth of the discretion a tribunal has, I agree that it is very wide and consequently, so long as the prescribed elements of rule 47 have been followed correctly, that things that should be taken into account have been and that irrelevant matters that should not be taken into account have not been, then decisions under this rule are a matter of judicial discretion.

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88. Clearly and secondly, there is now a duty to investigate matters before coming to a decision under rule 47. That part of the decision in [NAME_22], is therefore now obsolete and the 2024 Rules, being part of a Statutory Instrument, expressly discontinued that approach. The investigation is limited, as I have indicated above, to practicable enquiries relevant only to the reasons for the absence of the party.

89. Thirdly, I can see nothing that requires the Tribunal to assess the merits of the case before deciding how to proceed or to consider the ET1, ET3 or any further information provided in the proceedings whether ordered to be provided or not, unless those documents provide information about the reasons for [NAME_1] non-attendance at the hearing.

90. Finally, when considering the point made in [NAME_22], that the Tribunal may exercise its discretion to require a party to produce evidence before making its decision, I cannot identify when a Tribunal could properly exercise that discretion, because it seems to me that rule 47 does not require any investigation or analysis of anything other than the reasons for the absence. To order a party to provide evidence about the merits of the case when considering whether to hear the case in a party’s absence or to dismiss it, is in my judgment tantamount to hearing the case anyway and therefore is not, in my view, giving proper consideration to potentially dismissing the claim, a power expressly provided for in rule 47.

91. The next case that is relevant is Holland v Cyprane Limited [1977] ICR 355, EAT. That case was decided on even older rules. However, the general principles it discussed and the decision, in my view, were highly relevant to my decision.

92. In Holland, the Claimant had written to the tribunal before the hearing commenced to state that he could not attend the hearing to decide his unfair dismissal complaint, because of his wife’s ill health and also his own ill health. He did so three days before the hearing was listed, namely writing on 29 March when the hearing was on 1 April.

93. Neither the Chairman of the Tribunal (old terminology for Employment Judge) nor the Tribunal administration informed the Claimant of his ability to ask for an adjournment of the proceedings. The Claimant made no such application either.

94. The Tribunal dismissed [NAME_1] case because in his absence after hearing from the Respondent about the unfair dismissal claim and then refused to undertake a review of that decision later on.

95. The key points found in that decision were as follows:

95.1. “Our view is that upon receipt of that letter that this employee wrote, it was desirable for the secretary of tribunals to draw the attention of the employee to the fact that he had a right to apply for an adjournment, if he wished, and that such an application if made would be considered by the tribunal.” This part of the decision is therefore not binding on me. It mentions only a desirability and that is in context of the rest of the judgment to be determined on the merits of the case. This is not

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therefore authority that a Tribunal must inform a party of their right to apply for an adjournment when they do not attend a hearing. Regardless, because I treated the letter as an application to postpone the hearing and the letter was expressly refuted as being such an application because the Claimant was not applying to do, this issue had been resolved.

95.2. The next point is that before a tribunal considers dismissing a case because of lack of attendance, it should consider whether the reasons put forward by the absent party are genuine.

95.3. The following point that I can glean from the Judgment, is that the Tribunal should consider whether hearing the claim without the Claimant in attendance is “satisfactory”. This was being decided where the EAT thought the absence was genuine. Of note is this part of the judgment:

“Second —and this is probably a stronger point —having regard to the reasons given by the industrial tribunal we think that it is not surprising d that the employee took the view that the hearing had been unsatisfactory. All he had to go on, of course, were the reasons that he got from the industrial tribunal. The principle that in any legal proceeding it must be apparent that justice was done comes into play at this point, because we think that the employee, on reading the reasons, will have entertained a reasonable anxiety and suspicion that justice was not done because his case was not properly understood.” [My emphasis underlined.]

95.4. At first sight, Holland would therefore appear to be authority that if it appeared to the Claimant that justice did not appear to be done, then there should be a rehearing. However, that point was made after the EAT had already decided that the Chairman had made inferences adverse to the Claimant in his absence, when there was not sufficient evidence for the Chairman to have made such an inference.

95.5. I stop here merely to observe a simple question, which is, when can it possibly appear to a claimant that justice has been done, if the case goes against him when he was not there and he could not explain his case or give his evidence?

95.6. In my view, looking at this authority it is simply saying three things.

95.7. First, if [NAME_1] case is not properly understood and the tribunal only hears evidence from the Respondent, then it will often be unfair or “unsatisfactory” to hear it in the absence of the Claimant.

95.8. Secondly, if the Tribunal draws adverse inferences from evidence where there is not enough evidence to do so, it will err in law.

95.9. Third, if the Tribunal fails to consider whether the absence of the party is for genuine reasons, and therefore fails to adequately take the genuineness of the reasons put forward by a party for the absence properly into account, it will also err.

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95.10. The result of making these three mistakes together meant that to the Claimant, and indeed the reasonably informed observer, it looked like justice had not been done to the Claimant.

95.11. In my view, the above is what Holland is authority for and these general principles, have been established in later cases. Inferences must have a proper evidential basis after Efobi v Royal Mail Group Ltd [2021] UKSC 33, for example. The point that you can’t really make decisions about the merits of a case when that case isn’t clear and understood, is raised in the context of strike out in Cox v Adecco UKEAT/0339/29 [2021] ICR 1307, for example.

96. Additionally, it is also my view that the decision about what to do in a case where rule 47 is being considered, may depend on who has the burden of proof either entirely or initially.

97. For example, hearing a case in the absence of the Claimant where the claimant bears the burden of proof, is very likely to mean that the Tribunal would be simply going through the motions of hearing the Respondent’s evidence when it is very unlikely the Claimant will meet the burden of proof because they have no sworn or tested statement and the Tribunal can only attach slender weight to it.

98. However, if it is a case where the defence is, for example, responding to a discrimination claim where knowledge of disability is all that is in dispute, or it is a claim of ordinary unfair dismissal, where in both cases the Respondent has the entire or initial burden of proof, I can see it being permissible to hear the respondent’s evidence in the absence of the Claimant, without there being so much prejudice to them to make the hearing unsatisfactory when it comes to fairness or justice being seen to be done.

Has the Claimant proven that the reason for his absence was genuine?

99. Therefore, when considering the evidence about the reasons for the absence provided by the Claimant I make the following findings:

99.1. I do not doubt that the Claimant has suffered from low mood and its effects for a number of years.

99.2. That low mood has been labelled by a GP as being depression and on occasion severe depression. However, I have no evidence from a mental health specialist that the Claimant actually has clinical depression whether severe or otherwise.

99.3. I would expect to see a referral to a psychiatrist for any episode of severe depression leading to suicidal ideation and I was presented with none. This Tribunal has also not been presented with any similar evidence at any point in the proceedings.

99.4. The referral the GP made was to counselling for low mood and there was, at some point, sertraline prescribed for the Claimant.

99.5. In the GP letter of 2 March 2026 just two weeks before the hearing

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before me, the GP makes firm conclusions that the Claimant suffers from anxiety and depression and is stressed because of the approaching Tribunal hearing. The GP confirmed that the Claimant had been started on sertraline, and not that his dose was already present and being changed.

99.6. When it came to the severity of [NAME_1] condition, the GP only goes as far as saying that the Claimant “seems” to be suffering from severe depression and that it is [NAME_1] concern that this stress may make it difficult to attend the hearing. It does not say that the Claimant believed at that point he cannot attend the hearing or it would be in the GP’s view difficult or impossible for him to attend.

99.7. All in all, the most recent medical evidence available to me that suggested an actual diagnosis and gave information about [NAME_1] ability to attend the hearing is the GP letter of 2 March 2026. I interpret the words used by the GP in that letter as indicating some scepticism on their part about the severity of the symptoms the Claimant was claiming to present to them.

99.8. The other medical notes are years old and can only really provide a backdrop [NAME_1] health some 3 years ago.

99.9. Finally, the wrist band tells me nothing other than the Claimant was admitted to [NAME_14] on 16 March 2026. I do not know what with, how severe it was or how it impacted on his ability to attend the hearing and engage in the proceedings.

99.10. In addition, given the Claimant was said to be on “suicide watch”, I am not persuaded that such a watch, if done by medical professionals, would have been done simply in [NAME_14]. I would have expected to see admission to a mental health ward or department and evidence that at least some sort of mental health assessment had taken place or was ongoing.

99.11. What is missing at all material times, is any evidence of any referral to a mental health specialist such as a psychiatrist, firmly diagnosing severe depression or other similar disorder. I was presented with none, despite asking for it.

99.12. Consequently, I find that there was insufficient evidence persuading me that [NAME_1] absence from the hearing was because of depression or mental health severe enough to justify his absence and engagement at the hearing.

99.13. The evidence suggested to me that he has always suffered on and off with depression and the hearing had caused him some stress.

99.14. However, hearings deciding legal proceedings are always stressful. They are stressful to all who take part in them and that is a natural consequence of the adversarial nature and often alien nature of them, especially to a litigant in person.

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99.15. The fact the GP stated that the Claimant himself had said he was stressed out, and it may be difficult for him to attend the hearing, did not persuade me that he was unfit to attend the hearing before me or to engage in the case.

99.16. [NAME_1] was arguing that his situation was severe, but that was without providing any sufficient evidence to support those assertions.

Was it possible to have a fair and satisfactory hearing with the Claimant in attendance either now or in the future?

100. However, what if I am wrong about that and despite the lack of evidence, the Claimant really was incapacitated as his wife and he suggest?

101. I turn to what was said by [NAME_1] on his behalf about adjournment.

102. The most stark point was her submitting that the only viable way for [NAME_1] case to be heard without causing him any further serious harm was for it to be heard in his absence.

103. In my view, that suggests that if the hearing was to be postponed and listed for a future date, we would be in the same or similar situation again, just later in the timeline. Indeed, the Claimant believes that same, which is in my view why his wife expressly argued that no postponement was being sought.

104. Therefore, in all likelihood, the Claimant would not be present at any future hearing either.

105. I must therefore determine whether a fair hearing of the case could take place in [NAME_1] absence.

106. The Respondent submitted that it could not, because there was still a dispute about the list of issues and [NAME_1] case was not fully clarified. It was unfair for it to have to guess [NAME_1] case about several of the allegations where, in some circumstances, he had named a person the respondent says never existed, or his statement does not cover all the claims.

107. It argued that the Claimant had the burden of proof initially for all his claims, and to hear only from the Respondent’s witnesses when essentially, some of the allegations were one persons’ word against another for incidents that happened 4 years ago in some cases, would not assist the Tribunal in deciding the issues.

108. The Claimant argued that a fair hearing was still possible because of the detailed pleadings already provided, the fact he had provided a comprehensive witness statement and there was a significant amount of documentary evidence.

109. Having weighed everything up, I decided that to hear the case in the absence of the Claimant would not be fair to the Respondent and would not be a safe

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thing to do more generally. I have decided that for the following reasons:

109.1. It is clear from the Case Management Order of Judge Faulkner from January 2026 and the email from the Claimant of 19 February 2026, that the case had not been properly clarified in full before it got to trial.

109.2. As part of any fair final hearing, it is crucial that all the claims being determined are properly understood as per Holland. I could not do that without the Claimant being present in the circumstances of this case.

109.3. I do not consider the claimant is capable of properly clarifying all the claims even if the case was put off. I say this because despite more than four preliminary hearings, several unless orders and a substantial amount of time being spent with the Claimant to try to clarify the claims, by the final hearing the claims were still not fully clarified, the list of issues was disputed by the Claimant and I had little confidence on balance of that situation changing between any postponement order and the next hearing without further interlocutory hearings being needed and ones which the Claimant was unlikely to attend.

109.4. When considering the principles in Holland, deciding a case that wasn’t properly understood causes either injustice itself or the appearance of injustice.

109.5. [NAME_1] submissions ignore the fact his witness statement was not comprehensive as he alleged. It did not cover some of the claims in the list of issues at all.

109.6. I was not persuaded there was sufficient evidence that the witnesses’ memories would be faded to such an extent as to make hearing from them prejudicial to the Respondent when they had drafted witness statements already to prompt them, so long as another hearing could be listed within a reasonable time.

109.7. However, given there was no postponement application submitted by either party, postponing the case was an option that in my judgment in the circumstances of this case was not open to me. This was not a case where it would have been just for me to postpone the case of my own volition based on the information and submissions before me, especially those made by [NAME_1].

109.8. In any case, I would not have granted a postponement of the case, because it could not be relisted for the best part of a year, namely early 2027, meaning some of the allegations would have been 5 years old and the proceedings would have been ongoing for over three years.

109.9. It was also clear that if the case was put off, it was likely we would be in this same situation in 2027, which [NAME_1] submissions supported.

109.10. Additionally, it was correct that the Claimant had the initial burden of proof for all claims. It was therefore very unlikely that, without hearing

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any evidence or argument from the Claimant, the Claimant would have been able to shift the burden of proof to the Respondent and, if I were to hear that evidence and argument over the next 2 days or so with just the Respondent, that would have essentially been hearing evidence for hearing it’s sake at the Respondent’s expense, which is not just or an appropriate use of Tribunal resources generally.

109.11. When looking at the prejudice to both parties, of course there would be substantial prejudice to the Claimant to dismiss his claim without hearing it. However, there would also be significant prejudice to the Respondent for it to have to guess what some of [NAME_1] claims were.

109.12. Ultimately, though, given that postponement was not a viable option and neither was hearing only the Respondent’s evidence, there was little choice for me about what to do about the situation.

Conclusion

110. The only just way that these proceedings could conclude is for the Claim to be dismissed in [NAME_1] absence under rule 47.

111. In all the circumstances, postponing the case would simply delay the proceedings to be in the same situation at the reconvened final hearing. It was unlikely the Claim could be fully and properly clarified in the circumstances by the time of a new hearing date.

112. It was not fair or just to hear the claim in [NAME_1] absence for the reasons cited above.

113. Given that those two options were not viable, the only just option available to me was to dismiss the Claim.

114. In my view, I had made practicable enquiries to assess the reasons for the absence, I had considered all reasonable options and I had been able to hear arguments from both sides about the situation before coming to a decision.

115. The Claim stands dismissed and that concludes these proceedings.

EMPLOYMENT JUDGE SMART

On: 7 May 2026

Case No: 1306955/2023

EMPLOYMENT TRIBUNALS Claimant: [redacted] Respondent: [redacted] or [COMPANY_24]

JUDGMENT The complaint that the claimant was unfairly dismissed is struck out.

REASONS The claimant complains of unfair dismissal.

2. Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years' service to make an unfair dismissal complaint.

3. The claimant was employed by the respondent for less than two years.

4. Therefore, the claimant is not entitled to bring such a complaint.

5. The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.

6.

Accordingly, the complaint of unfair dismissal is struck out. The claimant's other complaints are not affected by this judgment.

Employment Judge Gaskell Date: 6 February 2024

1.18 UDL length of service - strike out judgment -.part claim