Employment Tribunal Dismisses Claims Due to Non-Attendance

OUTCOME: Dismissed

Case Number: 2501278/2024 1

THE EMPLOYMENT TRIBUNALS

Claimant

[APPELLANT]

Respondent [RESPONDENT] at [COMPANY]

On

15 September 2025

Before Employment Judge Langridge

Representation:

Claimant No attendance Respondent [RESPONDENT], solicitor

JUDGMENT Rule 47 Employment Tribunal Procedure Rules 2024

The claimant's claims for breach of contract, wrongful dismissal and for notice pay are all dismissed due to the claimant's non-attendance at the hearing on 15 September 2025.

REASONS

Background

1. These claims have been the subject of previous preliminary hearings and case management orders, in which the nature of the claims and the respondent’s defence have already been summarised. At a public preliminary hearing on 13 March 2025 the claimant's [NAME] for constructive unfair dismissal was struck out, on the grounds that he was employed by the respondent for less than the required two year period. On the same date the claimant was ordered to pay a deposit of £480 in order to pursue his various claims under the Equality Act 2010 (claims of race discrimination,

Case Number: 2501278/2024 2

sex discrimination, harassment and victimisation). This was on the grounds that those claims had little reasonable prospect of success. The deposit order was sent to the claimant on 20 May, giving him a deadline of 4 June 2025 to pay a deposit. No deposit was paid by that date and on 11 August 2025 Judge Gowland struck out the Equality Act claims as a result. That decision is the subject of an appeal to the EAT which is to be listed for a preliminary hearing on an unknown future date.

2. The next preliminary hearing in the Newcastle Tribunal took place on 15 August 2025, again before Judge Gowland, to deal with the only surviving claims: breach of contract, wrongful dismissal, and notice pay. Today was a final hearing listed in [APPELLANT] over two days to determine those claims. The claimant did not attend and this decision was made in his absence.

3. The Tribunal did not hear evidence on oath today nor was it in a position to make findings of fact. It was, however, able to review the relevant content of the claimant's witness statement and his signed contract of employment, so as to have regard to the nature and value of the surviving claims. This information formed part of the factors taken into account in reaching this decision, alongside the overall circumstances of the case. Submissions were also made on behalf of the respondent.

The claims

4. It was clear to the Tribunal that the factual basis for these overlapping live claims is essentially the same. The claimant alleges that his probationary period was successfully completed on the last day of the initial 3 month period, and that the respondent had no contractual right to extend probation (which it did twice) or to do so retroactively. In his witness statement the claimant alleged that any extension had to be done on formal notice. Had the respondent complied with his contract, the claimant says he would have been entitled to a longer notice period of one month, whereas he was paid for one week’s notice on termination. That came about as a result of the claimant's resignation. The claimant’s employment with the respondent began on 9 October 2023 and ended on 19 March 2024, by which time he was off sick and in receipt of SSP rather than wages.

5. The express terms of the claimant's contract include the following:

“1.2 The first 3 months of your employment shall be a probationary period and your employment may be terminated during this period at any time on one week’s prior notice. We may, at our discretion, extend this period for up to a further 3 months. During this probationary period your performance and suitability for continued employment will be monitored. Successful completion of the probationary period will be deemed confirmed only upon receipt of a probationary period confirmation letter from HR.

8.1 After successful completion of the probationary period referred to in clause 1.2, the prior written notice required from you or the Company to terminate your employment shall be as follows:

8.1.1 6 weeks prior written notice until you have been continuously employed for six complete years […]”

Case Number: 2501278/2024 3

6. It was therefore clear from the Tribunal's limited review of the papers that the central issue was how much notice the claimant was entitled to on his resignation. He was initially paid one week’s pay in lieu of notice based on SSP rates. More recently the respondent topped up the payment to a full week’s pay to bring it in line with the minimum notice requirements under sections 86-88 Employment Rights Act 1996.

7. Had the claimant attended today’s hearing, the Tribunal would have had to determine the disputed extensions to the probationary period and the resulting consequences for the notice entitlement. On the claimant's own case his [NAME] concerns non- payment of the balance of around 3 weeks’ pay in respect of the more generous notice entitlement, or alternatively 5 weeks’ pay based on clause 8.1.1 of the contract. The amount would possibly be limited to SSP rates of pay based on ongoing sickness absence.

The claimant's non-attendance

8. Having had numerous previous postponement applications refused, the claimant did not attend this hearing. At 8am today he emailed the Tribunal in the following terms:

“The Employment Appeal Tribunal is seized of my appeal (EA-2025-001074-BA) and my urgent stay/adjournment application has been circulated to the Respondent for comment.

I am unfortunately medically unfit to attend today's listing (15 September 2025) following the serious assault I suffered on the 6 September 2025; my [NAME] note (8 Sept 2025) and Police CRN have been provided to the EAT.

I have notified all parties of the above and asked the EAT for protective directions.

Accordingly, I will not be attending the Newcastle ET today. Please place this on the administrative record. For the avoidance of doubt, this message is not an application to the ET; the issue is before the EAT.”

9. The claimant has not provided either the Tribunal or the respondent with the ‘[NAME] note’ or the police CRN, or indeed with any other medical evidence as to his fitness to attend the hearing of his claims.

History of postponement applications

10. A significant factor in reaching this decision is the history of prior postponement applications made by the claimant.

11. The relevant correspondence followed the claimant's Notice of Appeal to the EAT dated 21 July 2025. This sets out extensive grounds of appeal amounting to 25 pages. The grounds cover numerous complaints about the Tribunal's handling of the preliminary stages, including delays in sending out case management orders. The claimant alleges that the late service of the deposit order effectively denied him a realistic opportunity to comply with it. In its reasons for fixing a preliminary oral hearing the EAT has indicated that, “if there is a proper reasonably arguable [NAME] the Notice

Case Number: 2501278/2024 4

of Appeal will need to be amended so that it is not so diffuse, repetitive and confusing”. It does not appear that the EAT has yet fixed a date for the preliminary hearing.

12. In his many and lengthy emails to the Tribunal and the EAT the claimant has also complained about the conduct of the respondent's solicitor, Mr [RESPONDENT]. One example relates to Mr [RESPONDENT] obtaining a verbal update from a Tribunal clerk on the status of the deposit order and the related potential for the claims to be struck out. This was at a time when he was preparing the bundle for the final hearing. In another such email dated 31 July the claimant refers to the stress caused by the respondent’s conduct of the case, as well as the fact that he was taking heart medication. This was all in the context of his complaints about the timeliness of the respondent’s compliance with case management orders.

13. The first postponement application was made to the Employment Tribunal on 12 August, requesting an order to stay the enforcement of the strike-out judgment pending determination of his appeal, or alternatively, an order rescinding the strike- out judgment. The claimant alleged that the judgment was made in error given the existence of a live appeal. This is patently not the case and shows a misunderstanding on the claimant's part about the relationship between proceedings in the Employment Tribunal and appeals to the EAT.

14. The postponement application was considered at the preliminary hearing on 15 August when Judge Gowland refused it.

15. There followed a second postponement application dated 16 August and addressed to the Regional Employment Judge (REJ). This was referred to [NAME] who responded on 26 August. She explained that the REJ is not a point of appeal against a decision made by an employment judge, and that she could not interfere in Judge Gowland's decision. She told the claimant he could apply to Judge Gowland to vary or revoke his decision, or he could appeal to the EAT. The claimant did not apply to Judge Gowland for a reconsideration of his decision.

16. On 31 August the claimant wrote to the EAT requesting an urgent stay of these proceedings pending determination of his appeal. This was his third postponement application. Sitting in the EAT, John Bowers KC, Deputy Judge of the High Court, indicated in his Reasons dated 5 September that he was not prepared to stay the proceedings in the Newcastle Tribunal and could see no reason for doing so.

17. A fourth email followed from the claimant, addressed to the Newcastle Tribunal and copied to the EAT. The claimant said his purpose was not to invite the Tribunal to adjudicate the case but to make it aware of what he described as the “procedural risks now arising”, given the involvement of both the Employment Tribunal and the EAT. He described this as a “jurisdictional conflict” which carries a risk of “catastrophic duplication and invalid decisions”. The claimant concluded:

“Respectful Request:

I do not ask you to interfere in judicial decisions, but I respectfully invite you to note the administrative and reputational risks identified above and to ensure that,

Case Number: 2501278/2024 5

pending the EAT’s determination, steps are taken to avoid further procedural irregularity.”

18. It is clear from the wording of this email that the claimant wished the Newcastle Tribunal to take steps not to allow the hearing listed for 15 September to go ahead.

19. A fifth request was made on 9 September, this time addressed to the EAT and copied to the Newcastle Tribunal, in which the claimant made an urgent request for an immediate stay. He explained the urgency by reference to three matters:

19.1 The EAT being seized of the appeal;

19.2 The Newcastle Tribunal insisting on the hearing remaining listed for 15 September 2025; and

19.3 There being new exceptional circumstances.

20. The new exceptional circumstances were described as follows:

“On 6 September 2025 I was the victim of a racially-motivated assault, during which I was struck violently on the back of the head; Police have made an arrest. On 8 September 2025 I was seen at [COMPANY] ([NAME]) and advised by Dr [NAME] to start an immediate period of recovery away from work, computers in general or anything related owing to head injury and associated symptoms. I can provide the medical note and the police reference immediately.”

21. In a separate paragraph the claimant set out the “practical and legal grounds for an immediate stay”. He relied on four points, three of which related to the existence of the appeal. He also invoked “health and safety / fair trial (Article 6) and said:

“Following the assault and medical advice, a 15 September appearance is not medically possible for me. Proceeding regardless would deny me an effective opportunity to be heard.”

22. This Tribunal is not aware of any response from the EAT to this or any other correspondence from the claimant, other than the orders and reasons dated 5 September 2025.

23. The sixth postponement application was addressed to the Newcastle Tribunal on 9 September. The claimant requested that the hearing listed for 15 September should not proceed. In support of this he referred to three matters:

23.1 Appeal pending before the EAT;

23.2 Applications to the EAT made on 31 August and 9 September seeking an immediate stay of the Tribunal proceedings;

23.3 “Medical inability to attend”. The claimant gave the same explanation as above, relating to the assault on 6 September.

Case Number: 2501278/2024 6

24. The email concluded:

“Given these circumstances, I respectfully request that the Newcastle Employment Tribunal does not proceed with the hearing listed for 15 September 2025 pending the outcome of the EAT appeal. To do otherwise risks conflicting jurisdictions, wasted resources, and serious prejudice to me, particularly in light of my current medical condition.”

25. Notwithstanding the new medical issue, the emphasis in the claimant's emails remained focussed on the pending appeal.

26. The [NAME] replied to the above on 10 September referring the claimant to the [NAME] on seeking a postponement, which was provided. The claimant was also asked to provide copies of all documents relevant to his application, particularly medical evidence.

27. This correspondence was referred to [NAME] [APPELLANT]. On 11 September she replied to the claimant, noting his “medical inability to attend” and also his correspondence with the EAT. [NAME] referred back to her letter of 26 August in which she had explained that Judge Gowland's refusal to postpone the hearing was not something in which she could interfere. She also noted that the claimant had not made any application for a reconsideration of Judge Gowland’s decision.

28. [NAME] concluded:

“If the claimant seeks a postponement of the hearing on medical grounds, he must make an application supported with medical evidence. I note that the [NAME] has already referred him to the [NAME] and provided him with information about making such an application.

Unless and until any such application is made and granted, the claimant must assume that the hearing of his claims will go ahead on 15 September 2025.”

29. The seventh and final email from the claimant on the subject of postponement was sent to the EAT on 11 September. He drew attention to the above letter from [NAME] and asked that an EAT judge make an urgent order “preventing” the hearing listed for 15 September from going ahead, “pending the outcome of the appeal and/or further EAT directions”. Explaining why the matter was urgent, the claimant reiterated what he described as a “live and serious jurisdictional conflict” and added:

“For clarity:

I cannot for medical reasons following a racially motivated assault on Saturday last week attend Newcastle ET on 15 September 2025, for medical reasons. Also we have the situation that this matter is now properly before the EAT.”

30. The email sent to the Tribunal today at 8am concluded this correspondence.

Legal principles

Case Number: 2501278/2024 7

31. The starting point for the Tribunal's decision is the terms of Rule 47 of the Employment Tribunal Procedure Rules 2024:

47 Non-attendance

If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the [NAME] or proceed with the hearing in the absence of that 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.

32. Given the Tribunal's wide powers to manage its proceedings it was also important to consider the factors identified in some key legal authorities dealing with cases where there is non-attendance by a claimant in circumstances where medical issues are relied on as a reason for seeking a postponement. While this claimant did not renew his application to the Tribunal to postpone the hearing today, his position indirectly made clear that that was the outcome he was looking for.

33. The EAT’s decision in [NAME] v [NAME] & [NAME] (UK) [COMPANY] [2022] EAT 111 was particularly helpful to the Tribunal, as were the Court of Appeal authorities referred to in that judgment.

34. In paragraph 47 of her judgment, [NAME], J said this (emphasis added):

“Whether or not to grant an application for a postponement falls within the ET's general case management powers. [NAME] on Seeking a Postponement of a Hearing explains the procedure that is to be followed and makes clear that any application on the ground of ill-health will require medical evidence to show that the party concerned is unable to attend.

The ET has a broad discretion as to whether to grant a postponement but, when considering an application made on medical grounds, the approach it should adopt has been the subject of guidance laid down by the Court of Appeal in [NAME] v London Borough of Wandsworth [2002] EWCA Civ 1040, [2002] ICR 1471 and [NAME] v The Lord Chancellor's Department [2002] EWCA Civ 1192, [2002] IRLR 728.”

35. The EAT also referred to [NAME] v Transport for London [2013] EWCA Civ 21 when considering the question of fairness, saying that the ET must carry out its assessment in the round.

36. In [NAME] (paragraphs 21 & 22) the Court of Appeal stated as follows (emphasis again added):

“A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under art 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and

Case Number: 2501278/2024 8

the onus is on the applicant for an adjournment to prove the need for such an adjournment.

If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified [APPELLANT] not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. […] I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”

37. [NAME] was a case where medical evidence was provided, though deemed by the Employment Tribunal to be insufficient to warrant postponing the hearing. In paragraph 41 the Court of Appeal stated:

“The fact that a [APPELLANT] is certified on medical grounds as not fit to attend work does not automatically entail that that [APPELLANT] is not fit to attend a tribunal hearing, though very often that will also be the advice of the medical practitioner.”

38. [ADDRESS] made clear that a balancing exercise has to be carried out, ensuring fairness not only to a claimant but also the respondent to the [NAME].

39. In paragraph 46 the Court said: “The tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs [NAME] either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial.”

40. In her observations Lady Justice Arden added some remarks which have a bearing on the present case: “Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources.”

41. Rule 3 of the Procedure Rules 2024 is also an important consideration:

Case Number: 2501278/2024 9

3 Overriding objective

(1) The overriding objective of these rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with the case fairly and justly includes, so far as practicable—

(a) ensuring that the parties are on an equal footing, (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c) avoiding unnecessary formality and seeking flexibility in the proceedings, (d) avoiding delay, so far is compatible with proper consideration of the issues, and (e) saving expense.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules, or (b) interprets any rule or practice direction.

(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) cooperate generally with each other and with the tribunal.

42. For completeness, the [NAME] dated 4 December 2013 provides the following guidance on the postponement of hearings (paragraph 7 and example 1):

“Set out below are some specific examples of additional information that would be of assistance depending on the nature and the basis upon which the application for postponement is made.

When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.”

43. The added emphasis draws attention to the concerns the Tribunal had in mind when reaching this decision.

Conclusions

44. After careful consideration of all the available information, and the legal guidance summarised above, the Tribunal was satisfied that it should exercise its power under Rule 47 by dismissing the claims.

Case Number: 2501278/2024 10

45. The claimant's absence was not unexplained, as he made his position very clear in this morning’s email. In all the preceding correspondence relating to postponements, the claimant's strong emphasis was on the importance of this hearing not proceeding until the EAT has determined his appeal. That is generally not a sufficient reason for postponing a hearing in the Employment Tribunal, and it is certainly not automatic.

46. The more recent emails referring to his medical fitness remain focussed mainly on the appeal, with the recent assault being an additional – rather than predominant – reason for postponing. That this is the case is apparent from the fact that the claimant has at no time provided the Tribunal or the respondent with any medical evidence in support of his contention that he is medically unfit to attend. Although he has copied in the Newcastle Tribunal to all the correspondence with the EAT, and mentioned the “[NAME] note” dated 8 September and “Police CRN”, neither of these documents was attached to the copy emails. The “[NAME] note” would appear to show that the claimant attended hospital on that date, but it would not amount to evidence about his fitness to attend this hearing. Dr [APPELLANT] may well have advised the claimant to “start an immediate period of recovery away from work, computers in general or anything related owing to head injury and associated symptoms”, but that is insufficient to explain the claimant's absence today. The hearing was listed [APPELLANT], using paper documents. All the witness statements and a paper bundle were ready. if the claimant has been absent from work (which he has not said), then he has had a period of rest and recuperation to help him prepare to attend today. In any event, being advised to take time away from work is not the same as being advised he is medically unfit to participate in the hearing of his claims.

47. The Tribunal considered whether to request the missing medical evidence from the claimant but concluded that such a request would serve no purpose. The claimant told the EAT on 9 September that the two documents mentioned above could be provided immediately. The [NAME] requested medical evidence on 10 September, and the following day [NAME] [APPELLANT] made it plain to the claimant that any further postponement application must be supported by medical evidence. None has been provided, nor is there any explanation for its absence.

48. Despite the clear terms of [APPELLANT] letter of 11 September, the claimant did not renew his postponement application to this Tribunal. Indeed, he expressly stated that his email at 8am this morning was not an application.

49. The Tribunal concludes that the claimant chose not to attend this hearing and that the principal reason for this is that he wishes the EAT and only the EAT to adjudicate his claims for the time being. A claimant who makes successive unsuccessful postponement applications cannot simply take matters into his own hands, by not attending the hearing and by ignoring the Tribunal's clear directions and the [NAME] on the provision of medical evidence. Non-attendance at the final hearing of his own claims carries a risk of consequences, one of which is the dismissal of the claims under Rule 47.

50. Other factors the Tribunal has taken into account are the expense and potential delays involved in postponing the final hearing to another day. There is clear prejudice to the respondent, which has been put to additional expense by arranging for its

Case Number: 2501278/2024 11

witnesses to attend today, one of whom travelled from London. The public expense of dealing with claims is significant, and the Tribunal's resources are under great pressure. Considerable time and cost has already been expended in dealing with the claimant's detailed and repetitive applications, of which there have been seven in the last four weeks. The claims, if successful, have limited financial value as they relate only to the question of the claimant's entitlement to the balance of his notice period.

51. One option available to the Tribunal under Rule 47 was to hear the case in the claimant's absence. This was considered but rejected. This was partly because of the wider circumstances and partly because the claimant bears the burden of proof in relation to these claims. It was neither desirable nor practicable to hear his arguments or evaluate his evidence based only on the papers.

52. The onus was on the claimant to prove, with evidence, why the hearing should not go ahead today. Even without a doctor’s opinion, he made no effort to provide any information about the seriousness of the assault or its impact on his fitness to attend. His emails contained no description of his symptoms nor any explanation as to specific obstacles preventing him from taking part in the hearing – not even to apply to postpone. Instead the Tribunal was provided with a bare statement that he was unfit. The claimant said nothing about how long it may take for him to recover to attend on another occasion. Delaying the hearing to an unknown future date, would add to the prejudice to the respondent, which is entitled to have the case heard within a reasonable period of time and without duplication of costs.

53. In the overall circumstances, the Tribunal infers that even with the benefit of time to recover, the claimant would still not be prepared to attend this hearing, given the intransigent stance he has adopted in respect of the pending appeal. His expectation that his appeal should prevent the hearing of his other claims is not a reasonable one.

54. All claimants are entitled to have a fair hearing of their claims, and this claimant was offered that opportunity but he chose not to attend. Taking account of the overriding objective to deal with matters fairly and justly, I am satisfied that dismissal of the claims is appropriate in this case.

55. Finally, the respondent's solicitor indicated that it intends to apply for costs arising from this decision. The procedure for any such application is set out in Rule 75 and may be made up to 28 days after the judgment is sent to the parties. If that is pursued, the respondent proposes to provide full written details to the claimant.

SE Langridge

Employment Judge Langridge

JUDGMENT SIGNED BY EMPLOYMENT

JUDGE ON

19 September 2025

Case Number: 2501278/2024 12

Notes

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the [NAME] on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case Number: 2501278/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Newcastle Employment Tribunal

On: 13 March 2025

Before:

Employment Judge Gowland

Appearances For the claimant: [redacted]

For the respondent: [redacted]

JUDGMENT

(Strike out and deposit order)

1. The Claimants [NAME] relating to constructive dismissal is struck out.

2. The Claimant is ordered to pay a deposit in accordance with the

separate deposit order of the same date.

Application for Rule 38 strike out and deposit order

1. The Respondent submits that there are no reasonable prospects of suc- cess generally, based upon what the Claimant said in the hearing, and that the Claimant cannot bring a [NAME] purely for unfairness in relation to discrimination. They also submit that the manner in which the [NAME] for constructive dismissal has been brought is not for dismissal under the Equality Act but as a standard constructive dismissal [NAME] linked to the extension of the probationary period, and as such the Claimant does not have the required two years’ service.

2. The Respondent relies upon the resignation email from the Claimant and referred to the paragraph as follows:

3. ” The basis of this decision is multifaceted and grounded in what I perceive and experience as constructive dismissal. Despite an explicit understanding that my probationary period was to conclude on 9th January 2024, my status was unilat- erally and unjustly extended. This action contravenes our agreed employment

terms and disregards the substantial contributions and efforts I have made, par- ticularly noting that only minor challenges were encountered, which were not unique to my involvement but reflective of the inherent complexities of our pro- jects”

4. The Claimant submitted that he did not require two years’ service to bring a con- structive dismissal [NAME].

5. It is for me to determine whether there are no reasonable prospects of success and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’.

6. In the alternative, the Respondent asks me to consider a deposit order re- lying upon their submissions relating to strike out and additionally that the [NAME] will have little reasonable prospects of success.

7. The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation. There must be a proper basis for doubting the likelihood of the Claimant being able to establish facts essential to this [NAME].

8. It will be for me to determine whether the Claimant has little reasonable prospects of success in relation to each of the claims taking into account the ar- guments submitted in relation to deposit orders and those reasons submitted in relation to strike out.

The legal principles

Strike Out

9. Under Rule 38 a [NAME] or part of a [NAME] can be struck out on a number of grounds, as set out below. A [NAME] cannot be struck out unless the party has been given a reasonable opportunity to make representations either in writing or, if requested by the party, at a hearing.

Rule 38 of The Employment Tribunal Procedure Rules 2024

Striking out

38.

(1) At any stage of the proceedings, either on its own initiative or on the

application of a party, a Tribunal may strike out all or part of a [NAME]

or response on any of the following grounds—

(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of

the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(c) or non-compliance with any of these Rules or with an order of the Tribunal;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the [NAME] or response (or the part to be struck out).

(2) A [NAME] or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 22.

10 . Operation of rule 38(1)(a) requires a two-stage test. Firstly, has the strike out ground been established on the facts.

11. If so, secondly is it just to proceed to a strike out in all the circumstances (which will include considering whether other lesser, measures might suffice).

12. When assessing whether a [NAME] has no reasonable prospect of success the Tribunal must be satisfied that the [NAME] or allegation has no such prospect, not just that success is thought to be unlikely ([NAME] v [COMPANY] [2011] IRLR 217). The Tribunal must take the allegations in the claimant’s case at their highest. If there remain disputed facts, there should not be a strike out unless the allegations can be conclusively disproved as demonstrably untrue, or the [NAME] is fanciful or inherently implausible ([NAME] v Haringey London Borough Council [2015] ICR 1285; [NAME] v [NAME] NA [2016] ICR 1121). In other words, a strike out application must be approached assuming, for the purposes of the application, that the facts are as pleaded by the claimant. The determination of a strike out application does not require evidence or actual findings of fact.

13. In [NAME] v North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a striking-out application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a [NAME] on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in [NAME], where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per [NAME] LJ).

14. A strike out application succeeds where it is found that, even if all the facts were as

pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in [NAME] v British Airways [2017] EWCA Civ 1392 that “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”

15. There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.

16. Where a litigant [APPELLANT] is involved, the tribunal should not simply ask the question orally to be taken to the relevant material in support of the [NAME] but should also carefully consider the [NAME] as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; [NAME] v [COMPANY] UK [2021] 1CR 1307.

17. If a strike out application fails, the argument about the overall merit of the [NAME] is not decided in the claimant’s favour. Both the claimant and the respondent argue their positions on the merits in full and afresh at the full hearing.

18. The EAT, in the case of [NAME] v [NAME] NA [2016] ICR 1121, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination [NAME] as follows:

a) Only in the clearest case should a discrimination [NAME] be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the [APPELLANT] case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.

Deposit Order

53. The power to make a deposit order is provided by rule 40 of the ET Rules, as follows: 19.— (1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a [NAME], response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument

(“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract [NAME]). (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a)the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.

20. The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the [NAME] fails” and it is“ emphatically not…to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.

21. As for the approach the Tribunal should take, in [NAME] v Nipponkoa Insurance [2014] UKEAT/0113/14 and [NAME] v Royal Borough of Kingston-Upon Thames and others [2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go.

22. It was also made clear in [NAME] that a mini trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merit hearing where evidence is heard and tested.

23. The Respondent pursues the application as an alternative to their strike out application. The test is therefore one of “little reasonable prospect of success” as opposed to “no reasonable prospect of success” for a strike out application.

24. Rule 40 allows a tribunal to use a deposit order as a less draconian alternative to strike-out where a [NAME] or response (or part) is perceived to be weak but could not necessarily be described as having no reasonable prospect of success.

25. In [NAME] [NAME] v Royal London Borough of Kingston-uponThames UKEAT/0096/07, the EAT observed:

“…the test of little prospect of success … is plainly not as rigorous as the test that the [NAME] has no reasonable prospect of success … It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the [NAME] or response.”

26. A deposit order application has a broader scope compared to a strike out application and gives the Tribunal a wide discretion not restricted to considering purely legal questions. The Tribunal can have regard to the likelihood of the party establishing the facts essential to their [NAME], not just the legal argument that would need to underpin it.

27. In a case where a Tribunal concludes that a [NAME] or allegation has little reasonable prospect of success, it does not mean that a deposit order must be made. The Tribunal retains a discretion in the matter and the power to make such a deposit order must be exercised in accordance with the overriding objective and with having regard to all of the circumstances of the particular case.

Conclusions

28. I will now deal with the application to strike out under Rule 38.

29. I bore mind that a tribunal must first consider whether any of the grounds set out in rule 38(1) have been established; and then, if any ground is established, exercise discretion as to whether or not to order strike-out. The requirement for a two-stage approach was confirmed in [NAME] v [COMPANY] 0098/16.

30. I had regard to overriding objective of dealing with cases ‘fairly and justly’, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay.

31. I am also assisted by the cases set out above and in particular the following cases of:

[NAME] v [NAME] NA [2016] ICR 1121.

32. This summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination [NAME] as follows:

a) Only in the clearest case should a discrimination [NAME] be struck out.

b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence.

c) The Claimant’s case must ordinarily be taken at its highest.

d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out.

e) A Tribunal should not conduct an impromptu mini trial of oral evidence to " resolve core disputed facts."

33. It was said in, [NAME] v Nipponkoa Insurance [2014] UKEAT/0113/14 and [NAME] v Royal Borough of Kingston-UponThames and others [2007] UKEAT/0095/07, that a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan v Ishmail [2017] IRLR 228 that a mini trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merit hearing where evidence is heard and tested.

34. With regard to the constructive dismissal [NAME], due to the manner in which the [NAME] is pleaded by the Claimant and the wording of the resignation email, I accept the submissions made by the respondent that this is a standard constructive dismissal [NAME] and not a constructive dismissal [NAME] on the basis of discrimination under the Equality Act.

I therefore do find that this aspect has no prospects of success due to the fact that the [NAME] does not have the required two years of continuous service with the Respondent, that would entitle him to bring this type of [NAME]. In addition, when exercising my discretion, I do find that in the interests of justice and in order to give effect to the overriding objective, this [NAME] should be struck out in relation to constructive dismissal. This is because the Tribunal has no jurisdiction to hear a [NAME] of this type without the requisite two-year period of employment.

In relation to the remaining claims, I do not find that they have no reasonable prospects of success and that they are matters that require an explanation and the facts that need to be determined before a decision can be reached by way of witness evidence. The Respondents application for strike out on the remaining claims therefore fails.

Deposit Order

35. I now turn to the application in relation to a deposit order.

36. The test I need to apply is, does the Claimant have little reasonable prospect of success in relation to the specific individual allegations. There must be a proper basis for doubting the likelihood of the Claimant being able to establish facts essential to this [NAME].

37. The Claimants case is set out as 13 separate complaints, however the Respondent accepts that this is made up of 6 types of claims and seeks a deposit order on the six areas as set out below:

a) direct discrimination on grounds of sex and/or race; b) harassment on grounds of sex and/or race; c) victimisation; d) unlawful deductions from wages; e) breach of contract; and f) wrongful dismissal.

38. In relation to whether the Claimant has little prospect reasonable prospect of success in proving these claims, I make the following findings.

39. In relation to direct discrimination, harassment and victimisation, I note that the Claimant did not raise any of these matters in his grievance that was submitted on the 23rd of February 2024 nor in his resignation email. The [APPELLANT] did raise alleged race discrimination at his grievance meeting on the 6th of March 2024. He referred to a colleague Ms [NAME] saying she had been “[NAME]” when referring to her manager who has the protected characteristic of race. The [APPELLANT] contends that this was said in a manner which was racist, which is denied by the Respondent.

40. The [APPELLANT] says that his probation period was extended twice due to his race. The Respondent submits that the documentation shows that the periods were extended due to performance and that the Respondent did not want to “get rid” of the [APPELLANT] and was actively considering other roles for him.

41. The [APPELLANT] further contends that he was subjected to race discrimination by various colleagues by them being condescending, shouting at him and ignoring requests when contacted by him. The Respondent denies these matters and states that if they did happen, they were not due to the protected characteristic of race.

42. In relation to sex discrimination the [APPELLANT] says that Ms. [APPELLANT] was treated more favourably in relation to alleged comments made than he was when he made an error at work. The Respondent says that this is not the case and refers to the allegation by the [APPELLANT] that another colleague Mr. [APPELLANT] allegedly made comments that were not addressed by the Respondent. They submit that this undermines the [RESPONDENT] case that any treatment was on the basis of sex.

43. The [APPELLANT] further contends that the behaviour of colleagues towards him as alleged amounts to harassment.

44. In relation to victimisation the [APPELLANT] alleges that he raised concerns with the CEO which amounted to a protected act within the meaning of section 27(2) of the Equality Act 2010 and that his complaint was ignored and that this amounted to victimisation. The [APPELLANT] also says that the way that his complaint and grievance were handled and the decision to extend his probationary period, flow from this protected act.

45. The Respondent denies that the complaint amounted to a protected act and that any of the matters following this complaint were as a result of any alleged protected act.

46. In relation to the claims relating to discrimination, harassment and victimisation, when considering the information available and taking account of what the Claimant will need to prove at a final hearing, I consider that due to the evidence that is before me today of language used and behaviour towards the Claimant, that the Claimant has little prospect of success in these allegations. This is because on the face of the evidence at this stage it is not clear whether the matters said and done were in a way designed to discriminate, harass or victimise and the Claimant will need to convince the Tribunal of the context of the comments and actions. The Claimant is therefore ordered to pay a deposit in relation to these 3 areas of his [NAME].

47. I have considered the information available to me in regard to means to pay and note the impact of making a deposit order. I have also considered whether in all the circumstances it is fair and just to order the Claimant to pay a deposit order. I have also taken into account the overriding objective. The Claimant is therefore ordered to pay a deposit of £160 in relation to the claims relating to discrimination, harassment and victimisation, making a total of £480.

48. In relation to the claims for breach of contract, deduction from wages and wrongful dismissal, the Respondent denies breaching the contract and asserts that they were allowed to extend the probationary period.

49. The Claimant says that the extension was in breach of normal procedure and that when he passed the date of the end of his probationary period, he assumed that he was at that stage a permanent employee.

50. The Respondent refers to the contract which states that they have discretion to extend the probationary period by up to 3 months and that once the probationary period is successfully completed, that this will be confirmed by HR in writing. No such letter was sent to the Claimant.

51. It is agreed that the first probationary period was extended one day after the end of the initial period and that the second probationary period was extended 12 days after

the end of the second probationary period.

52. There is a clear dispute as to the reason for the extension and whether the extensions followed the correct procedures. This area therefore requires determination of the facts before a decision can be reached. This matter will involve consideration of witness and documentary evidence regarding the reason and power to extend. On the information before me, I cannot say at this stage there is little reasonable prospects of success. The Respondents application for a deposit order in relation to these areas of [NAME] therefore fails.

Approved by:

Employment Judge Gowland

20 May 2025

Case Number: 2501278/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

The complaint of direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex and victimization are struck out.

REASONS

1. The claimant was ordered to pay a deposit of £480 following a preliminary hearing held on 13 March 2025. The Order was sent to the claimant on 20 May 2025. The claimant has failed to pay this deposit.

The complaint of direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex and victimisation are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.

2. The remaining complaints of breach of contract and wrongful dismissal and notice pay will proceed to a hearing on 15 – 19 September 2025.

Approved by:

Employment Judge Gowland 11 August 2025

Case no. 2501278/2024

11.6C Judgment – Reconsideration refused – claimant - rule 72

EMPLOYMENT TRIBUNALS

Claimant

[APPELLANT]

Respondent [RESPONDENT] «resp_others»

JUDGMENT

The claimant’s application dated 4 February 2026 for reconsideration of the costs order dated 11 December 2026 (sent to the parties on 29 January 2026) is refused.

REASONS Rule 70(2) Procedure Rules 2024

The Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked, for the following reasons:

1. The claimant's application provides no new information about the merits of his opposition to the making of a costs order, but rather reiterates the submissions he provided in writing for the hearing on 9 December 2025. The claimant did not attend that hearing, but his written submissions and accompanying documents were read and taken into consideration before the costs order was made.

2. The reconsideration application sets out the claimant's reasons why he disagrees with the costs order. Those arguments are properly to be made to the Employment Appeal Tribunal, and the claimant has already submitted an appeal to that court.

3. The Employment Tribunal has no jurisdiction over the enforcement of its awards. Any application for a stay of enforcement proceedings must be addressed to the appropriate County Court, unless agreement is reached between the parties.

Employment Judge Langridge

Date 27 March 2026