Employment Tribunal Strikes Out Unfair Dismissal Claims

OUTCOME: Struck Out

Case Nos: 2305083/2024 2305299/2024 2305300/2024 2305933/2024 10.7 Judgment with reasons – rule 62

March 2017

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at:

Croydon (via CVP)

On:

1 October 2025

Before:

Employment Judge Leith

Representation Claimant: [redacted] Respondent: [redacted]

JUDGMENT

1. The complaints of automatically unfair dismissal are struck out.

2. Allegations c, d and e of the complaint of protected disclosure detriment are struck out.

3. The Respondent’s application to strike out the remaining complaints of protected disclosure detriment, and the complaint of ordinary unfair dismissal, fails and is dismissed.

4. The Respondent’s application for a deposit order fails and is dismissed.

REASONS

1. This hearing was listed to consider the Respondent’s applications to strike out the Claimant’s claims, or alternatively to enter a deposit order or orders in respect of them. Law

2. Rule 38 of the Employment Tribunal Rules of Procedure 2024 deals with striking out claims. It provides as follows:

“38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—

March 2017 (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).

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

(3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).

(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).”

3. It is trite to say that strike out is a draconian step that should be taken only in exceptional cases.

4. In considering whether a claim has no reasonable prospect of success, the Tribunal must consider whether there is a “more than fanciful” prospect of the claim succeeding (A v B and another [2011] ICR D9).

5. The Claimant’s case must be taken at its highest. The tribunal must be particularly careful not simply to ask a litigant [APPELLANT] to explain their case while under the stresses of a hearing, but must take reasonable care to read the pleadings and any other key documents ([NAME] v [NAME] and ors [2021] ICR 1307).

6. In the context of an unfair dismissal claim, guidance was given by the Court of Session in the case of [NAME] [COMPANY] v Reilly [2012] IRLR 755. Almost all unfair dismissal claims are fact-sensitive. Where the central facts are in dispute, the claim should be struck out in only the most exceptional circumstances. Where there is a serious dispute between the parties, it is not for the Tribunal to conduct an impromptu trial of the facts. That said, the Court of Session recognised that there may be cases where it is instantly demonstrable that the central facts in the claim are untrue, such as where they are conclusively disproved by disclosed documentation.

March 2017 7. The word “vexatious”, in the context, includes a claim that is an abuse of the process of the court (Attorney General v Barker [2000] 1 FLR 759).

8. The EAT held, in HM Prison Service v. Dolby [2003] IRLR 694 EAT, at para 15, that the striking out process requires a two-stage test. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the [NAME] stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. [NAME] was decided under a previous version of the Employment Tribunal Rules, but the important part of the wording of the relevant rule was the same.

9. Parties in litigation are estopped, or prevented, from pursuing a cause of action or an issue that has already been dealt with in earlier proceedings involving the same parties. The basis of the estoppel lies in the principle of res judicata, which is intended to limit abusive and duplicative litigation. In the case of [COMPANY] v [NAME] UK Limited [2013] UKSC 46, [NAME] summarised the principle of res judicata in the following terms:

“17. Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a [NAME] action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336 . [NAME], there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant's sole right as being a right upon the judgment. Although this produces the same effect as the [NAME] principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494 , 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34 . Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to

March 2017 both was decided on the earlier occasion and is binding on the parties: [NAME]'s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by [NAME] J in [NAME] v Federal Commissioner of Taxation (1921) 29 CLR 537 , 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181 , 197–198. Fifth, there is the principle first formulated by [NAME] V-C in [NAME] (1843) 3 Hare 100 , 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”

10. In paragraph 22, Lord [NAME] went on to say this:

“22. [NAME] v [COMPANY] [1991] 2 AC 93 is accordingly authority for the following propositions. (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non- existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the *184 circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”

11. Cause of action estoppel may arise where a claim has been struck out without a decision being made on the merits – see for example [NAME] v [COMPANY] t/a Gullivers Travel Associates [2014] ICR D27, where a claim of racial harassment was struck out as being brought outside time. The Claimant attempted to bring a [NAME] claim about the same incident (but adding further alleged incidents which were prima facie in time). The Tribunal decided, and the EAT and the Court of Appeal agreed, that the claim was estopped.

12. Similarly. a judgment dismissing a claim upon withdrawal may give rise to cause of action or issue estoppel, even though the Tribunal has made no

March 2017 reasoned decision on the issues of fact and law ([NAME] v Staffordshire County Council [1996] ICR 379).

13. A decision or factual finding made by a Tribunal in excess of its jurisdiction will not engage the principle of res judicata ([NAME] v [COMPANY] [2012] ICR 1027 CA).

14. Applications for a deposit order are governed by Rule 40 Employment Tribunal Rules of Procedure 2024 which provides as follows:

40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the [NAME]”) 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 [NAME]’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 [NAME] must be notified about the potential consequences of the order.

(4) If the [NAME] 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 claim).

(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the [NAME] for substantially the reasons given in the deposit order— (a) the [NAME] 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

March 2017 (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 [NAME] in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.

15. The purpose of a deposit order is to weed out claims which are unlikely to succeed but do not meet the strike out criteria, and to give a clear warning that costs may be payable if a claim succeeds ([NAME] v [NAME] and [NAME] 2017 ICR 486). The Tribunal retains a discretion even where the test in rule 40 is met.

16. In considering whether to strike out or make order a deposit, the Tribunal must bear in mind the overriding objective, in rule 3 of the Employment Tribunal Rules of Procedure:

“(1) The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly.

(2) Dealing with a 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 as compatible with proper consideration of the issues;

and

(e) saving expense.”

17. Section 47B of the Employment Rights Act 1996 provides for the right not to be subjected to a detriment for making a protected disclosure. Insofar as relevant, it provides as follows:

“47B.— Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[…]

March 2017

(2) This section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X).”

18. A [NAME] may nonetheless be personally liable for the detriment of terminating a claimant’s employment - Timis v Osipov [2018] [NAME]. Similarly, an act by a [NAME] which effectively procures the dismissal of a claimant is capable of giving rise to a detriment claim, even where the dismissal itself was not an automatically unfair one.

Background

19. The Claimant was employed by the Respondent Local Authority from 13 November 2017 until his dismissal, which on the Respondent’s case was for gross misconduct. The Claimant has brought a total of five claims against the Respondent, bringing complaints of protected disclosure detriment, automatically unfair dismissal, and ordinary unfair dismissal. The Claimant brought claims against three respondents. Only one of them, the London Borough of Hounslow, remains a respondent in the proceedings. 6002757/2024 (now 2305932/2024) (“Claim 1”)

20. Case number 6002757/2024 was presented on 22 May 2024. There were three Respondents – London Borough of Hounslow (1), [APPELLANT] (2) and [APPELLANT] (3).

21. The Claimant did not provide an early conciliation number in respect of any of the three Respondents. In respect of all three Respondents he ticked the box on the ET1 saying this:

“My claim consists only of a complaint of unfair dismissal which contains an application for interim relief.”

22. The [APPELLANT] indicated in section 5 of the claim form that his employment had ended on 16 May 2024. In section 8 of the claim form, he ticked the following boxes:

“I was unfairly dismissed (including constructive dismissal)” “I am making a whistleblowing claim including dismissal or any other unfair treatment after whistleblowing” And “I am making another type of claim which the Employment Tribunal can deal with”.

In the text box, he wrote this:

March 2017 “Interim Relief: I am claiming unfair dismissal by reason of whistleblowing”

23. He attached to the claim for a Particulars of Claim consisting of 37 numbered paragraphs, dated 22 May 2024. The Particulars of Claim set out complaints of protected disclosure detriment and automatically unfair dismissal. After a background section, the Particulars of Claim set out four alleged disclosures, and explained why it was said that they were protected. It then said this under the heading “Whistleblowing Detriment”:

26. I claim the following as detriments against me by the First Respondent on the ground that I made protected disclosures:

a. My treatment by [NAME] and [NAME] between September 2023 and March 2024 in reaction to my protected disclosure on 27/09/2023 was dismissive and belittling. On 27th September 2023, the [NAME] Respondent's reply to my concerns seemed to imply a judgment of my mental state, which I found to be accusatory. This sentiment was echoed in the response from the [NAME] Respondent on 10th May 2024. b. My exclusion from meetings related to job responsibilities from 27/09/2023 c. The decision that I should be dismissed communicated by email on 16 May 2024 with no valid reason on the basis of unfounded criticisms of my work performance and ethics and on the basis of the allegation of (1) unauthorised access and (2) violation of the ICT Security Policy. Both allegations unfounded. I initially appealed the dismissal on 16 May and followed up letter on 18 May 2024, but to date (22 May 2024) the First Respondent have not reply with a decision. d. The dismissal (pleaded as a detriment) - Timis & [NAME] v Osipov [2018] [NAME]. e. The manner (as opposed to the fact of) my dismissal on 16 May 2024, and in particular: i. The absence of any recognised procedure; ii. That I was summoned to the office meetings meeting under false pretences / without being informed of the purpose of the meeting on 28/02/2024; iii. The misleading content in the dismissal letter, including the false allegation that (1) unauthorised access and (2) violation of the ICT Security Policy. f. The failure to follow an appeal procedure in line with the Acas Code of Practice on Disciplinary and Grievance Procedures.

27. Each detriment was materially influenced by the Protected Disclosures that predated it.

March 2017

28. I am also relying on detriments 26(c)(d)(e)(f) as against the [NAME] Respondent personally.

29. I am also relying on detriments 26(a)(b)(e)(f) as against the [NAME] Respondent personally.”

24. On 20 June 2024, the Tribunal wrote to the Claimant indicating that his complaint of protected disclosure detriment had been rejected under rule 10(1)(c) (of the Tribunal rules in force at the time), on the basis that the Claimant did not have an early conciliation certificate for that part of the claim. The application for interim relief (and impliedly also the complaint of automatically unfair dismissal) was accepted. The letter of 20 June 2024 was not in the bundle of documents before me. It was not copied to the Respondent. I saw it on the Tribunal file for the first time after the hearing was completed.

25. The claim was subsequently given the case number 2305932/2024, upon being removed from the [NAME] to be consolidated with the Claimant’s other claims.

26. [APPELLANT] heard the interim relief application on 23 July 2024. He refused the application. He also made a Deposit Order in the following terms:

“The Employment Judge considers that the claimant’s allegations or arguments that he was dismissed or suffered detriments as a result of making protected disclosures have little reasonable prospect of success. The claimant is ORDERED to pay a deposit of £10 not later than 21 days from the date this Order is sent as a condition of being permitted to continue to advance those allegations or arguments. The Judge has had regard to any information available as to the claimant’s ability to comply with the order in determining the amount of the deposit.”

27. EJ [NAME] was sent to the parties on 31 July 2024. The Order dismissing the application for interim relief was sent to the parties at the same time, under the same cover. Payment of the deposit was therefore due by 21 August 2024.

28. On 14 August 2024, the Claimant emailed the Tribunal requesting reconsideration of [NAME].

29. That application was apparently not seen by [NAME] until shortly after the time for payment of the deposit had expired. He directed that the Tribunal respond to the Claimant in the following terms (although due to an apparent administrative oversight, the correspondence was not in fact sent to the parties until 26 September 2025):

March 2017

“Employment Judge Fowell directs me to write as follows:

The application for reconsideration is refused.

Reconsideration is appropriate in cases where there was some serious problem at the previous hearing, such as that it went ahead in the absence of one side or that fresh evidence has now been discovered which could not reasonably have been located earlier. In such a case, the normal approach is then to re-list the hearing so that the tribunal can reconsider the new development.

This application raises a number of points, but they were all ones which were either raised at the previous hearing or which could have been raised.

In Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the Employment Appeal Tribunal held that:

‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a [NAME] bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’

Your application does not really engage with the main reasons given for refusing the application for interim relief, which were that there was a clear alternative explanation for the decision to dismiss you – the belief that you had been working from overseas without permission – and you were given the opportunity to disprove this allegation at the disciplinary hearing but did not do so. Whether or not this was the right approach by the respondent, the fact that you were given this opportunity indicates that the respondent was happy to retain your services, which is at odds with your claim that your dismissal was engineered because you had made protected disclosures.

In those circumstances it is not appropriate to re-list the hearing again. There is no prospect of the initial decision being varied or revoked and the application for reconsideration of the decision on the

March 2017 interim relief application is refused. For the same reasons there is no basis to reconsider the decision to make a deposit order.

The period for compliance with that Order has now expired, and the deposit has not been paid, so it follows that the claim must now be dismissed. A judgment to that effect will now be issued.

30. On 22 August 2024, EJ [APPELLANT] entered a judgment on the basis that the Claimant had failed to pay the deposit. The operative part of the judgment said this:

“The claim, which was for unfair dismissal and in respect of detriments for making a protected disclosure, is struck out.”

31. That judgment was not sent to the parties until 26 September 2025 (again, apparently due to an administrative oversight).

2305083/2024 (“Claim 2”)

32. In the interim on 20 May 2024 the Claimant contacted ACAS to commenced early conciliation naming the London Borough of Hounslow as the prospective respondent. An early conciliation certificate in respect was issued on 24 May 2024.

33. On 20 June 2024, the Claimant presented a further claim, which was given case number 2305083/2024. The claim was brought against one respondent only, London Borough of Hounslow. In section 8 of the claim for the Claimant ticked no boxes, but in box 8.2 he said this:

“Claim of ‘whistleblowing detriment”’ Please consider merging with Case Number: 6002757/2024.”

34. The Claimant attached the same Particulars of Claim as had been attached to Claim 1.

35. The Tribunal accepted the claim and served it on the Respondent on 1 August 2024.

2305299/2024 (“Claim 3”)

36. On 24 June 2024 the Claimant contacted ACAS to commence early conciliation naming [NAME] and [NAME] as prospective respondents. Early conciliation certificates in respect of each of them were issued on the same day, 24 June 2024.

March 2017 37. Also on 24 June 2024, the Claimant presented a further claim, which was given case number 2305299/2024. It named the London Borough of Hounslow, [NAME] [NAME] and [NAME] as respondents.

38. In section 8 of the claim form the Claimant ticked the following boxes:

“I was unfairly dismissed (including constructive dismissal)” And “I am making another type of claim which the Employment Tribunal can deal with”.

In the text box, he wrote this:

“Whistleblowing detriment; Automatic unfair dismissal”

39. In box 8.2 of the claim form, he wrote this:

“I am bringing the following claims against the [NAME]: [NAME]. [NAME] detriment under s47B ERA 1996; and B. Automatic unfair dismissal under s103A ERA 1996

In respect of the claim for automatic unfair dismissal under s103A, I am applying for interim relief in accordance with s128 ERA 1996. Case Number: 6002757/2024”

40. In box 15 of the claim form, he wrote this:

“Adding to a new document, ClaimSRvsLBH.rtf(option no longer available) Please append this form to the Case Number: 6002757/2024”

41. No separate particulars were attached to the claim form.

42. The Tribunal accepted the claim and served it on the respondents on 1 August 2024.

2305300/2024 (“Claim 4”)

43. Also on 24 June 2024 the Claimant presented a further claim, which was given case number 2305300/2024. It named the London Borough of Hounslow, [NAME] [NAME] and [NAME] [NAME] as respondents.

44. The ET1 was completed in very similar terms to Claim 3, but additional boxes were ticked in section 8 of the claim form (for notice pay, holiday pay,

March 2017 and other payments). It was accompanied by the same Particulars of Claim as Claim 1.

45. Paragraph 22 of the Particulars of Claim, which dealt with the Claimant’s claimed protected disclosures, was pasted into box 15 of the ET1, with the following additional text:

“Added: The attempt ad the letter d. seems unsuccessful, it reach the [NAME] but not the intended mailbox. On 10 June 2024 I disclosed (a)(b)(c) via email to [NAME]([EMAIL]), Chief Executive of the First Respondent containing the email sent on 10 May 2024 at 8:35 am. The email sent at 8:36am I also disclosed via email the same information to the [NAME] mentioned at point 19 has reached the [NAME] and the intended mailbox. This is the direct cause of the automated, not investigated dismissal”

46. The Tribunal accepted the claim and served it on the respondents on 1 August 2024.

2305933/2024 (“Claim 5”)

47. On 16 July 2024 the Claimant presented a further claim, which was given case number 2305933/2024. It named the London Borough of Hounslow as the sole respondent.

48. The only box ticked in section 8 of the claim form was for unfair dismissal. The ET1 form was accompanied by a Particulars of Claim which was in a different form to that which accompanied the previous claims. It described a claim of (ordinary) unfair dismissal only. It included allegations that the Respondent’s allegation was cursory and biased, that key evidence was ignored, and that evidence was falsified.

49. The Tribunal accepted the claim and served it on the Respondent on 1 August 2024.

50. The Respondent presented responses to Claims 2, 3, 4 and 5 on 28 August 2024. The Respondent did not present a response to Claim 1; that was apparently because they understood that the Claimant had not paid the deposit ordered by [APPELLANT].

51. Due to a further apparent administrative oversight, no action was taken on the various claims until 6 May 2025, when [NAME] directed that all five claims would be consolidated. It appears that [NAME] was not aware of [NAME] judgment striking out Claim 1 for failure to pay the deposit

March 2017 (which of course had not been sent to the parties at that stage). A preliminary hearing was listed to take place on 22 July 2025.

52. The preliminary hearing took place before EJ Tueje. At the outset of that hearing, neither EJ Tueje nor the parties were aware that [APPELLANT] had already dealt with the Claimant’s reconsideration request. [APPELLANT] Management Order recorded that during the course of the hearing, she became aware that [NAME] had both dealt with the reconsideration request and drawn up the judgment striking out Claim 1.

53. [NAME[NAME] removed Mr [NAME] and Mr [NAME] as respondents to the (consolidated) proceedings. She dismissed the Claimant’s application to strike out the Respondent’s responses to the remaining claims, and listed a further preliminary hearing to consider: 53.1. The Respondent’s application to strike out the complaints of automatically unfair dismissal and protected disclosure detriment; and 53.2. Any application to strike out or enter a deposit in respect of the ordinary unfair dismissal claim.

54. On 17 July 2024, the Respondent set out the basis for its strike out application in respect of the complaints of automatically unfair dismissal and protected disclosure detriment. That was, in essence, that they were barred or estopped due to “res judicata and/or the rule in [NAME]”. The Respondent additionally applied for either a strike out or a deposit order in respect of Claim 5, the complaint of ordinary unfair dismissal, on the basis that it had either no or little reasonable prospect of success.

The Res Judicata point

55. The starting point of my analysis of the res judicata argument is that a Deposit Order was made, and that deposit was not paid by the specified date. Once a deposit has not been paid by the specified date, the Tribunal has no discretion over whether or not to strike out the claim – it must do so (per Rule 40(4)).

56. The Claimant explained that the reason he did not pay the deposit was because he had applied for reconsideration1 of the Deposit Order. I asked him to tell me where, within the Order, it suggested that its effect would be stayed pending the outcome of any reconsideration request. The Claimant explained that it was a matter of natural justice.

1 For the purposes of the decision I need to take, I do not need to engage with the question of whether the Tribunal’s jurisdiction to reconsider, which is limited to Judgments, was engaged here. [NAME] dealt with the application in any event, albeit that his response was unfortunately not sent to the parties for over a year.

March 2017 57. Unfortunately for the Claimant, both the wording of the Order and the wording of the Rules are absolute in their terms. The payment had to be made by the specified date; it was not made. Of course, due to the Tribunal’s administrative oversights, the [APPELLANT] both believed that his reconsideration request remained outstanding, and believed that his claim had not been struck out. But I do not think that can change the essence of what had occurred. The [APPELLANT] submitted his reconsideration request 14 days after the Deposit Order was sent to him, which was therefore only 7 days before the deposit was due to be paid. Whether or not he agreed with the Deposit Order, the Tribunal had said nothing to him to suggest that it was revoked or stayed. It remained live. The [APPELLANT] simply failed to pay the deposit.

58. In the circumstances, [NAME]’s subsequent Judgment was not merely correctly made; it was the course of action he was compelled to take by the mandatory nature of Rule 40(4). I therefore cannot look behind the fact that Claim 1 was struck out. There was nothing irregular about the Judgment striking it out.

59. That Judgment establishes an estoppel preventing the Claimant from bringing fresh proceedings about the matters it covers. The fact that no reasoned decision was finally taken on the merits of the claim, beyond the broad-brush assessment which led to the making of the Deposit Order, is irrelevant. The Claimant cannot bring fresh proceedings in respect of any matter which formed part of Claim 1; to attempt to do so is an abuse of process.

60. The Claimant suggested in the hearing before me that he was not, in fact, dismissed on 16 May 2024. He suggested that his dismissal did not take effect until after the hearing before EJ Fowell. He relied in that regard on a payslip dated 31 July 2024, which showed him being paid both salary and annual leave, and on his P45, which was dated 30 September 2024 and gave his leaving date as 23 July 2024. The Claimant’s submission was that that invalidated [APPELLANT] and interim relief decision, because Claim 1 (and the hearing before EJ Fowell) were premature.

61. The documents before me included what purported to be the Claimant’s dismissal letter. The letter was dated 16 May 2024. It indicated that the Claimant was dismissed with immediate effect. I bear in mind that there are various reasons why an employee may continue to receive sums paid through their employer’s payroll beyond their dismissal date – for example, for arrears of pay or for accrued but untaken annual leave. A prudent employer, faced with an application for interim relief, may very well avoid issuing a P45 and removing an employee from their payroll until that application has been heard, given that they would otherwise need to restore the employee to the payroll if the application succeeded. The [APPELLANT] clearly understood and believed that he had been dismissed on 16 May

March 2017 2024, because he promptly presented Claim 1. There is nothing in the documents I have seen to suggest that the Claimant had not, in fact, been summarily dismissed on 16 May 2024.

62. If there was anything in that point, I consider that it would in reality be an issue for reconsideration (of the subsequent Judgment) or for appeal, rather than for this Tribunal. But for the avoidance of doubt, I am entirely satisfied that the hearing before EJ Fowell was not premature, and therefore that there was no issue with the Deposit Order and the subsequent Judgment.

63. I then turn to consider what claims or causes of action were before the Tribunal in respect of Claim 1. On the face of the ET1, the Claimant had indicated that the only claim he was bringing was a complaint of automatically unfair dismissal, including an application for interim relief. That was the basis on which he brought the claim without first engaging with early conciliation. The deadline for bringing an application for interim relief is extremely tight; that is why such applications are exempt from the normal requirement for early conciliation.

64. The Tribunal explicitly accepted only the complaint of automatically unfair dismissal (in the letter of 20 June 2024). That being the case, the only complaint that was live within Claim 1 was that of automatically unfair dismissal. So insofar as Employment Judge Fowell purported to make a Deposit Order covering the other claims intimated within the Particulars of Claim, his Order cannot have had that effect; he had no jurisdiction to make a Deposit Order in respect of complaints that were not before the Tribunal. And insofar as such claims were subsequently struck out, the Judgment striking them out went beyond the matters before the Tribunal. A finding or judgment on a matter going beyond what is before the Tribunal does not establish an estoppel.

65. Nor do I consider that it could engage the rule in [NAME]. Once again, the reason applications for interim relief are exempt from the requirement to engage with early conciliation is because of the extremely tight deadline for making such applications. Importantly, the exemption applies to the automatically unfair dismissal complaint only. Other claims cannot “piggy-back” on an application for interim relief to avoid the early conciliation process. The clear intention of the relevant rules is to require claimants to make the application for interim relief promptly, then engage with early conciliation before bringing any other complaints within the relatively more generous deadlines for doing so. If a failure to bring other complaints on the interim relief application could lead a claimant to be estopped from bringing those claims later, that would be a perverse result.

66. So it follows then that I conclude that the fact that a complaint of protected disclosure detriment was set out in the Particulars of Claim attached to

March 2017 Claim 1 does not, on its own, establish an estoppel or engage the res judicata principle.

67. I should say for completeness that even if I had not seen the Tribunal’s letter of 20 June 2024, I would have reached the same conclusion. The ET1 was clear on its face that the only claim being advanced was that of automatically unfair dismissal (notwithstanding what the Particulars of Claim said). I observe that it is certainly not unheard of for claimants to prepare one claim document which is submitted with an application for interim relief, then resubmitted (after early conciliation has been carried out) to bring other complaints, such as for detriment or for ordinary unfair dismissal.

68. Looking at the remaining claims, Claims 3 and 4 were issued on the same day. It is clear that Claim 4 was issued because the Claimant either neglected, or was unable, to attach the Particulars of Claim to Claim 3. Claims 3 and 4 were issued because the Claimant, for whatever reason, had not included the purported [NAME] and [NAME] respondents within Claim 2. I do not consider that there is any argument that a res judicata point arises as between Claims 2, 3 and 4 (and indeed, I do not understand the Respondent to advance such an argument). In my judgment, it is plain that they simply reflect a litigant [APPELLANT] doing his best to navigate the online claim submission process and the complexities of attempting to bring a claim against three different respondents; nothing more and nothing less. They have been consolidated.

69. I must, however, look at the substance of the detriment allegations. In respect of the protected disclosure detriment claims, the Claimant relies on six alleged detriments within the single Particulars of Claim.

70. Detriment c is described as the decision to dismiss the Claimant. This is not a case where it is suggested that the dismissal was procured by an act of detriment. This allegation falls squarely within section 47B(2). So on that basis alone, it cannot succeed; it has no reasonable prospect of success. Furthermore, in substance it is a complaint that the Claimant was dismissed because he made a protected disclosure – the very claim that was struck out by [NAME] for failure to pay the deposit. While the causal test is slightly different, the Tribunal would still in essence have to decide whether there was a causal link between a protected disclosure made by the Claimant, and his subsequent dismissal. So I consider that the complaint is in any event subject to cause of action estoppel. Of course, the Claimant attempted to articulate this as a detriment claim before the Deposit Order had even been made. It is not an attempt to revitalise the struck out claim after it had been struck out. But in the circumstances, I do not consider that that makes any difference. It is a factual cause of action which has been extinguished by the strike-out judgment.

March 2017 71. Detriment d is described as the dismissal itself, pleaded as a detriment. For the same reasons, I conclude that it is subject to cause of action estoppel.

72. Detriment e is described as the manner (as opposed to the fact of) the Claimant’s dismissal. It refers to the process followed and to “misleading content in the dismissal letter”. Properly analysed, I consider that that is in reality a complaint about the dismissal itself. And for the same reasons I consider that it is therefore the same factual cause of action as has been struck out by [NAME].

73. Detriment f is about an alleged failure to follow the Respondent’s appeal process. That is, it seems to me, an entirely different allegation. It is not about the reason for the dismissal. So I consider that that is a complaint that is not caught by section 47B(2), and that it is not subject to issue estoppel, nor does it otherwise engage the principle of res judicata.

74. Where I have identified that complaints are covered by the red judicata principle, I conclude that it is an abuse of process to attempt to continue to pursue them. It is vexatious, within the sense set out in Rule 38. So the gateway test for striking out is met. I have considered whether it is appropriate to strike out. I conclude that that it is, because it is not in the interests of justice to require or allow parties to litigate a point which is estopped.

75. So in summary:

75.1. Claim 1 has already been struck out; and I need say no more about it. 75.2. The complaints of automatically unfair dismissal within Claims 2, 3 and 4 are covered by the res judicata principle and are consequently an abuse of process. I strike them out. 75.3. Allegations c, d and e of protected disclosure detriment within Claims 2, 3 and 4 are also covered by the res judicata principle, and are therefore also an abuse of process. I strike them out. 75.4. Allegations a, b and f of protected disclosure detriment are not struck out.

Ordinary unfair dismissal

76. The Respondent did not suggest that Claim 5 offended the res judicata principle. For the reasons I have already articulated, that must be right; it is a cause of action which could not have been brought within Claim 1.

77. The Respondent’s case is that Claim 5 ought to be struck out as having no reasonable prospect of success, or a deposit order made on the basis that it has little reasonable prospect of success.

March 2017

78. The decision to dismiss the Claimant was taken following a disciplinary hearing on 10 May 2024. The dismissal letter was dated 16 May 2024. The allegation against the Claimant was as follows:

“Unauthorised working abroad and connecting to the London Borough of Hounslow systems from a high-risk country.”

79. The country in question was Vietnam. It was alleged that the Claimant had been working remotely from Vietnam between 12 February 2024 and 4 March 2024.

80. Mr [RESPONDENT] took me to a number of the contemporaneous documents; as did the Claimant. The Respondent’s position in summary was that:

80.1. The Respondent had reasonable grounds for believing that the Claimant had been working abroad, and the Claimant repeatedly refused opportunities to provide evidence that would have provided otherwise (namely his passport, which on the Respondent’s case would have shown whether or not the Claimant had travelled to Vietnam at the relevant time). 80.2. The Respondent followed a fair process in that: 80.2.1. The Claimant was issued a suspension letter setting out the reasons for the suspension; 80.2.2. The Claimant was invited to a disciplinary investigation meeting, and that invitation letter set out the alleged misconduct and gave him the right to be accompanied; 80.2.3. The [APPELLANT] was given the opportunity at the investigation meeting to present his response to the alleged misconduct; 80.2.4. The Claimant was invited to a disciplinary hearing, and that invitation letter set out the allegation against him; 80.2.5. The [APPELLANT] was able to, and did, supply his own evidence prior to the hearing; 80.2.6. The [APPELLANT] was given the opportunity at the disciplinary hearing to present his response to the alleged misconduct; 80.2.7. The [APPELLANT] was provided with an outcome letter explaining how the decision to dismiss him had been reached and informed him of his right to appeal; and 80.2.8. The [APPELLANT] appealed his dismissal, but did not attend the appeal hearing, and the appeal was dismissed in his absence.

81. The [APPELLANT] position was, in summary, that: 81.1. The minutes of the various meetings were not accurate.

March 2017 81.2. The evidence the Respondent had gathered was falsified or partial (for example, he referred to some of the evidence gathered by the Respondent being videos or screenshots of a system, rather than the underlying system logs which would show his access data). By contrast, during the internal process he had presented IT evidence showing that the evidence gathered during the investigation was unreliable. 81.3. He considered that it was for the Respondent to show that they had grounds to consider disciplining him. As he did not believe that they had shown such grounds, he saw no reason to have to show the Respondent his passport. 81.4. The investigating officer was biased, because she had also accessed the Respondent’s [COMPANY] from a high-risk country. 81.5. After he appealed, he was initially given a hearing date which he could not attend, and he asked for it to be postponed. Instead, he was given an outcome letter dismissing his appeal. When he raised that, he was then given a further hearing date. In the event, the hearing took place on the same day as the hearing before EJ Fowell.

82. It is clear that there is a significant level of dispute between the parties regarding the unfair dismissal claim.

83. Mr [RESPONDENT]’s submission was that, in essence, the situation is a simple one. The Claimant was faced with a relatively straightforward allegation – that he had been working from a high-risk country, Vietnam, which he was not allowed to do without specific permission. He was aware that the allegation was one which may lead to his dismissal. He had in his possession a document which might be assumed to exculpate him, if he had not in fact done what was alleged – namely, his passport, which would show whether he had travelled to Vietnam at the relevant times. He was asked on more than one occasion to provide that evidence, and he did not do so. In the circumstances, it could not possibly be outside the range of reasonable responses for the Respondent to have concluded that he was guilty of the misconduct alleged, and to dismiss him.

84. I see the attraction of that argument. The Tribunal’s jurisdiction in respect of an unfair dismissal claim is, essentially, a reviewing jurisdiction. The Tribunal must decide whether the decision to dismiss, and the process followed, fell within the range of reasonable responses open to a reasonable employer. If the Claimant was not in Vietnam, it is (to put it mildly) surprising that he chose not to produce his passport. However, I do not consider that the situation is quite as straightforward as the Respondent suggests, because:

84.1. There is clearly a dispute about the underlying evidence which the Respondent relied upon as showing that the Claimant was in Vietnam. The Claimant relied upon a relatively detailed and technical

March 2017 explanation regarding the purported defects in the Respondent’s evidence. 84.2. In the face of such an explanation, it may be reasonable for the employer to put the onus back on the employee, by saying that it was for him to produce his passport which would show him to be innocent. But I do not think it could be said that it would inevitably always be reasonable for an employer to do so. Putting it another way, I do not think the fact that the Claimant failed to produce his passport when given the opportunity to do so means that the only possible conclusion is that the dismissal was a fair one. 84.3. I bear in mind that it was also in the hands of the Respondent to decide who would investigate and who would chair the disciplinary hearing, and what professional advice they would receive. I think it must be at least arguable that where detailed technical arguments were being raised by the Claimant, the decision-makers could not establish reasonable belief in the [APPELLANT] misconduct by side- stepping the Claimant’s technical explanations and relying only on the apparently simpler point about the failure to produce a passport. 84.4. I must take the Claimant’s case at its highest, and avoid conducting a mini-trial. If the Claimant is right that the Respondent failed to engage with the substance of his technical arguments in the internal process, a Tribunal may conclude that that was a procedural failing. 84.5. There is also an apparent factual dispute over what transpired in respect of the appeal. It is, in the face of it, surprising that the appeal outcome letter indicates that the appeal hearing took place on 23 July 2024 – the day of the interim relief hearing. And the fairness of an appeal process may go to the overall fairness of a dismissal.

85. Weighing all of that up, I do not think it could be said that the claim of unfair dismissal has no reasonable prospect of success. Nor do I consider that it could be said that it has little reasonable prospect of success. That is not to say that it is necessarily strong or well founded. As I say, even taking the [APPELLANT] case at its highest it is surprising that he chose not to show his passport to the Respondent, if that would truly have shown he was never in Vietnam. And even if he were to succeed in the claim, a Tribunal may very well conclude that he had contributed to his own dismissal, and take that into account in deciding any compensatory award (as it is permitted to do by section 123(6) of the Employment Rights Act 1996).

86. But in respect of the substantive claim of unfair dismissal, I conclude that there is a level of properly arguable dispute between the parties which means that it does meet the test for either striking out or the making of a deposit order. So the application for a strike out or deposit order in respect of Claim 5 is dismissed.

March 2017 87. A preliminary hearing will be listed to discuss the remaining claims.

Approved by:

Employment Judge Leith

Date: 10 October 2025

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Case Number: 2305083/2024 2305299/2024 2305300/2024 2305933/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

UPON APPLICATION made by letter dated 23 December 2025 to reconsider the judgment dated 10 October 2025 under rule 69 of the Employment Tribunal Procedure Rules 2024, and without a hearing,

JUDGMENT

1. Paragraph 3 of the Tribunal’s Judgment of 1 October 2025 is revoked insofar as it refers to the application to strike out the complaint of protected disclosure detriment.

2. The remaining parts of the complaint of protected disclosure detriment (allegations a, b and c) are struck out.

REASONS

1. On 1 October 2025, I heard the Respondent’s application to strike out the Claimant’s claims. My reserved judgment with reasons dated 10 October 2025 was sent to the parties on 12 November 2025. The background is amply set out within the reserved judgment; I do not repeat it here.

2. On 23 December 2025, the Respondent made an application for reconsideration. I directed the Tribunal to write to the parties in the following terms on 15 January 2026:

Employment Judge Leith instructs the following:

Your application for a reconsideration of the decision made on 1 October 2025 was received more than 14 days after the date on which the decision was sent to the parties. However, having considered the reasons given for the delay, Employment Judge Leith considers that it is in the interests of justice to extend time.

The Employment Judge’s provisional view is that the application to reconsider paragraph 3 of the judgment should be granted. This is because the Employment Judge’s was not aware of EJ [NAME]’s letter of 3 July 2024 permitting the Claimant to amend case number 2305932/2024 to include a complaint of protected disclosure detriment.

The Employment Judge did canvass the matter referred to in Paragraph 63 of the Tribunal’s judgment with the Respondent’s Counsel during the hearing. It is therefore somewhat surprising that the Tribunal’s attention was not drawn to EJ [NAME] letter of 3 July 2024 (which did not appear in the 240 page bundle for that hearing, although it was in the 192 page bundle for the Interim Relief hearing which was available during the preliminary hearing). That letter was clearly relevant to (and answered) the point raised. Furthermore, paragraph 67 of the Tribunal’s judgment makes it clear that the decision did not rely on the Tribunal’s earlier letter of 20 June 2024 explicitly rejecting the complaint of protected disclosure detriment.

Nevertheless, while the principle of finality in litigation is an important one, [NAME] letter of 3 July 2024 is a complete answer to the point regarding whether there was a live complaint of protected disclosure detriment within the claim and consequently whether EJ [NAME] strike out judgment established an estoppel. Refusing to allow the reconsideration application would give the Claimant the windfall of being allowed to pursue a claim which, in light of [NAME] [NAME]’s letter and the remainder of the Tribunal’s reasons, it is absolutely clear that he is estopped from pursuing.

The effect of the judgment being reconsidered would be that the remaining allegations of protected disclosure detriment would be struck out. The complaint of (ordinary) unfair dismissal would be unaffected, and would continue.

If the claimant thinks that the judgment should not be reconsidered, the claimant must write to us, giving reasons, by 29th January 2026

Both parties are asked to write to us by 29th January 2026 setting out their views on whether the application can be determined without a hearing.

3. The Respondent wrote to the Tribunal on 29 January 2026 indicating that their view was that the application could be dealt with without a hearing. The [APPELLANT] wrote to the Tribunal on the same day as follows:

“The [APPELLANT] submits that this appeal is devoid of merit, as the Respondents have already demonstrated clear knowledge of the relevant matters by including the necessary evidence within their own hearing bundles.

Accordingly, the [APPELLANT] contends that the Respondents are fully aware of the factual and legal position and that the present appeal represents a further attempt to mislead the Tribunal. In those circumstances, the [APPELLANT] submits that a full hearing is both

necessary and procedurally appropriate.”

4. I took the [APPELLANT] reference to a full haring being necessary and procedurally appropriate to be an explanation of why he said the reconsideration application should be refused (meaning that the allegations of protected disclosure detriment should go to a full hearing). In the context, it did not seem to me to be a suggestion that the reconsideration application itself required a hearing. I decided in any event that a hearing was not necessary in the interests of justice and would be disproportionate, given that the underlying arguments had been fully ventilated at the hearing on 1 October 2024 and the reconsideration application was based on a very narrow point.

5. I therefore directed the Tribunal to write to the parties as follows (bearing in mind rule 70(5) of the Employment Tribunal Rules of Procedure):

“Employment Judge Leith has decided that, in the light of the response to the notice sent to the parties on 15 January 2026, the interests of justice do not require a hearing, and the judgment dated 10 October 2025 should be reconsidered without a hearing.

If you wish to make further written representations before the judgment is reconsidered you must send them to us by 11th March 2026.”

6. No further responses were received from the parties.

7. I have therefore decided, for the reasons set out in the letter of 15 January 2026, to reconsider the judgment of 11 October 2025 and to strike out the remaining allegations of protected disclosure detriment.

8. As I am now satisfied that the complaints of protected disclosure detriment were before EJ Fowell at the interim relief hearing, it follows that for the reasons set out in the 11 October 2025 (and in particular paragraph 59), the entirety of the protected disclosure detriment claim brought within these claims is an abuse of process. It further follows that, for the reasons set out in particular in paragraph 74 of the 11 October 2025 judgment, they ought to be struck out.

9. The complaint of ordinary unfair dismissal is unaffected.

Date: 20th March 2026

Approved by

Employment Judge Leith

Judgment sent to parties on: 23rd March 2026

For the Tribunal Office