Unfair Dismissal Claim Not Struck Out Despite Potential Conciliation Agreement

OUTCOME: Allowed

Case No. 2400879/2024

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Heard at:

Manchester (in public; by CVP)

On: 30 July 2025

Before: Judge Callan (sitting alone)

Representation Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The judgment of the Tribunal is that the Respondent’s application to strike out the claim in this case (there being two other claims in case numbers 4103969/2024 and 2407170/2024) is refused.

WRITTEN REASONS

Background

1. The respondent’s application to strike out the claimant’s complaint of unfair dismissal in the above claim was heard on 30 July 2025 at a Public Preliminary Hearing and oral reasons were given. The respondent’s request for full written reasons for the judgment was made by email dated 13 August 2025. Unfortunately, that application as not forwarded to me until 5 November 2025.

Case No. 2400879/2024

2. On 30 July 2025, the claimant did not attend the hearing and was represented by [NAME_4]. I was informed the claimant was hospitalised. An application to postpone the hearing had been made on his behalf and was refused by EJ Batten the previous day.

Respondent’s application heard on 30 July 2025

3. The basis of the respondent’s application to strike out the claimant’s claim in case no: 2400879/2024 was that the Tribunal lacked jurisdiction because of a conciliated agreement reached through the services of an [NAME_6].

4. The parties produced a bundle of documents comprising 140 pages, including the claim form in case no. 2400879/2024, along with two further claim forms, and the ET3 responses and EC Conciliation certificates. Further, the bundle contained email correspondence between the [NAME_6] and [NAME_7] in the period 29 November 2023 to 11 December 2023. There was a further email from the [NAME_6] to [NAME_8] dated 3 April 2025.

5. I was provided with a witness statement from the claimant dated 25 April 2025 and a skeleton argument on behalf of the respondent dated 25 March 2025.

Facts relating to claim 2400879/2024

6. The ET1 in case no. 2400879/2024 was lodged on 11 February 2024. The respondent lodged its ET3 on or about 2 May 2024 in which it asserted that the claim was an abuse of process and that the claimant was estopped from pursing his claims pursuant to section 144(4) Equality Act 2010 (EqA 2010). The ET1 gave the Acas Early Conciliation certificate number R108445/24/91. That certificate was provided in the bundle and showed the date of receipt by Acas of the Early Conciliation notification as 19 January 2024 and the date of issue of the certificate as 23 January 2024.

7. The respondent says there was a conciliation agreement reached on or about 11 December 2023. The ACAS officer’s email to which I was referred was sent to the respondent’s solicitor and referenced two other EC certificates (numbers R279297/23 and R276498/23) and notably not the EC certificate quoted in the ET1 in this case which postdated the email exchange. The email states that the claimant is satisfied with the resolution reached which I was informed was essentially “words of comfort” to the effect that the respondent would abide by its policies and procedures in dealing with any allegations of wrongdoing on the part of its employees. The email was not sent to the claimant.

8. There is no COT3 relating to the alleged settlement, or terms of settlement. It is recognised that an oral agreement may suffice: Allma Construction Ltd v Bonner [2011] IRLR 204. However, the terms of such an oral agreement should be clear. No evidence other than the emails was

Case No. 2400879/2024

produced to evidence the alleged agreement: there was no witness evidence given to support the subject matter of the disputes or claims the agreement encompassed, The respondent relied upon the emails between the respondent’s legal representative and the [NAME_6] referred to above which did not identify the particular “wrongdoing” or nature of the dispute. It is recognised that a promise to abide by policies and procedures or “words of comfort” is sufficient consideration from the respondent to form a binding agreement.

Conclusion

9. The difficulty in this case is that the subject matter of the claim said to have been settled following the [NAME_6] having taken action is not clear and the claim is not specified in the emails relied upon by the respondent. The emails reference two Acas EC numbers but not the one entered on the ET1 in case number 2400879/2024.

10. As the subject matter of the Early Conciliation said to have been settled is unclear, the application to strike out the claim on the basis that the jurisdiction of the Tribunal has been ousted is refused. As Lady Justice Smith held in [NAME_9] v University of London [2005] IRLR 552, the policy behind the provisions is “to protect employees from the danger of signing their rights away without a proper understanding of what they are doing”. Given that policy, and the high threshold applied to striking out claims (or as the case may be, defences) the application is refused.

_____________________________

Judge Callan

Date: 14 November 2025

JUDGMENT SENT TO THE PARTIES ON

Date: 17 November 2025

......................................................................................

FOR THE TRIBUNAL OFFICE

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.

Case Numbers: 2400879/24 2407170/24 4103969/24

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent:

[redacted]

Liverpool (By Video) On: 5 March 2026 Before: Employment Judge Buzzard

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

The Application 1. The respondent made this costs application at the preliminary hearing on 18 November 2025 (“This Costs Application”). The application was recorded as having been made in the note produced following the hearing. This Costs Application related only to the costs incurred in relation to the hearing on 18 November 2025.

2. There is a second, entirely separate, costs application in this claim. That application relates to a hearing before a different Employment Judge and is being dealt with by that Employment Judge.

3. This Costs Application could not be dealt with on 18 November 2025. A date for a further hearing to consider This Costs Application was listed. Orders were made requiring the respondent to provide to the claimant written confirmation of the amount of costs sought, along with an explanation of the basis for the application.

4. Further orders were made requiring the claimant to provide information and evidence relating to his ability to pay any costs award that may be made, along with a written statement relating to such evidence.

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2 5. All orders required compliance in advance of the costs hearing, to ensure all parties had a fair opportunity to prepare for that hearing.

6. The respondent provided the ordered information by email dated 18 December 2025. The respondent confirmed that the costs applied for amounted to £5,907 inclusive of VAT. At the outset of this hearing it was confirmed by [NAME_7] that the respondent, being VAT registered, can recover the VAT, and accordingly the amount of costs sought should be limited to the amount before VAT, which totals £4,922.50. That amount is stated to be comprised as follows: a. Counsel’s fee £2,500.00 b. Solicitor time £1,567.50 c. Partner time £855.00 7. The respondent set out the grounds of This Costs Application in full in an email of 12 January 2026. This followed an exchange between the parties in which [NAME_8] sought to suggest (incorrectly) that no costs application had in fact been made at the hearing on 18 November 2025. The claimant appears to have used this as a basis to try to argue that the limitation period for making a costs application expired before the details were provided and as such This Costs Application should have been rejected. At the outset of this hearing it was explained to [NAME_8] that the limitation period for making a costs application does not begin to run until the final decision in the whole proceedings is made, which has still not occurred. On this basis, there is no question of This Costs Application being time barred, even if it had not been made until 12 January 2026.

8. The respondent’s grounds for This Costs Application are that it was unreasonable conduct for the claimant to attend the hearing on 18 November 2025 and not be “able to make out the clarity of his claims”, conduct which the respondent argues rendered that hearing ineffective.

9. The claimant provided, in the exchange of correspondence between the parties, a rebuttal of This Costs Application. This was taken into account as an additional submission. That rebuttal was based on an assertion that the preliminary hearing on 18 November 2025 was ineffective because the Employment Tribunal had, for the first time, ordered the claimant to produce a single list of complaints. This is incorrect. When it became apparent that the hearing could not be effective the claimant was ordered to produce such a list prior to the next hearing. This was intended to remove any repetition and make the next hearing more effective. The 18 November 2025 hearing was not impacted by the fact no such single list had previously been produced.

Case Numbers: 2400879/24 2407170/24 4103969/24

3 10. The claimant at no point sought to comply with the orders made at the hearing on 18 November 2025 (and confirmed in the written note sent to the parties on 12 January 2026) to provide any details or evidence related to his ability to pay. No such details or evidence were produced in advance of, or even at, this hearing. The absence of this information was discussed at the outset of the hearing and [NAME_8] confirmed that the claimant was not seeking to invite the Employment Tribunal to take into account his ability to pay in determining the amount of any costs award.

The Law 11. The power to award costs is contained in the Employment Tribunal Rules of Procedure. The definition of costs includes fees, charges, disbursements or expenses incurred by or on behalf of the receiving party.

12. A Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while legally represented”.

13. The circumstances in which a Costs Order may be made are set out in in the rules, the relevant parts of which are as follows: “A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that (a) A party (or that party’s representative) has acted …. otherwise unreasonably in …. the way that the proceedings (or part) have been conducted;” 14. The procedure by which the costs application should be considered is set out in the Employment Tribunal Rules of Procedure 2024. The amount which the Tribunal may award without needing a detailed assessment of costs is up to £20,000.

15. Rule 84 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.” 16. It follows from these rules relating to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA): a. the first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise; if so,

Case Numbers: 2400879/24 2407170/24 4103969/24

4 b. the second stage is to decide whether to make an award; and if so c. the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.

17. The case law on the exercise of costs powers include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings.

18. If there has been unreasonable conduct, there is no requirement for the Tribunal to identify a precise causal link between that unreasonable conduct and any specific items of costs which have been incurred. However, there is still the need for some degree of causation to be taken into account as the Court of Appeal pointed out in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.”

Documents and Submissions 19. The Tribunal was provided with a bundle of relevant documents for this hearing. 20. [NAME_7] produced a skeleton argument in support of This Costs Application. [NAME_8] produced a written submission contesting This Costs Application. These documents appear to have been exchanged. After sight of the respondent’s skeleton argument, [NAME_8] produced a further brief submission in response to that skeleton argument.

21. At the hearing both sides made detailed oral submissions. After the hearing had adjourned for deliberation, the claimant submitted a further document titled ‘supplementary submissions’. These were read by the Tribunal and taken into account. They appeared to add little if anything to the oral submissions made. In the circumstances it was not appropriate to reconvene the hearing to allow [NAME_7] to comment on the claimant’s supplementary submissions.

22. In their submissions the parties made referrals to disputes that have been ongoing throughout these proceedings about the reference to without prejudice documentation. Those submissions were not relevant to This Costs Application and were disregarded.

Case Numbers: 2400879/24 2407170/24 4103969/24

5 Background events and context 23. The hearing on 18 November 2025 was listed to deal with multiple issues, namely: a. first to determine an amendment application made by the claimant; b. second to determine a strike out application made by the respondent; and c. third conducting further case management as necessary.

24. It is not possible to determine a strike out application before an amendment application has been determined. It is not possible to undertake useful case management until any amendment application and strike out application have been determined.

Accordingly, the first step at the hearing had to be the determination of the claimant’s amendment application.

25. When determining an amendment application, the first task is to establish the extent to which something would really amount to an amendment, and the extent to which it is merely provision of further details of specific allegations already included in the claim form. It was this step that the hearing on 18 November 2025 was unable to complete, and accordingly progress to the later questions was not possible.

26. At the hearing on 18 November 2025 it became apparent that the claimant, despite multiple opportunities and the submission of increasingly lengthy documents, had still not provided, for all allegations the claimant sought to pursue in the claim, the kind of specific details that are needed before the respondent can fairly be asked to defend themselves against such allegations. Whilst this did not apply to every allegation pursued, some randomly selected examples where it did apply were discussed at the hearing. From these discussions it became apparent that [NAME_8] was not in a position to provide the necessary detail in relation to those examples at that hearing. 27. [NAME_8] at the hearing stated that all this information was in a witness statement the claimant was preparing. The Tribunal granted a short adjournment. The claimant, who was observing the hearing from a different location to his representative, confirmed that he was preparing a statement. Further, it was confirmed that no witness statement had been sent to the Tribunal or respondent, nor was one available to be produced at the 18 November 2025 hearing. [NAME_8] suggested that this was the first time that it had been explained that a claimant needs to at least provide lists of the allegations complained about. On this basis [NAME_8] suggested that the claimant be given an opportunity to prepare a list of allegations.

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6 Conclusions 28. [NAME_8]’s submissions at, and in advance for, this hearing, were that the reason that the 18 November 2025 hearing could not be effective on 18 November 2025 was not due to the claimant’s conduct of the claim, but because a single list of allegations had been required for the first time. That is not correct. 29. [NAME_7] submitted at the 18 November 2025 hearing, and again at this hearing, that the fault for the hearing being ineffective lay with the claimant and his representative. The claimant has presented three separate claim forms, produced three sets of further particulars and still, at the second preliminary hearing over a year later there is a lack of clarity and specifics in a significant number of the claims that the claimant seeks to pursue. [NAME_7] submitted that this amounted to unreasonable conduct of proceedings.

30. The respondent’s submission is found to be persuasive. Fairness in Employment Tribunal proceedings of the kind pursued by the claimant requires that all parties (and the Tribunal) have a clear understanding of the specifics of the allegations made. Whilst it is anticipated that an initial claim form completed by an unrepresented claimant may not fully meet this requirement, such a defect has to be remedied before the claim can progress.

31. Some weight is given to the fact that [NAME_8] is not a legal professional. That being noted, in this claim any leeway that afforded had been exhausted.

32. The claimant has produced multiple documents, many with the assistance of his representative, that whilst lengthy and verbose are still lacking in clarity in significant parts. The claimant has attended a second preliminary hearing for case management on 18 November 2025 still without the necessary clarification having been provided to the respondent or even produced at that hearing. This course of conduct by the claimant meets the definition of unreasonable conduct as defined by rule 74 of the Employment Tribunal rules of procedure.

33. Having found there to have been unreasonable conduct, the Employment Tribunal rules of procedure require consideration of whether to make a costs award.

34. By the point of the 18 November 2025 preliminary hearing the claimant and his representative had submitted multiple claim forms and multiple further documents that sought to expand his claims but lacked clarity. This has required, as a result, a further preliminary hearing to seek to progress the claim. The hearing on 18 November 2025 was almost entirely fruitless.

Case Numbers: 2400879/24 2407170/24 4103969/24

7 35. In these circumstances it is found that this is an exceptional case where an award of costs, limited to those incurred in relation to the ineffective hearing on 18 November 2025, should be made.

36. The claimant produced no evidence regarding his ability to pay any costs award. The claimant had been given every opportunity to submit such evidence before this hearing and did not do so. To adjourn to allow the claimant to collate and submit such evidence would result in the respondent incurring and then seeking an order to recover the costs for the additional hearing needed as a result of such an adjournment. In the circumstances, [NAME_8] confirmed that the Employment Tribunal was not invited to take into account the claimant’s ability to pay.

37. The claimant made no submission to suggest that the amount of costs stated by [NAME_7] to have been incurred by the respondent were inaccurate, unreasonable or excessive.

38. Having considered the amount of costs sought, they are found to be entirely realistic and reasonable costs for preparation for and then attendance at a one-day hearing.

39. On the basis that the amount of costs appears reasonable and was not challenged, and with the claimant confirming that any lack of ability to pay is not argued as relevant, the amount of costs was determined to be the full amount incurred.

Approved by: Employment Judge Buzzard 16 April 2026

Judgment sent to the parties on: 20 April 2026 For the Tribunal:

……………………………………

Case Numbers: 2400879/24 2407170/24 4103969/24

8 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. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. 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 joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case No. 2400879/2024

1

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Heard at: Manchester (in public; by CVP)

On 30 July 2025

Before: Judge Callan (sitting alone)

Representation Claimant: [redacted]

Respondent: [redacted]

PUBLIC PRELIMINARY HEARING JUDGMENT

The judgment of the Tribunal is that the Respondent’s application to strike out the claim in this case (there being two other claims in case numbers 4103969/2024 and 2407170/2024) is refused. Oral reasons were given at the hearing.

_____________________________

Judge Callan

Date 17 October 2025

JUDGMENT SENT TO THE PARTIES ON

27 October 2025

FOR THE TRIBUNAL OFFICE

Case No. 2400879/2024

2

Case No. 2400879/2024

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT ON APPLICATION FOR RECONSIDERATION

The Judgment of the Tribunal is that the respondent’s application dated 13 August 2025 for reconsideration of the judgment given orally on 30 July 2025 is refused as there is no reasonable prospect of the decision being varied or revoked.

REASONS

There is no reasonable prospect of the original decision being varied or revoked because:

1. the respondent is seeking an opportunity to seek to re-litigate matters that have already been ventilated, and to introduce points which did not form part of the discussions at the hearing on held on 30 July 2025.

2. the application fails to identify any procedural mishap or error of law in the sense of my failing to apply the relevant law correctly or making findings of fact which were not open to me.

3. there must be finality in litigation, and the interests of justice do not support that there should be a reconsideration of the judgment in this case.

_____________________________

Judge Callan

Date 14 November 2025

Case No. 2400879/2024

JUDGMENT SENT TO THE PARTIES ON

14 November 2025

FOR THE TRIBUNAL OFFICE

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.

Case No. 2400879/2024

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT ON APPLICATION FOR RECONSIDERATION

The Judgment of the Tribunal is that the respondent’s application dated 28 November 2025 for reconsideration of the judgment given orally on 30 July 2025 (written reasons having been sent to the parties on17 November 2025) is refused as there is no reasonable prospect of the decision being varied or revoked.

REASONS

1. On 30 July 2025, the respondent’s application to strike out the claim in this case was heard at a public preliminary hearing and was refused for the reasons set out in the written reasons dated 14 November 2025.

2. Within the 14 days allowed for an application for reconsideration of a judgment the respondent’s solicitor made such an application.

3. The relevant procedural rules relating to reconsideration of judgments are set out in the Employment Tribunal Procedure Rules 2024 (rules 68-71). The relevant parts of those rules are set out below:

“Principles

68.(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.

(2) A judgment under reconsideration may be confirmed, varied or revoked.

(3) If the judgment under reconsideration is revoked the Tribunal may take the

Case No. 2400879/2024

decision again. In doing so, the Tribunal are not required to come to the same conclusion.

Application for reconsideration

69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—

(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or

(b) the date that the written reasons were sent, if these were sent separately.”

4. There is no reasonable prospect of the original decision being varied or revoked because the request for reconsideration does not set out why reconsideration is necessary as is required by rule 69. As such, the application fails to identify any procedural mishap or error of law in the sense of my failing to apply the relevant law correctly or making findings of fact which were not open to me.

5. There must be finality in litigation, and the interests of justice do not support that there should be a reconsideration of the judgment in this case.

_____________________________

Judge Callan

Date 11 December 2025

JUDGMENT SENT TO THE PARTIES ON

Date 15 December 2025

FOR THE TRIBUNAL OFFICE

Case Numbers: 2400879/24 2407170/24 4103969/24

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent:

[redacted]

Liverpool (By Video) On: 5 March 2026 Before: Employment Judge Neil Buzzard

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

COSTS JUDGMENT

The claimant is ordered to pay to the respondent, within 28 days of the date this judgment is sent to the parties, costs in the amount of £4,922.50.

Approved by: Employment Judge Neil Buzzard 10 March 2026 Judgment sent to the parties on: 20 April 2026 For the Tribunal:

……………………………………

Case Numbers: 2400879/24 2407170/24 4103969/24

2

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. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. 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 joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/