In person v Mr S Flynn - Counsel REMOTE OPEN PRELIMINARY HEARING VIA CLOUD VIDEO PLATFORM — 2020

This was a remote open preliminary hearing to decide the Respondent's strikeout application and the Claimant's application for specific disclosure. The Claimant did not pursue her application to amend. The underlying claim form alleged unfair dismissal, wrongful dismissal and detriments said to follow a flexible working request made on 19 May 2019.

The Respondent relied on the Claimant's contacts with the Central Inspection Team in China and her direct contact with members of staff, including Mr Lei, as conduct said to intimidate witnesses and make a fair trial impossible. The Tribunal accepted that the relevant conduct had occurred and did not accept the Claimant's evidence that she had already raised the allegations about Mr Yu and Ms Tan to personnel in the Group in China. It inferred that at least part of the reason for making the allegations to the CIT, and ensuring the proposed witnesses knew about them, was to obtain an advantage in the litigation, although it could not determine whether the underlying allegations were true or false.

Applying rule 37(1)(b), and having regard to Bolch v Chipman, Force One Utilities Ltd v Hatfield and Gainford Care Homes Ltd v Tipple, the Tribunal held that the Claimant's conduct amounted to unreasonable conduct of the proceedings, but not vexatious conduct. It was not satisfied that Mr Lei was no longer willing to give evidence because of the Claimant's actions, or that Mr Yu or Ms Tan had been intimidated to the point that a fair trial was no longer possible. The strikeout application was therefore refused because the remedy would be disproportionate, although the Tribunal warned that repeat conduct or disregard of orders could justify a renewed application.

The Claimant's application for specific disclosure of annual appraisals from 2011 to 2018 was also refused. The Tribunal accepted that the Claimant's historic capability was not in issue, the Respondent had already said her appraisal record was fairly good, and the only potentially relevant appraisal was the 2018 appraisal. Even so, it held that the appraisals would not assist in determining the issues in dispute, which concerned the dismissal allegations and the preliminary strikeout application.