Mr J Oosthuizen v Metaltech UK Ltd — 2025

This was an open preliminary hearing on the respondent's application to strike out the claim under Rule 38. The claimant had previously withdrawn an unfair dismissal claim for lack of continuous service, leaving breach of contract and race discrimination claims. The respondent initially also sought a sist and a deposit order, but those matters were withdrawn so that strike out was the only live issue. The respondent argued that the case was vexatious, had no reasonable prospects of success, and could not receive a fair hearing because two material witnesses said they feared the claimant. The claimant denied the allegations and said he had evidence, including video footage and an email, and that the social media posts relied on were not directed to the respondent.

The tribunal held that the respondent had not established that the proceedings were vexatious or had no reasonable prospect of success. It found there was a core of disputed fact about what had happened both in and out of employment, and it could not decide those disputes without hearing evidence. The judge noted that the 2018 domestic abuse conviction relied on by the respondent was spent before the claimant started work there, that the social media posts were not clearly shown to relate to the respondent, and that the respondent had not taken disciplinary action at the time over the conduct now relied on. The tribunal also observed that there was at least an arguable breach of contract issue in relation to pension contributions being paid late, and that the claimant's argument about his contract and probationary period could not be ruled out on the papers.

On the fair trial ground, the tribunal said this was the strongest part of the respondent's application but still concluded that it was not yet shown that a fair hearing was impossible. The concern from the witnesses appeared to be based on perception rather than any direct threat made to them in relation to these proceedings. The judge noted that if the witnesses were still employees they could be instructed to attend, and if necessary the respondent could seek witness orders. The tribunal also recorded that no concrete material was produced about the respondent's allegation that the claimant was investigating directors and their families, and that the respondent had withdrawn an allegation of blackmail. Because none of the Rule 38 grounds was established, the strike-out application was refused. The judge noted that the respondent could renew an application if new information came to light and directed the claimant to provide a schedule of loss within seven days.