Rachel Yorke has written an article about what happens when an organisation stops asking what the proportionate outcome should be and starts building a process around the outcome it already wants. In “RECALL, RECALL, RECALL!!”, an administrator accidentally emailed a customer an insult intended for her manager. The employer initially appeared to be heading towards a reprimand. Then the customer threatened social media, press attention and a negative Trustpilot review, the temperature rose and dismissal became the answer. The Employment Tribunal later described the disciplinary process as a “sham designed to placate the customer.”
Yorke’s lesson is sensible. Keep an open mind. Investigate properly. Consider the explanation and mitigation. Do not let outrage or pressure convert procedure into scenery around a sanction already selected. Above all, remember that serious conduct does not automatically make the ultimate sanction proportionate.
Now put that beside the Cepac litigation, where Horsfield Menzies had a rather more immediate problem than an angry customer threatening Trustpilot.
Its client had already filed a fucking disastrous ET3.
The ET3 Had Already Created The Problem
The original Cepac claim was about recruitment disability discrimination. I said Page Outsourcing called me on 21 August 2024, discussed the production role and salary, offered an interview for after the bank holiday and asked about the gap in my employment history. During that conversation I disclosed the mental-health-related reason for the gap. The promised follow-up call to fix the interview time never arrived.
Cepac’s pleaded defence then created an obvious problem. Paragraph 12 attempted to distance the company from the relevant knowledge. Yet elsewhere, including paragraphs 14 to 16, the ET3 relied upon recruitment information originating from Page which itself referred to health-related circumstances. The defence therefore contained the ingredients for exactly the factual enquiry Cepac presumably did not want going badly at trial: what did Page know, what did it send to Cepac, who received it, when did they receive it and how did that square with the wider denial of relevant knowledge?
That was not some Twitter spat cooked up two years later.
It was sitting inside their own fucking pleading.
A merits hearing could have tested it. Page’s records could have been examined. Witnesses could have been cross-examined. The relationship between the denial and the health information could have been explored properly rather than left inside a document drafted by lawyers.
Then came January 2025.
The Destination Appeared Two Days Later
On 29 January 2025, following a refusal of postponement, I sent the Tribunal an angry email because I hadn’t known of the hearing until the day before and had no time to prepare. Especially with somebody going through a medically documented crisis in a month where an ambulance was deployed to my home over wellbeing concerns. The email swore at the judge. Nobody needs TCAP to pretend the words were written for a greetings card.
What matters here is what Horsfield Menzies did with the opportunity.
On 31 January, it applied to strike out the claim.
Two fucking days.
That date matters because most of the conduct material later used to justify strike-out did not yet exist. There was no huge archive of later blogs. Most of the X material had not been published. Many of the procedural disputes, complaints and later communications had not happened. The mountains of conduct evidence eventually put before the Tribunal had not yet accumulated.
But the destination had.
Strike-out was already the target.
And, rather conveniently, success would have meant something else never had to happen: a completed merits hearing into the recruitment case and the ET3 contradiction already sitting inside it.
Strike-Out Solved A Completely Different Problem
If the claim proceeded to trial, Cepac eventually had to defend what happened in August 2024. Somebody had to explain the recruitment chronology. Somebody had to deal with the contemporaneous WhatsApp recording “Interview next week”. Somebody had to identify exactly what Page transmitted after the screening call and how health information travelled through the process. The ET3 would have had to survive contact with witnesses, documents and cross-examination.
Strike-out offered a different route.
Win on conduct first and the recruitment merits never need a final answer.
That does not require some feverish conspiracy theory about lawyers meeting beneath a full moon and chanting around the ET3. The procedural effect is obvious. Once Horsfield Menzies had applied to strike out the claim, the respondents had a route to victory which no longer depended upon persuading a merits Tribunal that their recruitment account was correct.
That route was selected on 31 January 2025.
The later material then began piling up around it.
Rachel Yorke says do not choose the sanction first and conduct the process second.
Well. Oh my.
Blog: Keep An Open Mind
Yorke’s article is particularly useful because the underlying employee had actually done something wrong. Her case does not depend upon pretending misconduct never occurred. The problem was proportionality and process: the employer’s reaction hardened after external pressure and the disciplinary machinery ceased to look genuinely open to a different outcome.
That distinction matters enormously here. The relevant question is not whether Horsfield Menzies was entitled to object to a profane email sent to the Tribunal. Of course it could object. The question is why the first significant response needed to be termination of the entire discrimination claim.
There was an enormous procedural spectrum available between doing nothing and destroying the case. Warning. Direction. Communication controls. Tighter case management. Restrictions around correspondence. Specific consequences for specific behaviour. Judicial clarification of boundaries. Plenty of tools existed before anybody needed to reach for the red button.
Horsfield Menzies went to strike-out.
Then, once that destination existed, every later conflict had potential evidential value in getting there.
That is where Yorke’s open-mind sermon starts developing fucking timing problems.
The Medical Context Arrived, The Target Stayed Put
The litigation did not remain factually static after January. Medical evidence subsequently made the disability context clearer, including GP evidence recording anxiety, depression and difficulty managing emotions under stress. Participation problems continued. The procedural environment became increasingly adversarial.
A genuinely open process should at least remain capable of reassessing whether the remedy first sought remains proportionate as context develops. New evidence can aggravate a position, but it can also mitigate it. That is rather the point of not deciding everything before the evidence has finished arriving.
Yet strike-out did not disappear.
It expanded.
The application became broader. More conduct was incorporated. More correspondence acquired significance. More later events were added to the architecture supporting the same ultimate destination.
This is the difference between discovering strike-out at the end of an increasingly impossible case and selecting strike-out at the beginning before most of the evidence eventually relied upon even existed.
The first is reluctant conclusion.
The second is a target with a growing fucking scrapbook. And how better to trigger it in a mentally unwell person than to start pushing buttons and posturing aggresively?
The Application Came First, The Archive Came Later
By April 2026, the case had become enormous. The main hearing bundle ran to around 1,657 pages excluding its index, accompanied by a separate authorities bundle. Conduct material included extensive collections of correspondence, blog entries and X posts. The later judgment recorded around 150 communications and blog items alongside another 181 social-media entries relied upon in the conduct case.
None of that existed as an archive on 31 January 2025.
The application did.
That chronology changes how the later collection looks. Horsfield Menzies was not merely preserving evidence and eventually discovering, with heavy hearts and trembling fountain pens, that strike-out had become unavoidable. It had already sought the remedy and was then able to add subsequent material capable of making the existing application stronger.
Again, later conduct can plainly become relevant to an existing application. The legal system permits cases to develop. The interesting Blog vs Behaviour question concerns posture: once your chosen destination is already terminate the claim, does every subsequent dispute get assessed neutrally, or does it also become another opportunity to demonstrate why the destination chosen months earlier was correct?
Yorke warns against predetermined outcomes.
Horsfield Menzies had already entered the postcode.
The Tribunal Eventually Had To Find The Original Claim Again
By May 2025, the conduct dispute had expanded sufficiently that the Tribunal could not deal with the strike-out applications as originally intended. Further case management became necessary, Horsfield Menzies had to reconsider and particularise its case, and the litigation needed refocusing on the underlying claim.
That phrase should be framed.
Refocusing on the underlying claim.
Only months earlier, the proceedings had concerned a failed recruitment process and alleged disability discrimination. Yet the satellite argument about whether the claimant should remain entitled to pursue that claim had already become sufficiently dominant that somebody needed to point back towards the thing everyone had originally come to court to decide.
The recruitment merits remained unresolved.
The ET3 contradiction remained unresolved.
The contemporaneous WhatsApp remained unresolved.
The route of health information remained unresolved.
But the strike-out machinery was doing fucking overtime.
Blog: Consider The Lesser Sanction
Yorke’s article stresses the importance of considering a lesser sanction rather than treating misconduct as a binary choice between acceptance and dismissal. That is not softness. It is proportionality.
Strike-out obviously operates under a different legal framework from dismissal, but proportionality is hardly foreign to it. The eventual Cepac judgment itself had to consider whether terminating the proceedings was proportionate.
So ask the chronology again.
Horsfield Menzies sought strike-out on 31 January 2025.
Not after the huge conduct archive.
No blog existed.
Not after the later social-media material.
Not after a year of exhausting every imaginable lesser procedural tool.
January.
The firm had already reached for the remedy that would end the claim before most of what later supposedly justified that remedy had happened.
Rachel Yorke says consider something less than the ultimate sanction.
Horsfield Menzies appears to have started at the fucking checkout.
The Merits Had A Problem, Then The Claimant Became The Problem
This is where the chronology becomes more than a procedural curiosity.
Before the strike-out application, the respondents had to win the recruitment case.
After the strike-out application, another path existed: win the case about the claimant instead.
That distinction changed everything.
A recruitment case asks what Page said, what Page knew, what Page transmitted, what Cepac knew, who made the decision and why the candidate disappeared from the process.
A conduct case asks what Thompson wrote, how Thompson communicated, what Thompson published, how Thompson reacted and whether Thompson should still be allowed to pursue the first case.
One route points the microscope at the respondents.
The other points it at the claimant.
Guess which one eventually swallowed the fucking proceedings.
The Conduct Case Became The Main Event
As the months passed, the evidential centre of gravity moved. Horsfield Menzies collected communications, complaints, blog content and social-media material. The increasingly sprawling conduct case required schedules, bundles and judicial attention of its own.
Meanwhile, the allegations that created the litigation remained waiting underneath.
That matters because procedural victory could now replace merits victory. Cepac no longer needed a final judgment saying its recruitment conduct was lawful if Horsfield Menzies could first persuade the Tribunal that the person challenging that conduct should lose the right to have it determined.
Eventually, that is what happened.
The claim was struck out in April 2026 and Cepac obtained a £20,000 costs order.
The Tribunal reached extensive conclusions direct from cloud cuckoo land about my conduct.
It never completed a merits trial deciding what happened during the recruitment process.
The claimant got a judgment.
The ET3 got away without one.
Rachel Yorke Has Accidentally Supplied The Diagram
This is why “RECALL, RECALL, RECALL!!” belongs in Blog vs Behaviour. Yorke explains the danger of allowing an organisation’s reaction to an incident to harden into the destination before the process has genuinely explored proportionality, mitigation and alternatives.
Then look at Horsfield Menzies’ own chronology.
A merits case containing a serious pleaded contradiction already existed.
One major flashpoint occurred.
Forty-eight hours later, strike-out was sought.
Most of the later conduct evidence did not yet exist.
The application remained alive while the archive expanded.
The Tribunal eventually had to direct attention back towards the underlying claim.
Then the conduct case ultimately killed that underlying claim before its merits received final determination.
If Rachel wants an illustration of why chronology matters when assessing whether a process remained genuinely open, there it fucking is.
The Final Judgment Does Not Move 31 January
Employment Judge James ultimately agreed with the respondents. In April 2026, the Tribunal concluded that strike-out was justified and proportionate. That is the judgment currently standing, and the fact of that later success is not in dispute here.
But a judgment delivered in April 2026 cannot travel backwards through time and change when Horsfield Menzies first selected the remedy.
The question posed by Yorke’s article is about process.
When did the ultimate sanction become the target?
Before or after the evidence later relied upon to justify it?
Here, we know the answer.
31 January 2025.
That date sits immediately after the flashpoint and while the underlying merits defence already contained a contradiction deserving proper judicial examination.
Everything else came later.
The Destination Came First
Nobody needs TCAP to disguise the January email or turn me into some trembling Victorian orphan begging for forgiveness. The words were profane. Everybody survived.
The interesting thing is what happened next.
Horsfield Menzies had a client with an ET3 that had already created an ugly merits problem around knowledge and health information. A full hearing threatened to test that problem properly. Then came an angry email from the claimant.
Two days later, the respondents had a new target.
Strike-out.
From that point onward, there were two possible ways for Cepac to escape the litigation. Win the recruitment case on its facts, or prevent those facts from reaching final determination at all.
Horsfield Menzies pursued the second route early and spent the following year accumulating material capable of supporting it.
Rachel Yorke says keep an open mind, investigate properly and do not choose the ultimate sanction before considering whether something less will do.
Excellent advice.
Horsfield Menzies did not spend a year discovering where the road ended.
It saw the fucking ET3 crater, picked the exit and spent the next year collecting road signs.
Lee Thompson – Founder, The Cummins Accountability Project
Sources
- Horsfield Menzies: RECALL, RECALL, RECALL!!
- Employment Tribunal: Ms M Jones v Vale Curtains and Blinds – 3311640/2023
- Employment Tribunal : Mr L Thompson v Cepac Limited and Page Outsourcing UK Limited – 6019060/2024
- Primary documentary record: Cepac ET3 and pleaded response; 29 January 2025 Tribunal correspondence; 31 January 2025 strike-out application; subsequent case-management orders and strike-out materials in case 6019060/2024.