Generally, an Employment Tribunal will be reluctant to strike out a tribunal claim, particularly if the claimant is unrepresented and there are allegations of discrimination. Having said this, two recent Employment Appeal Tribunal (EAT) cases have given insight as to when a strike-out application will be appropriate, and what factors an Employment Tribunal will consider when deciding the outcome of such an application.
Blake Morgan Solicitor, Sophie Corke considers these cases in more detail below.
Rule 37(1) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, states that at any stage in proceedings, a Tribunal may strike out all or part of a claim or response on any of the following grounds:
- 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 or response (or the part to be struck out).
Mr T Smith v Tesco Stores Limited
Is it proportionate for an Employment Tribunal to strike out an entire claim where a claimant acts in a manner that is scandalous, unreasonable or vexatious? In this case, the EAT held that it was.
Mr Smith had been employed as a customer assistant at Tesco since 2008. In September 2018, he was dismissed following an altercation with the store manager and a customer (which occurred in the store Mr Smith worked at, but outside his working hours).
Mr Smith sought to bring a number of claims including unfair dismissal, race and disability discrimination spanning a number of years prior to his dismissal.
The Employment Tribunal went through an extraordinary five preliminary hearings to attempt to prepare the case for a final hearing. Throughout these preliminary hearings, Mr Smith attempted to vary his claim substantively and sought to add additional claims. In addition, he refused to agree Tesco’s List of Issues and provided no explanation..
At the fifth preliminary hearing held on 17 March 2023, the Mr Smith blatantly spoke over and ignored the judge, making pointed derogatory comments to the clerk about the judge and Tesco. The judge struck out Mr Smith’s entire claim and considered that Mr Smith had acted in a vexatious manner in the following ways:
- 1) By failing to respond meaningfully to the List of Issues prepared by the Respondent – he had failed to follow the order of a previous Employment Tribunal judge on this, and had disregarded his duty of cooperation;
- 2) Mr Smith’s behaviour towards the Employment Tribunal at the fifth Preliminary Hearing was abusive and formed part of a course of conduct adopted more generally by him;
- 3) Mr Smith’s application to amend his claim had been made in terms that he must or should have been aware were unreasonable and wilfully vague.
The judge decided that a fair trial would not be possible due to Mr Smith’s lack of cooperation, and determined this behaviour was likely to continue if the claim went forward. Therefore, the judge relied upon Rules 37(1)(b) and (e) in striking out Mr Smith’s claim and he appealed this decision.
The EAT upheld the strike out order, and determined that the questions an Employment Tribunal should ask itself when deciding whether to strike out a claim are:
- 1) Has the conduct been scandalous, unreasonable or vexatious?
- 2) Is a fair trial still possible?
- 3) Is there a lesser sanction that is proportionate?
If the answers to the above questions are yes, no and no – a strike out will be appropriate. The EAT did however, make it clear that a strike out should still be used as a last resort, and alternatives should be considered first (such as an Unless Order where a party is required to comply with a certain order or their claim/response will be dismissed).
Kaul v Ministry of Justice and others
In this case, the EAT upheld the Employment Tribunal’s decision to strike out the claimant’s claims on the ground that they had no reasonable prospects of success under Rule 37(1)(a).
HHJ Kalyany Kaul KC was a circuit judge and brought claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment and discrimination arising from disability. She had raised two grievances which formed the basis of her claims; one concerning the actions of three other judges and one relating to the actions of court staff. Both of her complaints had ultimately failed, one was investigated as being out of time by HM Courts and Tribunals Service.
In her Employment Tribunal claims, HHJ Kaul raised issues with various aspects of the grievance process, notably:
- 1) The delay in responding;
- 2) Requesting a schedule of complaints;
- 3) Informing her that her grievances may be out of time;
- 4) Asking her to set out why they were not; and
- 5) Refusing to accept she was disabled.
The Employment Tribunal judge struck out those claims relating to the judges but declined to strike out those concerning the court staff. This was on the grounds that the claims relating to the judges had no reasonable prospects of success. HHJ Kaul appealed to the EAT.
She submitted that on a proper application of Rules 37(1)(a), the judge’s conclusion that the complaints struck out had no reasonable prospects of success was premature, and not a conclusion properly open to him. She argued that this should have been determined at a final hearing, and relied upon authorities which supported the position that decisions that a claim had no reasonable prospects of success on the facts should be rare.
The EAT disagreed and held that the Employment Tribunal decision was consistent with previously decided cases. Although there is a need for caution when considering a strike out application, it does not prohibit realistic assessments where the circumstances of a case permit so. This particular case involved ordinary, undisputed events regarding the circumstances of the HHJ Kaul’s grievances. The Employment Tribunal’s decision was permissible, and appropriate on the facts. Further, depending on the circumstances, it was open for an Employment Tribunal to strike out a claim, even if there are material disputed facts. In the Kaul case, the claims rested on undisputed events, those of which might occur in the course of any grievance process and no part of her case explained why those events shouldn’t be taken at face value.
Whilst it remains the case that Employment Tribunals will be hesitant to strike out a claim, particularly so if a claimant is unrepresented, these two EAT decisions are a helpful reminder that in some cases it will be appropriate to do so. The decisions may give respondents and their representatives greater confidence in making such an application. Having said this, it is important to bear in mind that the success of any strike out application will hinge on the specific circumstances of each case, and as in Smith, sometimes the behaviour of the claimant themselves throughout proceedings.
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