Employment Tribunal claim struck out due to Claimant’s conduct

Employers who have Employment Tribunal claims brought against them often find the proceedings stressful to deal with, but that can be even more the case when the Claimant is representing themselves (a litigant in person). Whilst the majority of litigants in person behave appropriately, a small number make unnecessary and inappropriate attacks on the employer and on any individuals who they see as responsible for the matters leading to their claim. The Employment Appeal Tribunal in Scotland recently considered whether it was correct for the Employment Tribunal to strike out a case because of the correspondence sent by the Claimant.

Background

In A v B, the Claimant (A) who was a doctor for an NHS Trust, brought claims arising from her dismissal on the grounds of misconduct, including unfair dismissal, and sex and religious discrimination. A had been having an intimate relationship with a colleague during the course of her employment, which had broken down.

In the course of the proceedings, A sent a number of emails to that colleague and to another colleague, who were both potential witnesses, and to the solicitor acting for B. The emails contained accusations of bullying and harassment, as well as intimidation, threatening behaviour, and other unlawful conduct.

Strike out

B applied to strike out A’s claims under the Tribunal’s rules of procedure. At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds:

• that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent has been scandalous, unreasonable or vexatious;
• for non-compliance with an order of the Tribunal;
• that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response.

The Tribunal refused B’s application, as although it found A’s emails to be scandalous, unreasonable and vexatious, it had to consider whether a fair trial was still possible and whether strike out in the whole circumstances was a justified and proportionate response to her behaviour. The Tribunal felt that A should be given the chance to respond to “robust case management” and made orders making it clear to A that there should be no repeat of the previous correspondence sent.

Despite this, A then sent further correspondence of a similar nature . B made a second application for her case to be struck out, and this time the Tribunal agreed that strike out was the correct course of action.

The appeal

A appealed to the Employment Appeal Tribunal, who found that two of her emails were sent before she received the Tribunal’s order, and so these should not have been taken into account. However, the decision to strike out the case was upheld based on the other emails, as A had breached the orders aimed at controlling her correspondence, the emails were intimidatory, and there was no indication that she would act with restraint in future.

How useful is this judgment?

Employers will be reassured by the decision made here and it is useful in providing a clear warning to Claimants to act reasonably. However, this was a fairly extreme example of the type of behaviour that can be demonstrated by some litigants in person. In many cases, the conduct will not be sufficient to lead to a successful strike out application. Employers will continue to be upset, frustrated and even angered by claims made against them but it is best to try and avoid becoming too emotionally involved, as that is unlikely to assist the employer’s case. Instructing a solicitor can take the pressure off an employer and our team are highly experienced in acting in Employment Tribunal cases, including many involving litigants in person.