Article / 13 Jul 2021

How far is too far in relation to strike out?

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Gateley Legal

Conduct of litigation in the employment tribunal is governed by the Employment Tribunal Rules of Procedure. Sometimes parties choose to deviate from these defined rules, and on occasion, a parties’ conduct of their case is so bad it is deemed “scandalous, unreasonable or vexatious.”

The case of A -v- B demonstrates that the ultimate consequence of a claimant sending correspondence deemed to be scandalous, unreasonable or vexatious is that their claim will be “struck out” by the tribunal and consequentially dismissed. 

Background

  • The claimant, in this case, was a practising Hindu and a speciality doctor who had been employed by an NHS Trust for 8 years prior to her dismissal. 
  • During her employment, she entered into a sexual relationship with a more senior married Consultant, Mr. C who was also employed by the NHS Trust. Due to her religious beliefs, and despite Mr. C already being married, the claimant considered herself married to Mr. C. 
  • The relationship turned sour when Mr. C entered into a sexual relationship with another colleague, SS, who was a junior doctor. 
  • It was alleged that the claimant consequentially assaulted SS, however, she was acquitted of any criminal assault charges. 
  • Nevertheless, disciplinary proceedings were taken by the NHS Trust and the claimant was dismissed on 17 August 2016. 
  • The claimant brought proceedings against the NHS Trust for Unfair Dismissal and also for sex and religious discrimination.  

The claimant’s conduct of the case

  • The claimant’s claim proceeded very slowly due to the fraught relationship between the parties. The claimant, who represented herself for the most part, entered into prolific correspondence with the tribunal, with the legal team engaged by the NHS Trust and also directly with Mr. C and with his wife. She also went as far as to travel overseas to visit Mr. C’s mother and sister in their home, whom she had not previously met, in order to attempt to discuss her case.  
  • The typical nature of the claimant’s written correspondence was aggressive and accusatory, accusing the tribunal and the NHS Trust’s legal team of unfounded sexual harassment, bullying and stalking. There was also intimidatory emails sent to SS and a suggestion that the claimant would visit the home of the Solicitor acting for the NHS Trust to protest in the street about his conduct of the case. 

As a result of this, the NHS Trust made two applications to strike out the claimant’s claim. 

Rules around strike out

An order for strike out is hard to achieve as it is often seen as a last resort, particularly where allegations of discrimination have been raised by a claimant, and will only be granted in cases where:

  • A claim is scandalous or vexatious or has no reasonable grounds of success;
  • The manner in which the proceedings have been conducted by, or on behalf of the claimant or Respondent, has been scandalous, unreasonable or vexatious;
  • The party has not complied with any one of the tribunal rules or with an order of the tribunal;
  • The case has been actively pursued; and/or 
  • It is no longer possible to have a fair hearing. 

The strike out applications

It took two attempts for the strike out application to succeed. The first resulted only in an order being made to direct the claimant on how she should conduct the case going forward. Whilst it had clearly been demonstrated that there had been scandalous, unreasonable and vexatious conduct on the part of the claimant due to her communications containing personal slurs, threats and intemperate language, it was still considered that a fair trial was possible and that to strikeout the claim in the whole circumstances was not justified as a proportionate response. 

Unfortunately, though the order did not stop the inappropriate emails which led to a further application for strike out and this time it succeeded. It was noted that the claimant had not desisted or even moderated her conduct as she was ordered to do, and there was no indication whatsoever that she would do so in the future should the claim be allowed to proceed. The claim was duly struck out.

Key points

Striking out a claim means that it can no longer be pursued by the claimant regardless of whether there was substance to the allegations. An order to strike out a claim will therefore not be made lightly and, particularly in discrimination claims, it will be regarded as a last resort.  

However this decision highlights that there are steps which can be taken where a party is guilty of intimidatory or otherwise “scandalous, unreasonable or vexatious conduct” and ultimately, the Employment tribunal may make an order preventing the claimant from pursuing their claim at all. 

It should also be noted that the same standards of conduct will apply to both parties. Where a Respondent is guilty of sending communications of this nature they may also have their Response struck out and lose their ability to defend the allegations being made. 

The key question that has to be answered before the order is made is whether the conduct in question means it is no longer possible to have a fair hearing.

Would you like more information regarding the procedure for striking out a claim?

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