Under the Employment Tribunal Rules, a tribunal has the right to strike out all or part of a claim if it believes that a Claimant has acted unreasonably, scandalously or vexatiously in bringing their claim or where they assess that the case has no reasonable prospects of success. Successful strike out applications are rare; the threshold is high because a tribunal needs to be properly satisfied that it can justify such draconian action.
The test the tribunal considers is (1) whether the conduct complained of is indeed unreasonable, scandalous and/or vexatious, (2) whether as a result of that conduct a fair trial is not possible and (3) whether strike out is a proportionate sanction. If the tribunal can order a lesser sanction, then a claim should not be struck out. A tribunal could for example require the Claimant to pay a deposit order of up to £1,000 for each claim it pursues before the Claimant is permitted to pursue that claim further.
In Hargreaves v Evolve Housing Support and McGrath, the Claimant, Rev Dr Hargreaves was employed as a Supported Housing Night Concierge Worker by a charitable housing organisation which supports homeless and vulnerable people in London. He was also an unpaid Board member. He was summarily dismissed for gross misconduct. He brought claims for unfair dismissal and racial discrimination, harassment and victimisation.
The tribunal struck out his case because it found that the Claimant’s conduct of the proceedings had been scandalous, vexatious and unreasonable such that the intimidation that the Claimant might unleash on the Respondents’ witnesses would not allow a fair trial. The tribunal found that the Claimant had “create[d] a damning narrative of a racist, abusive organisation: Evolve Housing + Support the unregulated housing organisation that leads young people into harm’s way, including murder, whilst raking in millions from the taxpayer”, and that he had threatened the Respondents with a “relentless campaign through protected legal actions continuing for years and high profile media political campaigning in forthcoming local and national elections to change the narrative to what he wanted it to be”.
The Tribunal found that the Claimant had sought to weaponise the tribunal case to achieve his vendetta against the Respondents and inflict as much damage as possible. The Tribunal concluded that strike out was the only option because a lesser sanction could not turn this case back to being a fair trial. While this did affect the Claimant’s Article 6 right to a fair trial and his Article 10 rights to freedom of expression, that those rights are not absolute. He could not use his freedom of expression as a defence and use the proceedings to propagate his political campaign.
The Employment Appeal Tribunal (EAT) considered whether the strike out was a proportionate sanction. The EAT found that the tribunal had relied on its own assumption that the Respondents’ witnesses would be scared when giving evidence when concluding a fair trial was not possible. The tribunal had not actually heard evidence from any of the witnesses who it was alleged would be intimidated by the Claimant. The EAT found this was an error of principle, or perverse on the material facts of the case. It concluded that the fact that the tribunal had held that there was no alternative order was merited, was not sufficient to warrant the draconian sanction of strike out and as a result it became simply a punitive measure – which was not correct. The EAT reinstated the Claimant’s claims. The case has been remitted to a tribunal for a fresh hearing.
This case illustrates the very high hurdle that is strike out of claims without hearing the evidence. This blog was written by Anita Vadgama, Partner for didlaw.
