Was it proportionate to strike out an entire claim where the claimant had acted in a manner that was scandalous, unreasonable or vexatious?
Yes, held the EAT in Smith v Tesco Stores.
The Claimant, a Customer Assistant, had an altercation with his store manager, in store but outside work hours. The Police were called. The Claimant brought claims including unfair dismissal, race and disability discrimination.
No fewer than five preliminary hearings took place to try to grapple with the issues in the case. The Claimant continued to add a plethora of claims. He would not cooperate with settling the list of issues and could not explain his repeated non-compliance.
The tribunal, in striking out the claim, relied on Bolch v Chipman, rule 37 of the Employment Tribunal Rules of Procedure and Rule 2, the overriding objective. “The parties shall assist the tribunal. The parties shall cooperate generally with each other and the tribunal.” This is a requirement not a request.
The three questions a tribunal must ask itself in relation to strike out are:
- Has the conduct been scandalous, unreasonable or vexatious?
- Is a fair trial still possible?
- Is there a lesser sanction that is proportionate?
If the replies are yes, no and no then strike out is appropriate. The failed attempts to clarify the issues meant the claims had no reasonable prospects of success.
The EAT made clear that this judgment is not a green light for strike out of difficult claims. “The courts of this country are open to the difficult”. Strike out is a last resort not a short cut.
Thanks to Karen Jackson of didlaw for preparing this case summary.