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Was an employment tribunal right to strike-out a claim on the basis that the Claimant’s conduct meant that a fair trial was not possible?

No, held the EAT, on the facts of Hargreaves v Evolve Housing & Support and another.

The Claimant brought various claims against the Respondents. In correspondence, he made it clear that he wished to weaponise the tribunal proceedings to cause as much damage to the Respondents as he could.

The tribunal struck-out the claim on the basis that the Claimant had conducted the proceedings in a scandalous, unreasonable or vexatious manner, such that there could not be a fair trial.

The Claimant appealed the strike-out to the EAT who overturned the tribunal’s decision, re-instated the claim and remitted it to the tribunal. The EAT pointed out that, to order a strike-out in this case it was necessary to establish:

1. that the conduct complained of in the proceedings was scandalous, unreasonable or vexatious,

2. that the result of that conduct was that there could not be a fair trial; and

3. that the imposition of the strike-out sanction was proportionate. If a lesser sanction was consistent with a fair trial, then the strike-out should not be ordered.

The tribunal had relied upon its own assumption that witnesses would be scared when giving evidence in concluding that a fair trial was not possible. This, found the EAT, was an error of principle, or perverse on the material with which it had been provided. The fact that no alternative order was appropriate did not mean that strike-out was.