EAT confirms wider scope for considering conduct in strike-out applications

Background

In McAuley v Ethigen Ltd, the claimant was an agency worker whose assignment was terminated after 13 days. He brought complaints to the Employment Tribunal. Two were dismissed and the remaining complaint for detrimental treatment under the Agency Workers Regulations 2010 was struck out on the ground that the claimant had conducted proceedings in a scandalous, unreasonable or vexatious manner.

The strike out was based on the claimant's extensive correspondence with the tribunal, which contained unfounded accusations of racism, fascism and misconduct directed at the presiding judge, the respondent's representative and the judiciary. The claimant also repeatedly misrepresented what others had said.

The claimant appealed to the Employment Appeal Tribunal (EAT), arguing that the tribunal had relied on correspondence not in the hearing bundle and not formally put to him, depriving him of a reasonable opportunity to make representations.

EAT decision

The EAT dismissed the appeal. It held that when considering a strike out application based on conduct, the tribunal would inevitably consider the claimant's correspondence. The tribunal was not investigating facts outside the record but evaluating the very conduct the application required it to assess. Where conduct merits sanction, tribunals will routinely consider documents already on their file.

The EAT rejected the claimant's assertion that his correspondence with the tribunal attracted a reasonable expectation of privacy.

On the question of whether the claimant had been given a reasonable opportunity to make representations, the EAT held that it could not have surprised the claimant that the tribunal would consider his correspondence at a hearing convened in part to address his conduct. The claimant was the author of every email, was aware the strike out application proceeded on that basis and was questioned about the correspondence during the hearing. The omission of the correspondence from the hearing bundle did not materially prejudice him, and he had an adequate opportunity to make submissions at the hearing.

The claimant argued that he should have been given a chance to improve his behaviour before strike out. The EAT rejected this, distinguishing case law concerning a single intemperate outburst. The claimant's conduct was a sustained pattern of abusive correspondence over several months, and when asked whether he considered it appropriate, he confirmed he did. The tribunal was entitled to conclude his behaviour would not improve.

Learning points for employers

Where employers or their representatives face abusive or intemperate correspondence in tribunal proceedings, they should record this conduct and raise it with the tribunal at the earliest opportunity. Any strike out application should clearly identify the behaviour relied upon.

A tribunal considering a strike out application may examine correspondence on its own file without it being in the hearing bundle. However, the party whose conduct is in question must be given a reasonable opportunity to respond.

The case also illustrates the distinction between a one-off outburst and a sustained pattern of abusive behaviour. A single intemperate comment may warrant a warning or an opportunity to withdraw, but a prolonged course of conduct involving unfounded allegations and repeated misrepresentation is more likely to support a finding that a fair trial is no longer possible.

For more information or advice, please get in touch with Matt Verrier from our Employment team.