Tribunal erred in striking out claim for unreasonable conduct
EAT confirms that striking out a claim must be approached with care, particularly where the claimant is unrepresented.
Background
In PP v GG Ltd, the Employment Appeal Tribunal (EAT) allowed a claimant’s appeal against a tribunal’s decision to strike out her claim. The claimant, who was a litigant in person, had attended a five-day final hearing and opened it with a detailed 25-page application to strike out the respondent’s response. Her application alleged, among other things, unreasonable conduct by the respondent, breaches of tribunal orders, and that it was no longer possible to have a fair trial. It included serious allegations, such as the respondent influencing her eviction from her home.
The tribunal warned the claimant that if her allegations were found to be untrue, her own claim could be struck out. The respondent then applied to strike out the claim on the basis of the claimant’s conduct in bringing her strike-out application. The tribunal found that the claimant’s application was baseless and that her conduct in making such allegations was unreasonable, scandalous and vexatious. It struck out her claim in full.
The EAT’s decision
The EAT allowed the appeal and remitted the case to continue before the tribunal. It found that the tribunal had erred in its approach. Although the tribunal had not expressly said the claim was being struck out because the claimant’s application had failed, its reasoning gave that impression.
A central factor in the tribunal’s decision was its conclusion that the claimant’s allegation about the respondent influencing her eviction had “no proper basis”. However, the EAT held that the tribunal had failed to engage with supporting material relied on by the claimant. That evidence was relevant to the question of whether her conduct met the legal test for unreasonableness; something that must be properly assessed before a strike-out can be justified.
The EAT also found that the tribunal’s conclusion that a fair trial was no longer possible was perverse. In addition, it identified features of the tribunal’s handling of the case that gave rise to an appearance of bias, including an approach that suggested a closed mind and a predisposition towards a particular outcome.
Strike-out powers and procedural fairness
Employment tribunals have discretion to strike out all or part of a claim or response at any stage of proceedings, including where a party has acted unreasonably or is pursuing a case that is an abuse of process. However, striking out a claim is a serious step, particularly when it brings a case to an end without a full hearing, and tribunals must apply that discretion cautiously and proportionately.
Where a party is unrepresented, tribunals are expected to take particular care to ensure that decisions are procedurally fair and that relevant evidence is properly considered before drawing adverse conclusions.
Learning points for employers
This case illustrates the high bar that must be met to justify striking out a claim, particularly on the grounds of unreasonable conduct. Tribunals will expect a clear evidential basis and will scrutinise whether the legal threshold has truly been reached. For employers, it may be more effective to consider alternative procedural tools, such as applying for a deposit order or seeking costs where appropriate, rather than pursuing a strike-out, especially where the claimant is unrepresented. These routes can help manage unmeritorious claims while reducing the risk of procedural unfairness.