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Claimant's unreasonable conduct did not make it impossible to achieve a fair trial

on Friday, 16 February 2024.

The Employment Appeal Tribunal (EAT) has found that the Tribunal was wrong to strike out a claim on the basis that the claimant's conduct made a fair trial impossible.


In the case of Hargreaves v Evolve Housing & Support and another, the claimant brought claims of discrimination, victimisation and unfair dismissal against his former employer and one of its board members. The Claimant had openly said that he would stop at nothing until his former employer's business, and the political career of the second respondent, was destroyed or seriously damaged.

The respondents made an application for the claims to be struck out, arguing that the claimant was conducting the proceedings in a "scandalous, unreasonable or vexatious" manner, such that it was no longer possible to have a fair hearing. Whilst it is rare for strike out applications to succeed, the Tribunal upheld the respondents' application. It found that due to the claimant's behaviour, the respondents' witnesses would feel intimidated. The Tribunal also remarked that the respondents were in a lose-lose situation as regardless of the outcome of the Tribunal proceedings, the claimant had indicated that he would continue his campaign against the respondents.

Having found that a fair trial was not possible due to the claimant's conduct, the Tribunal also concluded that there was no lesser sanction that could fix the issue. The Tribunal struck out the claim and the claimant appealed to the EAT.

EAT decision

The EAT allowed the appeal and remitted the claim for an open preliminary hearing in order to determine how it should proceed to a full hearing. The claimant had put forward five grounds of appeal, only one of which was successful. That ground was that the Tribunal had erred in finding that a fair trial was not possible.

On this ground, the EAT found that the respondents had submitted no evidence to support the Tribunal's finding that witnesses would be fearful of giving evidence or intimidated by the claimant. The Tribunal had based this finding on its own assumption rather than on the respondents' evidence. The EAT also remarked that the fact that no alternative order would have been appropriate did not mean that strike out was warranted.

Learning points

This decision underlines how difficult it is for a claim to be struck out, even in the face of seemingly extreme conduct from the claimant. Given the draconian nature of the strike out power, it must be used sparingly. Generally speaking, respondents may be more likely to succeed in applications for lesser sanctions such as unless orders and deposit orders.

This claim also highlights that for a strike out application on these grounds to succeed, the claimant's conduct must be shown to be scandalous, unreasonable or vexatious, but also the result of the conduct must also be that there could not be a fair trial and that it would be proportionate to strike out the claim. In this case the Tribunal had jumped from its findings about the claimant's conduct to its conclusions in respect of the consequences. Having based its decision on assumptions rather than evidence, the decision could not stand.

For more information or advice, please contact Kathy Halliday in our Employment team on 0121 227 3711, or complete the form below.

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