Background:

The claimant worked as a customer assistant for the respondent from 2008 until 2018.  The claimant asserted that he was dismissed when he was shopping in the store and had an altercation with a store manager resulting in the claimant being arrested by the police.   The claimant commenced his claim for unfair dismissal, race discrimination, disability discrimination and other related claims.  The Tribunal outlined that some complaints were clear whereas others were not.

The difficulties arose during the preliminary hearings when the claimant sought to add a range of further allegations.  The Judge had requested that the respondent assist as well as recommending that the claimant seek assistance from a pro-bono barrister.  The Judge sought to fix the case for hearing with one final preliminary hearing to ensure that the case was ready.   The claimant then sought to add further arguments and claims at this late point.  The amendments were refused as well as the respondent’s argument for strike out.

The claimant failed to comply with orders relating to the draft list of issues.  Indeed, the claimant stated he had objections to the list provided by the respondent but did not elaborate upon those objections.  The claimant, again, submitted an application to amend the claim to add claims of victimisation and 13 headings of ‘prohibited conduct’.  No explanation was given for the further failure to provide the list of issues and the Judge struck the claim out.  This was on the basis that the conduct of the claimant was ‘scandalous, unreasonable or vexatious’.  As a result, it was not in accordance with the overriding objective.

Outcome:

The claimant appealed to the EAT following reconsideration.  The claimant refused to provide a skeleton argument or produce a bundle.   He asserted that the EAT Judges and staff were acting in a way to cause a miscarriage of justice to him.   The claimant did not attend the EAT hearing.  The respondent sought to strike it out on the basis of no skeleton argument but that was refused with the Tribunal stating it would be disproportionate.

The basis of the strike out, as outlined by the Tribunal and confirmed by the EAT, was not related to the merits of the case but rather that the behaviour of the claimant was vexatious and that a fair trial was no longer possible.   The EAT agreed with that and affirmed the decision.

Practical Guidance for Employers:

The guidance from this case comes less from the ‘decision’ but from the general remarks from the EAT.  It was noted that a strike out is a last resort and not a short cut in a case which is difficult to manage.  Instead, it has to be shown that the relatively high threshold of stating that it is no longer possible to achieve a fair hearing for a strike out to be used.  It was on this basis that the strike out was allowed as the case was exceptional due to the claimant’s failure to cooperate with either the respondent or the Tribunal.  In the words of the EAT ‘he robbed himself of that opportunity’.  
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-t-smith-v-tesco-stores-ltd-2023-eat-11