Striking out a claim: A supermarket scandal

On occasion there may be reason for an Employment Tribunal to strike out a claim.

Sometimes this will be because the judge does not consider the claim to have a reasonable prospect of success, but there are also other reasons.

In the case of Smith v Tesco Stores, the Claimant was dismissed following an altercation with the Store Manager. The incident involved the police being called to the store. The Claimant was subsequently dismissed as a consequence of the altercation.

The Claimant submitted a claim to the Employment Tribunal for unfair dismissal, race discrimination and disability discrimination.

It is usual that, prior to a claim being listed for a final hearing, there is a preliminary hearing. The hearing will identify the issues in the claim which will need to be decided at the final hearing.

The preliminary hearing will also deal with when the final hearing will be held, how many witnesses will be needed and deciding on a timetable for the exchange of documents and preparation of the bundle.

In this case, five preliminary hearings took place, each aimed at trying to identify the issues that would need to be decided.

At each preliminary hearing, the Claimant continued to add further claims to the list. No settled list of issues could be agreed with the Claimant, who also failed to provide an explanation for his failure to agree the issues.

Under the Employment Tribunal Rules of Procedure and Rule 2 of the overing objective, it was the duty of the parties to assist the tribunal. The law states “the parties shall cooperate with each other and the tribunal.”

The EAT was clear that this was not a request, but a requirement. The Claimant, in failing to agree issues and continuing to add claims, was not acting in compliance with this tribunal rule to cooperate.

The EAT struck out the claims of the Claimant. The Tribunal had asked itself the correct questions before taking the decision to strike out the claims of the Claimant, namely:

1) Has the conduct been scandalous, unreasonable or vexatious?

2) Is a fair trial still possible?

3) Is there a lesser sanction that is proportionate?

Given that one preliminary hearing is often enough to identify the issues in the case and timetable the matter for a final hearing, it was reasonable – after five preliminary hearings – for the tribunal to consider the actions of the Claimant unreasonable, to conclude a fair trial was not possible and to determine that no other sanction was likely to work.

There is an option for a judge to require a Claimant to pay a deposit, which can be lost if the claim is subsequently unsuccessful, but in a case where the issues cannot be agreed, despite the efforts of all the parties, strike was deemed proportionate.