The regulations governing the management of claims state that tribunals can strike them out in certain circumstances. In A v B, the Employment Appeal Tribunal (EAT) held that A’s claims should be struck out on the basis that she had acted in a way that was “scandalous, unreasonable or vexatious”. She had also failed to comply with the orders of the tribunal to the extent that it was impossible to have a fair trial.
A was employed as a speciality doctor by an NHS Trust, referred to as B. She is Indian and an observant Hindu. During her employment, she had a sexual relationship with a senior male colleague known as C. She regarded herself as being married to C although he was married to someone else. According to her perspective on marriage, she had to treat C “as a god” and obey his wishes.
After a while, A started to suspect that C was having a sexual relationship with a junior doctor at the hospital referred to as SS. A was prosecuted for, but acquitted of, assault against SS. She then made an allegation of rape against C, who was investigated by the police but not prosecuted. The trust then started disciplinary proceedings against A and she was dismissed in August 2016.
In December 2016, she lodged claims for unfair dismissal as well as sex and religious discrimination. A then proceeded to send a series of emails to SS accusing SS of bullying and harassing her as well as demanding certain documents. She also emailed the trust’s solicitor, Mr Gunn, claiming that C and others had been involved in the manslaughter of multiple patients. She continued to email Mr Gunn, accusing him of sexual abuse and harassment. The trust applied to strike out her claims.
Despite A’s “scandalous, vexatious and unreasonable conduct” and the serious nature of the allegations she had made about SS and Mr Gunn, the tribunal decided it should be cautious in striking out a claim involving an allegation of race discrimination.
It therefore refused the request but ordered A to stop repeating the allegations; to ensure that any future correspondence with Mr Gunn and/or other representatives of the trust was polite and professional; and not to contact any witnesses until a witness list had been agreed. The judge also made clear that “no further behaviour of this sort will be tolerated”. A received the judgment on 23 January 2019.
However, A had already emailed C on 12 and 13 January 2019, telling him that she had decided to add his mother, sister and wife to the witness list. In addition, she emailed Mr Gunn at the end of January and beginning of February, repeating her allegations of bullying and harassment.
The trust made a further application to strike out her claim. This time the tribunal agreed with the request on the basis that A had ignored warnings about her conduct, had intimidated witnesses and had breached orders set down by the tribunal, making a fair trial impossible.
The EAT first noted that it was not aware of any rule that normally prevented a claimant from contacting a witness directly or that required the witness to be contacted through the employer.
It then went on to hold that the tribunal should not have taken into account the emails sent by A to C on 12 and 13 January 2019 as these pre-dated the judgment being sent out ordering her not to contact any witnesses.
However, A had then sent further emails after receiving the judgment which was in direct breach of the orders, including over how and when witnesses could be contacted. In particular, the order to refrain from repeating allegations which the tribunal considered scandalous, unreasonable and vexatious, and to communicate politely with the trust’s representative.
As there was no evidence that A would act with “appropriate restraint” in future, the EAT concluded that the tribunal was entitled to strike out the claim.