Although striking out a claim should always be a last resort for tribunals, the EAT in Smith v Tesco Stores held that the tribunal was correct to strike out Mr Smith’s claims as he had repeatedly refused to cooperate with Tesco and the employment tribunal to such an extent that a fair trial was no longer possible.
Mr Smith, who had worked as a customer assistant for Tesco from September 2008, was dismissed in September 2018 following an altercation with a store manager when shopping in his own time. This resulted in the police being called, after which he was arrested. He was subsequently dismissed.
He lodged claims of unfair dismissal, race and disability discrimination spanning the period from 2014 to his dismissal in 2018, among other things. He attached a fairly lengthy document entitled “Background and Details of My Claim” to his application form. Although some of his complaints were reasonably cogent, others were not.
After a preliminary hearing to identify the core issues, a second case management hearing was scheduled for a couple of months later. In the interim, however, Mr Smith added a plethora of additional allegations and complaints to which Tesco objected. He then added further documentation in response to those objections, along with other amendments to the schedule of allegations.
At a third hearing, the judge attempted to finalise the list of issues and set a hearing date. She also recommended that Mr Smith instruct a pro bono lawyer, but he decided that he was better off representing himself. A date for a final preliminary hearing was then set, at which point Mr Smith submitted an application to amend his claim, which was refused at a fourth hearing.
Tesco then sent Mr Smith a draft list of issues to which he objected but could not specify which parts he objected to or why. Not only did he fail to submit the information needed to complete the draft list of issues, he then submitted an application to add further claims, which was again refused. At the hearing to decide his claim, Mr Smith ignored the judge and instead made comments to the clerk about her, as well as Tesco’s representative.
Relying on the decision in Bolch v Chipman, the judge struck out his entire claim because she believed that a fair trial was no longer possible. Not only had Mr Smith conducted himself in a way that was “scandalous, unreasonable or vexatious”, contrary to rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, he had also not complied with rule 2 which requires the parties to “cooperate generally with each other and with the tribunal.”
Mr Smith appealed, arguing that the tribunal was wrong in law to conclude that a fair trial was no longer possible.
Bearing in mind that the courts have repeatedly emphasised claims should not be struck out if there is a lesser sanction that might be more appropriate, the EAT held that tribunals must ask themselves the following three questions before going ahead:
- Have the proceedings been conducted in a way which is scandalous, unreasonable or vexatious?
- If yes, is a fair trial still possible?
- If not, would a strike out be a proportionate response to the conduct in question?
Dismissing the appeal, the EAT held that the judge had correctly concluded that a fair trial was no longer possible in this case because Mr Smith had repeatedly refused to cooperate with Tesco and the employment tribunal.
Having said that, it emphasised that the judgment should not be seen as a green light for routinely striking out cases that are difficult to manage. On the contrary, it said that “strike out is a last resort, not a short cut”.
The above claim, although an extreme example, is a helpful reminder of:
- The benefit of setting out clear and concise claims at the start of a case,
- The importance of complying with tribunal orders, and
- The need to be selective and considered when making applications to amend a claim.