Fariba v Pfizer Ltd & Ors

An employment tribunal may strike out a claim for non-compliance with orders or scandalous, unreasonable or vexatious conduct where the claimant’s conduct demonstrates that the case cannot be brought to a fair and orderly trial. Breach of orders or offensive correspondence alone is insufficient. The tribunal must exercise its discretion, considering whether the claimant is willing and able to take the steps necessary for a fair hearing and whether any lesser case-management measure would suffice.

The claimant brought claims against Pfizer and three individual respondents alleging whistleblowing detriment and dismissal, race discrimination and disability discrimination. The Employment Tribunal made repeated orders requiring further particulars, disclosure and other preparatory steps.

The claimant failed to comply, pursued collateral complaints and proceedings, and made extensive allegations against the respondents, their legal representatives and the tribunal. At a pre-hearing review on 10 March 2010, Employment Judge Baron struck out the claims under rule 18(7)(c) and (e) of the Employment Tribunal Rules of Procedure and ordered payment of the respondents’ costs. The claimant appealed.

1. Appeal against striking out dismissed. The Employment Tribunal was entitled to conclude that the claimant was in deliberate and persistent breach of orders requiring the basic particulars of her claims, disclosure and information concerning allegedly missing documents. It was also entitled to find that the manner in which she conducted the proceedings was scandalous and unreasonable, and in at least one respect vexatious.
2. The decisive issue was the exercise of discretion. It was not enough merely to establish breach of orders or unreasonable conduct. The relevant question was whether the claimant’s conduct showed that she was unable or unwilling to take the steps necessary to bring the claim to trial. The tribunal was entitled to conclude that the claimant’s focus was on collateral allegations, stays and threatened proceedings, rather than preparing the employment claims for determination.
3. The defects in pleading were material because the claim was narrative rather than analytical. A claimant should identify the statutory basis of each claim, the acts or omissions said to be unlawful and, in a whistleblowing claim, the protected disclosures and resulting detriments. The failure to provide such analysis was not necessarily alone sufficient to justify striking out, but it materially reinforced the conclusion that a fair trial was not possible.
4. The absence of an unless order did not prevent striking out. The tribunal had good reasons to avoid an unless order where it considered that satellite litigation would result and the claimant had shown no willingness to comply.
5. The appeal concerning costs was not determined. Judgment on that aspect was deferred pending the Court of Appeal’s decision in Barnsley Metropolitan Borough Council v Yerrakalva.

• Employment Tribunal: Employment Judge Baron, sitting at a pre-hearing review on 10 March 2010, struck out the claims and ordered the claimant to pay the respondents’ costs, to be assessed in the County Court.
• Employment Appeal Tribunal: The appeal against striking out was dismissed. Judgment on the costs appeal was deferred.