S Bailey v Aviva Employment Services Ltd

Where a party has conducted proceedings scandalously, vexatiously or unreasonably, strike-out is not automatic. Unless the conduct is so extreme that the party has forfeited the right to be heard, the tribunal must consider whether a fair trial can still be achieved through proportionate case management.

The questions of fair-trial capability and proportionality may overlap. The tribunal should assess the actual impact of the conduct, including whether evidence has been irreparably tainted, and whether a lesser measure can manage the problem consistently with the overriding objective. Fairness also permits regard to delay, costs and resources.

The claimant brought Employment Tribunal claims of race and sex discrimination, victimisation and constructive dismissal after resigning from the respondent’s employment. During a part-heard merits hearing she made repeated, unsupported allegations of corruption, racism and collusion involving the Tribunal, the respondent and its representatives.

The respondent applied to strike out the claims. The Tribunal found the claimant’s conduct scandalous and unreasonable, and initially stated that a fair trial was no longer possible. It nevertheless refused strike-out under Rule 37(1)(b), concluding that the allegations could be rejected as baseless and that the merits hearing could fairly continue. It also refused the claimant’s recusal application.

The claimant appealed only the finding that a fair trial was no longer possible, seeking remission to a different panel. The central issue was whether, read as a whole, the Tribunal had erred in concluding that the proceedings could continue fairly before the existing panel.

1. Appeal dismissed. The live appeal did not challenge the Tribunal’s operative refusal of the respondent’s strike-out application. It challenged a conclusion expressed as part of the Tribunal’s reasoning. Even giving the notice of appeal a generous reading, there was no error of law.

2. Except in the extreme case where litigation conduct is so serious that a party has forfeited the right to be heard, a finding of scandalous, vexatious or unreasonable conduct requires consideration of whether a fair trial remains possible. The Tribunal must also consider proportionate measures short of strike-out. These inquiries are often intertwined: a proposed measure may both mitigate the problem and show that a fair trial remains possible.

3. Fairness is assessed in accordance with the overriding objective. It does not require a tribunal to preserve a theoretical future trial regardless of delay, costs and resources. The material question is whether the conduct has caused irreparable unfairness, including by fundamentally tainting relevant evidence, or can instead be managed fairly.

4. The Tribunal’s reasons had to be read as a whole. Its earlier statement that a fair trial was not possible was a provisional conclusion within its staged analysis under Bolch. Its ultimate conclusion was that the allegations against the Tribunal were unsupported and could fairly be rejected, and that the claimant’s conduct could be addressed, where relevant, in assessing credibility. Unlike cases involving irreparably contaminated evidence, the merits could therefore be fairly resumed and concluded.

5. The claimant’s unarguable challenge to the refusal of recusal was not before the EAT. In any event, the Tribunal’s conclusion that it could continue impartially and fairly was sound.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 109.
• Employment Tribunal: In a reserved judgment promulgated on 19 March 2024, found the claimant’s conduct scandalous and unreasonable but refused the respondent’s strike-out application and refused the claimant’s recusal application. The EAT upheld the substantive effect of those decisions.