PP v GG Limited

A whole-claim strike-out for unreasonable, scandalous or vexatious conduct requires more than an unsuccessful or unfounded application. The tribunal must consider whether the conduct made a fair hearing impossible, or involved deliberate and persistent disregard of required procedural steps, and whether strike-out is a proportionate last resort.

Unfounded allegations will rarely justify a reverse strike-out. Relevant evidence bearing on the party’s basis for making the allegations must be considered. Tribunals should ordinarily use warnings, case management and control of cross-examination before concluding that a fair trial is impossible.

There is a substantial risk of unfairness or apparent bias where a tribunal advises a legally represented party to make a strike-out application against an unrepresented opponent. Whether that risk is realised depends on the ensuing process and reasoning.

The claimant brought whistleblowing detriment and dismissal, victimisation, race discrimination and money claims. At the scheduled final hearing, the respondent had applied in writing to strike out because the claimant had not served a witness statement or complied with directions. The claimant instead made a lengthy application to strike out the response, containing serious allegations concerning the respondent and its representatives.

The Employment Tribunal dismissed the claimant’s application. After the Employment Judge suggested that unfounded allegations might support a strike-out against the claimant, the respondent made a further application. The Tribunal held that the allegations were baseless, rendered a fair trial impossible, and struck out the whole claim.

The claimant appealed on grounds including failure to consider relevant matters, perversity, apparent bias and procedural unfairness.

1. Appeal allowed. The Employment Tribunal’s strike-out decision was set aside and the claim was remitted to the Employment Tribunal on the basis that it had not been struck out.

2. The Tribunal had correctly directed itself that a whole-claim strike-out under rule 37 required anxious consideration. Unreasonable conduct alone was insufficient. Save for limited cases of wilful, deliberate or contumelious disobedience, the Tribunal had to decide whether a fair trial was no longer possible and whether strike-out was proportionate. A failed strike-out application would rarely itself justify a reverse strike-out; dismissal of that application, potentially with costs, would generally be the proportionate response.

3. The Tribunal failed to consider material factors in deciding that the claimant had acted unreasonably. Although the WhatsApp message did not prove on the balance of probabilities that the respondent caused the eviction, it was capable of providing a proper basis for the claimant to make that allegation. The Tribunal also had not resolved whether a potentially important email had been destroyed or fabricated, and should have addressed material said to have been supplied in response to a DSAR.

4. The conclusion that a fair trial was impossible was perverse. The respondent initially regarded the allegations as nonsense and had not sought strike-out on that basis until prompted by the Judge. The Tribunal failed to account for that sequence. Professional representatives will ordinarily be reassured by a determination rejecting unfounded allegations, and tribunals can manage repetition through warnings, rulings and control of cross-examination. The claimant had received no warning and it was perverse to infer, from maintaining a complex application until it had been adjudicated, that she would disregard future directions.

5. The Judge’s suggestion to the represented respondent that it make a new strike-out application was a course best avoided. A tribunal may strike out of its own motion after a fair opportunity for submissions, but should only exceptionally advise a party, particularly a represented party, of a basis for striking out its opponent. Here, that intervention, the claimant’s unrepresented status, refusal of a recording adjustment, and the one-sided reasoning combined to create material procedural unfairness and an appearance of bias under the [2002] AC 357 test.

6. The Tribunal which made the impugned decision, including its panel members, was not to have further involvement. The remitted tribunal was to address capacity and any proper application concerning anonymity, then give directions towards a final hearing.

• Employment Appeal Tribunal: appeal allowed; the whole-claim strike-out was set aside and the claim remitted.
• Employment Tribunal, Reading: dismissed the claimant’s strike-out application and struck out all her claims under rule 37 of the Employment Tribunal Rules of Procedure.