Patrick Henry McAuley v Ethigen Ltd

Before striking out a claim for the way proceedings were conducted, a tribunal must give the party a reasonable opportunity to make representations. Whether that opportunity was adequate is fact-sensitive. When conduct is the basis for strike-out, the tribunal may consider correspondence the party sent during the proceedings, even if it is not in the hearing bundle, provided the party had an adequate chance to address it. Considering that correspondence is an assessment of litigation conduct, not an independent investigation into the underlying dispute. The EAT found no procedural error and dismissed the appeal.

Mr McAuley was an agency worker assigned to work at Ethigen Ltd. After his assignment ended, he brought complaints before the Employment Tribunal (ET), including a detriment complaint under the Agency Workers Regulations 2010. The ET found it lacked jurisdiction over two complaints and struck out the detriment complaint under rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 because of the way Mr McAuley had conducted the proceedings.

After a rule 3(10) hearing, one ground of appeal proceeded: whether the ET, by relying on Mr McAuley’s correspondence—which was not in the hearing bundle and was said not to have been put to him—denied him a reasonable opportunity to make representations under rule 37(2).

The appeal was dismissed. The only permitted ground concerned whether Mr McAuley had a reasonable opportunity to address the correspondence on which the ET relied in striking out his detriment complaint.

1. Opportunity to make representations. Under rule 37(2) of the Employment Tribunals Rules of Procedure 2013, whether a party had a reasonable opportunity to address a strike-out application is a fact-sensitive, case-by-case question. The inquiry is whether the party had an adequate chance to respond. The application based on conduct had been identified in advance; the correspondence was an obvious part of that conduct; Mr McAuley had written it; the ET indicated it would consider it; and he was asked about its contents and responded. He therefore had an adequate opportunity: Staffordshire County Council v Lowers [2024] EAT 110; Oyebisi v Hyde Housing Association Ltd [2024] EAT 124.
2. Correspondence and judicial investigation. A party’s correspondence with the ET forms part of that party’s conduct of the proceedings. When determining a conduct-based strike-out application, the ET may consider such correspondence on its file. There is no general requirement for it to be included in the hearing bundle. The judge was assessing the conduct complained of, not investigating evidence about the underlying dispute. The principles in Thompson v Glasgow Corporation [1962] SC (HL) 36 and East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293 against a tribunal conducting its own research were not engaged.
3. Public hearing and privacy. The judicial consideration of correspondence does not, by itself, make a public hearing private. Public access to court records under freedom of information legislation is distinct from a tribunal’s consideration of material in the course of litigation.
4. Further observations. The remaining arguments were outside the permitted ground of appeal. The EAT nevertheless observed that the opportunity to make representations under rule 37(2) is distinct from a chance to withdraw an outburst or improve conduct. It distinguished Bennett v London Borough of Southwark [2002] IRLR 407, where the outburst was made in the heat of the moment, from Mr McAuley’s sustained correspondence and conduct at the hearing. The EAT also made obiter observations about the meanings of scandalous, vexatious and unreasonable conduct, and about the ET’s alternative conclusion under rule 37(1)(a); it did not decide whether that alternative conclusion could independently defeat the appeal.

The ET’s decision to strike out the complaint under rule 37(1)(b) disclosed no error of law.

• Employment Appeal Tribunal — On the single permitted ground, dismissed the appeal and held that the ET’s strike-out decision disclosed no error of law: [2026] EAT 126 .
• Employment Tribunal — At a preliminary hearing on 21 and 22 August 2023, held that it lacked jurisdiction over two complaints and struck out the detriment complaint under rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013.