Practice and Procedure
The employment tribunal had struck out a claim under Rule 37(1)(b)(c) and (e) of the 1993 Rules. It concluded that certain email communications from the Claimant to a witness were ‘scandalous, unreasonable and vexatious’ in that they were designed to intimidate the witness, in breach of a prior order from the tribunal and had made a fair trial impossible. On appeal Held (1) that two of the emails upon which the tribunal had based its decision did not provide a proper basis for strike out. The emails had been sent before the Claimant had received the Tribunal judgement which explained that such conduct was unacceptable. The judgement warned the Claimant about her conduct and contained three orders designed to moderate her behaviour. In particular she had been ordered not to repeat certain allegations, to correspond in a polite fashion and to seek the tribunal’s prior approval for any witnesses the claimant proposed to call. While there had been informal warnings previously, the Tribunal should have based its decision on conduct which occurred after the Judgement had been issued and the Tribunal’s position had been made plain. In addition, the intimidatory aspect of the emails was not a sufficiently powerful threat to the fairness of the hearing to justify strike out. Held (2) that strike out was nevertheless appropriate. Further emails sent by the Claimant after she had received the Judgement were in breach of the Tribunal’s orders. In particular they breached the orders which required her to refrain from repeating allegations which the Tribunal considered scandalous, unreasonable and vexatious, and to communicate politely with the Respondent’s representative. In these circumstances the Tribunal was entitled to strike out the claim and no perversity or error of law had been demonstrated. The appeal was refused.
Summers L
[2021] UKEAT 0042 – 19 – 0405
Bailii
England and Wales
Updated: 11 July 2021; Ref: scu.663584
