Rule 37 of the 2013 ET Rules of Procedure contains the Tribunal’s nuclear deterrent, the power to strike out part or all of a claim or defence. That big red button can only be pushed for a small number of specified reasons including (for today’s purposes) Rule 37(b) that the manner in which proceedings have been conducted has been scandalous, unreasonable, or vexatious; or 37(e) that the Tribunal considers that it is no longer possible to have a fair hearing of the claim. These appear to be separate grounds, such that (b) doesn’t require prejudice to a fair hearing while (e) does. However, established case law has ruled that (e) is in fact a pre-requisite of a strike out for almost any reason.

Hargreaves -v- Evolve Housing and Another is a stark and recent example of this principle in action. Hargreaves was summarily dismissed by Evolve for gross misconduct in 2021, did not take that in the spirit intended and started Employment Tribunal proceedings. We know little of the detailed merits of those claims because the ET struck him out even before he had got to a hearing.

Quite a punchy move, you might think. But then you see how Hargreaves had behaved in correspondence. Finding without hesitation that his conduct had indeed been scandalous, vexatious and unreasonable, the ET’s judgement is littered with assertions and threats made by him of the sort which surely no employer should have to put up with, even in the challenging context of an unrepresented litigant in contested proceedings. As a taster only, Hargreaves had made settlement demands which went far beyond any realistic entitlement even if he won all of his claims, and to support those, had said that he would “create a damning narrative of racist abusive organisation…leading young people into harm’s way, including murder…” and that “that narrative would be repeated and repeated until it is the only narrative that anyone registers”. The ET found in terms that Hargreaves’ intention in bringing the proceedings was “damaging or destroying the business of [Evolve] and the political career of [the other Respondent] and generally inflicting as much damage as he possibly can….his intent is to vilify and publicly humiliate the respondent” and that he had no genuine interest in settling his claims.

With that finding of scandalous, vexatious and unreasonable behaviour under its belt, the Employment Tribunal had turned to the question of whether this would prevent a fair trial and had concluded that it would. Ordinary threats of negative publicity would not make a fair trial impossible, but Hargreaves had made it clear that he would pursue anyone who gave evidence he didn’t agree with (and wouldn’t mess about — he was already seeking a perjury prosecution of one particular witness whose testimony in other proceedings he wasn’t happy with). In addition, the ET decided that the Respondents would not achieve any finality by the proceedings, since (win or lose) Hargreaves would on his own avowal keep battering away until he got what he wanted (damage to others), not being a remedy the ET could award. Essentially, concluded the Tribunal, Hargreaves would “seek to usurp the trial and essentially use it as a means for his personal vendetta against the respondents and as a platform to espouse his political views”. It would no longer be a trial of Hargreaves’ legal complaints, but “a set stage for a show trial of the respondents… under a veneer of the respectability of the judicial process and exposing the respondents and their witnesses to further vindictive actions by [him]”. Overall, if ever there was a Claimant who shouldn’t be allowed to proceed, this was surely the man. On that basis, Hargreaves was struck out.

On his appeal, the EAT upheld without a murmur the ET’s conclusion that Hargreaves had behaved abysmally, but was not convinced that this would prevent a fair trial. In particular, the Respondents’ stated fear of witness intimidation in or after the trial had not been established, and there was no direct evidence that any of the witnesses would feel inhibited from attending the hearing or giving full and accurate testimony. If Hargreaves did harass them subsequently, said the EAT, then the law would provide separate remedies. In addition, the Tribunal’s inability to think of any other way of controlling him did not mean that the strike-out thereby became appropriate. With evident reluctance, the EAT therefore found itself obliged to overturn the strike-out and restore Hargreaves’ claims. These are yet to be heard.

Therefore the moral of the story is that if as either claimant or respondent you are to use even the most egregious misconduct in the conduct of Employment Tribunal as the grounds for a strike-out application, the burden will be on you to show why it prevents a fair trial. It is not enough simply to present the ET with evidence of clearly unacceptable behaviours. It will necessarily take a reasonably robust view of this given the public interest in having cases heard, so your arguments will need to be pretty potent and (unlike here) fully evidenced. It may often be sensible to approach the conduct initially through seeking lesser sanctions (costs, unless orders, etc), since that may lead more rapidly to the ET concluding that the conduct in question won’t stop, even in the face of its instructions, and that it is then out of other options to procure a fair hearing.