To strike out or not to strike out?

Brief facts – Case of A v B

The Claimant (doctor for NHS Trust) brought claims arising from her dismissal: unfair dismissal, sex, and religious discrimination. Whilst in employment with the Respondent, the Claimant was in an intimate relationship with a senior colleague in the business which had broken down. The Claimant had sent several emails to that colleague, another colleague in the Trust, and the Trust’s solicitor. The content of such emails included accusations of bullying and harassment, intimidation, threatening behaviour, and other unlawful or unprofessional conduct during the course of proceedings.

Respondent’s applications for the strikeout

On the Respondent’s first application, the Employment Tribunal (ET) made several orders to help restrict and control the Claimant’s correspondence. Whilst it was accepted that the content of such emails was inappropriate, the ET still felt that a fair hearing was possible in the circumstances.

The Respondent proceeded to make a second application. The ET struck out the claims on the second occasion on the basis that the emails were “scandalous, unreasonable and vexatious” with the purpose and intent to intimidate the witnesses in the case which were in breach of the previous orders that the ET had made. This, therefore, made a fair hearing unachievable in the circumstances.

EAT appeal

The Claimant stated she was not aware of the terms of the Order when she had sent the emails. However, the EAT took this into account and decided to strike out the Claimant’s case as she had breached earlier orders made by the ET to try and help limit and control her correspondence with other parties, which the Claimant was aware of.

Summary

This EAT decision sets out a clear precedent and warning that Claimants in litigation must act reasonably which is particularly useful for employers. This case demonstrates that such applications can be successful when dealing with Claimants that are vexatious and abusive in nature. Any conduct from Claimants that are seen to be intimidating witnesses during proceedings could increase the risk of Claimants claims being struck out.