Case law | Mr T Smith v Tesco Stores Ltd

EAT 10 February 2023

• A strike out of an ET claim or defence is often sought and seldom granted. What is ‘unreasonable’ behaviour?
• Is this a way to resolve my claim?

Mr Smith was dismissed after ten years from his job as a customer assistant at Tesco. While shopping in his own time in the store, he was involved in an altercation with his store manager, an altercation that became physical. 

There were further allegations of abuse towards a customer. The police were called. 

He made an employment tribunal claim in November 2018 alleging unfair dismissal, race, and disability discrimination and unpaid monies. The claim was lengthy, and included allegations of discrimination dating back at least four years. 

At a preliminary case management hearing the judge drew up a list of issues and table of facts and listed a second hearing to consider this further and to list a final hearing.

At this second preliminary hearing, the claimant added some further details and sought to amend his claim, including reinstating complaints he had previously agreed with the judge could be omitted. He submitted several additional lengthy documents. 

A third preliminary hearing was listed and the judge recommended that the claimant take legal advice. He declined on the basis that he did not think this would be in his interests. 

At the third hearing, the judge reassured the claimant that confining and defining the issues did not prevent him presenting evidence and further detail in due course. 

She declined the respondent’s request to list a further hearing to determine whether any of his claims should be dismissed as out of time or lacking reasonable prospects of success but listed a further brief preliminary hearing for shortly before the trial to ensure both parties were ready.

This was not to be. The fourth preliminary hearing had to be converted to consider the claimant’s application to amend his claim and add another disability. The Respondent sought to have all claims struck out. The tribunal refused. The claimant wanted to add two more claims. These were refused also. The claimant continued to challenge the List of Issues but could not explain why. He asked for the opportunity to present further and better particulars.

Space precludes setting out here the entire sequence of events, but the claimant continued to add claims and seek amendments, despite the Order precluding him from doing so. Some of his claims such as indirect harassment did not exist in law.

A fifth and final preliminary hearing was heard on 17 March 2021. It was originally listed as an in person hearing but converted to a hybrid hearing due to covid concerns and the claimant’s preference for an in-person hearing. 

The claimant attended the tribunal, at the wrong time, and persisted in addressing only the clerk, speaking over and ignoring the judge. He made comments about the judge and the respondent to the clerk. The judge, unsurprisingly, found this to be unreasonable and discourteous to the tribunal, especially since the claimant had attended four previous hearings and knew what was expected. 

The claimant attended the tribunal, at the wrong time, and persisted in addressing only the clerk, speaking over and ignoring the judge. He made comments about the judge and the respondent to the clerk. The judge, unsurprisingly, found this to be unreasonable and discourteous to the tribunal, especially since the claimant had attended four previous hearings and knew what was expected. 

It was at this point the claim was struck out. The claimant’s conduct had been ‘scandalous, unreasonable or vexatious’ and it was ‘no longer possible to have a fair hearing’: In summary, the best attempts of both the respondent and the tribunal to deal with case had been frustrated and there was no suggestion that this would improve in the future should the case continue.

The claimant did not give up. He sought a reconsideration of the strike out judgment but notably did not ask for a final chance but rather accused the tribunal of trying to trick him. He suggested that his identity had not been verified when he had appeared at the hearing.

Key take-aways from this case

The take-away from this judgment is that the bar for strike out is very high indeed: “The courts of this country are open to the difficult”. Strike out is a last resort where there is no further prospect of a fair trial, not a short cut. What amounts to irritation, even exasperation on the part of the tribunal, never mind the respondent, is not necessarily ‘vexatious’ with in the meaning of the Employment Tribunal Rules of Procedure.

If the claimant appears to abandon their claim or the claims have – in the view of the judge, not the respondent – little prospect of success, the tribunal will still give the claimant a series of warnings known as ‘unless orders’ before reaching a final decision. This will be even more marked where the claimant is unrepresented. 

Remember that claimants can also apply for the strike out of a respondent’s defence. While this is also a last resort, it is nevertheless important to make sure you comply with all directions and orders of the tribunal.

The claimant did not give up. He sought a reconsideration of the strike out judgment but notably did not ask for a final chance but rather accused the tribunal of trying to trick him. He suggested that his identity had not been verified when he had appeared at the hearing. The judge had “allowed emotions to cloud her judgment”. When this was refused, he appealed. 

The Employment Appeals Tribunal agreed to hear one aspect of the claim, on the question of the strike out, and also suggested again without success that the claimant avail himself of legal help. Ultimately, the appeal failed and the Strike Out was upheld.