In the case of Smith v Tesco Stores the Employment Appeal Tribunal has upheld a decision to strike out a claim where the claimant, who was a litigant in person, acted in a manner that was considered vexatious.
Smith was employed by Tesco as a Customer Assistant. He was dismissed on 5 September 2018 following an altercation with a store manager whilst shopping in his own time which had resulted in his arrest and being abusive towards a shopper. In November 2018 Smith submitted a claim of unfair dismissal, race discrimination, disability discrimination and for various payments. The claim was set out in a lengthy document entitled “Background and Details of My Claim”, which included some complaints that were clear, and others which were not.
Over a period of 2 years, four preliminary hearings took place to establish the issues in the case without success. A fifth preliminary hearing was set for March 2021 with an order for Smith to provide the information needed to complete the draft list of issues. Smith decided to instead submit an application in January 2021 to amend his claim to include victimisation and setting out 13 headings of what he described as his “prohibited conduct claims”. The application included claims which were not recognised as legal claims. The Employment Tribunal (ET) refused Smith’s application and instead changed the upcoming preliminary hearing to also consider an application submitted by Tesco to strike out the claim.
At the hearing Smith did not cooperate with establishing the list of issues and was unable to provide any reasons as to his repeated non-compliance. The ET considered case law and the Employment Tribunal Rules of Procedure, specifically the requirement that “the parties shall assist the tribunal, the parties shall cooperate generally with each other and the tribunal.” In considering the application for strike out the ET considered:
- Has the conduct been scandalous, unreasonable or vexatious?
- Is a fair trial still possible?
- Is there a lesser sanction that is proportionate?
The ET concluded any attempts to deal with the claim had been frustrated by the claimant’s conduct, and his behaviour to date and therefore decided to strike out the claim.
Smith appealed against the ET’s decision to strike out his claim, partially on the basis that he felt it was the Judge who acted vexatiously as she “allowed emotions to cloud decision making”. A preliminary hearing took place in March 2022 to establish if there was a good arguable basis for the appeal to proceed to a full appeal hearing. The Employment Appeal Tribunal (EAT) allowed the appeal to proceed, however Smith refused to comply with the orders set by the EAT as well as not attending the hearing set and the decision of the ET was subsequently upheld.
However, the EAT noted that the decision in this case “should not be seen as a green light for routinely striking out cases that are difficult to manage”.
What can employers take from this case?
This case emphasises the difficulties and length of time it may take for Tribunals to strike out claims however is useful guidance for cases where individuals acting in person are unable to articulate their claims and seek to change or expand these during the course of litigation.
Whilst litigants in persons do not always have the benefit of legal advice, this does not mean that they should be given free rein to expand the scope of their original claims or conduct themselves in a manner that is vexatious or unreasonable. Employers should bring such conduct to the attention of the Tribunal as this is likely to strengthen any application for strike out. The complexities in making such applications, and the risk of them being unsuccessful, should however not deter employers from pursuing them. A key point to note is that, whilst an application for strike out may initially be refused by a Tribunal, the merits of such applications should be kept under review as the litigation progresses. Employers can make further applications later in the proceedings if an individual’s conduct does not improve. Setting out a clear chronology of facts and the ongoing prejudice the conduct is having on the Employer’s ability to know and defend the claims, is likely to strengthen any application for strike out. Finally, it is crucial for Employers to not only show scandalous, unreasonable or vexatious conduct but also show that the conduct makes it impossible for a fair hearing to take place.
For more information, please contact a member of our Employment Team.