Striking Out Employment Tribunal Claims: Hargreaves v Evolve Housing & Support and Another (2023)

Navigating the world of employment law can be challenging, especially when dealing with Employment Tribunal claims. Striking out a claim in this context can be difficult because tribunals prefer not to dismiss claims outright, particularly when the claimant lacks legal representation. This careful approach ensures fairness and access to justice for all involved.

Let's explore one such case, Hargreaves v Evolve Housing & Support and Another (2023), as reviewed by Grace Kabasele, a Trainee Solicitor in our Employment Litigation team.

Case Overview

In the case of Hargreaves v Evolve Housing & Support and Another (2023), Dr Hargreaves, the claimant, was dismissed for gross misconduct and subsequently filed claims of discrimination, victimisation, and unfair dismissal against Evolve and one of their board members.

The Trial

During the trial, the claimant's behaviour posed significant challenges for the respondents. The Employment Appeal Tribunal (EAT) considered whether the claimant's conduct made a fair trial impossible.

The claimant's conduct indicated an intent to tarnish the reputations of both respondents. His accusations included racism, religious harassment, and threats to harm the second respondent's political career.

Due to these actions, the tribunal dismissed (struck out) the claimant's claims on the grounds of scandalous, unreasonable, or vexatious conduct, which made a fair trial impossible. The claimant then appealed the decision.

The EAT's Decision

The EAT reversed the tribunal's decision to strike out and reinstated the claimant's claims. It emphasised that striking out a claim requires the following to occur:

• The conduct must be scandalous, unreasonable, or vexatious.
• The conduct must make a fair trial impossible.
• The decision to strike out must be proportionate - other sanctions should be considered first to determine if a fair trial can still be achieved.

The EAT noted that the tribunal made an assumption about witness intimidation without sufficient evidence, which it found to be a perverse error. Consequently, the strike-out was unjustified, as a fair trial was still possible.

Legal Context

Rule 37(1) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 allows a tribunal to dismiss all or part of a claim for reasons such as:

• The claim is scandalous, vexatious, or lacks a reasonable prospect of success.
• Scandalous, unreasonable, or vexatious conduct during the proceedings.
• Non-compliance with the rules or tribunal orders.
• The claim is not being actively pursued.
• The tribunal determines a fair hearing is no longer possible.

Key Takeaways

The case of Hargreaves v Evolve Housing & Support and Another (2023) emphasises the complexity of striking out Employment Tribunal claims. The claimant's behaviour can significantly influence whether a claim is struck out, with the standard being high for demonstrating scandalous, unreasonable, or vexatious conduct to make a fair trial impossible. 

Even with troubling claimant conduct, tribunals must consider alternative measures before dismissing, which can be understandably frustrating for the respondent. The Employment Appeal Tribunal (EAT) acts as a check on tribunal decisions and may reverse strike-out decisions if it believes a fair trial remains possible. Therefore, respondents face the challenge of providing compelling evidence to justify striking out a claim and, more often than not, having to defend claims at trial brought against them despite difficult claimant conduct.

Get in touch

If you need representation or support with an Employment Tribunal claim, our friendly team is here to help. Please get in touch with us on 023 8063 9311 or email enquiries@warnergoodman.co.uk.