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Vexatious Claims and strike out applications

Most readers will have at some point in their careers dealt with a grievance or a claim by an employee that they consider to be vexatious or without merit.

Vexatious claims typically refer to claims that are deemed to be frivolous, without merit or intend to harass or intimidate the employer. Whatever description they fall under, such claims can be a burden on the employer’s resources and time, as well as cause reputational damage to the employer, often before any claim is heard by the tribunal.

In this article we consider how the employment tribunal’s deal with such claims, and in particular, we analyse the commentary from the recent case of Smith v Tesco Stores which provides employers with guidance on such claims.


In the recent case of Smith v Tesco Stores, the claimant, a customer assistant, had a confrontation with their store manager in the store but outside work hours. This led the police to be called. As a result of the altercation, and following a disciplinary process, the Claimant was ultimately dismissed.

Owing to the dismissal, the Claimant brought claims in the Employment Tribunal against Tesco including claims for unfair dismissal, race and disability discrimination.

Throughout the proceedings, the Claimant continued to be difficult and failed to cooperate with the Respondent throughout. The tribunal listed no less than five preliminary hearings to try and clarify the Claimant’s claims, however the Claimant continued to add further claims and despite repeated requests, refused to settle the list of issues.

Following an application by the Respondent to strike the Claimant’s claim out for vexatious and/or unreasonable behaviour the tribunal dismissed the claim.

The Tribunal’s rationale

The tribunal reached its judgment based on several factors. These included consideration of the case of Bolch v Chipman, the Employment Tribunal Rules of Procedure's Rule 37 and the overriding objective.

Bolch v Chipman involved a claim of unfair dismissal and became notable for its interpretation of how and when a case should be struck out.

In the case, the tribunal considered the approach to be adopted in considering whether it is appropriate to strike out a claim the employment tribunal should ask itself:

  1. whether there has been scandalous, unreasonable or vexatious conduct of the proceedings; if so
  2. (save in very limited circumstances where there has been wilful, deliberate or contumelious disobedience of an order of the employment tribunal), whether a fair trial is no longer possible; if so
  3. whether strike out would be a proportionate response to the conduct in question.

Rule 37 adds further weight to a strike out in such circumstances confirming that a Tribunal may strike out all or part of a claim or response on any of the following grounds;

(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(c) for non-compliance with any of these Rules or with an order of the Tribunal;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)

As you can see, a number of the points in Rule 37 mirror those comments made in Bolch, above.

Finally, the tribunal considered the "overriding objective" rule. It sets out the purpose of the tribunal's procedures, which is to facilitate the just, speedy, and efficient resolution of disputes brought before it and further, emphasises the importance of cooperation and collaboration between the parties.

Owing to the Claimants conduct in managing proceedings, or more to the point failing to manage the proceedings, the entire claim was struck out.

The Appeal

The Claimant appealed the strike out to the Employment Appeal Tribunal (EAT). The appeal was given very short shrift by the EAT who dismissed the appeal.

In their commentary, the EAT reminded parties that they are not merely requested to assist the employment tribunal in furthering the overriding objective, but they are in fact required to do so.

It can be frustrating when employees bring claims that may be unfounded, particularly when they then continue to be difficult to deal with during proceedings. The case of Smith v Tesco Stores demonstrates that employment tribunals will act on such cases which continue to clog up an already broken and overburdened tribunal system.

A copy of the judgment in Smith v Tesco Stores can be read here https://assets.publishing.service.gov.uk/media/63e540c1e90e0762637e3104/Mr_T_Smith_-v-_Tesco_Stores_Ltd__2023__EAT_11.pdf 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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