Striking out a claim for unreasonable behaviour

In James v Blockbuster Entertainment Ltd, the Respondent made an application to have the claims struck out on the basis that a number of orders and directions of the tribunal had not been complied with (either properly or at all). The tribunal found that the Claimant’s behaviour had been unreasonable, and that a fair trial would not be possible. The claims were struck out. The tribunal acknowledged that it was a "draconian" order, but felt that it was the only fair and proportionate action to take.

The Court of Appeal upheld the EAT’s decision to overturn the original decision. While the Court of Appeal acknowledged that the Claimant had been "difficult, querulous and uncooperative in many respects", it said that the Claimant’s allegations nevertheless "merit concern and adjudication". The Court held that tribunals are open to the difficult litigant as well as the compliant, as long as they do not behave unreasonably.

The court held that it would take something very unusual to justify striking out a claim which has reached the first day of its hearing for procedural grounds and that striking out must be a proportionate measure. In a case such as this, the tribunal must ask itself whether it can take less drastic action. It will be very exceptional for a claim to be struck out at the hearing itself where there is a history of unreasonable conduct, which has not, until that point, caused the claim to be struck out.

This case is a warning to employers that, if an employer feels that a claimant is behaving unreasonably, it should not delay in making an application to strike out the claim.