Successful strike out of all claims by a scandalous litigant

In the recent case of Ms L Gallagher v Essity UK Ltd, the Watford Employment Tribunal ruled a strike out of all claims by reason of the Claimant’s scandalous and unreasonable conduct of the proceedings and the claims having no reasonable prospect for success.

The Claimant is a former employee of Doyle Clayton client, Essity UK Ltd, who pursued allegations of discrimination and unfair dismissal. She was a Key Account Manager who was suspected of falsifying documents and of dishonesty during the course of her employment, and within days of an invitation to a disciplinary hearing to investigate these allegations, she raised a grievance which she knew to be false, but used the grievance process to deflect the scrutiny of her conduct in the disciplinary process. She then, during the course of the grievance process, submitted documents which were believed to have been fabricated.

Applications to strike out any claim, but particularly one that includes claims of discrimination, presents a high bar in the Tribunal; a strike out is considered to be a last resort not a shortcut. As noted in the Judgment, “the fundamental question for any Tribunal considering the sanction of a strike out is whether the parties’ conduct has rendered a fair trial impossible”, adding, “even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed”. The application must be exceptional if it is to succeed and demonstrate that a fair hearing is no longer possible.

The application focused on the Claimant’s scandalous and vexatious conduct from the outset and the inability to have a fair hearing due to her lack of credibility. The arguments run by Shane Crawford, of Five Paper and instructed by Doyle Clayton, found favour before the Tribunal, with Employment Judge Daniels reaching findings of fact on the papers before him. These included that, in both sets of proceedings, despite purporting that different doctors had created and signed all of the medical notes submitted by the Claimant, they had been created by the same person (namely the Claimant) and therefore the Claimant had presented fabricated sick notes to her employer and subsequently to an Employment Tribunal.

As a result, and as stated in the Judgment, “a fair trial is now plainly unachievable”, and the “case simply cannot proceed fairly when one side, based on multiple examples of seriously unreasonable conduct, cannot be trusted to give truthful or reliable evidence under oath. There cannot be a fair hearing where one side acts with integrity but the other side is prepared not to do so”. The Judgment further stated “strike out is the only proportionate and fair course to take” and “nothing else could solve these multiple and very serious issues in a way which would allow a fair trial to progress”. It was also noted that a previous case brought by the Claimant, and where Doyle Clayton also represented the Respondent, was of “significant relevance in this case”.

A key aspect of the success of the application to strike out was the investigation into the metadata of submitted evidence, led by Kate Kapp, a Doyle Clayton partner. She gave evidence at the strike out hearing, held on 24 April 2024 at Watford Employment Tribunal, to which Employment Judge Daniels commented,

“I found the evidence of Ms Kapp to be very carefully and diligently prepared, repeatedly supported by documents and precise and reliable…I have no hesitation in fundamentally preferring the evidence of Ms Kapp on all material conflicts of fact”.

The Tribunal found that the Claimant had conducted proceedings in a scandalous manner and, most importantly, that a fair trial was not possible since the Claimant’s evidence could not be trusted. Employment Judge Daniels found that this was not a borderline case and therefore he had no option but to strike it out.

Commenting on the case, Kate Kapp said,

“Whilst it remains the case that there is a high bar to overcome to persuade Employment Tribunals to strike out a claim, particularly where a Claimant is unrepresented and brings claims of discrimination, this decision reassuringly confirms that, in some cases, it will be appropriate to do so. This decision may give some Respondents greater confidence in making such an application where a Claimant’s conduct is so concerning during the course of proceedings such as to amount to scandalous and vexatious behaviour that results in a fair trial being impossible. We are delighted that we could achieve this result for our client, saving time and costs for them at an early stage.”

A costs hearing will be heard in September of this year.

Full Judgment - Ms L Gallagher v Essity UK Ltd: 3304863/2023 - GOV.UK (www.gov.uk)

Media enquiries – khunter@doyleclayton.co.uk