Claimant v E and F — 2023

This judgment concerned the respondents' application to strike out the claimant's case under rule 37(1)(a), (b) and (e) of the Tribunal Rules, on the grounds that the claim was scandalous, vexatious or had no reasonable prospect of success, that the proceedings had been conducted in a scandalous, unreasonable or vexatious manner, and that a fair hearing was no longer possible. The application was based primarily on the conduct of the claimant's father (who acts as her representative), including a 7 March 2023 email to the first respondent's then employer, a GoFundMe page, and other online material said to risk identifying the first respondent in breach of anonymisation orders.

Employment Judge O'Dempsey dismissed the strike-out application. The judge found that the chance of triangulation onto the first respondent's identity from the material remaining online was minimal, and that the material did not breach or come close to breaching the anonymity order. While the judge accepted that the 7 March 2023 email was at least in part aimed at getting the first respondent into trouble with her then employer, this was characterised as conduct prior to the proceedings rather than conduct of the proceedings. The judge distinguished between scandalous, unreasonable or vexatious behaviour and behaviour that might be regarded as distasteful, and concluded the threshold was not met.

The judge further held that there was no evidence the conduct complained of had affected the ability or willingness of the respondents' witnesses to participate, and no imminent risk to the fairness of the hearing. The substantive claims — disability discrimination, disability-related harassment, failure to make reasonable adjustments under ss.20-21 Equality Act 2010, and breach of the Working Time Regulations 1998 — were not adjudicated and are to proceed to a further preliminary hearing and in due course a final merits hearing.