Mr B Duffy v Scotsman Group plc — 2023

The claimant lodged a long narrative claim on 7 February 2023. The judgment records that the specific claims were not clearly set out on the form, but the claims appearing to arise were unlawful sex and sexual orientation discrimination. After a telephone case management preliminary hearing on 6 April 2023, the claimant made a series of written applications on 13, 15, 19 and 30 June 2023, and again on 11 July 2023, seeking to strike out the respondent's response on the basis of alleged failures to engage, selective disclosure, an unauthorised document filing, an allegedly intimidating email, alleged misuse of privilege, calls to the respondent's agent, a costs warning, and a refusal to continue direct communication.

Applying rule 2 and rule 37, and citing Bennett, Abegaze, Blockbuster, Bolch, Arriva London North v Maseya, Harmony Healthcare and Harris, the tribunal treated strike out as a draconian remedy that required scandalous, unreasonable or vexatious conduct in the conduct of the proceedings, a consequent inability to hold a fair hearing, and proportionality. It held that the respondent's denial of the claim and putting the claimant to proof was normal tribunal practice. It also found that the claimant's complaints about the respondent's approach to his complaint during employment were not relevant to the strike-out question, because the issue was conduct of the proceedings rather than the merits of the underlying dispute.

The tribunal rejected each of the claimant's main criticisms. It accepted the respondent's explanation that the document had been lodged with authority by the owner of the respondent's agent's business. It found that the email exchanges, including the respondent's agent's comments and the initial withholding of an email later disclosed, did not amount to scandalous, unreasonable or vexatious conduct. It treated the wider difficulties, including the claimant's repeated lengthy communications and the respondent's concern about disproportionate correspondence, as part of a breakdown in the working relationship rather than a basis for strike out.

The tribunal concluded that there had been no conduct by the respondent, or its agent, that satisfied the rule 37 threshold. It also held that, even if there had been such conduct, a fair hearing was still possible and strike out would not have been proportionate because less drastic case management steps were available. The response was therefore not struck out, and the case was to proceed to a final hearing with a further case management preliminary hearing to focus the issues, agree facts where possible, and require the parties to work together professionally and proportionately.