Employees behaving badly (in Employment Tribunals)

Litigating employees sometimes think that the tribunal system is against them or that the judge is biased. They sometimes withdraw their cooperation from the process and insist on going straight to a trial without complying with normal processes first, such as providing further information to clarify their case when asked to by the judge or exchanging witness statements.

To what extent will they be allowed to misbehave before the tribunal throws their case out?

In Smith v Tesco Stores, Tesco said Mr Smith had been dismissed for various conduct issues including abuse to a customer. He brought a variety of claims, including a variety of vague discrimination claims. The judge asked him to clarify some of those claims but instead Mr Smith added a plethora of further allegations. Over various hearings (five in total), Mr Smith continued to try to add to his allegations and failed to follow tribunal orders to shorten and clarify what he was claiming.

At the fifth hearing, Mr Smith refused to speak to the judge and insisted he would only speak to the tribunal clerk. He also spoke over the judge when the judge was talking. This went on for a while, after which Mr Smith walked out the hearing.  The judge concluded that the lack of clarity in Mr Smith’s allegations, combined with his behaviour, meant a fair trial was not possible and accordingly he struck out Mr Smith’s claims.

The Employment Appeal Tribunal agreed the claim should be struck out but sounded a note of caution that this was an exceptional case. The judge emphasised that “tribunals of this country are open to the difficult”, not just reasonable and cooperative litigants. The judge further said that, in this particular case, Mr Smith’s own behaviour had “robbed himself of the opportunity” to have a proper trial.