Claimant's unreasonable conduct in litigation: strike out refused but warning issued
A tribunal found that a former employee had conducted litigation unreasonably but refused to strike out her claim, allowing it to proceed to a final hearing despite delays and disputes over the list of issues.
1 min read · Last updated 19 May 2026
Case details
- #litigation-conduct
- #unreasonable-behaviour
- #strike-out-application
- #list-of-issues-dispute
- #litigant-in-person
Key facts
- The claimant brought claims for unfair dismissal, disability discrimination, and other matters against the respondent.
- The claimant had previously brought three separate claims against the same respondent, succeeding in two.
- The claimant disputed the list of issues agreed at a case management hearing, insisting no separate document was produced.
- The claimant refused to provide bank details to receive undisputed notice pay.
- The claimant's conduct caused significant delay and additional hearings.
- The tribunal found the claimant had conducted litigation unreasonably but declined to strike out the claim.
Timeline
-
Claim presented
The claimant submitted her ET1 claim form.
-
First case management hearing
REJ Pirani held a case management discussion and gave directions.
-
Second case management hearing
REJ Pirani set a final hearing date and recorded agreed list of issues.
-
Claimant's letter disputing list of issues
The claimant wrote to the tribunal asserting no list of issues was agreed and seeking to add harassment claims.
-
Further case management hearing
REJ Pirani amended the list of issues in line with the claimant's requests.
-
Respondent's strike out application
The respondent applied to strike out the claim for unreasonable conduct.
-
Claimant's strike out application
The claimant applied to strike out the response.
-
Preliminary hearing
Employment Judge Cadney heard the strike out and amendment applications.
-
Judgment issued
The tribunal found the claimant acted unreasonably but refused to strike out the claim.
The legal issue
The tribunal had to decide whether the claimant's conduct in the proceedings was unreasonable and whether the claim should be struck out, and also whether to allow an amendment to add harassment claims.
The outcome
The tribunal ruled that the claimant had conducted the litigation unreasonably within the meaning of rule 37(1)(b) of the Employment Tribunal Rules. However, it refused to strike out the claim because a fair trial remained possible and striking out would not be a proportionate response.
The tribunal also dismissed the claimant's application to strike out the respondent's response and refused her application to amend the claim to add harassment allegations. The case will proceed to a final hearing with further directions.
No compensation was awarded as the claim was not struck out and the substantive issues remain to be determined.
Lessons & takeaways
- Litigants in person should engage constructively with case management directions and avoid disputing agreed lists of issues without good reason.
- Persistent refusal to cooperate with procedural steps, such as providing bank details for notice pay, can be treated as unreasonable conduct.
- Tribunals will only strike out a claim for unreasonable conduct if a fair trial is impossible or if striking out is a proportionate sanction.
- Amendments to add new claims late in the process are unlikely to be allowed if they cause delay and prejudice to the respondent.
What this case shows in practice
This case illustrates the fine line between robust litigation and unreasonable conduct. The former employee, representing herself, had previously brought three separate claims against the same employer, succeeding in two. In this latest claim, she disputed the list of issues that had been agreed at a case management hearing, insisting that no separate document had been produced. She also refused to provide her bank details to receive undisputed notice pay, causing further delay.
The tribunal acknowledged that her conduct had been unreasonable, leading to additional hearings and wasted costs. However, it stopped short of striking out the claim, noting that a fair trial was still possible and that striking out would be disproportionate.
What the losing side could have done differently
The respondent, First Greater Western Ltd, could have avoided the need for a strike-out application by engaging earlier with the claimant's concerns about the list of issues. However, the tribunal found that the respondent had acted reasonably overall. The claimant, on the other hand, could have avoided being found to have acted unreasonably by cooperating with procedural requests and accepting the case management directions without unnecessary dispute.
Why the result matters for similar claims
This decision reinforces that tribunals will not lightly strike out claims, even where a party has acted unreasonably. The key test is whether a fair trial remains possible and whether striking out is proportionate. For litigants in person, it serves as a reminder that while they are entitled to pursue their case, they must comply with procedural requirements and avoid conduct that causes unnecessary delay or expense.
Similar cases
Constructive dismissal claim allowed to proceed after employer ignored redundancy request for 39 days
A former People Advisor who resigned after her employer failed to respond to her redundancy request for 39 days has been allowed to pursue claims for a redundancy payment and constructive unfair dismissal.
Credit analyst's religion discrimination claim survives strike out bid
A tribunal refused to strike out a credit analyst's claims of constructive unfair dismissal and religion-based discrimination, finding the claims had reasonable prospects despite missing details.
Disability discrimination claim saved from strike out despite repeated delays
An employment tribunal refused to strike out a former employee's disability discrimination claim despite years of missed deadlines, but imposed strict conditions to get the case to trial.
Tesco fails to strike out constructive dismissal and race discrimination claims
A former employee's constructive dismissal and race discrimination claims against Tesco survive after the tribunal refused to strike them out for non-compliance with case management orders.