Background
Patrick Henry McAuley was supplied by an employment agency to work as a warehouse picker-packer for Ethigen Ltd, a pharmaceutical supply company. His assignment lasted 13 days. McAuley alleged that he was directed to perform rubbish-disposal work outside his engagement and without basic protective equipment, and that Ethigen ended the assignment in retaliation for his complaints. Ethigen attributed the termination to his attitude and performance.
McAuley brought claims alleging harassment under the Protection from Harassment Act 1997, automatic unfair dismissal under regulation 17(1) of the Agency Workers Regulations 2010, and detriment under regulation 17(2). The Employment Tribunal held that it lacked jurisdiction over the harassment claim and, because McAuley was not an employee, the unfair-dismissal claim. It struck out the detriment claim under rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 because his conduct of the proceedings—including repeated, intemperate correspondence containing gratuitous insults, unsupported accusations, and misrepresentations—had been scandalous, unreasonable or vexatious.
After a rule 3(10) hearing, McAuley was permitted to appeal on one ground only: whether the tribunal deprived him of the reasonable opportunity to make representations required by rule 37(2) by relying on correspondence that was absent from the hearing bundle and allegedly was not put to him at the preliminary hearing.
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal. It held that McAuley’s correspondence with the tribunal was part of the conduct of the proceedings that Ethigen’s strikeout application required the tribunal to assess. Considering that correspondence was not an impermissible independent investigation or reliance on external evidence; it was an evaluation of material McAuley himself had generated while conducting the litigation.
The EAT also held that McAuley received a reasonable opportunity to make representations. The conduct-based strikeout application had been identified before the hearing, the correspondence was an obvious component of the conduct at issue, and McAuley was familiar with it as its author. The tribunal stated at the outset that it would consider the correspondence, questioned him about assertions within it, and received his responses. Its omission from the agreed bundle therefore caused no material procedural unfairness.
The EAT concluded that the tribunal’s decision to strike out the regulation 17(2) detriment claim under rule 37(1)(b) disclosed no error of law. It did not decide Ethigen’s alternative argument that the appeal was academic because the tribunal had also reasoned that the claim had no reasonable prospect of success.
Key Takeaways
- When strikeout is sought because of a party’s conduct of proceedings, the tribunal may examine that party’s correspondence on the tribunal file even if it is not included in the agreed hearing bundle.
- Compliance with the requirement to provide a reasonable opportunity to make representations is fact-sensitive; the question is whether the party had an adequate chance to address the proposed strikeout.
- A tribunal does not conduct an impermissible judicial investigation merely by reviewing correspondence constituting the litigation conduct it has been asked to assess.
Why It Matters
The decision distinguishes improper judicial research into the underlying facts from a tribunal’s legitimate examination of its own case record when assessing litigation conduct. A party cannot ordinarily treat correspondence sent to the tribunal as private material beyond judicial consideration merely because it was omitted from the hearing bundle.
The judgment also underscores that procedural fairness turns on practical notice and opportunity rather than bundle formalities alone. Where a party knows that conduct-based strikeout is at issue, is told that particular correspondence will be considered, and is questioned about it, rule 37(2) may be satisfied despite the correspondence’s absence from the bundle.