In McAuley v Ethigen Ltd, the claimant was an agency worker whose assignment was terminated after 13 days. He brought complaints to the Employment Tribunal. Two were dismissed and the remaining complaint for detrimental treatment under the Agency Workers Regulations 2010 was struck out on the ground that the claimant had conducted proceedings in a scandalous, unreasonable or vexatious manner.
The strike out was based on the claimant's extensive correspondence with the tribunal, which contained unfounded accusations of racism, fascism and misconduct directed at the presiding judge, the respondent's representative and the judiciary. The claimant also repeatedly misrepresented what others had said.
The claimant appealed to the Employment Appeal Tribunal (EAT), arguing that the tribunal had relied on correspondence not in the hearing bundle and not formally put to him, depriving him of a reasonable opportunity to make representations.
The EAT dismissed the appeal. It held that when considering a strike out application based on conduct, the tribunal would inevitably consider the claimant's correspondence. The tribunal was not investigating facts outside the record but evaluating the very conduct the application required it to assess. Where conduct merits sanction, tribunals will routinely consider documents already on their file.
The EAT rejected the claimant's assertion that his correspondence with the tribunal attracted a reasonable expectation of...
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