Q&As

Can the respondent employer in a Scottish employment tribunal claim apply for strike out and costs where there is evidence of the claimant’s dishonesty or fraud, eg if the claimant has falsely claimed Working Tax Credit, and also falsely asserted in their claim that they have not received Working Tax Credit?

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Produced in partnership with Hugh Olson of Arnot Manderson Advocates
Published on LexisPSL on 03/10/2018

The following Employment Q&A produced in partnership with Hugh Olson of Arnot Manderson Advocates provides comprehensive and up to date legal information covering:

  • Can the respondent employer in a Scottish employment tribunal claim apply for strike out and costs where there is evidence of the claimant’s dishonesty or fraud, eg if the claimant has falsely claimed Working Tax Credit, and also falsely asserted in their claim that they have not received Working Tax Credit?
  • Striking out
  • Costs

Striking out

ET Rule 37(1) provides that a tribunal has power to strike out the whole or part of a claim on a number of grounds, one of which is that the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious.

For further information, see Practice Note: Striking out and unless orders in employment tribunal proceedings—Grounds that may justify striking out.

Lying in a claim about whether or not a claimant has received Working Tax Credit affecting the calculation of loss might be regarded as ‘unreasonable’ in terms of the rule. An application for striking out could be made on this ground. In contrast, falsely claiming Working Tax Credit in and of itself could not be said to be part of ‘the manner in which the proceedings have been conducted’ and therefore would not be a good ground for a striking out application.

Striking out is a draconian remedy. The Court of Appeal in Blockbuster Entertainments v James gave guidance on how a tribunal should approach an application for striking out. The conduct must have either:

  1. taken the form of a deliberate and persistent disregard of required procedural steps, or

  2. made a fair trial impossible

If either of these conditions is fulfilled the tribunal must go on to consider whether striking out is a proportionate response to

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