The Claimant appealed against the ET decision to strike out her claims under Rule 37(1)(b) and (e) of the 2013 ET Rules on the basis of unreasonable conduct and that the conclusion that a fair trial was no longer possible. The strike-out followed the ET’s finding that, while still under oath, the Claimant had discussed her case with her sister and a newly-instructed representative, contrary to the repeated warning not to discuss her evidence during adjournments.

The EAT allowed the appeal. Preventing the Claimant from consulting her newly-instructed representative before being required to respond to the strike-out application constituted a deprivation of her statutory right to representation and risked unfairness. Also, requiring the Claimant to give an account while still under oath and without permitting her to obtain advice on the potentially dispositive issue of strike-out was procedurally unfair. The ET’s process did not give her a fair opportunity to respond to the allegations of misconduct. All other grounds were dismissed.