At the start of what was supposed to have been the final hearing in the ET in these proceedings, the Respondent attended having made a prior written application to strike out the claim because the Claimant had failed to produce a witness statement or to engage with other case management directions, while the Claimant attended with a 25-page written application to strike out the response on a multitude of grounds. The ET refused the Respondent’s prior application, but suggested that, if allegations made in the Claimant’s strike-out application were unfounded, the Respondent may apply to strike out the claim on the basis that the Claimant had conducted proceedings unreasonably, scandalously or vexatiously by making unfounded allegations. The Respondent then did make that application. The Tribunal dismissed the Claimant’s strike-out application, but allowed the Respondent’s. The Claimant appealed.

The EAT allowed the appeal. The ET had erred in law: (i) by failing to take account of certain relevant factors relied on by the Claimant; (ii) by perversely deciding that the Claimant’s making of unfounded allegations made a fair trial impossible; and (iii) because the combination of the ET having suggested the application to the Respondent and then gone on to uphold it on that same basis, together with the other weaknesses in the ET’s reasoning, gave rise to material unfairness and/or an appearance of bias.