Bailey v Aviva: Drawing the Line Between Disorder and Dismissal

Legal Issue

The Employment Appeal Tribunal reminds us how tribunals should assess strike-out applications for scandalous or unreasonable conduct that does not clearly preclude a fair trial in Miss S Bailey v Aviva Employment Services Ltd [2025] EAT 109.

Key Legal Principle

The Employment Appeal Tribunal reaffirmed that where a party’s conduct is found to be scandalous or unreasonable, but not so extreme as to merit “forfeiting their right to have the case heard” strike-out, the tribunal must consider whether a fair trial is still possible. In doing so, it must adopt a realistic, proportionate, and pragmatic approach consistent with the overriding objective. The question of whether a fair trial is possible and whether strike-out is proportionate are not sequential but intertwined.

The judgment clarifies that even where serious allegations are made against the tribunal itself (e.g. of bias or corruption), if they are baseless and unsupported by evidence, a tribunal may still conclude that it can fairly proceed—particularly where no taint has affected the evidence. The tribunal must also weigh the public interest in finalising proceedings, the stage of the hearing, and the costs of restarting the case.

Practical Implications

Practitioners should avoid assuming that once a tribunal finds that a party’s conduct has “imperilled” a fair trial, strike-out follows. Tribunals remain entitled to manage the matter proportionately, especially where the evidential integrity remains intact. Arguments about recusal or strike-out based on unfounded allegations against the tribunal are unlikely to succeed unless supported by credible evidence.

Authorities Cited

Bolch v Chipman [2004] IRLR 140 (four-stage test for strike-out)

Chidzoy v BBC UKEAT/0097/17 (irreparable damage to fair trial from conduct)

Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 (conduct requiring strike-out)

Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 (proportionality and alternative remedies)

Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 (interplay between fairness and overriding objective)

Hargreaves v Evolve Housing Support [2023] EAT 154 (strike-out and improper motives)

Re Pinochet (No.2) [1999] UKHL 52 (apparent bias and adjudicating one’s own cause)

4th Aug 2025

Michael Salter

Call 1999