Strike out is a significant procedural power that allows an employment tribunal to dismiss all or part of a claim, response or reply without a full hearing. Under the Employment Tribunal Procedure Rules 2024, a tribunal may strike out a case where it is scandalous, vexatious, has no reasonable prospects of success, where proceedings have been conducted improperly, where tribunal rules or orders have not been complied with, where a claim has not been actively pursued, or where a fair hearing is no longer possible.

However, strike out is considered a draconian remedy and tribunals will exercise this power cautiously. The threshold is particularly high in discrimination and whistleblowing claims, which should only be struck out in the clearest cases. Where there are significant factual disputes requiring witness evidence, strike out will rarely be appropriate.

Both employees and employers should understand the circumstances in which strike out may be ordered, the procedural safeguards that apply, and alternative case management options such as deposit orders.

Legal Framework for Strike Out

Tribunal Power to Strike Out

Under rule 38 of the Employment Tribunal Procedure Rules 2024, an employment tribunal may strike out all or part of a claim, response or reply either on its own initiative or following an application by a party.

A tribunal may strike out a case where:

●  the claim or response is scandalous, vexatious or has no reasonable prospects of success;

●  the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious;

●  there has been non-compliance with the Employment Tribunal Rules or a tribunal order;

●  the claim or response has not been actively pursued; or

●  a fair hearing is no longer possible.

Before making a strike out order, the tribunal must give the relevant party a reasonable opportunity to make representations. This may be done either in writing or at a hearing if requested.

A strike out decision cannot be made simply because a party has applied for one. The tribunal must follow a two-stage approach:

Stage 1: Establish whether a ground for strike out exists

The tribunal must first determine whether one of the grounds in rule 38(1) has been established.

Stage 2: Decide whether strike out is appropriate

Even where a ground exists, the tribunal must then decide whether it should exercise its discretion to strike out the claim or response.

The fact that a ground for strike out is established does not automatically mean that strike out should follow. The tribunal must consider the overriding objective and whether a fair outcome can still be achieved through less severe measures.

Notice and Opportunity to Respond

A tribunal cannot strike out a claim or response without giving the affected party an opportunity to explain why strike out should not occur.

Where a preliminary hearing is listed to consider strike out, the tribunal must provide sufficient notice of the issues being considered. Generally, parties should receive at least 14 days' notice of the preliminary issues that may be determined.

The purpose of this safeguard is to ensure that parties have a genuine opportunity to respond and provide relevant evidence before losing the ability to pursue or defend proceedings.

Grounds for Strike Out

1. Scandalous, Vexatious or No Reasonable Prospects of Success

Under rule 38(1)(a), a tribunal may strike out a claim or response where it is:

●  scandalous;

●  vexatious; or

● has no reasonable prospects of success.

The most common basis for strike out applications is that a claim or response has no reasonable prospects of success.

However, the threshold is deliberately high.

A case should not be struck out simply because:

●  it appears weak;

●  it is unlikely to succeed;

●  the other party considers it unlikely to succeed; or

●  there are significant evidential difficulties.

The question is whether there is no reasonable prospect of success, rather than whether success is unlikely.

Strike out is generally inappropriate where the outcome depends upon disputed facts which require witness evidence.

Where there is a dispute about:

●  what was said or done;

●  the motivation behind a decision;

●  credibility of witnesses; or

●  the circumstances surrounding an employment decision,

the tribunal will usually need to hear evidence before deciding the issues.

Strike out has been described by the courts as a “draconian” power and should only be used after careful consideration of all available material.

Discrimination and Whistleblowing Claims

A Higher Threshold Applies

Discrimination and whistleblowing claims receive particular caution because they frequently involve disputes about:

●  intention;

●  motivation;

●  credibility;

●  unconscious bias;

●  workplace culture; and

●  whether treatment was connected to a protected characteristic or protected disclosure.

The courts have repeatedly confirmed that discrimination claims should only be struck out in the clearest cases.

In Anyanwu v South Bank Students' Union [2001] UKHL 14, the House of Lords confirmed that discrimination claims should generally proceed to a full hearing unless they are plainly hopeless.

The same approach applies to whistleblowing claims.

The Cox v Adecco Approach

In Cox v Adecco [2021] ICR 1307, the Employment Appeal Tribunal provided guidance on strike out applications, particularly where claimants are representing themselves.

The tribunal should:

●  identify the actual claims being pursued;

●  consider the claim at its highest;

●  avoid conducting a mini-trial;

●  avoid resolving disputed factual issues without hearing evidence;

●  consider whether amendments could clarify the claim.

A poorly drafted claim does not automatically mean that it has no reasonable prospects of success.

Where a claimant has failed to use the correct legal terminology but the facts may establish a valid claim, the tribunal should consider the substance of the complaint rather than simply the wording used.

Strike Out for Conduct of Proceedings

Scandalous, Unreasonable or Vexatious Conduct

Under rule 38(1)(b), a claim or response may be struck out where the way proceedings have been conducted has been scandalous, unreasonable or vexatious.

This ground focuses on conduct during litigation rather than the merits of the underlying claim.

Examples may include:

●  deliberately ignoring tribunal directions;

●  repeatedly abusing tribunal processes;

●  pursuing proceedings for an improper purpose;

●  conduct that prevents effective case management.

However, strike out should not be used as a punishment.

The tribunal must consider whether the conduct prevents a fair hearing or whether another remedy would be more appropriate, such as:

●  costs orders;

●  case management directions;

●  unless orders; or

●  limiting evidence.

Non-Compliance with Tribunal Rules or Orders

Failure to Follow Tribunal Directions

Under rule 38(1)(c) of the Employment Tribunal Procedure Rules 2024, a tribunal may strike out a claim, response or reply where a party has failed to comply with:

●  the Employment Tribunal Procedure Rules;

●  a tribunal order; or

●  case management directions.

Examples of non-compliance may include:

●  failing to provide documents by a deadline;

●  failing to prepare witness statements;

●  failing to complete a schedule of loss;

●  failing to respond to tribunal correspondence;

●  failing to comply with disclosure obligations; or

●  failing to comply with case management orders.

However, failure to comply does not automatically result in strike out.

The tribunal must consider the circumstances of the breach, including:

●  the seriousness of the failure;

●  whether the breach was intentional or accidental;

●  whether responsibility lies with the party or their representative;

●  whether the breach has caused prejudice to the other party;

●  whether a fair hearing remains possible; and

●  whether a less severe sanction would achieve justice.

The overriding objective requires tribunals to deal with cases fairly and justly. Strike out should therefore be proportionate and used only where appropriate.

The Importance of Proportionality

A failure to comply with an order does not automatically justify the removal of a party's claim or defence.

Tribunals should consider whether alternatives could address the problem, including:

●  extending time for compliance;

●  making further case management orders;

●  ordering payment of costs;

●  making an unless order; or

●  limiting the evidence a party may rely upon.

Strike out should generally be a last resort.

In Weir Valves Control (UK) Ltd v Armitage [2004] ICR 371, the Employment Appeal Tribunal confirmed that the tribunal must consider all relevant circumstances and whether a fair trial remains possible before imposing the sanction of strike out.

Unless Orders and Automatic Strike Out

What is an Unless Order?

An unless order is one of the most serious case management tools available to an employment tribunal.

Under rule 39 of the Employment Tribunal Procedure Rules 2024, a tribunal may make an order stating that unless a party takes a specified action by a certain date, their claim or response will automatically be dismissed.

Examples include:

●  “Unless the claimant provides further particulars by 4pm on [date], the claim shall stand dismissed without further order.”

●  “Unless the respondent provides a response to the schedule of loss by [date], the response shall be struck out.”

The purpose of an unless order is to encourage compliance where ordinary directions have not been effective.

Consequences of Failing to Comply with an Unless Order

Unlike an ordinary case management order, the consequences of an unless order are automatic.

If a party fails to comply with the order, the claim or response will generally be dismissed automatically without the need for a further hearing.

The tribunal will then issue confirmation that the claim or response has been struck out.

Once non-compliance is established, the tribunal normally has no discretion to ignore the consequence specified in the unless order.

However, the affected party may apply for the dismissal to be set aside.

Applying to Set Aside an Unless Order

A party whose claim or response has been dismissed following an unless order may apply for the order to be set aside.

The application must generally be made within 14 days of the tribunal sending notice confirming dismissal.

The tribunal will consider whether it is in the interests of justice to restore the claim or response.

Relevant factors may include:

●  the reason for the failure;

●  the seriousness of the breach;

●  whether there was a genuine attempt to comply;

●  whether the breach caused prejudice;

●  whether the application was made promptly; and

●  whether allowing the case to continue would undermine effective case management.

The question is not whether the unless order should have been made originally, but whether it is now just and appropriate to remove the consequence of non-compliance.

Failure to Actively Pursue Proceedings

Claims Must Be Progressed

Under rule 38(1)(d), an employment tribunal may strike out a claim, response or reply where it has not been actively pursued.

This may occur where a party:

●  repeatedly fails to respond to tribunal correspondence;

●  ignores case management orders;

●  fails to engage with the other party;

●  does not attend hearings; or

●  otherwise demonstrates an intention not to progress the proceedings.

Strike out on this basis is usually reserved for cases involving serious and prolonged inactivity.

A short delay or isolated failure to respond will not normally justify strike out.

The tribunal will consider whether the delay has created:

●  serious prejudice to the other party; or

●  a risk that a fair hearing can no longer take place.

When a Fair Hearing Is No Longer Possible

Rule 38(1)(e)

A tribunal may strike out a claim or response where it considers that a fair hearing is no longer possible.

This is a high threshold.

Examples may include situations where:

●  key evidence has been irretrievably lost;

●  a party's conduct has made a fair hearing impossible;

●  there has been extreme and unexplained delay;

●  the integrity of the tribunal process has been undermined.

The mere fact that proceedings are difficult, lengthy or complicated does not mean a fair hearing is impossible.

The tribunal must consider whether practical case management solutions could still allow the matter to proceed.

Strike Out at the Final Hearing

Although strike out applications usually occur at preliminary hearings, a tribunal may also consider strike out during a final hearing.

However, this is extremely unusual.

Where a claimant's evidence appears weak, the tribunal should generally avoid striking out simply because it considers the evidence unlikely to succeed.

The tribunal should be cautious because:

●  the claimant may still obtain relevant evidence from the respondent's witnesses;

●  the claimant may not yet have presented their full case;

●  credibility assessments usually require hearing all evidence;

●  a party should have confidence that their case has been fully considered.

Mid-hearing strike out should therefore only occur in exceptional circumstances.

Deposit Orders as an Alternative to Strike Out

A Less Severe Option

Where a tribunal considers that an allegation or argument has little reasonable prospect of success, it may make a deposit order instead of striking out the claim.

A deposit order requires a party to pay up to £1,000 as a condition of continuing to pursue a particular allegation or argument.

Deposit orders may be appropriate where:

●  a particular issue appears weak;

●  the tribunal wishes to encourage realistic assessment of the case;

●  the claim is not hopeless but has limited prospects.

Unlike strike out, a deposit order does not prevent a party from continuing with their case.

Factors Considered Before Making a Deposit Order

Before making a deposit order, the tribunal must:

●  identify the specific allegation or argument affected;

●  explain why it has little reasonable prospect of success;

●  consider the party's ability to pay;

●  determine an appropriate amount.

The purpose is not to punish a party but to encourage careful consideration of whether pursuing a particular argument is worthwhile.

Practical Guidance for Employees

Responding to a Strike Out Application

Employees facing a strike out application should:

Act Quickly

Do not ignore a strike out application or tribunal correspondence.

Failure to respond may result in the tribunal making decisions without hearing the employee's position.

Provide Evidence

Employees should explain:

●  why the claim has reasonable prospects;

●  why disputed facts require a hearing;

●  why strike out would be disproportionate;

●  any reasons for delays or failures to comply.

Comply with Tribunal Orders

Employees must carefully monitor:

●  deadlines;

●  disclosure obligations;

●  witness statement requirements;

●  preliminary hearing directions.

Failure to comply, particularly with an unless order, can result in automatic dismissal.

Litigants in Person

Many employment tribunal claimants represent themselves.

Tribunals must take reasonable care when dealing with litigants in person and should ensure they understand the actual claims being advanced.

A poorly drafted claim should not automatically be struck out if the underlying facts may establish a valid legal claim.

However, representing yourself does not remove the obligation to comply with tribunal orders and deadlines.

Practical Guidance for Employers

Making a Strike Out Application

Employers considering strike out should carefully assess whether the application is likely to succeed.

Strike out applications are most suitable where:

●  there is a clear legal barrier to the claim;

●  the claim is genuinely hopeless;

●  there is serious procedural misconduct;

●  a party has failed to comply with important tribunal orders.

Employers should avoid using strike out applications simply because a claim appears weak.

Consider Alternatives

Before seeking strike out, employers should consider whether:

●  further particulars could clarify the claim;

●  amendments could resolve uncertainty;

●  a deposit order would be more appropriate;

●  case management directions could address the issue.

This is particularly important in discrimination and whistleblowing claims, where tribunals are reluctant to prevent claims proceeding where factual disputes exist.

Consequences of a Struck-Out Response

Where the Employer's Response Is Struck Out

If a respondent's response is struck out, the tribunal may proceed as if no response has been presented.

The tribunal may:

●  determine the claim based on the claimant's evidence and documents;

●  issue judgment without a full hearing where appropriate; or

●  list the matter for a hearing to determine compensation or outstanding issues.

The respondent may still receive notice of hearings and decisions but may have limited participation rights unless the strike out is overturned.

Consequences of a Struck-Out Claim

Where a claimant's claim is struck out:

●  the claimant loses the ability to pursue the claim unless the strike out is overturned;

●  the claimant may apply for reconsideration where appropriate;

●  the claimant may apply to have an unless order set aside where relevant.

Applications for reconsideration are only successful where it is in the interests of justice to do so.

Key Points to Remember

For Employees

●  Strike out is not automatic simply because an employer challenges your claim.
●  Discrimination and whistleblowing claims have a high threshold for strike out.
●  Respond promptly to strike out applications.
●  Follow tribunal orders carefully.
●  Consider seeking legal advice if facing strike out.

For Employers

●  Strike out is a powerful but exceptional remedy.
●  Weak claims are not automatically suitable for strike out.

● Consider deposit orders or case management alternatives.
●  Ensure applications comply with procedural requirements.

●  Demonstrate why a fair hearing cannot properly proceed.

This guide provides general information only and is not legal advice.contact us at contact@gec-law.co.uk for tailored legal advice.