Navigating Strike-Out Applications in Modern Day Tribunals

The power to strike out claims in employment tribunals is one of the most severe consequences available to judges to exercise.

The Court of Appeal in Blockbuster described this power as a “draconian” and “not to be readily exercised.” Recent guidance from the Employment Appeal Tribunal (EAT) has reinforced the need for fairness when applying or deciding on strike-out applications.

Grounds for Strike-Out under Rule 38 of the ET Rules 2024

Under the Employment Tribunal Procedure Rules 2024, a tribunal may strike out all or part of a claim or response on five grounds:

1. Scandalous, vexatious, or no reasonable prospect of success – Rule 38(1)(a)
2. Unreasonable, scandalous or vexatious conduct of proceedings – Rule 38(1)(b)
3. Failure to comply with tribunal rules or orders – Rule 38(1)(c)
4. Failure to actively pursue the case – Rule 38(1)(d)
5. No longer possible to have a fair hearing – Rule 38(1)(e)

Tribunals must give parties a reasonable opportunity to respond before striking out, and if a response is struck out, it’s treated as if it was never submitted.

Two-Step Test – Threshold and Discretion

Notwithstanding meeting one of the five grounds above, the tribunal must still consider the following two issues (Kamphues):

1. Have one of the five threshold grounds been met (the “threshold conduct”)?

1. Once the threshold conduct has been established, the tribunal should have regard to all relevant factors, especially whether a fair trial is still possible before exercising their discretion to strike out (the “discretionary decision”)

Skipping the second step is a legal error, as confirmed in Hasan (2016). Even in complex cases, tribunals must weigh whether the case can still be fairly heard.

Special Considerations for Litigants in Person (LIPs)

Tribunals must also take extra care considering strike-out applications in respect of proceedings brought by LIPs (claimants representing themselves).

In the case of Kostrova, the EAT ruled that a tribunal wrongly struck out a claim because it failed to understand the full scope of the LIP’s case. Following Cox (2021), tribunals must read into pleadings and not expect full clarity or merit where they may be under hearing pressure, especially where language barriers exist.

Whistleblowing and HR Consultants

Whistleblowing and discrimination claims are public interest matters and should only be struck out as an abuse of process other than in the plainest and most obvious of cases (Pillay, Ezsias, Anyanwu).

Summary

The power to strike out claims in employment tribunals is a drastic measure and should only be used sparingly. Under Rule 38 of the Employment Tribunal Rules 2024, strike-out can occur on five specific grounds, but tribunals must follow a two-step process: first, confirming a valid ground exists, and second, deciding whether striking out is fair, especially considering if a fair trial is still possible. Special care is required in cases involving litigants in person or public interest claims like whistleblowing, where fairness and understanding the full scope of the case are crucial.

If you are an employer or employee affected by the above issue and want advice or support in connection with the same, or any employment law or HR issues more generally, please do not hesitate to contact us on 01206 239 761.