Strike Down Of Strike Out Orders

A handful of recent Employment Appeal Tribunal decisions serve as a helpful reminder as to when claims may be struck out. We consider when strike out applications will be appropriate and other strategies respondents can use.

Unreasonable behaviour by one side during Tribunal proceedings can be a source of great frustration. While the prospect of disposing of a claim at an early stage is attractive to many respondents, the reality is that Tribunals exercise this power sparingly, particularly in discrimination and whistleblowing cases.

We take a look at some recent Employment Appeal Tribunal (EAT) decisions which have provided further guidance on the circumstances in which strike out is appropriate, and some practical tips for respondents.

Grounds for strike out

There are only limited circumstances when a claim (or a response) can be struck out. A Tribunal may strike out all or part of a claim if one or more of the following grounds (set out in rule 38 of the Employment Tribunal Procedure Rules 2024) is established:

• it is scandalous or vexatious or has no reasonable prospect of success;
• a party's conduct has been scandalous, unreasonable, or vexatious;
• non-compliance with tribunal rules or orders;
• the claim or response has not been actively pursued; and/or
• it is no longer possible to have a fair hearing.

If one of these grounds is satisfied, the Tribunal must then go on to decide whether, in all the circumstances, it is just to exercise its discretion to strike out, or whether a less draconian measure would suffice. This includes considering whether a fair trial is still possible. Although it might seem that completely unreasonable behaviour by a claimant (or respondent) should be enough to cause a strike-out, this is only part of the test. 

The threshold for strike out is high…

The EAT has repeatedly emphasised that only in the most obvious cases should a claim be struck out without a full hearing. Recent cases have reiterated this:

In a case involving “tit for tat” strike out applications, the EAT considered whether a claimant's behaviour was “scandalous or vexatious”. 

In advance of the final hearing, the respondent made an application to strike out the claimant's claim after the claimant failed to produce a witness statement and comply with other case management orders. Ultimately, this application was unsuccessful. The Tribunal's view was that a fair trial could still take place without a witness statement from the claimant.

The claimant attended the final hearing with their own 25-page application to strike out the respondent's response. The application included a number of allegations about the respondent such as concealing evidence, hacking her social media, and influencing an eviction from her home.

At the Tribunal's suggestion, the respondent made a further strike out application on the basis that the claimant' application was unfounded, and this amounted to scandalous or vexatious behaviour. This application succeeded at Tribunal, but the EAT disagreed with their decision. 

The EAT held that the claimant's unfounded allegations had not made a fair trial impossible, noting that the claimant had not been warned or given guidance about making unwarranted allegations. This reasoning could also apply to a strike out being a disproportionate response (when a warning could have been given). 

Although in principle making allegations without foundation could amount to unreasonable conduct, here the Tribunal was found to have overlooked supporting evidence the claimant relied on, which went to the question of reasonableness. There was also an appearance of bias given the Tribunal both suggested and upheld the application on the same basis.

This case focused on a claimant's non-compliance with case management orders.

A neurodivergent claimant, who had brought various discrimination and whistleblowing claims, failed to complete a list of issues and disclose medical notes. The deadline to do so had been extended after an administrative error meant the original orders were not sent to the parties. The Tribunal had warned that non-compliance could result in strike out. Following an application from the respondent, the Tribunal struck out his entire claim.

The EAT disagreed with the Tribunal's decision and found that strike out was premature. It held that when a party has not complied with case management orders, the focus should be on whether a fair trial is still possible. The Tribunal should not have immediately progressed to strike out, but instead considered making an unless order as a more proportionate way to prompt compliance. The EAT stated that an unless order “concentrates the mind”, whilst ramping up the pressure on a non-complying party.

These cases reiterate that strike out is a draconian remedy and should be reserved for cases where a fair trial is not possible.

… but not insurmountable

Looking at some recent cases where strike out applications have been upheld, even these reiterate the high threshold. For example:

Unfair dismissal and discrimination claims were struck out in their entirety because of the claimant's scandalous, unreasonable or vexatious behaviour. 

There had been a course of conduct from the claimant which suggested he was not working towards a trial that was fair. This included refusing to agree the list of issues without explanation and repeatedly trying to substantively vary his claims and add additional claims. His behaviour towards the Employment Tribunal during a fifth preliminary hearing was also considered vexatious. He spoke over the judge, ignored the judge and made derogatory comments about both the judge and the respondent. In light of all this, both the Tribunal and EAT held that a fair trial was no longer possible and strike out was proportionate.

The EAT agreed that it was no longer possible to have a fair remedy trial and so it was proportionate to strike out the claim. The Tribunal had made a permissible finding of facts and had balanced the draconian effect of a strike out order (particularly when the claimant had partially succeeded at the liability hearing) with the injustice of adopting an alternative approach.

Practical tips for respondents

Our top tips for respondents include:

• Bear in mind the test for strike out:  not only must a Tribunal establish one of the grounds in rule 38, it must then go on to consider both whether a fair trial is no longer possible and whether strike out is a proportionate response.

• Clear and timely applications: you should clearly address the full strike out test and overriding objective in their application and should consider if the application is relevant to whole claim or just part of it. Ideally, the claimant should be given notice of an application. A claim should not be struck out unless the claimant has had a reasonable opportunity to make representations (whether in writing or at a hearing).

• Use warnings: in PP v GG, the EAT commented that repeated unreasonable behaviour could warrant a strike out, particularly if a warning has already been given. This could include behaviour such as unwarranted referrals to a regulator or abusive language. When behaviour is repeated after a tribunal order or warning, this can demonstrate a disregard for the rules or the Tribunal's authority which will make a fair trial impossible and strike out proportionate. 
  
  Warnings can also come from the respondent directly. Before making any applications, in some circumstances it may be reasonable to first warn the claimant of the consequences if their behaviour or non-compliance continues. It may also be helpful to document any unreasonable behaviour as it occurs; not just the most egregious examples, but repeated patterns over time.

• Consider alternatives to strike out: proportionality is key. Alternatives to a strike out application could include:

• An unless order: where a claimant has not complied with case management directions, a conditional order can be made so that if there isn't compliance by a specified deadline, the claim will automatically be struck out. Forrest suggests that the EAT will expect this to be tried first. It is very important to ensure unless orders are worded carefully so that it is clear if the claimant hasn't complied.

• A deposit order:  the purpose of a deposit order is to identify claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid to continue with the proceedings. If the Tribunal considers that the claim or particular allegations have little reasonable prospects of success, it may order the claimant to pay a deposit of up to £1,000. If the deposit is not paid within the ordered time, the claim or allegation will be automatically struck out. The threshold of “little” reasonable prospects of success is easier to show than the strike-out test of no reasonable prospects. The purpose of a deposit order is not to make it difficult to access justice or to allow a strike out through the back door, but it can be a helpful, less drastic tool to consider.

• Costs warnings and orders: although costs don't usually “follow the event” in Tribunal litigation, a Tribunal must consider making an order that one party pays the others costs in some limited circumstances, including if there is vexatious, abusive, disruptive or unreasonable behaviour or if a claim has no reasonable prospects of success. Once again, the threshold for such an order is high. But seeking a costs order can be a less drastic step than making a strike out application. You should consider whether it is appropriate to put a claimant on notice that you intend to make such an application.

• Request for further information: if a claim is too vague, ambiguous, or lacking in sufficient detail to properly respond, a request can be made for further information. When and how to request this will depend on the case and broader tactics.

There are a number of legal, procedural and strategic considerations when deciding whether or not to make a strike out application (or other applications). If you want to explore your options, please speak to your usual Lewis Silkin contact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.