My Case is at Risk of Strike Out. What Does This Mean?

March 20th, 2023

The Employment Tribunal Rules allow a judge of their own initiative or either of the parties in a case to apply to strike out a claim or part of a claim. 

This may be done at any stage of the proceedings on grounds that – 

  • The claim is scandalous or vexatious or has no reasonable prospects of success. For example, the claim is being brought out of spite rather than there being any factual basis for it. Rule 37(1)(a).
  • The manner in which the case has been or is being conducted is scandalous, unreasonable or vexatious i.e. there is a nefarious motive and/or unreasonable behaviour during the conduct of the case for example harassing a party. Rule 37(1)(b)
  • Not complying with an order of the Tribunal can be a strike out reason. For example you have been ordered to provide documents or information by a deadline and have failed without good reason to do so. Rule 37(1)(c)
  • The claim is not being actively pursued. You have failed to engage with the process and preparation of the case. Rule 37(1)(d)
  • If the judge or the parties consider it is no longer possible to have a fair hearing. Rule 37(1)(e)

The most common strike out reasons are a claim having no reasonable prospects of success (you are unlikely to win) or because a party, usually the claimant, has not complied with orders. 

The parties in a case will be given the opportunity to make written representations or request a hearing for the strike out of their case to be considered where this comes into play. The Tribunal will not just do it without reference to you.

Tribunals do not exercise the strike out provisions lightly because it is a draconian measure: it effectively kills your case stone dead and leaves you with no further recourse to law for the actions or omissions or poor treatment of you by your employer. 

Two recent cases show how a tribunal might deal with this in practice. A common cause for strike out is failing to advance your case: once you start litigation you cannot just decide not to do anything, you must follow the case management orders the tribunal has sent to you. 

If you have decided not to pursue your claim for whatever reason, perhaps you have a new job, you must advise the Tribunal that you wish to withdraw the claim. Another common reason is failure to meet deadlines. The Tribunal will be understanding if you cannot meet a deadline for a legitimate reason: for example, you are ordered to get medical evidence and this has not been provided by your GP in time. Let the tribunal know the reason for the delay rather than risking the opponent applying to strike you out. Be on the front foot not the back!

In Mohammed v Guy’s & St Thomas’ NHS Foundation Trust the Employment Appeal Tribunal (EAT) struck out Ms Mohammed’s case following several attempts to give her extra time to comply with tribunal orders. Ultimately she was given an Unless Order. An Unless Order compels a litigant to provide information or complete a step failing which, if not done within the time deadline, the claim will be struck out either in part or completely. 

Ms Mohammed’s entire case was struck out on the basis that she had not complied with an order to provide additional information in relation to some of her claims. Her claims included disability and race discrimination. The appeal held that her entire claim should not have been struck out: she had provided the information in relation to parts of her claim but not all of it. It was an error of law to strike it out entirely and the remainder could be pursued. 

In Rojha v Zinc Media Group plc the appeal tribunal decided the opposite. It will depend on the facts specific to each case. An Unless Order had been made requiring the provision of further information about some of the claims. The Order provided that if this information was not provided, all of the claims would be struck out. The tribunal considered the interrelationship between the different claims and her failure to provide information on remedy (what she was seeking from the tribunal by way of compensation and otherwise) and held that it was entitled to make an order in those terms. 

This was a case involving allegations of unfair dismissal, race discrimination and sex and/or maternity and pregnancy discrimination, and other claims. Ms Rojha’s failure to attend a preliminary hearing to discuss how the case should be prepared for hearing would not have won her any favours. 

She was also ordered to pay a Deposit Order. This is where a claimant has to make a payment to the tribunal in order to proceed with the case. It is intended to show that you mean to proceed with your case. Deposit orders are not common but if one is made and you do not make the payment your case can be struck out. She also did not comply with the directions given to her by the Tribunal. 

Unless Orders are a powerful tool and are not intended to be a form of punishment. They are not given lightly. But when they are it is vital if you are bringing a claim that you comply. 

It is also essential that you should appear at any hearings however scary that might be. If you don’t it could count against you. If you do, the judge will provide assistance if you do not have legal representation. You will only alienate yourself from any available goodwill if you do not do what you are asked to do when you are asked to do it or have the courtesy to attend hearings that have been scheduled for your case. 

Tribunals won’t invoke Unless Orders and will resist Respondents applying for them if you cooperate and participate in the preparation of your case. In Ms Rojha’s case, failing to cooperate and then expecting the cooperation of the Tribunal later down the line was fatal to her case. 

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