Employment Tribunal Strike Out Application Rules

A strike out application in the Employment Tribunal is a formal request asking the tribunal to remove all or part of a claim or response before it reaches a final hearing. It is one of the most serious procedural tools available in Employment Tribunal litigation in England and Wales.

If successful, a strike out can end a case entirely or remove key parts of it, significantly affecting the outcome. The rules governing strike out applications are set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, alongside the tribunal's overriding objective of dealing with cases fairly and justly.

This guide explains when strike out applications can be made, the legal grounds, procedure, and practical implications.

What a Strike Out Application Is

A strike out application is a request to the tribunal to dismiss:

• All of a claim or response
• Specific allegations or parts of a claim
• A case that has no reasonable prospect of success

The tribunal also has the power to strike out a case on its own initiative without an application from either party.

Strike out is a case-ending or case-limiting remedy and is therefore used cautiously.

Legal Grounds for Strike Out

The Employment Tribunal may strike out a claim or response on specific legal grounds, including:

1. No Reasonable Prospect of Success

The most common ground. This applies where the claim or defence is considered legally or factually unviable.

Examples:

• A discrimination claim with no factual basis
• An unfair dismissal claim where statutory requirements are clearly not met

2. Scandalous, Vexatious, or Misconceived Claims

This includes claims that are:

• Clearly abusive of the tribunal process
• Brought to harass or pressure the other party
• Fundamentally flawed in legal principle

3. Non-Compliance With Tribunal Orders

A claim or response may be struck out where a party:

• Fails to comply with case management orders
• Ignores disclosure obligations
• Does not provide witness statements or attend hearings

In many cases, tribunals first consider issuing an “unless order” before striking out.

4. Failure to Actively Pursue the Case

A case may be struck out if:

• The claimant does not respond to tribunal directions
• The case has been abandoned in practice
• There is prolonged inactivity without explanation

5. Abuse of Process or Fair Trial Impossibility

Strike out may apply where:

• The conduct of proceedings is abusive
• A fair hearing is no longer possible
• The integrity of the tribunal process is undermined

Tribunal Powers to Strike Out Without an Application

Employment Tribunals can strike out cases of their own motion. This often occurs during:

• Preliminary hearings
• Case management hearings
• Review of compliance with directions

The tribunal must still follow procedural fairness, including giving parties notice and an opportunity to respond.

Procedure for a Strike Out Application

1. Filing the Application

A party submits a written application to the tribunal setting out:

• Which part of the case should be struck out
• The legal basis for the application
• Supporting evidence or arguments

2. Notification to the Other Party

The tribunal will usually:

• Send the application to the opposing party
• Invite written submissions in response
• List a hearing if necessary

3. Strike Out Hearing

Many applications are decided at a preliminary hearing.

The Employment Judge will:

• Hear arguments from both sides
• Review documents and procedural history
• Decide whether the threshold for strike out is met

4. Possible Outcomes

The tribunal may:

• Strike out the claim or response entirely
• Strike out specific allegations
• Refuse the application
• Issue a warning or unless order instead

The Legal Test: High Threshold for Strike Out

Strike out is considered a drastic remedy. Tribunals apply caution because it prevents a party from having a full hearing.

Key principles include:

• The case must be clearly unsustainable
• The tribunal should not conduct a mini-trial
• Conflicts of fact are usually resolved at final hearing
• Doubts are generally resolved in favour of allowing the case to proceed

As a result, many applications fail unless the weakness is obvious.

Unless Orders and Their Relationship to Strike Out

Before striking out a case, tribunals often issue an unless order, which states that:

• A party must comply with a direction by a specific deadline
• Failure will result in strike out without further hearing

This gives parties a final opportunity to comply before their case is removed.

Common examples include:

• Failing to provide witness statements
• Not submitting documents for the bundle
• Ignoring tribunal orders

Appeals and Reconsideration

If a claim or response is struck out, the affected party may:

• Apply for reconsideration of the decision
• Appeal to the Employment Appeal Tribunal (on a point of law)

Strict time limits apply, and procedural compliance is essential.

Common Situations Leading to Strike Out Applications

1. Weak or Unsupported Claims

Claims lacking factual detail or evidence may be challenged.

2. Repeated Non-Compliance

Failure to follow tribunal directions is a common trigger.

3. Abandoned Proceedings

Long periods of inactivity can lead to strike out.

4. Procedural Abuse

Conduct aimed at delaying or disrupting proceedings may justify strike out.

Practical Implications of Strike Out Applications

Strike out applications significantly affect litigation strategy because they:

• Can end a case early
• Increase pressure to comply with tribunal directions
• Influence settlement negotiations
• Require detailed legal and factual justification

They are often used as a procedural tool to focus or narrow claims rather than purely to end proceedings.

Defending a Strike Out Application

A party facing a strike out application may respond by showing:

• The claim has a reasonable prospect of success
• Any non-compliance has been rectified or explained
• There is ongoing engagement with the process
• The issues require determination at a full hearing

Tribunals are generally reluctant to strike out cases where factual disputes remain unresolved.

Key Takeaways

Employment Tribunal strike out applications are formal requests to remove all or part of a claim or response on specific legal grounds such as lack of merit, non-compliance with orders, abuse of process, or failure to progress the case. They are governed by strict procedural rules and applied cautiously due to their serious consequences. Tribunals often prefer less severe measures, such as unless orders, before striking out a case entirely.