Strike Out Definition in Employment Tribunal Claims

In Employment Tribunal proceedings in England and Wales, a strike out is a procedural order that can bring all or part of a claim or response to an end before a final hearing takes place. It is one of the tribunal's strongest case management powers and is used to remove claims that are legally defective, procedurally abusive, or incapable of fair determination.

Strike out applications arise in a wide range of employment disputes, including unfair dismissal, discrimination, whistleblowing, and unpaid wages claims. Understanding this mechanism is important because it can determine whether a case proceeds to a hearing or is dismissed at an early stage.

The power is governed primarily by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, particularly Rule 37 (and updated procedural equivalents under later amendments and practice updates).

What Does “Strike Out” Mean?

A strike out means the tribunal orders that all or part of a claim or response is removed from the proceedings.

Once struck out:

• The affected claim or allegation is no longer considered by the tribunal
• The case may continue on remaining issues, or end entirely
• The party may lose the opportunity to obtain a remedy in relation to the struck-out part

It is distinct from simply losing a case after a full hearing. A strike out prevents the case from being heard on its merits.

In practical terms, it is a summary disposal mechanism used to prevent the tribunal process being used improperly or inefficiently.

Legal Basis for Strike Out

The tribunal's power is set out in the Employment Tribunal Rules of Procedure 2013, Rule 37 (as commonly cited), which allows strike out at any stage of proceedings.

A tribunal may strike out a claim or response where one or more of the following apply:

• The claim or response has no reasonable prospect of success
• It is scandalous, vexatious, or an abuse of process
• The proceedings have been conducted in a scandalous, unreasonable, or vexatious manner
• There has been non-compliance with tribunal rules or orders
• The claim or response has not been actively pursued
• A fair hearing is no longer possible

The tribunal may act on its own initiative or following an application by a party.

Grounds for Strike Out Explained

1. No reasonable prospect of success

This is one of the most commonly relied upon grounds.

A claim may be struck out where, even if all facts alleged are assumed to be true, it still cannot succeed in law. Examples include:

• A claim brought outside jurisdiction
• A legally defective cause of action
• Claims contradicted by undisputed documentary evidence

Tribunals are cautious in applying this ground, particularly in discrimination cases, where factual disputes often require a full hearing.

2. Scandalous, vexatious or abusive claims

This applies where a claim is improperly brought or conducted.

Examples include:

• Claims pursued to harass or pressure the other party
• Repeated issuing of unmeritorious claims
• Use of tribunal proceedings for an improper purpose

This ground is applied narrowly and requires clear evidence of abuse.

3. Non-compliance with tribunal orders

Tribunals manage cases through case management orders, including:

• Disclosure deadlines
• Witness statement timetables
• Bundling requirements

Failure to comply may lead to strike out where the breach is serious or persistent, particularly if warnings have been ignored.

4. Failure to actively pursue the claim

If a claimant or respondent does not progress the case, the tribunal may strike it out.

Examples include:

• Ignoring tribunal correspondence
• Not complying with directions over time
• Abandoning participation in proceedings

5. Fair hearing no longer possible

This applies where procedural issues prevent a fair trial.

Examples may include:

• Loss of key evidence
• Excessive delay affecting witness recollection
• Conduct that undermines the integrity of proceedings

The threshold is high and requires a strong justification before a tribunal will conclude that a fair hearing cannot take place.

Procedure for a Strike Out

Application or tribunal initiative

A strike out may be:

• Requested by a party (usually the respondent), or
• Initiated by the tribunal itself

Opportunity to respond

Before striking out a claim, the tribunal must generally allow the affected party to respond. This may be:

• In writing, or
• At a preliminary hearing

This safeguards procedural fairness.

Strike Out vs Other Tribunal Powers

Strike Out vs Deposit Orders

A deposit order requires a party to pay a sum (up to a statutory limit) to continue pursuing a claim or allegation considered to have little prospect of success.

• Deposit order: claim continues if payment made
• Strike out: claim (or part) is removed entirely

Strike Out vs Summary Judgment

Employment Tribunals do not use “summary judgment” in the same way as civil courts, but strike out serves a similar function by removing weak or defective claims early.

How Tribunals Approach Strike Out Applications

Tribunals are generally cautious before striking out claims, particularly where:

• The claimant is unrepresented
• The case involves discrimination or whistleblowing
• There are disputed facts requiring oral evidence

Case law and practice guidance emphasise that strike out is a last resort because it prevents a full evidential hearing.

In many cases, tribunals prefer:

• Case management orders
• Deposit orders
• Directions to clarify pleadings

before considering strike out.

Practical Consequences of Strike Out

If a claim is struck out:

• The claim may be dismissed entirely or partially
• The claimant may lose entitlement to compensation on that part
• The respondent may avoid defending those allegations at a hearing
• Costs consequences may follow in limited circumstances

In some cases, it may be possible to:

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

However, these routes are limited and depend on procedural and legal grounds.

Common Situations Where Strike Out Is Considered

• Weak legal claims with no jurisdictional basis
• Repeated failure to comply with tribunal directions
• Abusive or repetitive litigation behaviour
• Cases where evidence has been lost through delay or misconduct
• Claims that are fundamentally defective in law

Key Safeguards

Before ordering strike out, tribunals typically ensure:

• The affected party has been notified
• They have had a fair opportunity to respond
• The decision is proportionate
• Less severe alternatives have been considered

This ensures strike out is not used excessively or unfairly.

Key Takeaways

A strike out in Employment Tribunal proceedings is a powerful procedural order that removes all or part of a claim or response before trial. It is used where claims lack legal merit, are improperly conducted, are not pursued, or cannot fairly proceed. Although available at any stage, it is applied cautiously due to its serious consequences. Tribunals usually require clear justification and will often consider less drastic alternatives before striking out a case.