This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Facing a strike out application? Learn the legal grounds on which tribunals can dismiss a claim, how the procedure works, and how to defend your case effectively.
In employment disputes, an Employment Tribunal claim may be dismissed before reaching a final hearing through a procedural order known as strike out. This is a serious step because it effectively ends the claim or part of it, sometimes leaving the claimant without a forum to pursue compensation or other remedies. Tribunals have the power to strike out at any stage of proceedings where specific legal criteria are met. Understanding how and when strike out applies, the legal basis, procedural safeguards and practical considerations is essential for claimants, respondents and advisors.
What Does “Strike Out” Mean?
Strike out is an order by which a tribunal removes all or part of a claim, defence (response) or reply from the list of issues to be decided in a claim. When a claim or response is struck out, it is treated as if it has not been presented at all in that respect. For example, a struck‑out response may mean the claimant's case proceeds uncontested on those issues.
This power can be exercised on the tribunal's own initiative or on an application by a party to the proceedings.
Legal Basis – Tribunal's Powers to Strike Out
The current statutory basis for striking out claims derives from the Employment Tribunal Procedure Rules 2024. Rule 38 sets out the circumstances in which the tribunal may strike out all or part of a claim, response or reply.
Under Rule 38, a tribunal may strike out where:
- The claim or response is scandalous or vexatious or has no reasonable prospect of success.
- The way the proceedings have been conducted is scandalous, unreasonable or vexatious.
- There has been non‑compliance with tribunal procedure rules or an order of the tribunal.
- The claim or defence has not been actively pursued.
- It is no longer possible to have a fair hearing on the matter because of what has happened in the case.
Tribunals must give the party whose claim or response might be struck out a reasonable opportunity to make representations, either in writing or, if requested, at a hearing, before striking it out.
Common Grounds for Strike Out
No Reasonable Prospect of Success
A claim or response may be struck out if the tribunal considers it cannot succeed based on its legal or factual basis. This applies where a claim is clearly misconceived, lacks any tenable legal argument, or is bound to fail even if all pleaded facts are accepted.
Scandalous or Vexatious Claims
A claim may be struck out if it is brought in a way that is improper - for example, where the claimant's motivation is to harass or vex the respondent rather than pursue a genuine dispute. This is rare and tribunals exercise caution before finding a case scandalous or vexatious.
Conduct of the Proceedings
If a party conducts the case in a way that is unreasonable or undermines the tribunal's ability to manage the case (for example, repeatedly ignoring deadlines or orders), this may justify strike out. This ground protects the efficiency and fairness of the judicial process.
Non‑Compliance with Rules or Orders
Failing to comply with tribunal rules or specific case management orders - such as directions to serve evidence, comply with timetables, or produce documents - can lead to strike out. Tribunals expect parties to follow procedural requirements to ensure fairness and case progression.
Lack of Active Pursuit
A claim or defence may be struck out when a party effectively abandons it - for example, by failing to engage with case management, failing to respond to correspondence, or otherwise not progressing the case.
Impossibility of Fair Hearing
If developments in the case mean that a fair hearing is no longer possible - perhaps because evidence has become stale or one party's conduct has undermined the tribunal's ability to hear the matter fairly - the tribunal may consider strike out appropriate.
Procedure for Strike Out Applications
Making the Application
Either side in a dispute can apply for strike out, or the tribunal can consider it without an application. A formal application is usually made in writing, identifying the grounds relied upon and supporting evidence or legal submissions.
Opportunity to Respond
The party whose claim or response may be struck out must be given a reasonable opportunity to set out why it should not be struck out. This may involve written submissions or a hearing if a party requests one. Tribunals will generally not strike out without allowing the affected party to be heard.
Tribunal Decision
If the tribunal decides to strike out, it will issue a formal order so that all parties know which parts of the claim or response are affected. The tribunal must use its discretion and consider whether strike out is a proportionate sanction given the circumstances, or if a less severe measure (such as a costs order or deposit order) would suffice.
Consequences of Strike Out
- If a claim is struck out, the claimant's case (or part of it) is dismissed and cannot proceed to a hearing.
- If a response (defence) is struck out, the claimant may proceed unopposed on those parts of the case as if no defence had been filed, which can lead to default judgments or adverse findings.
- Strike out can occur at any stage, including at preliminary hearings, case management discussions, or before a final hearing.
Practical Examples
- A claimant repeatedly fails to comply with directions to file a witness statement and does not engage with case management. A tribunal may strike out the claim for lack of active pursuit.
- A defence that clearly has no reasonable prospects - for example, a response that simply replicates the claimant's version without any substantive legal defence - could be struck out if it adds nothing of real substance.
- Conduct during proceedings that is unreasonable or vexatious may trigger a strike out application, though tribunals are cautious and require proportionate justification.
Defending Against a Strike Out
Timely Responses and Representation
Responding clearly and promptly to procedural directions significantly reduces the risk of strike out. Parties should engage fully with case management and serve evidence and submissions on time.
Substantive Legal and Factual Argument
When opposing a strike out application, demonstrating that the claim or response has reasonable prospects of success and is properly pleaded is critical. This may include providing supporting evidence or legal authority.
Requesting a Hearing
Where written submissions might not fully explain why a strike out would be inappropriate, requesting an oral hearing gives the party a fuller opportunity to persuade the tribunal.
Common Questions
How Likely Is Strike Out?
Tribunals use strike out sparingly because it is a drastic remedy. They prefer to allow claims to be decided on their merits where possible, particularly for litigants in person.
Is There an Appeal Against Strike Out?
Yes. A strike out order can often be challenged on appeal to the Employment Appeal Tribunal on a point of law, for example where the tribunal misapplied the rules or legal standards in making the order.
Does Strike Out Apply to All Claims?
Strike out provisions apply across most employment tribunal claims, including unfair dismissal, discrimination, wages and statutory rights, as long as the procedural conditions and grounds are met.
Summary
Strike out in Employment Tribunals in England and Wales allows a tribunal to remove all or part of a claim or response where serious procedural or substantive issues exist. Grounds include claims that are scandalous, vexatious or have no reasonable prospects of success; non‑compliance with tribunal rules or orders; lack of active pursuit; conduct that undermines fair hearing; and, in rare cases, unreasonable or vexatious behaviour by a party. Before ordering strike out, the tribunal must give affected parties the opportunity to make representations, and it must consider whether the order is proportionate. Strike out orders are significant because dismissed claims or defences usually cannot proceed further in that tribunal, although they can often be challenged on appeal on legal grounds.
