Applying for a Strike-Out in the Employment Tribunal

Applying for a Strike-Out in the Employment Tribunal

Seeking Summary Judgment:

Striking out all or part of an opponent's claim (ET1) or response, Seeking Summary Judgment:

Applying for a Strike-Out in the Employment Tribunal

Striking out all or part of an opponent's claim (ET1) or response (ET3) is a significant and "draconian power" available to the Employment Tribunal (ET) under the Employment Tribunal Procedure Rules 2024 (ET Rules 2024).

We can assist you, as the applicant, in meticulously preparing and presenting an application to strike out your opponent's case, which can be made either on its own initiative or following the application of a party.

I. The Legal Basis for Strike-Out

The tribunal may strike out all or part of a claim, response, or reply on one of five statutory grounds set out in Rule 38(1) of the ET Rules 2024.

Our strategy focuses on identifying which of these grounds apply to your opponent’s case:

GroundRule 38(1)Core Definition & Application:

No Reasonable Prospects of Success

It has no reasonable prospects of success. The legal threshold for strike-out on this ground is high. We must demonstrate that the case, as pleaded by the opponent, discloses no arguable case in law. This power should only be exercised "very exceptionally" when facts are in dispute. Discrimination and whistleblowing claims should be struck out only in the "plainest and most obvious cases".

Scandalous or Vexatious

It is scandalous or vexatious. A "scandalous" case involves the misuse of legal process to vilify others or give gratuitous insult to the court. A "vexatious" case generally involves little or no basis in law, subjects the defendant to expense/harassment disproportionate to any likely gain, and constitutes an abuse of process.

Scandalous, Unreasonable, or Vexatious Conduct

The manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. This applies to the conduct of the proceedings by a party or their representative. Strike-out here often requires demonstrating that the conduct has made a fair trial impossible.

Non-Compliance

The party has not complied with any of the ET rules or an order of the tribunal (including a deposit order). Strike-out decisions for non-compliance are not automatic or punitive in nature. The tribunal must consider the magnitude of the default, the prejudice caused, and whether a fair hearing is still possible.

Active Pursuit

It has not been actively pursued. This ground applies if a claim or response has not been actively pursued, often related to inordinate and inexcusable delay, which creates a substantial risk of serious prejudice or makes a fair trial impossible.

Fair Hearing Impossible

It is no longer possible to have a fair hearing. This is rarely used as the sole justification, as the consideration of a "fair hearing" is integrated into the other grounds of strike-out.

II. The Procedure for Applying for Strike-Out

We assist in navigating the required procedure, ensuring the application is robustly pleaded and follows the necessary steps, which is critical since strike-out is an "exceptional" jurisdiction.

1. Making the Application

An application to strike out your opponent's case can be made either orally at a hearing or in writing. We can prepare a standard document for a preliminary hearing that includes a request for strike-out and/or a deposit order.

2. The Two-Stage Test

When considering a strike-out application, the tribunal applies a two-stage test that we must address in the application:

• Stage 1

  Establish that one of the grounds set out in Rule 38(1)(a) to (e) has been met.

• Stage 2

  Persuade the tribunal to exercise its discretion to strike out the claim or response, given the permissive nature of the rule.

3. Notice and Opportunity to Make Representations

A claim or response cannot be struck out unless the opposing party has been given a reasonable opportunity to make representations, either in writing or, if requested, at a hearing.

• Notice Requirements: The tribunal is required to give the parties at least 14 days' notice of the preliminary issues (which include a strike-out application) to be considered at a preliminary hearing.

• Sufficient Time: The person against whom the application is made must have sufficient time to prepare, so they have a reasonable opportunity to make representations.

III. Strike-Out Related to Unfair Dismissal and Discrimination Claims

We recognise that claims involving complex or fact-sensitive issues require an even higher threshold for strike-out.

A. Unfair Dismissal Claims

In almost every case, an unfair dismissal decision is fact-sensitive. If the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. A tribunal must not conduct an impromptu trial of the facts where there is a serious dispute on the crucial facts.

B. Discrimination and Whistleblowing Claims

In line with House of Lords rulings, discrimination claims should not be struck out as having no reasonable prospects of success, except in the plainest and most obvious cases. The same principle applies to whistleblowing claims.

• Taking the Case at its Highest

  We must anticipate that the tribunal will ordinarily take the claimant's case at its highest.

• Disputes of Fact

  If core issues of fact turn on oral evidence, they should not be decided without hearing that evidence. Strike-out is highly unlikely where factual issues are disputed.

• Contradictory Documents

  A claim may be struck out if the claimant’s case is conclusively disproved by or is totally and inexplicably inconsistent with undisputed contemporaneous documents.

IV. Consequences of a Successful Strike-Out Application

If a response (ET3) is dismissed under Rule 38 (strike-out) or Rule 39 (unless order), the case proceeds as if no response had been presented. The tribunal may then issue a default judgment on liability and remedy to the extent possible based on the available material.

V. Special Consideration: The "Unless Order"

We can also assist in requesting an "unless order" (Rule 39), which provides that, unless an order is complied with, the claim or response (in whole or in part) of the defaulting party will be automatically dismissed on the date of non-compliance, without the need for a further application or order.

• Automatic Effect

  The effect of an unless order is automatic. Once non-compliance occurs, the consequences take effect, even if the non-compliance is partial. The tribunal has no discretion over whether a claim is struck out once non-compliance with an unless order is established.

• Requirement for Clarity

  We must ensure that the order is drafted clearly, as the party must be able to see from its terms what is required to comply with it. Ambiguity should be resolved in favour of the complying party.