Law at work 2021 - the trade union guide to employment law (July 2021)

Chapter 14

Striking out

[ch 14: page 521]

An ET can strike out a claim or a response that is “scandalous, vexatious or has no reasonable prospect of success”. Striking out a claim is an extreme step because it means dismissing the claim without hearing witnesses in a proper trial.

Discrimination claims are rarely struck out, for two reasons. Firstly, cross-examination in a public trial is usually the only effective way to test disputed evidence in a discrimination claim, and secondly, ETs recognise a particularly strong public interest in justice being seen to be done in this type of case (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). The same is true of whistleblowing cases (Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA).

In general, judges should not strike out claims just because of insufficient detail, especially if a claimant is unrepresented. Instead, the claimant should be ordered to provide the missing information by a set date. In a particularly weak claim, they can be ordered to pay a deposit (Mbuisa v Cygnet Healthcare Limited [2019] UKEAT/0119/18/BA).

Claimants who do not “actively pursue” their claims, for example, by failing to comply with the tribunal’s directions or orders, can also have those claims struck out.

Non-cooperation, for example with arrangements for expert medical evidence, can lead to a claim being struck out. See for example, Itulu v London Fire Commissioner [2019] UKEAT/0298/18/BA.


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