Striking out

A tribunal can strike out a claim or a response that is “scandalous, vexatious or has no reasonable prospect of success”. Claimants who do not “actively pursue” their claims, for example, failing to comply with the tribunal’s directions or orders, can also have those claims struck out. 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, tribunals 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).