Striking out


A tribunal can strike out a claim or a response that is “scandalous, vexatious or has no reasonable prospect of success” (rule 37). 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. 



Striking out a claim is an extreme step because it involves dismissing the claim without hearing witnesses in a proper trial.


Discrimination claims are rarely struck out. This is because testing witnesses through cross-examination is usually the only effective way of testing the strength of a discrimination claim, and also because tribunals recognise a particularly strong public interest in justice being seen to be done in this type of claim (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).



An employment judge can issue a default judgment if an employer has not issued their ET3 Response Form in time, or does not intend to oppose the claim. This is a judgment made without a hearing.