Ryan Anderson discusses 4 EAT decisions on strike out published so far this year. He highlights the key points from each case for employment lawyers to consider.
Grounds on which the tribunal may strike out all or part of a claim, response or reply
As a reminder, under r.38(1) Employment Tribunal Procedure Rules 2024 a claim, response or reply may be struck out in full or partly if:
- it is scandalous or vexatious or has no reasonable prospect of success
- the way the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious
- non-compliance with any of these rules or with an order of the tribunal
- it has not been actively pursued
- the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).
Delay meant fair trial not possible, despite no fault of parties: Boateng v Moss Bros Group Ltd [2026] ICR 672, [2026] EAT 50
The claimant alleged around 30 acts of discrimination dating from 2017. The claim was delayed, through no fault of his, by the respondent’s company voluntary arrangement and the pandemic.
By the preliminary hearing, 22 of the 23 employees named in the allegations had left the respondent, and 17 were uncontactable or unwilling to co-operate.
The EAT upheld the strike out, noting that delay alone is not always a good ground for strike out, but that the ET had not erred given the delay and witness issue.
- The tribunal need not be sure a fair trial is impossible. Usually it must assess whether the risk is 'sufficiently high or serious to warrant a strike out' [22]. It should first consider steps that could address that risk [24].
- In missing-witness cases, it must usually interrogate the position closely [48].
Talking to a representative under oath: Odusanya v Pennine Care Foundation Trust [2026] IRLR 265, [2026] EAT 5
The unrepresented claimant instructed a new representative while still under oath; the tribunal struck out her claims after refusing her request to speak to her lawyer first.
The EAT set the strike out aside and remitted it to a different tribunal.
- The claimant had a statutory right to representation, and tribunal should usually find what was actually discussed, since discussions 'could take many forms from the detailed to the innocuous' [33-34].
- A litigant facing a strike out application mid-hearing should normally be allowed advice on it, because representation 'includes the giving of advice' [41, 44].
Misleading the tribunal: Tedd v Surrey County Council [2026] IRLR 597, [2026] EAT 66
The claimant failed to provide ordered particulars and misled the tribunal about a medical appointment said to prevent his attendance at a hearing. The EAT upheld the strike out of his claim as not actively pursued.
Where default is intentional and contumelious, the question is not whether a fair trial is still possible, but:
- whether the claimant failed to take reasonable steps to progress the claim, in a manner that shows disrespect/contempt for the tribunal and/or it’s procedures; and if so,
- whether it is just to allow the claimant continued access to the tribunal [31-32, 44]. Strike out is normally exceptional where a claim can be put back on track, but misleading the tribunal is itself exceptional [49].
Time points: Waithaka v Barclays Execution Services Ltd [2026] EAT 105 (17 July 2026, unreported)
The tribunal struck out, as having no reasonable prospect of success, the contention that the claimant's complaints formed conduct extending over a period, leaving the major part of his claim out of time. Swift J set that decision aside.
- The tribunal had counted against him the absence of an 'inherently discriminatory act' or alleged racial motivation, neither being a necessary element of the claim [32].
- His case, supported by internal reports on the treatment of black employees, 'might be a weak case' but was 'not fanciful' [27, 34]. A claim that 'might fail' does not thereby lack a reasonable prospect of success [35].