Employment Tribunals: striking out a claim or response – the impact of recent case law

28 January 2022

Strike out is an essential tool in the employment lawyer’s armoury. Having your opponent’s case struck out may mean considerable costs-saving and avoiding the stress of a full trial.

However, it is important to be aware of the relevant principles before making, or responding to, a strike-out application. During the past 12 months or so there have been four Employment Appeal Tribunal decisions relating to strike out. This article summarises the key lessons from each.

First, a reminder of the grounds on which the tribunal may strike out all/part of a claim/response (rule 37(1) of the Employment Tribunal Rules of Procedure 2013):

(a)     that it is scandalous or vexatious or has no reasonable prospect of success;

(b)     that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(c)     for non-compliance with any of the Rules or with an order of the tribunal;

(d)     that it has not been actively pursued;

(e)     that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

The importance of a carefully drafted strike-out application:  Duvenage v NSL Ltd UKEAT/0002/20 (8 December 2020, unreported)

In Duvenage, the EAT rejected the argument that a strike-out applicant, whose application was determined on paper, had the right to demand an open preliminary hearing on the application.

Rule 37(2) of the ET Rules states a claim or response may not be struck out unless ‘the party in question’ has been given a reasonable opportunity to make representations, either in writing or, ‘if requested by the party’, at a hearing.

‘The party in question’ is the party against whom the application is made – the general rule is that only they may insist upon a hearing.

Strike out of discrimination claims involving acts extending over a period of time: E v X, L and Z UKEAT/0079/20 (10 December 2020, unreported)

In X, L and X, Ellenbogen J considered the issue of striking out a claim which raised the question (for limitation purposes) of whether there had been ‘acts extending over a period’. Citing the authorities, he set out the following guidance (at paras 47 and 50) which is helpful to quote in full:

(1) In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form;

(2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial;

(3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant;

(4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked: (1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or (2) substantively to determine the limitation issue;

(5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case;

(6) An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs;

(7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor;

(8) In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required — the matter will be decided on the claimant’s pleading;

(9) A tribunal hearing a strike-out application should view the claimant’s case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason;

(10) If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded,

the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing;

(11) Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out;

(12) Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing;

(13) If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to

consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue.

 Practical guidance, and dealing with litigants in person: Cox v Adecco UKEAT/0339/29 [2021] ICR 1307

In Cox, HHJ Taylor gave important guidance for when considering potential strike out (para 28):

(1) No one gains by truly hopeless cases being pursued to a hearing.

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.

(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.

(4) The claimant’s case must ordinarily be taken at its highest.

(5) It is necessary to consider, in reasonable detail, what the claims and issues are.  Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.

(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case.  When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer.

(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

HHJ Taylor also emphasized (at 29-31), when considering litigants in person (‘LIPs’), that strike out is not to be viewed as an easy way out of dealing with badly pleaded of confusing facts. However, he also stated (at 32) that:

  • LIPs should, so far as they can, seek to explain their claims clearly even though they may not know the correct legal terms, focusing on their core claims;
  • LIPs are subject to the overriding objective too, and should do all they can to assist the tribunal, which can only be expected to take reasonable steps to identify the issues;
  • Respondents – and tribunals – should make requests for additional information as limited and clearly-focused as possible.

When is a fair trial impossible? Emuemukoro v Croma Vigilant (Scotland) Ltd EA-2020-000006 (previously UKEAT/0014/20) (22 June 2021, unreported)

In Emuemukoro the ET, faced with a respondent who had failed to comply with bundle and witness statement directions which made a fair trial impossible within the listed five-day trial window, struck out its response at the start of the trial. On appeal, the EAT confirmed that whether a fair trial could have been possible at a later date was immaterial: when considering a strike-out application on the first day of trial it is enough, to trigger consideration of strike out, that a party’s unreasonable conduct meant a fair trial was not possible within that trial window. Whether or not the power ought to be exercised then would then depend on proportionality.

On proportionality, the EAT rejected the submission that strike out should only be exercised if there is no alternative (eg an adjournment, and costs). An adjournment might cause unacceptable prejudice to the other party, which would make strike out proportionate.