How Litigants in Person Can Defend Against Strike-Out and Deposit Order Applications in Employment Tribunals

For many people, representing themselves in an employment tribunal—known as being a Litigant in Person (LiP)—can be daunting. The process is unfamiliar, the stakes are high, and respondents (often represented by barristers) may deploy procedural tactics to have claims dismissed before a full hearing. Two of the most common are “strike-out” and “deposit order” applications, both of which can be intimidating for those without legal training. But what do these applications mean, and how can LiPs best protect their cases?

The Legal Landscape: Strike-Outs, Deposit Orders, and Costs

Employment tribunals have the power to strike out claims under Rule 38 of the Employment Tribunal Procedure Rules 2024, SI 2024/1155 (previously Rule 37 of the 2013 Rules). A claim can be struck out if it is “vexatious”, “scandalous”, “unreasonable”, or has “no reasonable prospect of success”.

Where strike-out is considered too severe, respondents may instead seek a deposit order under Rule 40. This is a “yellow card” warning: the tribunal may order a claimant to pay a deposit (up to £1,000) if it considers the claim or part of it has “little reasonable prospect of success”. The threshold is lower than for strike-out, and before fixing any deposit, the tribunal should consider your ability to pay. Where hardship would impede access to justice, a nominal (£1) or staged deposit is appropriate.

Finally, costs orders (Rule 74) are rare but possible. If a party has acted “vexatiously, abusively, disruptively or otherwise unreasonably”, the tribunal can order them to pay the other side’s costs. This is a particular risk if a strike-out application is successful, but costs remain exceptional: the tribunal applies a two-stage test (threshold then discretion) and must consider your means and proportionality when setting any amount.

What Do “Vexatious”, “Unreasonable”, and “No Reasonable Prospect” Mean?

The courts have repeatedly emphasised that strike-out is a “draconian” power, to be used sparingly and only in clear cases. The leading case of Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 makes clear that strike-out is appropriate only in exceptional circumstances, especially where central facts are in dispute.

This principle is echoed in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 and the Scottish case Tayside Public Transport Co Ltd v Reilly [2012] IRLR 686. However, respondents often cite Ahir v British Airways plc [2017] EWCA Civ 1392 to argue that even discrimination claims—traditionally seen as fact-sensitive—can be struck out if there is truly no reasonable prospect of success.

“Vexatious” claims are those brought to harass or for an improper purpose, as discussed in Attorney General v Barker [2000] EWHC J0216-2. “Unreasonable” conduct usually means persistent disregard for tribunal orders or behaviour that makes a fair trial impossible.

“No reasonable prospect of success” means the claim is bound to fail, not merely weak or unlikely to succeed (Balls v Downham Market High School & College UKEAT/0343/10).

Procedural Safeguards: Your Right to Be Heard

Tribunals must give claimants a fair opportunity to respond to any strike-out or deposit order application, either in writing or at a hearing. If you receive such an application, you are entitled to make representations and should insist on this right if it is not offered.

If a deposit is considered, you are entitled to a short means inquiry and a brief record of the tribunal’s reasons.

Practical Defence: How LiPs Can Mitigate the Risks

1. Clear Pleading and Evidence

Set out your claim in a logical, chronological order. Identify the legal basis (e.g. unfair dismissal, discrimination) and link your facts to the law. For example, if your employer argues your claim is vexatious because you raised a grievance and then brought a claim, you can rebut this by showing your grievance was a genuine attempt to resolve the issue internally, not an abuse of process.

2. Compliance and Reasonableness

Respond promptly to all tribunal directions and orders. Keep records of your compliance, as this can be vital if the respondent alleges unreasonable conduct. If you need more time, request an extension and explain your reasons. Making reasonable settlement offers (even if rejected) can also demonstrate your good faith.

3. Resisting Applications: Citing the Authorities

If faced with a strike-out or deposit order application:

Highlight any factual disputes—tribunals are reluctant to strike out where facts are contested (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330).
Point out that strike-out is a last resort and that deposit orders are available as a less draconian alternative (Tayside Public Transport Co Ltd v Reilly [2012] IRLR 686).
Ask the tribunal to take your case at its highest and to avoid a mini-trial at the preliminary stage (Balls v Downham Market High School & College UKEAT/0343/10).
If a deposit order is sought, ask for a means inquiry (the tribunal must consider your ability to pay) and note that the deposit can be nominal.
If a deposit is ordered, request nominal/staged sums after a means inquiry and ensure the order is confined to identified allegations.
If costs are threatened, remind the tribunal that costs orders are exceptional and only apply for truly unreasonable conduct (Yerrakalva v Barnsley MBC [2012] EWCA Civ 1634).

4. Seek Support

While legal aid is limited, organisations such as Citizens Advice, the Free Representation Unit, and Law Centres can offer guidance. Even a short session with an adviser can help clarify your arguments and the process.

5. Stay Professional

Always conduct yourself courteously and focus on the facts and law. Avoid personal attacks or emotional language. This not only strengthens your case but also demonstrates to the tribunal that you are acting reasonably.

Conclusion: Turning Risk into Opportunity

While the risk of strike-out or deposit orders is real, especially for those without legal representation, it is far from inevitable. By understanding the rules, presenting a clear and reasoned case, complying with directions, and responding robustly to applications, LiPs can give themselves the best chance of having their claims heard in full.

In fact, facing such applications can be an opportunity to show professionalism and reasonableness—qualities that tribunals value highly.

This article is for general information only and does not constitute legal advice. If you are involved in tribunal proceedings, consider seeking professional guidance.

LiP Quick Response Box

If you receive a strike-out or deposit application, copy this into your response:

Strike-out (r.38): “Strike-out is draconian and a last resort. At this stage my case must be taken at its highest; contested facts and inferences require a hearing, not a paper disposal (Ezsias; Balls; Tayside). If the tribunal has concerns, the proportionate alternative is a targeted deposit on specific allegations.”

Deposit (r.40): “If a deposit is considered, please record reasons per allegation, conduct a brief means inquiry, and consider a nominal or staged sum to preserve access to justice.”

Costs (r.74): “Costs are exceptional. The tribunal must assess (i) threshold and (ii) discretion; if reached, any sum must reflect my means and proportionality (Yerrakalva v Barnsley MBC). My conduct shows reasonableness: compliance with orders, timely narrowing, and WP save as to costs offers.”