Written by Employment tribunal · strike-out · deposit orders
For litigants in person, strike-out and deposit-order applications can feel like an attempt to end a claim before it is heard. The answer is procedural discipline: understand the test, identify disputed facts, protect your right to respond, and keep the tribunal focused on proportionality.
Publication snapshot
- This article explains strike-out, deposit orders and costs risks in employment tribunal proceedings.
- It focuses on practical steps for litigants in person facing applications from represented respondents.
- It preserves the key case references and quick-response wording from the source draft.
Why these applications matter
For many people, representing themselves in an employment tribunal — known as being a litigant in person — 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 applications are strike-out and deposit orders. Both can be intimidating for those without legal training. But understanding what they mean, and how to respond, can help litigants in person protect their cases.
The legal landscape: strike-outs, deposit orders and costs
Strike-out
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”.
Deposit orders
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 for a deposit order is lower than for strike-out. Before fixing any deposit, the tribunal should consider the claimant’s ability to pay. Where hardship would impede access to justice, a nominal or staged deposit may be appropriate.
Costs orders under 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 succeeds, but costs remain exceptional. The tribunal applies a two-stage test — threshold and discretion — and must consider 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
“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
“Unreasonable” conduct usually means persistent disregard for tribunal orders or behaviour that makes a fair trial impossible.
No reasonable prospect of success
“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 that right if it is not offered.
If a deposit is being considered, you are entitled to a short means inquiry and a brief record of the tribunal’s reasons.
Practical defence: how litigants in person can mitigate the risks
Clear pleading and evidence
Set out your claim in a logical, chronological order. Identify the legal basis, such as unfair dismissal or discrimination, and link your facts to the law. If the employer argues your claim is vexatious because you raised a grievance and then brought a claim, you can rebut this by showing that your grievance was a genuine attempt to resolve the issue internally, not an abuse of process.
Compliance and reasonableness
Respond promptly to all tribunal directions and orders. Keep records of 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 good faith.
Resisting applications with the authorities
If faced with a strike-out or deposit-order application, highlight factual disputes, remind the tribunal that strike-out is a last resort, and ask it to avoid a mini-trial at the preliminary stage. If a deposit is sought, request a means inquiry and ask that any order be confined to identified allegations.
Seek support
While legal aid is limited, organisations such as Citizens Advice, the Free Representation Unit and Law Centres may be able to offer guidance. Even a short session with an adviser can help clarify your arguments and the process.
Stay professional
Always conduct yourself courteously and focus on the facts and law. Avoid personal attacks or emotional language. This strengthens your case and demonstrates to the tribunal that you are acting reasonably.
LiP quick response box
If you receive a strike-out or deposit application, you may adapt the following wording for your response.
Strike-out: rule 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: rule 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: rule 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.”
Further reading
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, litigants in person can give themselves the best chance of having their claims heard in full.
Facing such applications can also be an opportunity to show professionalism and reasonableness — qualities that tribunals value highly.
Disclaimer
This article is for general information only and does not constitute legal advice. Employment tribunal cases turn on their own facts, evidence, procedural history and applicable rules. If you are involved in tribunal proceedings, consider seeking professional guidance.
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