The Art of Striking Out: How Employers Exploit Legal Tactics in UK Employment Tribunals

In UK employment tribunals, companies often opt to have claims struck out rather than addressing them on their merits. This article examines the motivations behind this strategy, the legal mechanisms used, and its profound effects on claimants, particularly when respondents resort to aggressive tactics.

The Appeal of Strike-Out Applications for Companies

Cost-effectiveness: Successfully striking out a claim at an early stage can save significant time and legal costs compared to proceeding to a full hearing. This is especially beneficial for companies looking to manage their legal expenses efficiently.
Avoiding disclosure: By ending the case early, companies can avoid disclosing potentially damaging or embarrassing internal documents. Disclosure can often be a lengthy and costly process, so avoiding it can be advantageous for a company’s operational and financial standing.
Deterring future claims: A reputation for aggressively challenging claims may discourage other employees from bringing cases. If employees perceive that their claims will likely be struck out or heavily contested, they might be less inclined to pursue litigation.
Protecting reputation: Avoiding a public hearing on the merits of a case can help companies maintain their public image. Court cases, especially those that attract media attention, can harm a company’s reputation, regardless of the outcome.
Exploiting power imbalance: Many claimants are unrepresented, making it easier for companies with experienced legal teams to overwhelm them with technical legal arguments. This power imbalance can lead to claims being struck out simply because claimants cannot match the legal resources of the company.

Legal Mechanisms for Striking Out Claims

The primary legal basis for striking out claims in employment tribunals is Rule 37 of the Employment Tribunals Rules of Procedure. This rule outlines several grounds on which a claim can be struck out, including lack of jurisdiction, no reasonable prospect of success, and the impossibility of a fair hearing.

Recent Case Law

Smith v. Tesco Stores Ltd: The Tribunal struck out the claim because Mr. Smith’s conduct during proceedings was deemed scandalous, unreasonable, and vexatious, making a fair trial impossible. His refusal to cooperate with the Tribunal’s procedures, including failing to respond to the List of Issues and exhibiting abusive behaviour, led to the conclusion that a fair trial could not be conducted.
Sually v. HMRC: The Employment Appeal Tribunal (EAT) emphasised the necessity for careful judicial consideration before making a decision to strike out, particularly where claims involve significant documentation, ensuring a fair opportunity for claimants.
Mohammed v. Guy’s and St Thomas’ NHS Foundation Trust: The EAT provided further guidance on Rule 37’s application, stressing the importance of procedural fairness before striking out claims. The judgment reinforced that unless orders should be made with great care and focus on specific complaints rather than dismissing entire claims due to partial non-compliance.
Phipps v. Priory Education Services Ltd: The Court of Appeal overturned the strike-out decision due to the representative’s failures, emphasising the broader implications of fairness and proportionality in judicial decisions.

The “Squirrel vs Duck” Approach

In UK employment law, the “squirrel” and “duck” approaches to strike-out applications offer a vivid analogy for contrasting legal strategies:

The “squirrel” approach is characterised by aggressive, scattergun tactics, often overwhelming claimants with numerous technical arguments and procedural challenges.

The “duck” approach is more measured and focused, involving carefully selecting strong, well-founded grounds for strike out and presenting them clearly and concisely.

UK courts increasingly favour the “duck” approach, focusing on fairness and precision rather than overwhelming claimants with excessive technicalities.

Impact on Claimants

Aggressive strike-out tactics can severely impact claimants, leading to emotional distress, financial strain, and diminished confidence in the tribunal system. These tactics can undermine the perceived fairness and accessibility of the tribunal process, making it challenging for claimants to pursue legitimate cases.

The Balancing Act for Tribunals

Employment tribunals face a delicate balancing act when considering strike-out applications. They must ensure access to justice and give claimants a fair hearing while managing their caseloads efficiently and preventing abuse of the system. The Presidential Guidance on General Case Management provides important context for how tribunals approach this balance, emphasising the need for proportionality and efficiency.

Tribunals are guided by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which set out specific rules and powers for case management and strike-outs. Rule 37 gives tribunals the authority to strike out claims that have no reasonable prospect of success or are otherwise an abuse of the process. The overriding objective is to enable tribunals to deal with cases fairly and justly.

Alternatives to Strike Out

In UK tribunals, alternatives to striking out claims include:

Deposit Orders: Requiring a claimant to pay a sum of money if their claim has little reasonable prospect of success. This ensures that only cases with a realistic chance of success proceed.
Unless Orders: Specifying conditions that must be met for the claim to proceed. If the conditions are not fulfilled, the claim or response may be dismissed without further order.
Costs Warnings: Issuing warnings about potential costs consequences if a party pursues an unreasonable position, deterring frivolous or unfounded claims by highlighting the financial risks involved.

Ethical Considerations for UK Legal Professionals

The use of strike-out applications raises important ethical questions for legal professionals. In Emuemukoro v. Croma Vigilant (Scotland) Ltd, the tribunal struck out the respondent’s response due to their failure to comply with procedural orders, highlighting the balance lawyers must maintain between zealously representing their clients and adhering to their duties to the court and the administration of justice.

A Call for Legal Reform: Ensuring Fairness in the Tribunal System

While companies have the right to defend themselves, the current legal system often enables them to exploit their superior resources to quash potentially valid claims. It is imperative to undertake reforms to level the playing field and ensure justice for all parties involved. Proposed changes include:

Implement Stricter Rules on Strike-Out Applications: Establishing stricter criteria to prevent misuse, ensuring claims are only dismissed when truly justified.
Enhance Support for Unrepresented Claimants: Providing clearer guidance and resources, and considering appointing representatives in complex cases.
Introduce Penalties for Unsubstantiated Attacks on Claimants’ Character: Enforcing penalties for respondents who engage in unsubstantiated or irrelevant character attacks.
Adopt a More Inquisitorial Approach by Tribunals: Encouraging tribunals to take a more inquisitorial role to uncover the truth, particularly in cases with resource imbalances.
Emphasise Alternatives to Striking Out: Prioritising alternatives such as deposit orders or partial strike-outs to allow potentially valid claims to proceed while only unmeritorious parts are dismissed.

Conclusion

The art of striking out claims has become a powerful tool in UK employment tribunals. While it serves a legitimate purpose in managing vexatious or hopeless claims, its aggressive use can undermine the principles of justice and fairness. By addressing these issues and finding a better balance between efficiency and access to justice, we can create a fairer tribunal system that delivers justice for both employees and employers.

As the landscape of UK employment law continues to evolve, it’s crucial for legal professionals, HR practitioners, and business leaders to stay informed about these developments and their implications for workplace disputes.

#UKEmploymentLaw #EmploymentTribunals #LegalStrategy #JusticeDenied #WorkplaceRights #LegalLoopholes #EmployeeRights #EmploymentJustice

References

Sources

GOV.UK. “Employment Tribunal Rules of Procedure”. Available at: GOV.UK (Accessed: 25 July 2024).
GOV.UK. “Presidential Guidance on General Case Management”. Available at: GOV.UK (Accessed: 25 July 2024).
Human Rights Act 1998, c. 42. Available at: Legislation.gov.uk (Accessed: 25 July 2024).

Articles

Field Court Chambers. “Employment Tribunals: striking out a claim or response – the impact of recent case law”. Available at: Field Court Chambers.
Didlaw. “Strike out for unreasonable, scandalous and vexatious conduct”. Available at: Didlaw.
Blake Morgan. “Strike out of Employment Tribunal claims: useful guidance from the EAT”. Available at: Blake Morgan.
Employment Writes. “Striking Out a Respondent’s Defence”. Available at: Employment Writes.
Barwell, J. (2024) ‘The Psychological Toll of Legal Battles: A Litigant in Person’s Journey’, LinkedIn, 12 June. Available at: LinkedIn (Accessed: 25 July 2024).
Barwell, J. (2024) ‘Uncovering Systemic Failures: How SRA and CEDR Mishandled Burnetts Solicitors Complaints’, LinkedIn, 24 June. Available at: LinkedIn (Accessed: 25 July 2024).
Barwell, J. (2024) ‘The Civil Procedure Rules: A Barrier to Justice for Litigants in Person in the UK?’, LinkedIn, 18 July. Available at: LinkedIn (Accessed: 25 July 2024).
Barwell, J. (2024) ‘Digital Divide: Are Litigants in Person Getting Equal Access to Justice?’, LinkedIn, 23 July. Available at: LinkedIn (Accessed: 25 July 2024).
Employment Cases Update (2023). ‘Recent Developments in Strike Out Applications’, . Available at: Employment Cases Update (Accessed: 25 July 2024).

Case Laws

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