Written by Employment Tribunal strategy
Strike-out applications can be a legitimate part of Employment Tribunal case management. They can also create a serious access-to-justice problem when used aggressively against unrepresented claimants before the evidence has been tested. The real issue is not whether hopeless claims should proceed. They should not. The issue is whether procedural pressure is being used to avoid disclosure, narrow the case unfairly, or exhaust a claimant before the merits are heard.
Publication snapshot
- Under the current Employment Tribunal Procedure Rules 2024, strike out is dealt with by Rule 38, not the older Rule 37 numbering.
- Strike out can remove all or part of a claim, response or reply where the rule threshold is met.
- Respondents may seek strike out for legitimate reasons, including hopeless claims, non-compliance, unfairness or abusive conduct.
- The public-confidence issue arises where strike-out strategy becomes a pressure tactic that avoids evidence, disclosure and proper scrutiny of the merits.
- Claimants facing strike-out applications need structure: issue clarity, chronology, compliance, evidence mapping and a focused response.
The rule correction
Older articles and case-management discussions often refer to strike out under Rule 37. That was the familiar numbering under the previous Employment Tribunal rules. For current cases, the correct starting point is the Employment Tribunal Procedure Rules 2024.
Under the current rules, Rule 38 is the strike-out rule. Rule 37 now deals with lead cases. That distinction matters because a party relying on outdated numbering may weaken an otherwise valid procedural argument.
Practical point: in a current Employment Tribunal case, use Rule 38 for strike out, Rule 39 for unless orders, Rule 40 for deposit orders, and Part 13 for costs, preparation time and wasted costs orders.
Why respondents use strike out
A respondent is entitled to defend itself. Some claims are genuinely outside jurisdiction, legally misconceived, abusive, non-compliant, impossible to try fairly, or unsupported by any realistic pleaded case. In those circumstances, a strike-out application may be justified.
The difficulty is that the same procedural tool can also be used as litigation pressure. For a represented employer, an early strike-out application may be attractive because it can reduce cost, avoid disclosure, limit reputational exposure, narrow the issues, and place an unrepresented claimant under immediate procedural strain.
Cost control
Ending or narrowing a claim early may avoid the time, preparation and expense of a full hearing.
Disclosure avoidance
If a case ends early, internal documents may never be tested through ordinary disclosure and witness evidence.
Reputation management
A public merits hearing can expose internal culture, management decisions and disputed workplace events.
Procedural leverage
Technical applications can overwhelm a litigant in person if the claimant lacks support, confidence or legal vocabulary.
The point is not that every strike-out application is improper. It is that the Tribunal must distinguish a proper case-management application from an attempt to win through pressure before the substance is examined.
The pressure risk for claimants
For an unrepresented claimant, a strike-out application can feel like a direct attack on credibility before the claim has been heard. It may arrive with legal authorities, lengthy submissions, criticisms of conduct, complaints about pleadings, and arguments that the claim has no reasonable prospect of success.
That pressure can push claimants into the wrong response: long emotional submissions, attacks on the respondent’s motives, repeated background narrative, or attempts to argue every injustice at once. Those responses can make a strike-out application more dangerous.
Application filed
The respondent says the claim is hopeless, abusive, non-compliant, impossible to try fairly or outside the Tribunal’s proper scope.
Claimant reacts
The claimant may answer emotionally, over-expand the case, or respond to the tone rather than the legal test.
Issues become blurred
The Tribunal may struggle to identify the live legal claims, key dates, evidence and remedy sought.
Procedural risk increases
The claimant may face strike out, deposit order, unless order, costs warning or narrowing of the claim.
The key distinction
A claimant does not defeat a strike-out application by proving the entire case at the preliminary stage. The task is usually narrower: show that the claim is properly pleaded, legally arguable, within jurisdiction, capable of fair trial and supported by enough factual basis to proceed.
The Tribunal’s balancing task
The Tribunal has to manage cases fairly and proportionately. It must prevent abuse of process and avoid wasting resources on claims or responses that cannot properly proceed. But it must also protect access to justice, especially where a litigant in person may have a valid claim that has been poorly expressed.
That balancing exercise is central to strike-out decisions. The Tribunal may need to ask whether the problem is incurable, or whether a less severe case-management step would deal with it. A badly drafted claim may need clarification. A weak allegation may need a deposit order. A missed deadline may need an unless order. A genuinely hopeless or abusive case may need strike out.
Efficiency
The Tribunal should not be required to run a full hearing where the claim is legally hopeless, abusive, impossible to try fairly or not being pursued.
Access to justice
The Tribunal should be cautious before ending claims that may be arguable but need clearer pleading, better case management or focused directions.
Proportionality
The procedural response should match the problem: strike out where necessary, but alternatives where a narrower order can preserve fairness.
Alternatives to strike out
Strike out is not the only procedural tool. The Tribunal has other options where a claim or argument is weak, unclear, non-compliant or difficult to manage.
Deposit order
Use where: a specific allegation or argument has little reasonable prospect of success. Effect: the party may have to pay a deposit to continue with that allegation or argument.
Unless order
Use where: a party must comply with a defined requirement by a specified date. Effect: non-compliance can lead to dismissal or other consequences without further order.
Further particulars
Use where: the legal claim is unclear. Effect: the claimant may be required to identify the acts, dates, legal labels and remedy more precisely.
Issue narrowing
Use where: some issues are arguable and others are not. Effect: weak points may be removed while the core claim proceeds.
These alternatives matter because they can preserve access to justice while still managing weak, unclear or excessive parts of a case.
How claimants can respond
A claimant facing a strike-out application should respond to the legal test, not the emotional force of the application. The response should be short enough to be usable, detailed enough to answer the grounds, and disciplined enough to show that the case can be managed fairly.
Identify the ground
Is the application based on prospects, conduct, non-compliance, inactivity, impossibility of fair hearing, jurisdiction or another point?
State the live claims
List each legal claim separately: unfair dismissal, discrimination, whistleblowing, wages, breach of contract or another route.
Use a short chronology
Give the essential dates only. Avoid turning the response into a full narrative of the employment relationship.
Show why trial remains possible
Explain what evidence exists, what witnesses or documents matter, and why any case-management problem can still be managed.
Offer proportionate alternatives
Where appropriate, suggest amendment, further particulars, issue narrowing, deposit order or directions instead of total strike out.
The reform question
There is a legitimate debate about whether strike-out practice is calibrated correctly for a system with many unrepresented claimants. Employers and respondents need protection against hopeless claims. Claimants need protection against being defeated by procedural pressure before the facts are tested.
Useful reform would not remove strike out. It would make the use of strike out more targeted, transparent and proportionate. That means clearer guidance for litigants in person, stronger issue-narrowing tools, earlier case triage, better template orders, careful use of deposit orders, and a sharper distinction between weak claims and poorly pleaded but arguable claims.
Clearer early triage
Early identification of jurisdiction, limitation, legal labels and missing particulars before strike-out pressure escalates.
Better claimant guidance
Plain-English directions explaining what must be pleaded and what evidence is needed to survive a preliminary challenge.
Targeted alternatives
Greater use of issue narrowing, further particulars and deposit orders where total strike out is not the proportionate response.
Fairer pressure control
Case management that prevents parties from using excessive procedural aggression to avoid the merits of an arguable dispute.
Source anchors
These sources help readers separate current procedure, early conciliation, strike out, deposit orders and costs exposure:
- Employment Tribunal Procedure Rules 2024 — current rules, including Rule 38 strike out, Rule 39 unless orders, Rule 40 deposit orders and Part 13 costs provisions.
- GOV.UK: Employment Tribunal procedure rules — official route to the current procedural rules.
- Acas: Employment tribunals — practical overview of Employment Tribunal claims.
- Acas: Early conciliation — guidance on the pre-claim early conciliation process.
Closing point
Strike out has a proper place in Employment Tribunal procedure. Hopeless, abusive or impossible claims should not consume Tribunal time. But strike out should not become a way to avoid evidence, disclosure or accountability where a claim is arguable but poorly framed. The fairer approach is disciplined case management: identify the real legal issues, remove what cannot proceed, and allow genuinely arguable claims to be decided on evidence.
Legal Lens decision support
Facing a strike-out application? Start with the test, not the panic.
If a respondent says your claim is hopeless, vexatious, non-compliant or impossible to try fairly, the response needs structure. A focused review can help separate the legal test from the noise and identify whether strike out, deposit order, amendment, particulars or issue narrowing is the real risk.
What the assessment can organise
Legal Lens can help turn a broad dispute into a procedural response map: the grounds relied on, the live claims, the key dates, the evidence, the missing particulars, and the alternative order to ask for if total strike out is disproportionate.
Best for
Claimants who need to respond to strike out, deposit order, unless order or aggressive preliminary-hearing tactics.
What you get
A structured issue map showing the live claims, procedural risk, evidence gaps and proportionate response options.
Practical output
A cleaner route for response: chronology, issues list, evidence map, draft directions or focused written submissions.
Independent Legal Lens consultancy. A preliminary assessment is decision support designed to help you organise the documents, issues and next step.