Written by Employment Tribunal guidance
A strike-out order can do more than end one Employment Tribunal claim. If a claimant has faced repeated strike-out applications or orders, the practical risk is that future claims may be approached through a lens of credibility, conduct and procedural discipline. That does not remove the right to bring a genuine claim, but it makes preparation, focus and compliance much more important.
Publication snapshot
- The current Employment Tribunal Procedure Rules 2024 deal with strike out under Rule 38, not Rule 37.
- A strike-out order may end all or part of a claim, response or reply where the relevant rule threshold is met.
- Multiple strike-outs do not automatically prevent a claimant bringing a future genuine claim, but they may increase scrutiny of pleadings, compliance and litigation conduct.
- The safest response is not to relitigate old grievances, but to build a clean, focused, evidence-led claim that can survive early case management.
The rule-number trap
Many older articles, orders and practitioner notes refer to strike out under Rule 37. That was the familiar numbering under the previous Employment Tribunal procedure rules. For current procedure, the position should be checked against the Employment Tribunal Procedure Rules 2024.
Under the 2024 Rules, Rule 38 is the strike-out rule. Rule 37 now concerns lead cases. That matters because a claimant, adviser or representative who uses outdated numbering in a current application may appear careless, even where the underlying point is valid.
Practical correction: if you are dealing with a current case, refer to Rule 38 for strike out. If an older judgment or order refers to Rule 37, check which procedural rules applied at the time.
What strike out means
Strike out is one of the Tribunal’s case-management powers. It can remove all or part of a claim, response or reply. The power may be used on the Tribunal’s own initiative or on the application of a party.
The current grounds include cases where the claim, response or reply is scandalous or vexatious, has no reasonable prospect of success, has been conducted in a scandalous, unreasonable or vexatious way, involves non-compliance with rules or orders, has not been actively pursued, or can no longer have a fair hearing.
Application or tribunal initiative
A strike-out issue may arise because the respondent applies, or because the Tribunal raises the issue itself.
Ground identified
The Tribunal must identify the relevant basis: prospects, conduct, non-compliance, inactivity, fairness or another permitted ground.
Opportunity to respond
A party should have a reasonable opportunity to make representations before the claim, response or reply is struck out.
Order and consequences
The order may end the whole case or narrow the issues. It may also affect later costs, credibility and case-management decisions.
Strike out should be distinguished from a deposit order. A deposit order may be made where a specific allegation or argument has little reasonable prospect of success. It does not itself strike out the allegation immediately, but it can create financial and strategic pressure.
Why repeated strike-outs matter
One strike-out may reflect a weak claim, a missed order, a pleading defect, a jurisdictional problem, or litigation conduct. Repeated strike-outs create a different problem. They may lead the Tribunal and respondents to scrutinise future claims more closely, especially where the new claim appears to recycle earlier issues, ignore previous rulings, or repeat procedural defaults.
Credibility risk
The claimant may need to work harder to show that the new claim is properly pleaded, within jurisdiction and based on fresh legal and factual grounds.
Costs exposure
Employment Tribunal costs are not automatic, but unreasonable conduct, vexatious conduct or a claim with no reasonable prospect of success can trigger serious costs risk.
Case-management pressure
The Tribunal may require sharper pleadings, issue lists, compliance with orders and explanations for any apparent overlap with earlier proceedings.
Emotional and practical fatigue
Repeated procedural defeats can make claimants reactive, defensive or over-expansive. That is usually damaging. The answer is structure, not volume.
The key distinction
A history of strike-outs is not the same as a legal ban on future claims. The practical issue is whether the next claim is genuinely new, properly framed, within time, supported by evidence and pursued in a way that complies with Tribunal orders.
Bringing future genuine claims
A claimant with previous strike-outs should not assume that the Employment Tribunal route is closed. But they should assume that the next claim must be disciplined from the start. The claim form should identify the legal claims, facts, dates, protected acts or disclosures where relevant, detriments, dismissal or pay issues, remedy sought and jurisdictional basis.
The claimant should also separate three things: old grievance material, legally relevant background, and the actual claim now being brought. Tribunals are not general grievance forums. They decide claims within their statutory jurisdiction.
Start with limitation
Check the applicable time limit and early conciliation position before drafting the merits. A strong claim can still fail if it is out of time.
Define each legal claim
State whether the claim is unfair dismissal, discrimination, whistleblowing detriment, wages, breach of contract or another statutory route.
Remove irrelevant history
Use background only where it explains the live claim. Do not ask the Tribunal to relitigate matters already decided or struck out.
Comply cleanly with orders
Meet deadlines, answer what is asked, copy the other side where required, and keep applications short and grounded in the rules.
Address the history proportionately
If previous strike-outs are relevant, explain them briefly and factually. Do not attack the previous Tribunal, judge or respondent unless there is a proper legal route for doing so.
Rebuilding litigation credibility
Where a claimant has a difficult procedural history, the best answer is not rhetoric. It is a clean record. That means focused pleadings, realistic applications, compliance with orders, a narrow chronology, an issues list, and a willingness to distinguish arguable points from points that cannot sensibly be pursued.
Weak approach
Repeating old allegations, criticising previous judges, filing long unfocused documents, missing deadlines, and using every application as a platform for historic grievance.
Stronger approach
Identifying the live legal claim, the act complained of, the date, the evidence, the remedy, the jurisdictional basis and the specific order sought.
Best practical test
Ask whether a judge can understand the claim within minutes: what happened, when, why it is unlawful, what evidence supports it, and what remedy is sought.
Practical decision map
Before issuing a new claim after previous strike-outs, the claimant should make a route decision. The right question is not simply “can I issue?” but “what is the safest procedural route for this specific problem?”
New claim
Use where: there is a new act, fresh dismissal, fresh detriment, fresh discrimination issue or claim not previously decided. Risk: time limits, overlap and strike-out application.
Reconsideration or appeal
Use where: the target is an existing judgment or order. Risk: short deadlines, narrow grounds and costs if used to repeat rejected points.
Settlement or Acas route
Use where: the priority is practical resolution, reference wording, payment, exit terms or avoiding further litigation risk. Risk: settlement wording and waiver need review.
Non-tribunal route
Use where: the issue is regulatory, data protection, contractual, professional conduct or internal workplace process rather than a Tribunal claim. Risk: wrong forum and limitation drift.
Source anchors
These sources should be checked before relying on any procedural point in a current Employment Tribunal case:
- Employment Tribunal Procedure Rules 2024 — current rules including Rule 38 strike out, Rule 40 deposit orders, and Rules 73 to 82 on costs and preparation time.
- Acas: Employment tribunals — practical overview of Employment Tribunal claims and the usual early conciliation time-limit position.
- Acas: Early conciliation — explains that a prospective claimant must notify Acas before bringing most Employment Tribunal claims.
- GOV.UK: Employment Tribunal procedure rules — official route to the current procedural rules.
- Judiciary: Employment Tribunal — official Judiciary information about the Employment Tribunal.
Closing point
Multiple strike-outs create risk, but not a permanent loss of rights. The decisive question is whether the next step is legally fresh, procedurally sound and proportionate. A claimant who wants to be heard after previous procedural setbacks must make the Tribunal’s task easier: clear claim, clear dates, clear jurisdiction, clear evidence, clear remedy and full compliance with orders.
Legal Lens decision support
Get a free written assessment before issuing after a strike-out
If you have previous strike-outs, deposit orders or adverse case-management history, the next claim needs a procedural risk check before you issue, appeal, apply for reconsideration or send a settlement proposal.
What to send
Previous orders, reasons, strike-out or deposit-order material, the proposed new claim, key dates and Acas early conciliation evidence.
What the review tests
Whether the issue is limitation, jurisdiction, res judicata or overlap, pleading clarity, compliance history, costs risk or the wrong forum.
What it does not promise
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