17 December 2019
Strike out: When?
Author: Gareth Price
Rule 37(1) provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;” The EAT has had the opportunity in two recent cases to consider and explore the power of Tribunals to strike out claims. This note reviews those decisions and draws together the principles on when such applications should be made and when they may be successful. Parkin v. Leeds City Council Facts The Claimant was employed as Housing Support Worker and, after returning from maternity leave, she raised two grievances concerning changes in her place of work and leave entitlements. The Claimant was later dismissed and she brought claims of sex discrimination or harassment. Claim and strike out The Claimant pleaded her ET1 herself and the EAT described the claims as ‘not at all easy to follow.’ Following a PH, the Claimant produced a document akin to a Scott Schedule that the EAT described as ‘long and repetitive’. The Tribunal struck out the claims for sex discrimination or harassment because: a) They had not been properly particularised; b) No specific acts of less favourable treatment could be identified; or c) If such acts could be identified, no facts were identified by the Claimant as supporting an inference that the less favourable treatment was because of her sex. EAT On appeal, HHJ Shanks noted that: a) Only in the most obvious and plain case should a discrimination claim be struck out; b) Caution should be exercised in relation to pleadings; and c) A two stage process must be followed:
- Has the ground for striking out (i.e. reasonable prospect of success) been established?; if so
- Is it just to strike out in all the circumstances – including use of lesser measures designed to elucidate the possible claims.
30 November 2023