Legal Update
Strike out: When?
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:
  1. Has the ground for striking out (i.e. reasonable prospect of success) been established?; if so
  2. Is it just to strike out in all the circumstances – including use of lesser measures designed to elucidate the possible claims.
In allowing the Claimant’s appeal against the strike out, HHJ Shanks considered that; a)     The Scott Schedule did identify events, on particular dates, which the Claimant said amounted to acts of sex discrimination; and b)     Even if there were not, the Judge did not consider other claims that would have continued in any event – meaning the facts would have been explored on thos claims in any event. The Judge did not, therefore consider the second part of the two stage test. Despite allowing the appeal, HHJ Shanks ‘sympathised’ with EJs in such circumstances and that commented that “it really is difficult to see how they can be managed in a way that does justice to both sides.” It may be that, rather than making interim orders of this kind, EJ’s should just “list them for a Full Hearing at the earliest opportunity”.  Wayne Adams v. Kingdom Services Group Limited  Facts The Claimant was a business manager with less than 2 years’ service when he was dismissed. He claimed he was unfairly dismissed for taking annual leave, contrary to s.104 ERA 1996. Procedural history At a PH a deposit order was made, which the Claimant did not comply with. As a consequence, the claim was struck out. At the PH the Respondent had made an application to strike the claim out on grounds of no reasonable prospect of success. That application failed. The Claimant appealed the strike out of his claim and order for a deposit. The Respondent cross-appealed the decision not to strike the claim out for demonstrating no reasonable prospects of success. EAT The EAT first dealt with the cross-appeal. It reviewed the law applicable to establishing a claim pursuant to s.103 ERA 1996. It then noted that: a)     The Respondent (presumably correctly) conceded that Claimant’s case should be taken at its highest; b)     The ET1 did not state that dismissal occurred because of assertion of a statutory right (i.e. taking of annual leave); c)      It is important to ‘bear in mind that the Claimant is a litigant in person’; d)     Further particularisation of even a poorly pleaded claim is an alternative to striking it out. Taking those factors into account, the EAT judge dismissed the cross-appeal. The appeal was allowed on grounds irrelevant for present purposes. Comment The (differently constituted) EAT has provided helpful pointers to practitioners on the relevant factors an ET should consider when entertaining an application to strike out. It is apparent that the EAT will expect an ET to, effectively, exhaust all alternative means before striking out a claim (particularly claims for discrimination). Being a litigant in person matters. As does whether there may be other claims which will continue irrespective of the strike out which may explore the facts relevant to the claims under threat of strike out. In the latter scenario, HHJ Shanks’ suggestion of refraining from making interim orders at all may be attractive. It does, of course, not fit neatly with the injunction on Tribunals to actively case manage. It is also a practice which could well appear unfair to Respondents who will have to expend significant sums and incur wasted time for claims which eventually prove to have been meritless. Nonetheless, these two recent cases offer some indication to parties that only in plainest of cases will strike out be successful. View Gareth Price's profile on this link.