Strike out

A strike out ends your case before it reaches a full hearing — and the tribunal can do it on four different grounds. Here is what each one means and how to stop it happening to yours.

What are the four grounds for strike out in an employment tribunal?

Employment Tribunal Rule 37 sets out four grounds. First, the claim or response has no reasonable prospect of success. Second, the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious. Third, the claimant or respondent has not complied with a tribunal order or Practice Direction. Fourth, the tribunal considers that a fair hearing is no longer possible. The first and third grounds are the most commonly argued.

What does 'no reasonable prospect of success' mean in practice?

The bar is high. The tribunal must be satisfied that the claim is bound to fail, not merely weak. The test is whether, even if the claimant proves every fact they allege, the claim cannot succeed as a matter of law. A difficult or unlikely claim is not enough for strike out on this ground. The tribunal should also consider whether a deposit order might be a more proportionate response to a weak-but-not-hopeless claim.

Can the tribunal strike out my case without hearing from me first?

No. Before striking out a claim, the tribunal must give the affected party an opportunity to make representations. Either you are given written notice and a chance to respond in writing, or the tribunal considers the matter at a hearing with you present. There is a right to be heard before the power is used.

What is the difference between a strike-out order and a deposit order?

A deposit order is a lesser sanction. It requires you to pay up to £1,000 as a condition of continuing your claim, and it signals that the tribunal considers the claim weak — not hopeless. A strike-out order ends the case entirely. Tribunals are encouraged to consider a deposit order before a strike-out order where a claim has some merit, however slim.

Can I appeal or apply for reconsideration after a strike out?

Yes. You can apply to the tribunal for reconsideration of the strike-out judgment within 14 days of the date the judgment was sent to you. You must show that the interests of justice require reconsideration — for example, because new evidence has come to light, or because the order was made without you having a proper chance to respond. After 14 days, reconsideration is usually no longer available. Appeal to the Employment Appeal Tribunal is also possible on a point of law.

What should I do if I receive a strike-out warning?

Take it seriously and respond promptly and fully. If the warning is about non-compliance with an order, comply immediately and explain to the tribunal what happened and why. If it is about prospects, set out the legal basis for your claim clearly and, if necessary, identify case law supporting it. A late, incomplete or dismissive response is likely to result in the strike out being made.

Can the employer's defence be struck out?

Yes. Rule 37 applies to responses as well as claims. If an employer fails to comply with tribunal orders, conducts the case unreasonably, or its defence has no reasonable prospect of success, the tribunal can strike out the response — which means the employer can no longer defend the case on the struck-out points. This is rare but does happen, particularly where employers repeatedly ignore case management orders.

Does strike out affect all of my claims?

Not automatically. Strike out is assessed separately for each distinct claim or allegation. If you have brought both unfair dismissal and discrimination claims, the tribunal could strike out one while allowing the other to proceed. However, non-compliance-based strike outs sometimes affect the whole case if the conduct in question relates to the proceedings generally.

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Employment Tribunal · Glossary

Last reviewed: May 2026

Employment Tribunal track

is an order that removes a claim or response from the tribunal's case list so that it can no longer proceed — it is the tribunal's power to end a case early, without a full hearing on the merits, under

Employment Tribunal Rule 37

. It can be applied to a claimant's claim or to an employer's response.

Where this comes from

Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, Rule 37

— the four grounds on which strike out may be ordered.

Employment Tribunal Rules, Rule 38

— deposit orders: the lesser sanction for weak but not hopeless claims.

Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330

— strike out on "no reasonable prospect" ground should be exercised with caution; disputed facts should usually go to a full hearing.

Balls v Downham Market High School [2011] IRLR 217 (EAT)

— where facts are disputed, the claimant's version must be assumed true when assessing prospects.

gov.uk — Employment tribunals: if you lose your case

What strike out actually means

Strike out is the tribunal's most drastic case-management power. Unlike a judgment on the merits — where both sides have presented their evidence and argument — strike out removes a case from the list before that full process happens. The claim is dismissed. You lose without the substantive hearing you came for.

Rule 37 of the Employment Tribunal Rules of Procedure gives the tribunal four grounds on which to exercise this power. A strike out can be made on the tribunal's own initiative or on the application of either party. Before making the order, the tribunal must give the affected party an opportunity to be heard — either by written representations or at a short hearing. That right cannot be bypassed.

The four grounds are: (1) the claim or response has

no reasonable prospect of success

; (2) the manner in which proceedings have been conducted has been

scandalous, unreasonable or vexatious

; (3) there has been

non-compliance with a tribunal order or Practice Direction

fair hearing is no longer possible

. In practice, the first and third grounds account for the great majority of applications.

Strike out applies equally to claimants and respondents. A response can be struck out just as a claim can — for example, if an employer repeatedly fails to comply with case management orders. When the response is struck out, the employer can no longer resist on those grounds and a default judgment may follow.

How it works in practice

Joel brings an unfair dismissal claim. He is ordered by the tribunal to provide a schedule of loss by a set date and to disclose certain documents within 28 days of the order. He misses both deadlines, providing no explanation. The employer applies for strike out on the ground of non-compliance with tribunal orders (Rule 37(1)(c)).

The tribunal writes to Joel giving him 14 days to make representations on why his claim should not be struck out. Joel responds, explaining he had a medical emergency that coincided with the deadlines and providing a doctor's letter. He also provides the overdue schedule of loss with his response and offers to provide the documents within seven days.

Explanation provided

Overdue materials filed with response

The tribunal refuses to strike out. There was non-compliance, but the explanation was genuine and the materials have now been provided. The case proceeds — but the tribunal orders Joel to pay the employer's costs thrown away by the delay, and warns that any further non-compliance will result in strike out without further notice.

Compare that to a situation where Joel simply fails to respond to the strike-out warning at all. The tribunal has no explanation to weigh, no attempt at compliance, nothing. Strike out follows almost as a matter of course.

Silence is the worst possible response to a strike-out threat.

The "no reasonable prospect of success" ground in detail

This is the ground most often argued by respondents who want to end a claim early. The legal test, established in

Ezsias v North Glamorgan NHS Trust

, is demanding. The tribunal must be satisfied that the claim is

— that even if the claimant proves every fact they allege, the claim cannot succeed as a matter of law. A weak, improbable or difficult claim does not meet that test.

The Court of Appeal in

emphasised that where the outcome depends on disputed facts, strike out on this ground is almost never appropriate. The claimant's version of the facts must be assumed true at this stage. A claim should only be struck out on this ground where, even on the claimant's own account, no legal cause of action exists.

Where a claim is weak but not hopeless — genuinely arguable but with limited prospects — the tribunal is encouraged to consider a

under Rule 38 rather than strike out. A deposit order requires the claimant to pay up to £1,000 as a condition of continuing. If they proceed and lose, the deposit is forfeit to the employer. If they win, it is returned. The deposit order signals the tribunal's concern while preserving the claimant's right to a hearing.

Common pitfalls for claimants

• Ignoring a strike-out warning or the tribunal's correspondence.
• This is the single most common reason strike outs are made. The tribunal sends a warning; the claimant does not respond; the case is struck out. Even a brief, honest reply explaining your circumstances is infinitely better than silence.
• Missing tribunal orders without explanation.
• Compliance with orders is not optional. If you cannot comply by the deadline — because of illness, work commitments or any other reason — contact the tribunal immediately and ask for an extension. Asking in advance is treated very differently from missing the deadline and explaining afterwards.
• Confusing "weak" with "hopeless".
• A strike-out application on "no reasonable prospect" grounds can be defended even if your claim is difficult. The test is whether you have
• prospect of success, not whether you are likely to win. Make the strongest possible legal argument in response.
• Treating a deposit order as a victory.
• A deposit order means the tribunal thinks your claim is weak. Pay it only if you are confident enough in your case to risk losing the deposit. If the claim truly is weak, the deposit order is the tribunal's way of warning you before strike out becomes inevitable.
• Missing the 14-day reconsideration window.
• If your case is struck out, you have 14 days from the date the judgment was sent to apply for reconsideration. After that window, the opportunity is usually gone. Act immediately if you believe the strike out was wrong.

Frequently asked questions

Sources & further reading

• Employment Tribunal Rules, Rule 37
• — strike out (legislation.gov.uk)
• Employment Tribunal Rules, Rule 38
• — deposit orders (legislation.gov.uk)
• Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330
• — caution required on "no reasonable prospect" strike outs (BAILII)
• Resolve your dispute before a hearing
• Employment tribunal time limits

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Last reviewed: May 2026.

Procedural references checked against the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 as in force on 22 May 2026.

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