Can a Tribunal Strike Out My Claim? Tribunal Orders Explained

After you make an employment tribunal claim, the tribunal manages the case through preliminary hearings and orders. Each order requires a party to take a step by a set date. If a party does not comply, the tribunal has power to strike out all or part of the claim or the response. On Monday 2 November 2026, the Employment Appeal Tribunal considered this power in Byczko v Manchester University NHS Foundation Trust [2026] EAT 167. This article explains the law on strike out, the tribunal's duty to help a party without a representative, and what the Employment Appeal Tribunal decided.

What strike out means

When a tribunal strikes out a claim, the claim, or the part struck out, ends without a final hearing of the evidence. A strike out is the most serious step a tribunal can take in managing a case.

The legal basis: rule 38

Under rule 38(1) of the Employment Tribunal Procedure Rules 2024, a tribunal may strike out all or part of a claim or response, at any stage, on any of these grounds:

• the claim or response is scandalous or vexatious or has no reasonable prospect of success.
• the manner in which a party has conducted the proceedings has been scandalous, unreasonable or vexatious.
• a party has not complied with the rules or with an order of the tribunal.
• the claim or response has not been actively pursued.
• the tribunal considers that a fair hearing is no longer possible.

The tribunal may act on its initiative or on the application of a party. Before striking out a claim, the tribunal must give the party a reasonable opportunity to make representations, in writing or at a hearing if the party asks for one.

The two stage test

The Employment Appeal Tribunal confirmed that a tribunal must apply a two stage test. First, the tribunal decides whether one of the grounds in rule 38(1) applies on the facts. Second, the tribunal decides whether striking out is just and proportionate in all the circumstances, including whether a lesser step would be enough.

Strike out remains a last resort. Where a fair hearing is still possible, a tribunal will often make an unless order instead. Under an unless order, the claim, or part of the claim, is dismissed without a further order if the party does not comply by the date in the order.

The overriding objective

Under the Employment Tribunal Procedure Rules 2024, the tribunal must decide cases fairly and justly. This duty is called the overriding objective. Acting fairly and justly includes handling each case in ways proportionate to its complexity and importance, avoiding delay and saving expense. The parties must assist the tribunal to further the overriding objective and must cooperate with each other and with the tribunal.

The list of issues

A list of issues is a summary of the questions of fact and law the tribunal must decide at the final hearing. Tribunals often prepare the list in discussion with the parties, particularly in complex discrimination claims. The list of issues usually forms the basis for disclosure of documents and for witness statements. A list of issues is not required in every case, but each party must know the case it has to answer.

The tribunal's duty to help a party without a representative

The Employment Appeal Tribunal held that a tribunal must conduct hearings fairly and may ask questions to clarify the issues, particularly where a party has no representative. A tribunal may suggest a legal label for a complaint that is already clear in the claim form. A tribunal must remain impartial, however, and must not search for new claims or present a party's case for them. Where a party is disabled, the tribunal will consider reasonable adjustments, such as extra time, written communication, remote hearings and breaks. The tribunal cannot act as a party's representative.

What the Employment Appeal Tribunal decided in Byczko

The claimant worked for Manchester University NHS Foundation Trust as a part time theatre nurse from 2017 and later as a clinical adviser. She resigned in March 2022 and brought claims including disability discrimination, failure to make reasonable adjustments, constructive unfair dismissal and whistleblowing claims. She represented herself.

The Employment Tribunal held a series of preliminary hearings over more than two years to identify her claims. The tribunal made adjustments for her, including email communication, remote hearings, extra time, written orders, breaks and documents in Word format. An employment judge prepared a 10 page draft list of issues and ordered the claimant to amend any parts she considered inaccurate by Wednesday 5 June 2024. When making the order, the employment judge warned her that a failure to comply could lead to an application to strike out her claim.

The claimant did not amend the draft. She sent a new 37 page document, which added further allegations. The Employment Tribunal also proposed an assessment by an intermediary, a communication specialist, and the claimant declined. The Employment Tribunal decided that a fair hearing was no longer possible and struck out the claims for non-compliance with its order, under rule 37(1)(c) of the Employment Tribunal Rules of Procedure 2013, which is now rule 38 of the 2024 Rules.

The Employment Appeal Tribunal dismissed the appeal. The Employment Appeal Tribunal held that the Employment Tribunal had applied the correct legal principles, had considered reasonable adjustments and alternatives to strike out, and was entitled to conclude that striking out the claims was proportionate. The Employment Appeal Tribunal also held that a tribunal must consider other people waiting for their cases to be heard, and that repeated hearings to clarify claims, after extensive help has already been given, would delay the cases of others.

The Employment Appeal Tribunal stressed that tribunals should not treat the judgment as permission to strike out difficult cases as a matter of routine, and that strike out remains a last resort.

What the judgment means for you

• Orders of the tribunal apply to every party, including a party without a representative.
• A tribunal will help you clarify your claim and will consider reasonable adjustments, but the tribunal cannot present your case for you.
• A tribunal may strike out a claim where a party does not comply with its orders and a fair hearing is no longer possible.
• Before striking out a claim, the tribunal must consider whether a lesser step would be enough.

An illustrative example (not a real client)

Grace makes a claim for disability discrimination and represents herself. At a preliminary hearing, the employment judge orders her to provide further information about the dates and details of each complaint by a set date. Grace misses the date because she is in hospital.

In a case like Grace's, the tribunal would consider the reason for the delay, whether a fair hearing is still possible and whether a lesser step, such as an extension of time or an unless order, would be enough. A single missed date with a good reason is less likely to lead to a strike out. Repeated failures to comply, after warnings and help from the tribunal, carry a much greater risk.

Time limits

Two further time limits apply after a strike out judgment. Under the Employment Tribunal Procedure Rules 2024, a party may apply for reconsideration of a judgment within 14 days of the date the written record of the judgment was sent. An appeal to the Employment Appeal Tribunal on a question of law must be made within 42 days of the date the written reasons were sent.

For making a claim, the time limit for most claims is six months less one day where the problem at work happened on or after Thursday 1 October 2026, and three months less one day where the problem happened before that date. ACAS early conciliation may extend the time limit. Read more in our guide to employment tribunal time limits.