Striking Out a Respondent’s Defence

Striking out applications in the employment tribunal, while perhaps not regular, are not an uncommon feature of employment tribunal litigation. A Strike Out order is a draconian step; an order against a means they are unable to continue to advance their case as pleaded in the claim or response to a claim.

The majority of strike out applications are made by a respondent to strike out a claimant’s case. For example, using the Employment Tribunal decisions database I searched for the terms “strike out” where an unfair dismissal claim had been made and looked at the last ten results. The results of that search are stark.

  • In each of those applications a full 100% of them were made by respondents seeking that the claimant’s case be struck out.
  • In six cases the respondent applied that the claim be struck out and the Tribunal awarded that application. That means without so much as a hearing on the facts a claimant who believed their dismissal was unfair did not get the chance to make that case before a full tribunal.
  • In the other four (40%) of cases, the respondent sought a strike out order against a claimant’s claim of unfair dismissal but this was refused by the employment judge.

It is a small sample but it is still a stark disparity that applications are made by the Respondent only in all the cases. This is partially explainable by the recognition that if you are a respondent you are much more likely to be legally represented than if a claimant. And, since it is in the nature of their job if there’s a technicality to be exploited for their client’s benefit a respondent is therefore much more likely to spot and exploit it. Another explanation is some of the cases for which it may apply in the case of a respondent are separately caught by Rule 21 decisions when a response is not entered at all.

Whether they are unconsciously biased in operation is a very different matter but on paper the rules are even handed; a claimant is as able as a respondent to seek that a response is struck out and the legal considerations are much the same either way.

One of the frequent grounds by which a party seeks a strike out is of the other party has not complied with previous case management orders given by the Tribunal. That was the case in Emuemukoro v Croma Vigilant (Scotland) Ltd (2021) in which the EAT upheld a rare decision of the Tribunal to strike out the respondent’s defence to the claim on the first day of a five day tribunal hearing. Even here though, where there is an unusual strike out of the respondent’s defence the effect on the defaulting party are not directly analogous. For a claimant a strike out is fatal, the claim no longer exists and the the outcome is always dismissal. For a respondent they are prevented from taking part in the proceedings but the proceedings nevertheless continue; even when a respondent’s case has been struck out it is still possible for a claimant to nevertheless lose their claim.

In Emuemukoro the employer was represented by Peninsula Business Services, which provides HR consultancy services to employers. As the EAT summarised (paragraph 3), the Respondent had been ordered a full six months previously to adhere to the orders: “At a case management Preliminary Hearing on 1st May 2019, the Parties were given various directions to ensure readiness for that hearing. The Respondent did not comply with any of them. “

Among the orders which the Respondent had failed to comply with was the preparations and submission of the Respondent’s witness statements. Given the case was already two years old the Tribunal determined that the Respondent’s response should be struck out and the case proceeded without their input, with a result that the claimant’s complaint of unfair dismissal (along with other claims) was successful.

The employment tribunal ruled, with which the Respondent agreed, that the five day hearing could not go ahead as scheduled (and remember the respondent’s breach was only being considered on the first day of the hearing). A fair trial was not possible for the listed hearing and there were no ways to remedy that and still keep the hearing as scheduled. On that basis, and because further delay would prejudice the claimant who had conducted proceedings appropriately, the Respondent’s defence was struck out. It was against that decision and the assessment that that what needed to be considered was whether a fair trial in the listed hearing window was possible that an appeal was pursued by the respondent, the proper assessment a Tribunal was required to make was whether a fair trial was possible, not whether a fair trial was possible right now (acutally the argument was a little more nuanced than that (see paragraphs 15-16).

In paragraphs 9 and 10 the EAT quoted extensively from the Court of Appeal’s judgment in Blockbuster Entertainment v James (2006) on the tribunal’s powers to strike out a claim or response. LJ Sedley summarised this in this way (paragraph 5):

This power, as the employment tribunal reminded itself, is a Draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.

In giving a decision rejecting the appeal the EAT gave a robust response that affirmed that if a fair trial is not possible within a listed trial window because of a failure of a party to comply with a trial windows then that means one of the cardinal principles set out in Blockbuster which is necessary to give a tribunal the power to strike out a claim or response is satisfied. The legal question then becomes not, can a tribunal strike out a claim or response, but whether it is proportionate to do so? In paragraph 18 of Emuemukoro this is spelt out:

There is nothing in any of the authorities providing support for Mr Kohanzad’s proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike-out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so.

There is nothing inherently pro-employee about this judgment. A search through the annals of strike out decisions will, as summarised before, show that the majority of tribunal strike out judgements for failing to adhere to case management orders are made against claimants, and normally unrepresented claimant at that. However, Emuemukoro is a good reminder that strike out applications are a weapon exclusively reserved for Respondents and their lawyers and that there is no reason in principle that a claimant should not consider such an application, especially when the breaches of case management orders are all one way. In considering whether such an order is appropriate the extent to which a claimant is prejudiced by the respondent’s failures and the fact that the defaulting party is (normally) legally represented are factors to be a tribunal should consider and lend weight to any strike out application.

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