What a strike out application from your employer means – and how to respond

Submitting a strike out application is a tactic many employers use in Employment Tribunal proceedings. 

It’s an intimidating move that can make employees question whether they should continue with their claim. However, in reality, an employer’s strike out application rarely means the end of the road for an employee’s case. 

Here, we’ll explain everything you need to know about employers’ strike out applications and what they mean. We’ll cover what a strike out application is, what happens when an employer submits one and what employees can do to object.

What is a strike out application?

A strike out application is a request for the Tribunal to either:

• dismiss the other party’s entire claim or defence
• remove part of the other party’s claim or defence from the case

Employers and employees can submit strike out applications at any stage prior to the Final Hearing. However, there are only limited grounds on which a strike out application can be based. They include:

• the other party’s claim or defence having no reasonable prospect of success
• the other party failing to comply with the Tribunal’s instructions
• the other party conducting the proceedings in a “scandalous, unreasonable or vexatious” manner (e.g. by falsifying documents or making inflammatory allegations)

The full list of grounds is outlined in rule 38 of the Employment Tribunal Procedure Rules of Procedure. The document is the government’s rulebook for Employment Tribunals. 

Why would an employer submit an application to strike out?

Officially, an employer would only submit a strike out application if they believed the employee’s case met one of the grounds listed in rule 38.

However, some employers submit strike out applications to any claim made against them. Why? Because they know most employees will feel intimidated and may withdraw their claim as a result. 

However, what many employees don’t realise is that an employer’s strike out application will rarely spell the end of their case. To be successful, the employer must persuade the judge that the employee’s case meets the stated grounds for strike out.

What do the grounds of “no reasonable prospect of success” in an employer’s strike out application mean?

One of the most common grounds for employers’ strike out applications is the employee’s case having “no reasonable prospect of success”.

Many employers incorrectly interpret this to mean “a weak case”. However, “no reasonable prospect of success” means just that. The judge must be convinced that the case has absolutely no chance of being successful to grant the application.

For employees, it can feel especially intimidating to have an employer state the grounds of “no reasonable prospect of success”. However, if you find yourself in this scenario, the judge won’t stop your case proceeding – even if they think it could fail.

Judges are generally reluctant to strike a case out on the grounds of no reasonable prospects. This is especially true in discrimination or whistleblowing cases. That's because these cases can be won or lost on all the evidence presented at the Final Hearing. 

When deciding whether to strike out your claim before the final hearing, the judge will consider your case “at its highest”. This means they’ll view it in the best possible light. For example, they might assume your employer will present no evidence at the Final Hearing to contradict your claim.

As a result, the judge will only strike your case out if they conclude that your case has no chance of success at all. If they believe your claim has even the slimmest prospect of success, they'll allow your case to continue.

What happens when an employer submits a strike out application?

Employers usually request a strike out in writing, either in advance of a Tribunal hearing or on the day of the hearing itself. Here’s what you can expect to happen in each scenario.

Scenario 1: Your employer makes a strike out application in advance of a Tribunal hearing

Under rule 31 of the Employment Tribunal Rules of Procedure, you have the right to object to an employer's strike out application. Your employer should copy you into their strike out application, stating that you can object by writing to the Tribunal.

Scenario 2: Your employer makes a strike out application on the day of a hearing

If your employer submits a strike out application on the day of a Preliminary Hearing, they’ll do one of two things. They'll either hand a written application to you and the judge or they'll state during the hearing that they want to make an application.

The judge will then decide how to consider the strike out application. They’ll do this one of the following two ways:

• They'll schedule a separate Substantive Preliminary Hearing. You'll have the opportunity to object to the application verbally.
• They’ll go away and consider the application without scheduling an additional hearing. You’ll have the opportunity to object in writing.

In both scenarios, the judge will consider your employer’s application and your objections to it. They'll then decide whether to allow your case (or the relevant part of it) to continue. 

What to do if your employer requests for your case to be struck out

If your employer has submitted a strike out application, it’s natural to feel a little anxious – but try not to panic! Take a deep breath and follow our four top tips:  

1. Get to know the rules 

The more you know about the Employment Tribunal rules, the better equipped you’ll be to navigate the process. Fortunately, they’re all published in the Employment Tribunal Rules of Procedure. 

Think of it as the government’s rulebook for Employment Tribunals. It lays out the “rules” for every aspect of the process, including what employers can and can’t do when it comes to strike out applications. 

Familiarise yourself with the rules and you may realise that your employer’s application has less chance of success than it first seemed. Either way, you’ll be in a far better position to respond. 

2. Prepare your arguments 

Whether it’s in writing or in person, objecting to your employer’s strike out application requires careful preparation. 

Keep your employer’s grounds for strike out at the top of your mind when you prepare your arguments. If your employer uses the ground of no reasonable prospect of success, for example, focus on how and why your case does have a chance of success.

If the judge asks you to provide evidence to support your objection, make sure it’s well organised and easy to review. (It’s not necessary to provide evidence if the judge doesn’t ask you to do so.)

3. Stand your ground 

Objecting to an employer’s strike out application can feel intimidating, especially if you have to make your arguments in person. But try not to feel overwhelmed. Focus on the opportunity to put your point of view forward to the judge. And remember that all you need to do is refute your employer’s grounds for strike out clearly.

If the judge asks you to provide evidence documents to support your objection, follow the instructions closely. The judge doesn’t need to see your full evidence for the case at this point. You'll have the opportunity to provide that at a later date.

4. Remember that employees can submit strike out applications too

Strike out applications are not only available to employers. Employees can request all or part of the employer’s ET3 response to be struck out, often in order to get their case resolved sooner.

If this is a step you’re planning to take, use our Strike Out letter template to submit your application quickly and easily. 

Feeling worried about an employer’s strike out application? Get expert help from a Valla coach

If your employer has submitted a strike out application and you’re feeling anxious or unsure about what to do, help is at hand. Our coaches can help you prepare your objection through the Valla Employment Tribunal coaching service. They can also answer your questions about what to expect from this part of the Tribunal process.

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