Employment tribunal should not strike out claim without considering fair trial, and without unless order

In Forrest v Amazon Web Services EMEA SARL UK Branch [2025] EAT 81, the EAT considered strike out under what is now Rule 38(1)(c) of the Employment Tribunal Procedure Rules 2024 (ET Rules 2024), SI 2024/1155. The claimant, a litigant in person, brought claims while still employed by the respondent, including for direct and indirect disability discrimination (relating to his ADHD) and whistleblowing. Following a case management hearing (and a delay in sending out the orders), extended deadlines were set for the claimant to send a completed list of issues (16 June 2023) and give disclosure and an impact statement (7 July 2023). The hearing was scheduled for 14 July 2023. The order stated that, if the claimant did not comply with the orders, it was likely that his claim would be struck out at the hearing. The claimant had also applied for a stay, which was refused.

On 15 June 2023, the day before he was due to send the completed list of issues, the claimant was dismissed. He brought separate proceedings relating to his dismissal, including an application for interim relief.

On 2 July and 5 July, the claimant lodged appeals with the EAT pursuing his application for a stay.

The claimant also made an application for specific disclosure against the respondent to be heard at the hearing on 14 July.

On 7 July, a week before the hearing, the respondent applied to strike out the claimant’s claims, and late on the day before the hearing submitted a nine-page document in support of its application.

At the conclusion of the hearing, the employment judge struck out all of the claimant’s claims, and also refused the claimant’s renewed application for a stay and application for specific disclosure.

The EAT held that the employment tribunal had been wrong to strike out all the claimant’s claims on the basis that he had failed to comply with a case management order. It was an error of law not to consider whether a fair trial remained possible. Whether or not a fair trial is possible is always an important consideration and often the most important, even in a case (as Simler J put it at para [13] of Baber v Royal Bank of Scotland plc UKEAT/0301/15) ‘where the impugned conduct consists of deliberate failures.’

The EAT judge also commented: ‘It is hard to think of a case in which it would be right to go directly from non-compliance with a case management order to striking out for non-compliance, without first trying the effect of an unless order. It is usually best to ratchet up pressure, rather than immediately giving up.’

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