Employment Tribunal Refuses Respondent’s Strike Out Requests

OUTCOME: Allowed

Case No: 6018893/2024 6006286/2025 6009466/2025

PHCM Order 1 of 6 September 2023

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] in public by CVP On: 18 March 2026

Before: Employment Judge McCooey

Appearances For the claimant: [redacted] For the respondent: [redacted]

Judgment having been given orally to the parties on 18 March 2026 and reasons having been requested orally by the respondent at that hearing, in accordance with Rule 60(3) of the Employment Tribunal Procedure Rules 2024:

JUDGMENT

1. The respondent’s application for strike out in respect of Claim 2 on the grounds it is an abuse of process is refused.

2. The respondent’s application for strike out in respect of Claim 3 on the grounds it is an abuse of process and/or scandalous or vexatious is refused.

WRITTEN REASONS

Procedural history

3. This PPH was listed to consider the following applications indicated in a CMO dated 25 October 2025 (as amended), as follows:

i. The respondent's application to strike out claim 6018893/2024 for the reasons set out in the response to that claim; ii. Whether the Tribunal has jurisdiction to hear claim 6018893/2024 because it is time-barred - was the claim presented in time and if not should time be extended;

Case No: 6018893/2024 6006286/2025 6009466/2025

PHCM Order 2 of 6 September 2023

iii. Whether the above claims should be consolidated and if so whether the current two-day time estimate for the final hearing is sufficient; iv. Any other appropriate case management orders.

4. The respondent also sought to make an additional jurisdiction point for the first time in Counsel’s Skelton Argument uploaded to the portal on the evening before the hearing.

5. Regrettably, I was only able to determine the respondent’s strike out applications and a number of case management points; the remaining matters I have set out in my CMO dated 20.3.26.

Law

6. The power to strike out part or all of a claim is contained in r.38 of the Employment Tribunal Procedural Rules 2024 which says:

38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).

(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).

7. The power involves a two-stage test. Firstly, one or more grounds in r.38 must be established; if they are, a decision must be made as to whether to exercise the discretion in the particular case.

8. For discrimination claims, the starting point is [NAME] and anor v [COMPANY] and anor [2011] ICR 391 UKHL. Here, the House of Lords emphasised that discrimination claims are often fact-sensitive and require close examination of the evidence at a full merits hearing.

9. Further caution has been advised in [NAME] [COMPANY] [2022] EAT 83 against striking out claims before a full merits hearing.

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PHCM Order 3 of 6 September 2023

10. There are nonetheless caveats to the general approach of caution. In [NAME] [COMPANY] [2017] EWCA Civ 1392 CA, Underhill LJ said at [16]:

“Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”

11. The principles gleaned from more recent cases, such as [NAME] v [NAME] & Others [2021] ICR 1307 and [NAME] v E’quipe Japan Ltd [2024] EAT 176 are:

i. Strike out is draconian and is only appropriate in clear cut cases; ii. There is a public interest in discrimination claims proceeding to a full hearing, nevertheless there is no bar to strike out in appropriate cases; iii. Where there is a core dispute of fact, strike out is generally inappropriate; iv. The claimant’s case should generally be taken at its highest; and v. Taking a discrimination case at its highest involves assuming that the facts will be established but not necessarily that an inference of discrimination will be made out.

Postions

12. The Respondent’s position, as set out in full in its skeleton argument was that due to the incorrect reliance by the claimant on the second ACAS certificate, all claims in respect of Claim 2 (6006286/2025) ought to be struck out for lack of jurisdiction.

13. The Respondent in its submissions initially accepted jurisdiction in respect of the unfair dismissal brought in the second claim however says it’s now also recognised reliance on the second ACAS certificate as a jurisdictional bar.

14. The Respondent’s case is that claimant is only entitled to rely on one conciliation process per ‘matter’, that term it acknowledged as a broad one.

15. The claimant initially relied on his first ACAS certificate to bring his first claim (6018893/2024) and the Respondent says he intended to rely on that for all matters.

16. That first claim was then withdrawn, though not formally dismissed.

17. R says that whilst the Claimant was entitled to contact ACAS for a second time, as he did, he is not entitled to rely upon any ACAS extension resulting from that second certificate. The respondent said he incorrectly referenced his second certificate in the ET1 of his second claim (he should have referenced his first).

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PHCM Order 4 of 6 September 2023

18. The claim, in any event, got through the initial gateway and so any consequence of non-compliance fell to be resolved under the Tribunal’s case management powers.

19. The Respondent says those case management powers should be used to strike out the claim.

20. The claimant understandably opposed the application.

Discussion

21. There appears to be no appellate authority on this precise point.

22. Initially, the Claimant followed the correct process, and the claim was entered into on time by the ET1 Dated 17.11.24 using the first ACAS certificate ending 24/88. He then filed his second ET1 on 24.2.25 using the second ACAS certificate

23. The difficulty is caused by his subsequent withdrawal of the first claim, as he thought he would streamline his case by serving a second ET1. However, despite withdrawal, his first claim was not ultimately dismissed by the tribunal.

24. In the absence of any case law, rule or regulation before me to prohibit this, I do not see reliance on the first certificate as a cause for strike out on jurisdiction grounds.

25. I am not persuaded that the claimant issued his second claim to avoid time limit issues or was otherwise misusing the process.

26. The case of [NAME] [COMPANY] and ors 2025 EWCA Civ 1357, CA establishes that where the claim has passed the initial gateway, as this case has, the strict consequences of procedural failures regarding ACAS do not apply. This includes jurisdictional points. Instead the tribunal must consider how best to resolve the matter using its case management powers and that involves discretion.

27. I consider strike out would be a draconian measure at this stage and in these circumstances where the claim has been accepted by both the Tribunal and by the Respondent until today as in time and has been prepared for and indeed set for final hearing on that basis.

28. Disclosure efforts have been undertaken (albeit with deficiencies, the [APPELLANT] says) and parties are due to exchange witness statements at the end of this month.

29. To strike out on an ACAS certificate point alone would not be in accordance with the overriding objective and the need to deal with cases justly and fairly.

Case No: 6018893/2024 6006286/2025 6009466/2025

PHCM Order 5 of 6 September 2023

30. Strike out is rarely appropriate where there remains key factual disputes that need to be determined. The claimant’s dismissal (whether constructive or automatic, if that amendment is allowed) is the essence of his complaints.

31. For these reasons I allowed the constructive unfair dismissal to proceed and refused the respondent’s application to strike it out on the ACAS certificate point. The respondents indicated they wish to pursue a time limit point regarding the ACAS certificate, depending on which certificate is now in operation. That falls to be considered at the next PH.

32. The WTR and BOC claims in Claim 2 were withdrawn by the Claimant at the hearing, and he should notify the Tribunal in writing if that remains the case. He accepts they are out of time and would have required an application to extend time in any event.

Claim 3

33. The next Strike Out application was made in respect of Claim 3 because there were no particulars attached to the third claim; it should have been rejected under r.13.1 (b); and should now be struck out in any event as an abuse of process or as scandalous or vexatious.

34. The claimant said he had ticked the box for automatic unfair dismissal (whistleblowing) but not disclosed grounds at that point of filing the ET1

35. Abuse of process is a high threshold to meet.

36. I accept from the ET1 itself that information required to understand the claim is not there, which is undesirable; it is contained in the further and better particulars of claim which followed later in June. The respondent now has that information and the defect has been remedied. I do not consider it to be an abuse of process to allow the claim to proceed, particularly in the absence of any wilful or malicious failure to provide those particulars, I do not find the claimant’s conduct to be ‘vexatious nor an abuse of process in the way suggested.

37. The claimant’s position is that the facts of his complaints have remained the same throughout.

38. I reject the argument that, even if there are now particulars, it is an abuse of process for the claim to continue as the matter should have been included in the previous two ET1s.

39. Again, whilst clearly an inconvenience, it is a high threshold to establish an abuse of process. I bear in mind the claimant is a litigant in person and says his claim has always been about whistleblowing, as he mentions this in his redundancy letter, which the respondent acknowledged. He also appears to have evidence of alleged protected disclosures made, and gave dates to confirm them.

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PHCM Order 6 of 6 September 2023

40. The claimant seems to have obtained unhelpful legal advice and the procedural journey of his claims is unnecessarily complicated. However, it is not an abuse of process for the claim to continue.

41. The respondents also argued the claimant is estopped ([NAME] v [NAME]) from bringing Claim 3. However that relates to proceedings that have been wholly and finally determined before, unlike the position here, where the final hearing has not yet taken place and there has been now determination of the matters.

42. For completeness, I do not consider, looking at all of the circumstances, that the claimant is misusing/abusing the process by seeking to raise an issue they should have raised earlier. There was no evidence of that before me.

43. The claimant’s amendment application, if required, in respect of Claim 3 falls to be determined at the next PH.

Approved by:

Employment Judge McCooey

15 April 2026

Sent to the parties on:

16 April 2026

For the Tribunal Office: