Strike-out for non-compliance overturned in whistleblowing and discrimination claim
EAT warns against striking out claims without first using an unless order, particularly where a fair trial is still possible.
Background
In Forrest v Amazon Web Services, the EAT has allowed an appeal against a decision to strike out multiple discrimination and whistleblowing claims for non-compliance with a case management order. The decision reminds us of the high threshold for striking out, particularly where a party is unrepresented and vulnerable and a fair trial remains achievable.
Mr Forrest brought wide-ranging claims against his employer, Amazon Web Services, including disability discrimination, failure to make reasonable adjustments, whistleblowing detriment and victimisation. He was representing himself and had ADHD, a condition recognised by the Tribunal. While his pleadings were described as clear and well-structured, he was ordered to complete a list of issues using a framework prepared by the employer. When he failed to do so by the extended deadline, the Tribunal struck out his entire claim without making an order unless or fully considering whether a fair hearing was still possible.
EAT decision
The EAT found this to be an error of law. The judge had misapplied the relevant principles and failed to assess whether a fair trial could still take place. The EAT reaffirmed that strike-out is a last resort and should not be used punitively. The claimant's pleadings contained sufficient primary facts, and the deficiencies related more to legal analysis than to any inability to understand the case.
The EAT confirmed that sanctions for non-compliance with case management orders are intended to secure compliance, not prevent a claim from being heard on its merits. An unless order should normally be used first, to give a clear warning that failure to comply will result in the claim being struck out automatically. In this case, the claimant later provided the requested list of issues, demonstrating that a fair hearing remained possible. The appeal was allowed and the claim reinstated.
Learning points for employers
This decision reinforces the importance of proportionality in case management. While Tribunals expect parties to comply with directions, a strike-out will rarely be appropriate as a first step, particularly where the claimant is unrepresented or is otherwise vulnerable. In practice, it is difficult to obtain a strike-out against a litigant in person unless their conduct clearly prevents a fair trial.
Where there are concerns about delay or procedural non-compliance, employers may wish to explore whether other case management options are more likely to succeed. Depending on the circumstances, these could include requesting an unless order, asking the Tribunal to consider a deposit order, or seeking a costs warning. A strike-out is more likely to be viewed as appropriate where those alternatives have been attempted and the claimant’s conduct still makes a fair hearing impossible.