• Contact Us

Is a Strike-Out Always the Right Answer?

on Friday, 26 April 2019.

Striking out a claim is a draconian step. Although each case will turn on its own facts, where claimants are unrepresented it may be more appropriate to apply for a deposit order.

Mbuise v Cygnet Healthcare

Mr Mbuisa, who was acting in person, brought a number of claims against his former employer (Cygnet Healthcare Ltd), claiming that he had been automatically unfairly dismissed for raising health and safety concerns. Mr Mbuisa was also alleging a number of other complaints against his employer, including breach of contract, unauthorised deduction from wages, holiday pay, whistleblowing and race and disability discrimination. Mr Mbuisa did not have legal representation and his claims were 'poorly pleaded,' leading to the need for two preliminary hearings during which the Employment Tribunal (ET) tried to clarify what claims Mr Mbuisa was trying to make. At the second preliminary hearing, the ET considered whether certain aspects of the claim should be struck out and, after receiving further written statements from Mr Mbuisa, proceeded to strike out the claim relating to health and safety.

Mr Mbuisa appealed the decision to strike out his claim and the Employment Appeal Tribunal (EAT) allowed the appeal.

The EAT emphasised that although it was challenging for the ET to manage a case where the claims were not properly set out, the decision to strike out was not the right approach.

The EAT made the following comments of general interest:

"… I appreciate the difficulties faced by ETs in case managing claims that are poorly pleaded and where a litigant has failed to articulate their case in a readily comprehensible way. That said, in such cases, striking out the claim is rarely the correct answer...

…. it was a draconian step that robbed the claimant of the right to have his complaint determined on its merits. The right course was to record how the case was being put, ensure that the original pleading was formally amended so as to pin that case down, and - if it was then considered that the case had little reasonable prospect of success - make an appropriate deposit order."

The Law

Under relevant legislation, the Employment Tribunal can strike out a claim at any point during the proceedings if the claim is 'scandalous, vexatious, or has no reasonable grounds of success.' Either party is able to make an application for strike out, or the ET can do this of their own initiative. Alternatively, under a deposit order the ET has the ability to order either party to pay a deposit of up to £1,000 as a condition of continuing a claim. The Judge will do this if they believe that the argument being pursued, or any part of it, has 'little prospect of success.'

The difference therefore between 'no reasonable grounds of success' and 'little prospect of success' is an important distinction. An application for strike out will prevent a claimant from being able to continue with their claim, whereas a deposit order, although in may impede and deter in some cases, will still allow for the claim to continue.


For more information, please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the form below.

 

Get in Touch

First name(*)
Please enter your first name.

Last name(*)
Invalid Input

Email address(*)
Please enter a valid email address

Telephone
Please insert your telephone number.

How would you like us to contact you?

Invalid Input

How can we help you?(*)
Please limit text to alphanumeric and the following special characters: £.%,'"?!£$%^&*()_-=+:;@#`

See our privacy page to find out how we use and protect your data.

Invalid Input