Constructive dismissal claim struck out as out of time: costs order for late filing
A tribunal struck out a constructive dismissal claim presented five months after resignation and ordered the claimant to pay £1,013.48 in costs. The earlier age discrimination claim survived a strike-out application.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant presented a claim for age discrimination on 16 September 2021.
- The claimant presented a second claim for constructive dismissal on 21 October 2022, which was out of time.
- The claimant failed to comply with multiple tribunal orders, including providing a schedule of loss and list of documents.
- The respondent applied to strike out the first claim for non-compliance, but the tribunal refused and instead made an unless order.
- The second claim was struck out as out of time, and the claimant was ordered to pay costs of £1,013.48.
Timeline
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Employment started
Claimant started employment as lead learning support assistant.
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First claim presented
Claimant presented claim for age discrimination.
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Resignation
Claimant resigned from employment.
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Second claim presented
Claimant presented second claim for constructive dismissal, which was out of time.
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Preliminary hearing orders
Employment Judge Milner-Moore set deadlines for schedule of loss and amendment application.
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Extension granted
Tribunal extended deadline for schedule of loss to 1 February 2023 due to ill health.
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Deadline missed
Claimant failed to provide schedule of loss by extended deadline.
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Second claim struck out
Judge Anstis struck out second claim as out of time.
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Preliminary hearing
Hearing to consider strike out application and costs.
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Judgment issued
Tribunal refused strike out of first claim but ordered costs on second claim.
The legal issue
The tribunal had to decide whether to strike out the claimant's first claim (age discrimination) for failure to comply with orders, and whether to award costs in relation to the second claim (constructive dismissal) which was struck out as out of time.
The outcome
The tribunal refused to strike out the age discrimination claim, finding that the claimant had shown some engagement and that a strike-out would be disproportionate. However, the constructive dismissal claim was struck out as presented out of time, and the claimant was ordered to pay £1,013.48 in costs.
- Costs awarded: £1,013.48 (legal costs for the second claim only)
Lessons & takeaways
- Present a constructive dismissal claim within three months of the effective date of termination — missing this deadline is almost always fatal.
- Complying with tribunal orders, such as providing a schedule of loss, is essential to avoid strike-out applications.
- Costs can be awarded against a litigant in person if they pursue a claim that is out of time or otherwise unreasonable.
- If you have health issues, request reasonable adjustments early and keep the tribunal informed to avoid non-compliance.
This case shows how procedural missteps can derail a claim, even where there may be a substantive grievance. The lead learning support assistant, who had 11 years' service, brought an age discrimination claim and later tried to add a constructive dismissal claim after resigning. The constructive dismissal claim was presented five months after the effective date of termination — well beyond the three-month time limit. The tribunal had no choice but to strike it out, as there was no reasonable excuse for the delay.
What the losing side could have done differently
The claimant could have presented the constructive dismissal claim within the statutory time limit. Even if she was unaware of the deadline, the tribunal has no discretion to extend it once the claim is significantly late. Additionally, she failed to comply with several tribunal orders, including providing a schedule of loss and a list of documents. While the tribunal gave her multiple chances — including an unless order — the lack of compliance weakened her position and led to a costs order.
Why the result matters
This case is a reminder that employment tribunals expect claimants to follow procedural rules, even if they are representing themselves. The age discrimination claim survived because the tribunal found that striking it out would be disproportionate, but the claimant was warned that further non-compliance could lead to dismissal. The costs order for the out-of-time claim shows that pursuing a hopeless claim can have financial consequences. For anyone considering a tribunal claim, the key takeaway is to act promptly and comply with all orders, or risk losing the claim and facing a costs bill.
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