Strike out application refused: respondent had an arguable defence
A former employee's attempt to strike out the employer's response failed because the employer had put forward an arguable defence and had complied with disclosure obligations.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant applied to strike out the respondent's response.
- The respondent had put forward an arguable defence.
- The respondent had attempted to comply with disclosure obligations and case management orders.
- The claimant had requested documents that were not relevant to the issues.
- The respondent was not disputing that the claimant had worked from their offices.
Timeline
-
Previous strike out decision
Employment Judge Hawksworth made a strike out decision on 15/01/2023, which was not appealed.
-
Preliminary hearing
The claimant's application for strike out of the respondent's response was heard and refused.
-
Judgment sent to parties
The written judgment was sent to the parties.
-
Written reasons provided
Employment Judge Lloyd-Lawrie provided written reasons for the decision.
-
Reasons sent to parties
The written reasons were sent to the parties.
The legal issue
The tribunal had to decide whether the employer's response should be struck out under Rule 37 of the Employment Tribunal Rules of Procedure 2013, on grounds such as no reasonable prospect of success or unreasonable conduct.
The outcome
The tribunal refused the former employee's application to strike out the employer's response.
The key reasons were:
- The employer had put forward an arguable defence, so the response had a reasonable prospect of success.
- The employer had attempted to comply with disclosure obligations and case management orders, and had not acted unreasonably or vexatiously.
- The former employee had requested documents that were not relevant to the issues, as the employer was not disputing that he had worked from their offices.
No compensation was awarded as this was a preliminary hearing on a strike-out application.
Lessons & takeaways
- Strike out applications are rarely granted if the other side has an arguable defence, even if you disagree with it.
- Make sure your document requests are relevant to the issues in dispute; asking for irrelevant documents can weaken your position.
- If you are representing yourself, be careful not to misunderstand what the other side is actually disputing — it can lead to wasted time and costs.
- Complying with tribunal orders and disclosure obligations is key to defending against a strike out application.
This case shows that tribunals are reluctant to strike out a response unless it is clearly hopeless or the party has behaved unreasonably. The former employee had applied to strike out the employer's response, arguing that it should not be allowed to proceed. However, the employer had put forward an arguable defence, and the tribunal found that it had attempted to comply with disclosure and case management orders.
What went wrong for the claimant?
The former employee had requested documents that were not relevant to the issues. He appeared to have misunderstood that the employer was not disputing that he had worked from their offices — the dispute was about other matters. This meant his application was based on a mistaken premise, and the tribunal saw no grounds to strike out the response.
Why this matters
Strike out applications are a high-risk tactic. If you are considering one, you need to show that the other side's case has no reasonable prospect of success or that they have acted in a way that makes a fair trial impossible. Simply disagreeing with their version of events is not enough. This case also highlights the importance of focusing on relevant documents and understanding what is actually in dispute.
Similar cases
Labourer's race discrimination claim survives strike-out bid despite late witness statement
A construction labourer who alleges he was subjected to monkey chants and racist abuse can proceed with his claim after the tribunal refused to strike it out, despite his late compliance with orders.
Site Manager with 8 months' service loses unfair dismissal claim
A site manager who was dismissed after just eight months had his unfair dismissal claim struck out for lack of qualifying service. His race discrimination claims were allowed to proceed but subject to a £100 deposit order.
Discrimination claims struck out after failure to provide clear particulars
A former employee's race and religion discrimination claims were struck out after she failed to provide a properly constructed amendment despite a tribunal order. Her solicitor's last-minute postponement request was refused.
Asbestos removal workers' TUPE claims struck out: no transfer found
A group of former asbestos removal workers had their claims against three companies struck out after the tribunal found there was no TUPE transfer of their employment.