Claim struck out for not being pursued: costs refused despite unreasonable conduct
A long-serving former employee of John Lewis had his unfair dismissal claim struck out after failing to comply with orders or respond to the tribunal. The tribunal refused the employer's costs application, finding no jurisdiction to award costs against an individual.
1 min read · Last updated 18 May 2026
Case details
- #strike-out
- #failure-to-prosecute
- #costs-application-refused
- #unreasonable-conduct
- #no-costs-jurisdiction
Key facts
- The claimant presented a claim for unfair dismissal on 8 December 2021.
- The claimant failed to comply with case management orders and did not respond to correspondence.
- The claim was struck out on 8 June 2022 for not being actively pursued.
- The respondent applied for costs, arguing the claimant acted unreasonably.
- The employment judge found the claimant's conduct unreasonable but declined to award costs.
Timeline
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Early conciliation started
Early conciliation between the parties began.
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Early conciliation ended
Early conciliation ended without resolution.
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Claim presented
The claimant presented a claim for unfair dismissal to the Employment Tribunal.
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Notice of hearing issued
The Tribunal issued a notice of final hearing for 9 and 10 June 2022 with case management orders.
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Schedule of loss deadline
The claimant was required to send a schedule of loss to the respondent by this date.
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Response presented
The respondent presented its response to the claim.
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Costs warning letter
The respondent sent a without prejudice costs warning letter to the claimant.
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Disclosure deadline
Parties were required to exchange copies of relevant documents.
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Hearing bundle deadline
The hearing bundle was to be agreed and prepared by the respondent.
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Strike-out application
The respondent applied to strike out the claim due to non-compliance.
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Tribunal warning letter
The Tribunal wrote to the claimant warning that failure to respond could lead to strike-out.
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Witness statement deadline
Written witness statements were to be exchanged.
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Counsel fees incurred
The respondent incurred counsel fees for preparation.
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Further counsel fees
The respondent incurred further counsel fees.
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Claim struck out
The claim was struck out for not being actively pursued; the hearing was vacated.
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Costs application
The respondent applied for costs.
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Tribunal invited comments
The Tribunal invited the claimant to comment on the costs application.
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Costs decision
Employment Judge Burns refused the costs application.
The legal issue
The tribunal had to decide whether to strike out the claim for non-compliance and whether to award costs against the claimant for unreasonable conduct. The strike-out was granted, but the costs application was refused because the tribunal found it had no jurisdiction to award costs against an individual who had not acted vexatiously or abusively.
The outcome
The tribunal struck out the claim on 8 June 2022 because the claimant had failed to comply with case management orders and did not respond to correspondence or a warning letter. The final hearing was vacated.
The respondent applied for costs of £4,000 plus VAT, arguing the claimant acted unreasonably. The tribunal refused the application, finding that while the claimant's conduct was unreasonable, it did not meet the threshold for a costs order under Rule 76. The tribunal noted that the claimant was an individual litigant in person and that the respondent had not shown the conduct was vexatious or abusive.
No compensation was awarded as the claim was struck out.
Lessons & takeaways
- If you bring a claim, you must comply with tribunal orders and respond to correspondence, or your claim can be struck out without a hearing.
- Costs are rarely awarded against individual claimants in employment tribunals, even if their conduct is unreasonable, unless it is vexatious or abusive.
- Employers should consider the costs threshold carefully before applying; tribunals have limited jurisdiction to award costs against unrepresented individuals.
- A without prejudice costs warning letter may not be enough to secure costs if the claimant's conduct does not meet the high threshold.
When a claim goes silent
This case shows what happens when a claimant stops engaging with the tribunal process. The former employee, who had worked at John Lewis since 2006, presented an unfair dismissal claim in December 2021. But after the initial steps, he failed to comply with case management orders, did not provide a schedule of loss, and ignored correspondence from both the respondent and the tribunal.
Despite a warning letter from the tribunal giving him a chance to explain, he did not respond. The claim was struck out in June 2022, just before the final hearing was due to take place.
Why costs were refused
John Lewis applied for costs of £4,000 plus VAT, arguing that the claimant's failure to pursue the claim was unreasonable. The tribunal agreed the conduct was unreasonable, but refused the application. Under Rule 76, a costs order can only be made if a party has acted vexatiously, abusively, disruptively, or otherwise unreasonably. The tribunal found that the claimant's conduct, while unreasonable, did not reach the level of vexatious or abusive behaviour. The judge noted that the claimant was an individual litigant in person, and that the respondent had not provided evidence of the claimant acting with malice or an improper motive.
What this means for similar claims
This case is a reminder that employment tribunals have a relatively low tolerance for non-compliance. Claimants must actively pursue their claims or risk strike-out. However, it also confirms that costs orders against individual claimants remain rare. Even where conduct is unreasonable, tribunals will only award costs if the threshold of vexatious or abusive behaviour is met. For employers, this means that applying for costs can be an uphill battle, especially against unrepresented claimants.
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