Tesco fails to strike out constructive dismissal and race discrimination claims
A former employee's constructive dismissal and race discrimination claims against Tesco survive after the tribunal refused to strike them out for non-compliance with case management orders.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant resigned and claimed constructive unfair dismissal and race discrimination.
- The respondents applied to strike out the claims for non-compliance with case management orders.
- The claimant failed to attend a preliminary hearing in July 2022 due to personal reasons.
- The claimant sent an email on 12 August 2022 attempting to comply with an order to provide further information.
- The tribunal found the claimant's conduct was not unreasonable and refused to strike out the claims.
- The tribunal also refused the respondents' application for a deposit order.
Timeline
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Case management preliminary hearing
The claimant did not attend. The tribunal made an order for the claimant to provide further information by 12 August 2022.
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Claimant sent email to respondents
The claimant sent an email to the respondents, but initially used the wrong email address for one solicitor.
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Claimant provided further information
The claimant sent an email purporting to comply with the case management order, providing information he believed was required.
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Respondents applied to strike out
The respondents made a written application to strike out the claims or for a deposit order.
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Preliminary hearing for strike out application
The tribunal heard the respondents' applications. The claimant attended and apologised for missing the July hearing.
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Judgment issued
Employment Judge Gordon Walker dismissed the strike out and deposit order applications.
The legal issue
The tribunal had to decide whether to strike out the claims for failure to comply with case management orders, or to order a deposit on grounds that the claims had little reasonable prospect of success.
The outcome
The tribunal dismissed both applications. It found that the former employee, acting in person, had attempted to comply with the order to provide further information by sending an email on 12 August 2022. His non-attendance at an earlier hearing was due to personal difficulties, not deliberate disregard. The tribunal also noted that strike out is a draconian sanction and was not proportionate here. The deposit order was refused because the claims were not shown to have little reasonable prospect of success, with time limits and other issues to be determined at a full hearing.
Lessons & takeaways
- Litigants in person who make genuine efforts to comply with tribunal orders are unlikely to be struck out for non-compliance.
- Missing a preliminary hearing due to personal reasons, if explained, may not be fatal to your case.
- Employers should think twice before seeking strike out against a litigant in person who has shown willingness to comply.
- Deposit orders require a clear showing that a claim has little reasonable prospect of success, which is a high bar.
A second chance for a litigant in person
This case shows that employment tribunals will give leeway to claimants who represent themselves, as long as they make a genuine effort to follow procedural rules. The former employee, who brought claims of constructive unfair dismissal and race discrimination against Tesco, missed a preliminary hearing and initially sent information to the wrong email address. But the tribunal accepted his explanation that he was moving home and struggling to obtain medical records.
What Tesco could have done differently
Tesco argued that the claimant's failure to fully comply with a case management order made a fair trial impossible. However, the tribunal disagreed, noting that the claimant had sent an email on the deadline date providing information he believed was required. The judge found that strike out was disproportionate, especially given the claimant's personal circumstances and his apology for missing the earlier hearing.
Why this matters
The decision reinforces that strike out is a last resort, not a tool for punishing imperfect compliance. For employers, it serves as a reminder that applications to strike out claims by litigants in person will be scrutinised carefully. For claimants, it highlights the importance of showing the tribunal that you are doing your best, even if you are not a legal expert.
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