Strike-out refused after solicitor's death: tribunal gives employee a second chance
An employment tribunal has refused to strike out a constructive dismissal and discrimination claim despite the claimant's failure to comply with case management orders, instead issuing an unless order. The tribunal found the delay was not intentional and a fair hearing was still possible.
1 min read · Last updated 18 May 2026
Case details
- #strike-out-application
- #non-compliance
- #case-management-orders
- #unless-order
- #representative-death
Key facts
- The claimant was employed as an HR business partner from 16 September 2019 to 18 November 2021.
- The claimant failed to comply with case management orders to provide a schedule of loss and disclose documents.
- The claimant's solicitor, Mr Singh, died, and the claimant did not respond to correspondence from the respondent.
- The respondent applied to strike out the claim for non-compliance and lack of active pursuit.
- The tribunal found the delay was not intentional or contumelious and a fair hearing was still possible.
- The tribunal dismissed the strike-out application and instead issued an unless order.
Timeline
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Employment started
Claimant began employment as an HR business partner with the first respondent.
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Employment ended
Claimant resigned, claiming constructive unfair dismissal.
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Claim presented
Claimant presented her claim to the tribunal.
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Case management orders
Tribunal listed final hearing for January/February 2024 and ordered schedule of loss by 6 July 2022 and disclosure by 3 August 2022.
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Solicitor's stroke
Claimant's solicitor Mr Singh suffered a stroke; firm unable to comply with orders.
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Respondent's disclosure letter
Respondent sent claimant a letter with their documents and asked for her documents; claimant did not reply.
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Solicitor came off record
Cameron Clark wrote to tribunal stating they no longer represented claimant.
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Respondent's warning letter
Respondent wrote to claimant directly warning of strike-out application if no response by 28 September; claimant did not reply.
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Strike-out application
Respondent applied to strike out the claim for non-compliance and lack of active pursuit.
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Preliminary hearing
Tribunal heard the strike-out application; claimant attended late.
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Judgment issued
Employment Judge Green dismissed the strike-out application and issued an unless order.
The legal issue
The tribunal had to decide whether the claimant's claims should be struck out for failing to provide a schedule of loss and disclose documents, and for not actively pursuing the claim, after her solicitor died.
The outcome
The tribunal dismissed the respondent's application to strike out the claim. It found that the claimant's failure to comply with orders was due to her solicitor's death and her own difficulties, not intentional or contumelious. A fair hearing remained possible. However, the tribunal issued an unless order requiring the claimant to comply with the outstanding orders by specified dates, failing which the claim would be struck out.
No compensation was awarded as the strike-out application was refused.
Lessons & takeaways
- If you miss deadlines due to your solicitor's illness or death, tell the tribunal and the other side as soon as possible to show it was not deliberate.
- Responding to correspondence from the other party, even briefly, can help avoid strike-out applications.
- An unless order is a final warning: if you fail to comply, your claim will be automatically struck out without further hearing.
- Tribunals are reluctant to strike out claims where a fair hearing is still possible and the delay was not the claimant's fault.
This case shows how tribunals approach strike-out applications when a claimant has failed to comply with orders due to circumstances beyond their control. The human resources business partner had brought claims for constructive unfair dismissal, whistleblowing, and discrimination. After her solicitor suffered a stroke and later died, she stopped responding to correspondence and missed deadlines to provide a schedule of loss and disclose documents.
What the tribunal considered
The respondent applied to strike out the claim for non-compliance and lack of active pursuit. The tribunal had to balance the need for efficient case management against the risk of shutting out a potentially meritorious claim. It found that the delay was not intentional or contumelious – the claimant had not deliberately ignored orders. She had been let down by her solicitor's illness and death, and had been struggling to manage the case alone.
What could have been done differently
The claimant could have contacted the tribunal and the respondent earlier to explain her situation and request extensions. Instead, she went silent, which prompted the strike-out application. The respondent could have sought an unless order earlier rather than applying to strike out, which the tribunal ultimately considered a more proportionate step.
Why this matters
The decision confirms that tribunals will not automatically strike out claims for non-compliance where there is a reasonable explanation and a fair hearing remains possible. However, the unless order means the claimant must now comply strictly or lose her claim. For anyone in a similar position, the key lesson is to communicate promptly with the tribunal and the other side if you are struggling to meet deadlines – silence can be interpreted as abandonment of your claim.
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