Strike out revoked: disputed continuous service must go to full hearing
A former employee's unfair dismissal claim was initially struck out for lack of service, but the tribunal revoked that decision after realising the claimant's representations were overlooked. The dispute over continuous employment will now be heard at a full hearing.
1 min read · Last updated 18 May 2026
Case details
- #qualifying-service
- #strike-out-revoked
- #reconsideration
- #continuous-employment
Key facts
- The claimant was employed by the respondent for less than two years according to the respondent.
- The claimant's solicitors argued that the claimant had sufficient continuous service to bring an unfair dismissal claim.
- Employment Judge Tynan initially struck out the unfair dismissal claim due to insufficient service.
- The claimant's solicitors made representations in response to a strike out warning, which were not considered before the strike out.
- On reconsideration, the strike out was revoked because the issue of continuous service required a full hearing.
Timeline
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Claim presented
The claimant brought claims for unfair dismissal and failure to pay notice pay.
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Strike out warning
The tribunal issued a strike out warning regarding the unfair dismissal claim due to insufficient service.
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Initial strike out judgment
Employment Judge Tynan struck out the unfair dismissal claim, unaware of the claimant's solicitors' representations.
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Application for reconsideration
The claimant's solicitors applied for reconsideration of the strike out judgment.
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Hearing for remaining claims
A hearing was listed for the notice pay claim, but neither party attended; the proceedings were stayed.
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Reconsideration judgment
Employment Judge Tynan revoked the strike out, allowing the unfair dismissal claim to proceed to a full hearing.
The legal issue
Whether the former employee had at least two years' continuous service to bring an unfair dismissal claim, and whether the claim could be struck out without a full hearing when the facts were disputed.
The outcome
The tribunal revoked its earlier decision to strike out the unfair dismissal claim. The key reason was that the claimant's solicitors had made representations in response to a strike-out warning, but those representations were not considered before the strike out was ordered. The dispute over whether the claimant had two years' continuous service required a full hearing.
No compensation was awarded as the claim was not yet determined. The claim will now proceed to a full hearing.
Lessons & takeaways
- If you receive a strike-out warning from the tribunal, always respond promptly with any evidence that supports your case.
- Disputes over continuous service often need a full hearing – the tribunal cannot strike out a claim if the facts are genuinely in dispute.
- Keep records of your employment dates and any breaks in service, as these are crucial for unfair dismissal claims.
- If your claim is struck out without considering your response, you can apply for reconsideration.
A procedural error that changed the outcome
This case shows how important it is for tribunals to consider all representations before striking out a claim. The former employee brought claims for unfair dismissal and notice pay against Huntingdon Performance Tyres Ltd. The respondent argued that the claimant did not have the two years' continuous service required to bring an unfair dismissal claim. Employment Judge Tynan initially struck out the unfair dismissal claim, unaware that the claimant's solicitors had already sent representations arguing that the claimant did have sufficient service.
What the respondent could have done differently
The respondent's position was that there was a break in the claimant's continuous service in early 2020. However, the tribunal noted that this was a disputed issue that could only be resolved after hearing all the evidence. The respondent could have agreed to a full hearing on the service issue rather than relying on the strike-out application. By doing so, they might have avoided the delay and costs of the reconsideration process.
Why this matters for similar claims
This case is a reminder that tribunals must be careful not to strike out claims prematurely when there is a genuine dispute about qualifying service. For claimants, it highlights the importance of responding to strike-out warnings and, if the response is overlooked, applying for reconsideration. For respondents, it shows that disputed facts will usually require a full hearing, and attempting to strike out a claim without addressing the claimant's evidence may backfire.
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