Khan v London Borough of Barnet

Striking out for failure actively to pursue a claim is a draconian measure of last resort. The tribunal must decide, in the circumstances of the particular case and consistently with the overriding objective, whether it remains just to permit the claimant access to the tribunal.

A litigant in person must nevertheless comply with clear procedural requirements and engage meaningfully with directions. Repeatedly doing only enough to avert a procedural sanction, while failing to explain non-attendance or respond to reasonable requests for information, may justify strike-out without a lesser sanction.

The claimant brought Employment Tribunal proceedings concerning sick pay, his manager's conduct and alleged racist and Islamophobic comments. He did not attend a case management hearing and, despite a warning that his claim might be struck out and a request for medical evidence, did not respond as directed.

An Employment Judge struck out the claim on 28 July 2017 because it was not being actively pursued. On reconsideration, the Judge confirmed that decision. The claimant appealed. Although the Employment Appeal Tribunal initially considered that the claimant's emails and the absence of an express explanation for not making an unless order might disclose an error, it considered the full chronology and dismissed the appeal.

1. Appeal dismissed. The Employment Judge's decision to strike out the claim was open to him and accorded with the overriding objective.

2. Strike-out is a draconian remedy and a matter of last resort. Whether it is just depends on the circumstances; there is no single approach applicable to every case. The appellate court's task was not to decide whether it would itself have made an unless order, but whether strike-out was a permissible decision for the Employment Judge.

3. The claimant was a litigant in person, while the respondent was legally represented. The Tribunal had nevertheless communicated in clear and straightforward terms. Self-representation did not excuse the claimant from complying with procedure or from pursuing his claim through meaningful engagement.

4. The claimant failed to attend the case management hearing, gave no adequate explanation or medical evidence for that absence, and did not respond to the strike-out warning or the request for information. His later communications requested rescheduling but did not address those matters. The reconsideration reasons clarified that the Judge had taken account of this continuing lack of engagement.

5. The Tribunal was entitled to find that the claimant selectively responded to correspondence and did only the minimum needed when a sanction threatened. In the exceptional circumstances, it was no longer just to allow him to continue access to the Tribunal for the claim. The claimant's similarly limited engagement with the appeal reinforced that conclusion.

• Employment Appeal Tribunal: appeal dismissed; the strike-out decision was upheld.
• Employment Tribunal: the claim was struck out on 28 July 2017 for not being actively pursued. On reconsideration, the Employment Judge confirmed that decision in reasons sent on 9 February 2018.