E Kamphues v Venator Materials UK Ltd

An Employment Tribunal considering strike-out must adopt a two-stage exercise. It must first decide whether conduct falling within the applicable strike-out rule is established. It must then exercise its discretion by considering all relevant circumstances, including whether a fair trial remains possible and whether strike-out is proportionate.

It is an error of law to move directly from non-compliance with an order or failure actively to pursue a claim to strike-out. Fairness is not confined to whether evidence can still be heard. It also includes delay, cost, other litigants’ demands and the Tribunal’s finite resources.

The claimant brought complaints of unfair dismissal, unlawful deductions from wages, protected-disclosure detriment and dismissal, and direct race discrimination. The Employment Tribunal struck out the claim under Rule 37(1)(c) and (d) of the Employment Tribunal Rules 2013, relying on non-compliance with case-management orders and failure actively to pursue the case.

The claimant appealed. The permitted grounds included whether the delay was intentional or excusable, whether a fair trial remained possible, and whether strike-out was proportionate. The central issue was whether the Employment Judge had exercised the discretionary stage of the strike-out power after finding conduct capable of engaging it.

1. Appeal allowed and matter remitted. The Employment Judge identified non-compliance with an order and lack of active pursuit, but the brief conclusion showed that she moved directly from that threshold conduct to strike-out. She did not take the separate discretionary decision required by Rule 37 of the Employment Tribunal Rules 2013.

2. The correct structure is two-stage. The Tribunal must first decide whether conduct within the strike-out rule is proved. If it is, the Tribunal must then decide whether strike-out is a proportionate exercise of discretion, having regard to all relevant circumstances. The possibility of a fair trial will nearly always be relevant at that stage.

3. A fair trial is not assessed solely by asking whether witnesses can still give evidence. It includes the time and cost required, the demands of other litigants and the Tribunal’s finite resources, consistently with the overriding objective in Rule 2 of the Employment Tribunal Rules 2013.

4. The claim’s procedural history was lamentable, but the EAT could not properly substitute its own discretionary decision because strike-out was not the only possible conclusion. The respondent could renew its strike-out application or case management could instead be used to bring the claim promptly to hearing.

5. Remittal was to a differently constituted Employment Tribunal so that any renewed strike-out application could be considered afresh.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2025] EAT 30 and remitted the case to a differently constituted Employment Tribunal.

• Employment Tribunal: Employment Judge Pitt struck out the claimant’s complaints on 15 September 2023 under Rule 37(1)(c) and (d) of the Employment Tribunal Rules 2013.