Charlie Forrest v Amazon Web Services EMEA SARL UK Branch

A tribunal considering strike-out for non-compliance with a case-management order must exercise its discretion in accordance with the overriding objective. Strike-out is neither automatic nor punitive. It must consider all the circumstances, including whether a fair trial remains possible and whether a lesser sanction would adequately secure compliance.

Where a fair trial remains possible, an unless order will ordinarily be the proportionate response before a claim is struck out for non-compliance. A warning that strike-out is likely does not have the effect of an unless order. Sanctions should secure compliance and enable cases to be determined on their merits.

The claimant, a disabled litigant in person, brought claims for disability discrimination, victimisation and whistleblowing detriment. At a case-management hearing, he was ordered to complete the respondent's draft list of issues. Following an administrative failure by the Employment Tribunal, the original deadline was replaced with a deadline of 16 June 2023.

On 14 July 2023, EJ Adkin struck out all the claims under Rule 37 of the Employment Tribunal Rules of Procedure 2013 because the claimant had not provided the requested particulars. The judge declined to make an unless order. The claimant appealed, contending that the tribunal applied the wrong test and failed to consider whether a fair hearing remained possible.

1. Appeal allowed. The Employment Judge erred in moving directly from non-compliance with an unsanctioned case-management order to strike-out. The governing approach in Baber required consideration of the overriding objective, all relevant circumstances, whether a fair trial remained possible, and whether a lesser sanction was proportionate.

2. The question whether a fair trial remained possible was a central consideration. The judge treated deliberate and persistent procedural default and the impossibility of a fair trial as alternatives. That was erroneous. Even deliberate non-compliance does not remove the need to consider whether the claim can still be fairly tried.

3. A fair hearing was plainly possible. The proceedings were at an early stage; no final hearing had been listed; a draft list of issues already existed; and the particulars pleaded the primary facts clearly. The original deadline could not support a finding of persistent delay because it had been set aside following the Tribunal's administrative failure. The revised deadline had expired only four weeks before the strike-out hearing.

4. The warning that the claim was likely to be struck out was not an unless order and could not be treated as one. An unless order would have squarely required compliance while preserving the claim if compliance followed. It was the proportionate step, particularly given the claimant's status as a disabled litigant in person and the compressed timing of the respondent's strike-out application.

5. The strike-out was set aside and the original claims reinstated. As the claimant had since supplied a draft list of issues, no unless order was required. The respondent was ordered to respond within seven days. Further case management was to be conducted by the Employment Judge dealing with the later dismissal claims, without delaying their listed merits hearing.

• Employment Appeal Tribunal: Allowed the appeal in [2025] EAT 81, set aside the strike-out, reinstated the claims, and gave consequential case-management directions.
• Employment Tribunal, London Central: On 14 July 2023, EJ Adkin struck out all of the claimant's original claims for non-compliance with an order under Rule 37 of the Employment Tribunal Rules of Procedure 2013.