Charlie Forrest v Amazon Web Services EMEA SARL UK Branch

The Employment Appeal Tribunal allowed an appeal against the Employment Tribunal's decision to strike out all of the claimant's claims for non-compliance with a case management order. The EAT held that the judge erred by proceeding directly to strike out under Rule 37 of the ET Rules of Procedure 2013 (now reflected in the 2024 Rules) without first considering whether a fair trial remained possible and without first trying the less draconian course of making an unless order. The EAT applied the principles in Baber v Royal Bank of Scotland plc (UKEAT/0301/15) and emphasised that strike out is a draconian, non‑punitive remedy to be used only where a fair trial is impossible or no lesser sanction is proportionate. The judge failed properly to apply those factors and did not give adequate weight to the appellant's status as a litigant in person and his disability (severe hyperkinetic disorder/ADHD). The order striking out the claims was set aside and the claims were reinstated with directions for further case management.

This was an employment appeal concerning the proper approach to strike out for non‑compliance with tribunal orders. The appellant, Mr Forrest, had brought a range of employment claims while still employed: direct disability discrimination, indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment, victimisation and whistleblowing detriment; he also pleaded personal injury in relation to remedy. The Employment Judge (EJ Burns) ordered the claimant to complete a list of issues using the respondent's draft list as a framework, and the deadline was extended after an administrative error to 16 June 2023. The claimant did not provide the completed list and the respondent applied to strike out the claims. On 14 July 2023 EJ Adkin struck out all claims for failure to comply with tribunal orders.

The appellant appealed to the EAT. The issues before the EAT were: (i) whether the Employment Judge applied the correct legal test when ordering strike out for non‑compliance; (ii) whether the judge had properly considered whether a fair hearing remained possible; and (iii) whether sufficient account had been taken of the claimant's status as a litigant in person and of his disability (ADHD).

The EAT reviewed the law, in particular Baber v Royal Bank of Scotland plc (UKEAT/0301/15), and reiterated that non‑compliance is an express ground for strike out but that strike out is not automatic and is a draconian, non‑punitive remedy. The relevant considerations include the magnitude of non‑compliance, responsibility for the failure, prejudice to the other party, whether a fair hearing remains possible and whether a lesser sanction (for example an unless order) would be appropriate. The EAT concluded that the judge had erred in law by not considering whether a fair trial remained possible and by failing to try an unless order before ordering strike out. The EAT placed weight on the early stage of proceedings, the existence of clear pleadings and a draft list of issues, the extension of time ordered by EJ Burns (which undermined a finding of persistent deliberate default), and the claimant's status as a litigant in person with ADHD.

Disposition: the appeal was allowed. The EAT reinstated the earlier proceedings, recorded that the appellant had since produced a draft list of issues (so an unless order was unnecessary), directed the respondent to reply to that draft within seven days of the EAT judgment, and ordered a further case management hearing before the judge who will hear the upcoming full merits hearing of the later dismissal claims.

Appeal allowed. The Employment Tribunal erred in striking out the claimant’s claims for failure to comply with a case management order without first considering whether a fair trial remained possible and without first trying the lesser sanction of an unless order. The judge had given insufficient weight to the Baber principles, to the fact the proceedings were at an early stage and to the claimant’s status as a litigant in person and his disability. The strike out order was set aside and the claims reinstated with directions for further case management.

The Employment Tribunal (London Central) struck out all the claimant's claims on 14 July 2023 (order of EJ Adkin). The claimant appealed to the Employment Appeal Tribunal, which allowed the appeal in the judgment reported at [2025] EAT 81.