Why Are Employment Tribunal Claims Struck Out?
Why Are Employment Tribunal Claims Struck Out?
Last Updated: December 2025 | Jurisdiction: England & Wales, Scotland
⚠️ Disclaimer: This article provides general information about Employment Tribunal procedures in the UK. It is not legal advice. If you're facing a tribunal claim or considering bringing one, speak to a qualified employment solicitor or contact ACAS for guidance specific to your situation.
TL;DR – What You Need to Know
- Strike out rates range from 2-8% depending on claim type – but many more claims fail before reaching a full hearing
- The biggest reasons claims get struck out: not having 2 years' service for unfair dismissal (32%), not responding to the tribunal (14%), and not attending hearings (12.5%)
- Most strike outs are avoidable – responding to tribunal letters, meeting deadlines, and checking eligibility before you claim can protect your case
- Discrimination claims have lower strike out rates because they don't require 2 years' service
1. How Common Are Strike Outs?
If you're bringing a claim to an Employment Tribunal, you might be worried about it being "struck out" – essentially dismissed before you get your day in court.
The good news? Strike outs are relatively uncommon. Across all claim types, only 2-8% of claims are struck out (not at a hearing).
But here's what the headline figures don't tell you: when you add up all the ways claims can end early – struck out, dismissed at a preliminary hearing, dismissed after withdrawal – the proportion of claims that never reach a full hearing is much higher. For some claim types, it's over 25%.
The Key Finding
Our analysis of 112 strike out judgments found:
Over 40% cited lack of eligibility as the main reason – meaning many people brought claims they were never entitled to bring in the first place.
This is frustrating, but it's also preventable. Understanding the rules before you claim could save you months of stress.
2. Strike Out Rates by Claim Type
Not all claims are equally likely to be struck out. Here's how the main claim types compare:
Higher Risk of Strike Out (5%+)
| Claim Type | Strike Out Rate | Possible Explanation |
|---|---|---|
| Unfair Dismissal | 5.0% - 7.5% | 2-year service requirement catches many claimants |
| Whistleblowing (PIDA) | 3.3% - 5.6% | Complex legal tests |
| Written Pay Statement | 6.1% - 10.5% | Lower case volumes; may reflect procedural issues |
Lower Risk of Strike Out (under 3%)
| Claim Type | Strike Out Rate | Possible Explanation |
|---|---|---|
| Pregnancy/Maternity | 2.2% - 2.3% | No service requirement, strong protections |
| Sex Discrimination | 2.2% - 3.2% | No service requirement |
| Disability Discrimination | 1.7% - 5.4% | No service requirement (but definition can be contested) |
Why Such Big Differences?
The 2-year rule is the main factor. To claim "ordinary" unfair dismissal, you need 2 years' continuous service with your employer (under Section 108, Employment Rights Act 1996). Many people don't realise this until it's too late.
Discrimination claims don't have this requirement – you can bring them from day one of employment. That's why their strike out rates are lower.
3. Why Claims Get Struck Out – The Real Reasons
We analysed 112 strike out judgments to find out exactly why tribunals dismiss claims early. Here's what we found:
Overview
| Reason Category | % of Cases |
|---|---|
| Not responding or attending | 42% |
| Lack of eligibility | 40% |
| Procedural failures | 22% |
| No reasonable prospect of success | 19% |
| Abuse of process | 3% |
Note: Some cases had multiple reasons, so percentages add up to more than 100%.
3.1 Not Responding or Attending (42%)
The single biggest category. Claims get struck out when people stop engaging with the process.
This includes:
- Not turning up to hearings (12.5% of all strike outs)
- Not responding to tribunal letters (14.3%)
- Not actively pursuing the claim (15.2%)
What actually happens: The tribunal sends you a warning letter saying your claim will be struck out unless you respond by a certain date. If you don't reply, that's it – claim over.
In our analysis, we categorised 10 judgments with reasoning along these lines:
"Claimant failed to provide acceptable reason why complaint should not be struck out despite being given opportunity"
How to avoid this: Always respond to tribunal letters, even if you're struggling. If you need more time, ask for it. If you want to withdraw, do it properly. Silence is the worst option.
3.2 Lack of Eligibility (40%)
The second biggest category – and often the most frustrating, because these claims were doomed from the start.
| Eligibility Issue | % of Strike Outs |
|---|---|
| Less than 2 years' service | 32.1% |
| Claim submitted too late | 6.3% |
| Wrong respondent named | 0.9% |
| Tribunal has no jurisdiction | 1.8% |
The 2-year service trap: Over 30% of all strike outs happened because the claimant hadn't worked for their employer long enough. This is the single most common reason.
Upcoming change: The Employment Rights Bill (currently passing through Parliament) will remove the 2-year qualifying period for unfair dismissal, introducing "day one" rights. However, this isn't expected to come into force until 2026 at the earliest, and will include a statutory probationary period. Until then, the 2-year rule still applies.
Time limits: You generally have 3 months minus one day from the date of dismissal or the discriminatory act to contact ACAS and start early conciliation. Miss this deadline and your claim may be struck out – unless you can show it wasn't "reasonably practicable" to claim in time (unfair dismissal) or that it's "just and equitable" to extend (discrimination).
For more on time limits, see ACAS guidance on making a claim.
3.3 Procedural Failures (22%)
Even if your claim has merit, you can lose it by not following tribunal procedures.
Common procedural failures include:
- Not paying a deposit order by the deadline
- Not providing documents when ordered
- Not completing witness statements on time
- Not returning the hearing agenda
The tribunal takes deadlines seriously. If you're ordered to do something by a certain date, do it. If you can't, apply for an extension before the deadline passes.
3.4 No Reasonable Prospect of Success (19%)
Sometimes the tribunal decides early on that a claim simply cannot succeed – even if everything the claimant says is true.
This is a high bar. The test isn't "unlikely to win" – it's "no reasonable prospect at all." But if your claim doesn't fit the legal framework, it can be struck out at a preliminary hearing.
The legal basis: Strike outs for "no reasonable prospect" are made under Rule 37(1)(a) of the Employment Tribunal Rules 2013. The tribunal must be satisfied that the claim has no reasonable prospect of success before using this power.
Common legislation cited in these strike outs:
| Claim Type | Key Legislation | What the Tribunal Looks For |
|---|---|---|
| Unfair dismissal | Employment Rights Act 1996, s.98 | Was there a fair reason? Was a fair procedure followed? |
| Discrimination | Equality Act 2010, s.13, 15, 19, 26, 27 | Can you show less favourable treatment because of a protected characteristic? |
| Whistleblowing | Employment Rights Act 1996, s.43B | Was there a "qualifying disclosure" in the public interest? |
Why this matters: Tribunals assess claims against specific legal tests. If your complaint doesn't fit the legal definition – even if what happened to you was genuinely unfair – the tribunal may find there's no reasonable prospect of success.
This often affects people without legal representation who struggle to connect their experience to the specific legal requirements. It's not that their treatment was acceptable – it's that the law may not provide a remedy in their particular situation.
The lesson: Understanding the legal framework for your claim type, and presenting your case in those terms, can make the difference between your claim proceeding and being struck out early.
4. How to Protect Your Claim
Based on our analysis, here are the most important things you can do:
✅ Check your eligibility before you claim – especially the 2-year rule for unfair dismissal
✅ Never ignore tribunal correspondence – always respond, even if just to ask for more time
✅ Meet your deadlines – and apply for extensions early if you're struggling
✅ Attend your hearings – or let the tribunal know in advance if you can't
✅ Get advice early – contact ACAS (free) or consider speaking to an employment solicitor
Understanding the patterns behind strike outs is one thing – but knowing whether your specific situation puts you at risk requires looking at the details of your case. Factors like your employment status, the strength of your evidence, and how you frame your claim all affect your chances.
5. What to Do If Your Claim Is Struck Out
If your claim has already been struck out, you may still have options – but you need to act quickly.
Apply for Reconsideration (Rule 70)
You can ask the tribunal to reconsider its decision. This must be done within 14 days of the decision being sent to you.
Reconsideration is appropriate if:
- There's been a procedural error
- New evidence has come to light
- You have a good reason for not responding or attending (e.g., serious illness, not receiving correspondence)
The tribunal will only reconsider if it's "in the interests of justice" to do so. Simply disagreeing with the decision isn't enough.
Appeal to the Employment Appeal Tribunal (EAT)
If reconsideration isn't appropriate or is refused, you can appeal to the EAT. You have 42 days from the date the written reasons were sent to you.
Important: Appeals can only be made on a point of law – not because you disagree with the facts. You'd typically need to show the tribunal:
- Made an error in applying the law
- Acted outside its powers
- Reached a decision no reasonable tribunal could have reached
Appeals are complex. If you're considering this route, seek legal advice urgently.
Get Legal Advice
If your claim has been struck out and you believe it was wrong, speak to a solicitor as soon as possible. Time limits for reconsideration and appeals are strict.
6. Methodology
This article draws on two data sources:
Government outcome statistics: Published data from HM Courts & Tribunals Service showing how claims are disposed of, by claim type. This tells us how often strike outs happen.
Judgment analysis: We reviewed 112 individual strike out judgments from Employment Tribunals and categorised each by the stated reason. This tells us why strike outs happen.
The two sources complement each other. Government data gives us the big picture; judgment analysis reveals the patterns behind the numbers.
Limitations: Our judgment sample may not be statistically representative of all strike outs. Some judgments cite multiple grounds, and we categorised by the primary stated reason. Categories were developed for this analysis and may not match official classifications exactly.
Frequently Asked Questions
What does "struck out" mean?
It means your claim has been dismissed without a full hearing. You don't get your day in court, and the claim is over (unless you successfully appeal or apply for reconsideration).
Can I appeal a strike out?
Yes, but there are strict time limits (usually 42 days). You'd need to show the tribunal made an error of law. Speak to a solicitor urgently if you want to appeal.
What's the difference between "struck out" and "dismissed at preliminary hearing"?
A strike out can happen without a hearing (e.g., for not responding to letters). A dismissal at preliminary hearing happens after a hearing where the judge considered arguments from both sides.
Is unfair dismissal the same as wrongful dismissal?
No. Unfair dismissal is about whether the dismissal was fair under employment law (requires 2 years' service). Wrongful dismissal is about breach of contract (e.g., not being given proper notice) and has no service requirement.
Where can I get free help with my claim?
- ACAS – free advice line and early conciliation
- Citizens Advice – free guidance on employment rights
- Law Centres – free legal advice (if you're eligible)
What can I do if my claim has been struck out?
You have two main options: apply for reconsideration within 14 days, or appeal to the Employment Appeal Tribunal within 42 days. Reconsideration is for procedural issues or new evidence; appeals must be on a point of law. Both have strict time limits, so act quickly and consider getting legal advice.
Sources
- Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 – Rule 37 (strike out), Rule 38 (automatic strike out), Rule 70 (reconsideration)
- Employment Rights Act 1996, Section 108 – qualifying period for unfair dismissal
- ACAS – Making a claim to an employment tribunal
- Citizens Advice – Making an employment tribunal claim
- Citizens Advice – Challenging an employment tribunal decision
- HM Courts & Tribunals Service – Tribunal Statistics Quarterly – Employment Tribunal outcomes data
- Yerty analysis of 112 Employment Tribunal strike out judgments (2024-2025)
About the Author
This article was researched and written by the Yerty team. Yerty provides tools and guides to help UK workers understand their employment rights and navigate workplace disputes. We are not a law firm and do not provide legal advice.
Related Articles
- Time Limits for Taking Action on a Workplace Issue
- Unfair Dismissal – Your Rights and What to Do Next
- Missed Your Tribunal Deadline? You Might Still Have Options
- How to Raise a Grievance at Work: A Practical Guide
Don't let a preventable strike out end your claim before it starts.