UK: Employment Tribunal Delays: Strike Out

Authors: Robert Hill, Corinna Harris, Sophie Jackson, & Charlotte Stern

The Employment Appeal Tribunal upholds employee claim strike-out on the basis that delay to Employment Tribunal hearing made fair trial impossible.

Mr Boateng was a Moss Bros Group (MBG) employee for 2.5 years before he was dismissed in 2019 following an incident involving Mr Boateng and a number of his colleagues.  In 2020 Mr Boateng brought claims for unfair dismissal and discrimination on grounds of religion and belief.

Unfortunately, during Covid, MBG went bust, entering into a Creditors Voluntary Arrangement.  Once that was completed, MBG applied to strike out the claim.  The Tribunal agreed to strike out the discrimination claims on the basis that a fair hearing was no longer possible, due to delay and it struck out those claims, but it allowed the unfair dismissal and holiday-pay complaints to proceed.  Mr Boateng appealed but the case proceeded to full hearing in February 2024 and his unfair dismissal and holiday pay claims were dismissed on their merits.

Mr Boateng appealed against the decision to allow the strike out of his discrimination claim but the Employment Appeal Tribunal dismissed his claim.  It confirmed that a strike-out can be justified even where neither party is at fault for the delay – it was a question of what steps could reasonably have been taken to allow a fair hearing to proceed.  It’s worth noting that this decision was highly fact specific.  In this case the fact that 22 of the 27 people cited by Mr Boateng as having relevant evidence no longer worked for MBG and 17 were either uncontactable or uncooperative meant that realistically MBG would be at an unfair disadvantage if the hearing went ahead.

Key Action Points for Human Resources and In-house Counsel

Employment Tribunal caseloads are increasing, with government data showing that receipts of claims have exceeded disposals over the last year, resulting in a 19% increase in the open caseload to 831,000 at the end of December 2025.  Cases are taking longer to be listed, with cases submitted now being listed for 2029 in some Tribunals.

With these types of delays, it seems inevitable that that there will only be more examples of cases in which it will be arguable that the delay means that a fair hearing is not possible.