No reasonable prospect of success

| February 21, 2024

If a claim has no reasonable prospect of success, the Employment Tribunal (ET) can strike it out.  The threshold is high, and an ET will only grant a strike-out in exceptional circumstances, including:

The exceptionality of exceptional circumstances was recently considered by the ET and, on appeal, the Employment Appeal Tribunal.


The Claimant brought claims of race and religion or belief discrimination, as well as breach of contract against his former employer. The case was initially heard in the ET, where the Respondent applied for a strike-out of the claims.

The Claimant had made it clear that he wished to weaponise the ET proceedings to cause as much damage to the Respondents as he could. As such, the ET considered the Respondent’s application and found that the claims of race and religion or belief discrimination had no reasonable prospects of success. The ET struck out the claim on the basis that the Claimant had conducted the proceedings in a scandalous, unreasonable, or vexatious manner, such that there could not be a fair trial.

Employment Appeal Tribunal

The ET’s decision was overturned, and the EAT re-instated the claim, and remitted to the ET.

The EAT pointed out that, to order a strike-out in this case, it was necessary to establish not only that the conduct complained of in the proceedings was scandalous, unreasonable, or vexatious but, importantly, that the result of that conduct was that there could not be a fair trial. The imposition of the strike-out sanction must also be proportionate. If a lesser sanction is consistent with a fair trial, then the strike-out should not be ordered.

The ET had erroneously relied upon its own assumption that witnesses would be scared when giving evidence in concluding that a fair trial was not possible.

This was an error of principle or perverse on the material with which it had been provided. The Claimant’s threats of negative publicity and unwanted attention to the Respondents and their witnesses were not sufficient to conclude that a fair hearing would not be possible. The discretion to strike out a case ought not to be exercised punitively, and the fact that no alternative order was appropriate did not mean that strike-out was.


Defending an employment tribunal claim is often a stressful process for all involved, particularly when the claimant is using the process to attempt to damage the respondent. 

Although an application to strike out of a claim can be an attractive step for a respondent to take, it’s important to fully weigh up the prospects of the application being successful, taking legal advice before incurring the time and cost associated with such an application.

For more information about this article or any other aspect of people services reimagined, download our App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.