Under the Employment Tribunal Procedure Rules, the Tribunal has the power (often at the request of the other party and at a pre-hearing review) to strike out a claim on the grounds that it has no reasonable prospects of success. 

Arguably this is quite a high hurdle to overcome and it can only be used in a handful of cases.  It is something I have successfully argued for an employer in the past as well as the slightly lower test of little reasonable prospects of success requiring a deposit to be paid to continue.  Normally we argue this as an alternative.

In the recent case of A v B & C (UKEAT/0450/08/JOJ) at the EAT there was an appeal against a strike out having been granted to the Respondent.  The Tribunal struck out the claim as unarguable (no prospects of success) without hearing an evidence of the Claimant.  The EAT held that the Tribunal has erred in law in concluding that the Claimant giving evidence in support of her allegations could not make the case arguable.  Further, given the case involved sexual discrimination it was not so exceptional to justify dismissing the allegations without factual investigation.

The Judgment came as no surprise, as in my experience cases involving discrimination are unlikely to be suitable for strike out as the Tribunal will want to hear the evidence.  It is the one area where admissions are unlikely.  It is however, a useful summary and a reminder of the law in this area.  Cases involving dismissal for conduct are the most at risk of a strike out.  This is because if the Claimant has made documented admissions and the conduct falls within Gross Misconduct, dismissal is within the range of reasonable responses.  Likewise, where the Claimant already has a final written warning, which is still live and admits further conduct, such an application may be successful.  The real test on a practical level is whether the Tribunal can make a clear decision on the documentation before it.