EAT upholds strike-out where claimant could not participate due to ill health
D v Greater Glasgow Health Board [2026] EAT 160
What happened?
The Employment Appeal Tribunal (EAT) dismissed an appeal against an employment tribunal’s decision to strike out a claim because a fair trial was no longer possible. Medical evidence showed the claimant’s PTSD was exacerbated by the proceedings and there was no realistic prospect of her being able to attend a final hearing (then or in the future).
Key background
The claimant went off sick with ill health in October 2016 and was dismissed in April 2019.
In May 2019, she brought claims including unfair dismissal, disability discrimination, race discrimination, and whistleblowing detriments.
As litigation progressed, her PTSD worsened and she became a litigant in person from September 2019.
In February 2023, the tribunal struck out the claims under rule 37(1)(e) ET Rules 2013 (now rule 38(1)(e) ET Rules 2024) on the basis that the claimant would not be able to attend a final hearing at any point.
The appeal argument
At a preliminary stage, it was considered arguable that striking out (in effect, because of disability-related inability to participate) might be an error of law, and that a stay should at least have been considered.
Why the EAT dismissed the appeal
The EAT held the tribunal’s reasoning was adequate and its discretion properly exercised.
Four factors supported strike-out:
No realistic prospect of the claimant being ready for a final hearing in the foreseeable future (assessed correctly as at the date of the application).
The claimant’s lack of trust in the tribunal system (a factor only to be relied on in extreme cases).
The impact and expense to the respondent caused by ongoing delay.
The effect of delay on witnesses accused of discrimination, noting fairness applies to respondents too.
The EAT also agreed that:
A hearing in writing would not have been suitable given factual disputes.
The tribunal had been alive to the draconian nature of strike-out and had considered alternatives, satisfying proportionality.
There are limits to how far tribunals must assist litigants in person in an adversarial system.
Strike-out can be appropriate where a claimant cannot participate for any reason and no lesser measure will work.
Riley v Crown Prosecution Service [2013] EWCA Civ 951 was a close authority supporting strike-out where a claimant could not attend.
Practical takeaways
Tribunals can strike out claims where participation is not realistically possible, even where the barrier is health-related, if no workable alternative exists.
Delay and fairness to respondents (including witnesses) are central to the “fair trial” assessment.
Employers facing long-running proceedings should keep clear evidence of prejudice caused by delay (costs, operational impact, witness availability and wellbeing).
