EAT sets key precedents on striking out for non-compliance

Image of Olivia-Faith Dobbie, Emma Darlow Stearn and Claire McCann 

Olivia-Faith Dobbie acted for the successful appellant in Forrest v Amazon Web Services EMEA SARL UK Branch, in which judgment was handed down on 10 June:

The Employment Appeal Tribunal (EAT) ruled that Mr Forrest’s claims should not have been struck out without proper consideration of whether a fair trial remained possible and further, that it is hard to think of a case in which it would be right to go directly to striking out for non-compliance, without first trying the effect of an unless order.

The decision sets important procedural safeguards for claimants facing strike-out applications due to non-compliance with tribunal orders.

Mr Forrest, a neurodivergent litigant representing himself at first instance, had brought claims including whistleblowing, disability discrimination, harassment, victimisation, and personal injury linked to ADHD. These were struck out after he failed to complete a draft list of issues by a set deadline set out in a tribunal order. The tribunal made no “unless” order and proceeded directly to strike out the claims.

In a significant development for employment law, the EAT held that it was an error of law to strike out a claim without first determining whether a fair trial remained possible. The judgment also establishes that it will rarely be appropriate to strike out a claim for procedural non-compliance without first imposing an “unless” order, giving the party a final opportunity to comply.

The judgment is likely to have wide-reaching implications for how tribunals manage case progression and handle procedural default, particularly in cases involving unrepresented or vulnerable claimants. It reinforces the importance of proportionality and the right of access to justice.

Olivia-Faith Dobbie acted for Mr Forrest at the appeal hearing, instructed by Advocate. Emma Darlow Stearn acted as junior counsel, with Claire McCann having previously succeeded in persuading the EAT to grant permission to appeal and amending the original grounds.

The judgment can be found here.