This claim has had an unhappy procedural history. Several hearings were postponed at the request of the Claimant resulting in a strike out warning and there were then more postponements. The EJ decided that the claim had not been actively pursued and struck it out. The Claimant appealed.

The EAT allowed the appeal. When determining an application for strike out the ET must first consider whether there has been conduct falling within the rule, such as a breach of a tribunal order, that gives rise to the discretion to strike out (“the threshold conduct”) and, if so, then exercise the discretion to consider strike out having regard to all relevant factors which nearly always will include the question of whether a fair trial remains possible (“the discretionary decision”). In this case the EJ had moved directly from concluding that there had been threshold conduct to strike out without taking the discretionary decision.