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Strike-Out Without Notice
Rad Kohanzad represented the claimant, Mr M Shubita, in Shubita v University of Leeds & Ors [2025] EAT 157, an appeal concerning the procedural fairness of striking out an Employment Tribunal claim without adequate notice. The claim against the University of Warwick and individual respondents had been struck out at a hearing listed for case management, leaving the unrepresented claimant to address complex factual and legal issues without prior warning that strike-out would be considered. The Employment Appeal Tribunal (EAT) held that he had not received a reasonable opportunity to make representations, overturned the strike-out and remitted the matter to the Employment Tribunal.
Background and procedural history
Mr Shubita was employed by the University of Leeds in 2022. After he was not shortlisted for promotion, he raised concerns about the process, having previously made protected disclosures about alleged financial and academic irregularities. An external assessment of his application was arranged. Mr Shubita later discovered connections between people involved in the process, including a family relationship between a member of Leeds's HR department and a member of staff at the University of Warwick, where the external assessor worked.
Mr Shubita brought one Employment Tribunal claim against Leeds, including claims of race discrimination and whistleblowing detriment. He brought a separate claim against Warwick and two individuals, alleging discriminatory conduct connected with the external assessment.
The claim against Warwick and the individuals was struck out by Employment Judge Wade on the basis that it had no reasonable prospects of success. The hearing notice, however, indicated that the hearing was for case management; it did not notify Mr Shubita that strike-out would be considered. Although the respondents' response had referred to seeking strike-out, the correspondence about the hearing indicated that it was being prepared as a case-management hearing.
Mr Shubita appealed. The EAT considered whether the Employment Tribunal had given proper notice of the strike-out issue and whether he had received a reasonable opportunity to make representations. A separate appeal concerning the Leeds claim challenged the refusal of a stay; the EAT treated that issue as academic in light of its decision to remit the matter.
The legal issue: reasonable notice before strike-out
Under rule 37(2) of the Employment Tribunals Rules of Procedure 2013, a claim or response could not be struck out unless the affected party had been given a reasonable opportunity to make representations, in writing or at a hearing if requested. Rule 54 also addressed notice of preliminary hearings and required at least 14 days' notice where preliminary issues were to be decided.
The EAT had to determine whether rule 37 required a particular period of notice, and whether the circumstances of this case gave Mr Shubita a reasonable opportunity to respond.
The distinction matters: a strike-out application may be mentioned in a response, but that does not necessarily mean that a claimant has been given adequate notice that it will be determined at a particular hearing.
The EAT's decision and reasoning
Rule 37 does not impose a fixed notice period
The EAT dismissed the argument that rule 54's 14-day notice requirement should be read into rule 37. The rules were not in conflict. Rule 37 requires reasonable notice, and what is reasonable depends on the circumstances, including the nature and complexity of the issue to be decided.
As the EAT explained, a straightforward issue may require less preparation than a complex question of law arising from disputed facts. The rule does not establish one minimum notice period for every strike-out application.
The notice was inadequate in this case
The EAT upheld the argument that Mr Shubita had not received a reasonable opportunity to make representations. He was a litigant in person who had expected to attend a case-management hearing, not to argue whether his claim should be struck out.
The case involved a complex factual picture and difficult legal concepts, including the potential legal significance of the relationships between the respondents and whether the conduct alleged could fall within the relevant discrimination provisions. Requiring Mr Shubita to identify and explain the legal basis of his claim on the spot placed an unreasonable burden on him.
The EAT applied the guidance in Cox v Adecco [2021] ICR 307 and Hassan v Tesco Stores Ltd (UKEAT/0098/16). These authorities emphasise the need to take care when assessing claims brought by litigants in person, including reading their pleadings and relevant documents carefully rather than relying solely on their ability to explain the claim under pressure at a hearing.
The respondents argued that the claim form lacked sufficient detail and that Mr Shubita had been able to speak at the hearing. The EAT nevertheless concluded that the mention of strike-out in the respondents' response was not enough in the circumstances. The hearing had not been prepared as a hearing to determine strike-out, and Mr Shubita had not been adequately forewarned.
The EAT also considered Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, which confirms that an Employment Tribunal is generally an adjudicative, rather than investigative, body and has no general duty to develop a party's case for them. The EAT distinguished that context: this appeal concerned the early stages of identifying the issues and whether a litigant in person had a fair opportunity to explain the claim before it was struck out.
The strike-out was overturned, but the claim was not decided on its merits
The EAT allowed the appeal on the ground concerning the failure to provide a reasonable opportunity to make representations. It dismissed the separate argument that rule 54 imposed a fixed 14-day notice period and did not determine the remaining grounds concerning the underlying legal merits.
The EAT did not decide that the Warwick claim should ultimately succeed or that it could never be struck out. Those questions remained for the Employment Tribunal, which might consider a further strike-out application or an application to amend the claim. The matter was remitted to the Leeds Employment Tribunal for allocation by the Regional Employment Judge, rather than being sent directly back to Employment Judge Wade.
Key legal principles
Reasonable notice is context-dependent. Rule 37(2) does not prescribe a fixed notice period for every strike-out application. The nature and complexity of the issues, and the circumstances of the affected party, matter.
An opportunity to speak at the hearing is not always enough. Where a litigant in person is unexpectedly required to address complex factual and legal issues, the absence of advance notice may deprive them of a reasonable opportunity to make representations.
Strike-out requires a proper understanding of the claim. The guidance in Cox v Adecco remains important: the Tribunal must take reasonable steps to identify the claims and issues before assessing whether they have reasonable prospects of success.
A successful procedural appeal does not establish the underlying claim. The EAT set aside the strike-out because of the procedural error, leaving the Employment Tribunal to determine the next steps.
What this may mean if you are considering an Employment Tribunal appeal
If your Employment Tribunal claim was struck out, the question is not simply whether the decision was harsh or whether you disagree with the judge. An appeal must identify an arguable error of law.
Depending on the circumstances, relevant questions may include whether you received reasonable notice that strike-out would be considered, whether you had a fair opportunity to respond, and whether the Tribunal properly identified and assessed the claims before deciding they had no reasonable prospects of success.
Shubita does not mean that every strike-out decision made at a case-management hearing is unlawful, or that litigants in person are exempt from procedural requirements. The decision turned on the combination of inadequate notice, the complexity of the issues and the demands placed on the claimant at the hearing.
The practical issue is whether the procedural defect in your own case is supported by the hearing notice, correspondence, Tribunal orders and written reasons, and whether it amounts to a material error of law.
Advice on an Employment Tribunal appeal
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Case details and official judgment
Case: Shubita v University of Leeds & Ors
Neutral citation: [2025] EAT 157
Judgment date: 9 October 2025
Judge: His Honour Judge Wayne Beard
Case numbers: EA-2023-001138-NK and EA-2024-001239-NK
Counsel for the Appellant: Rad Kohanzad
Counsel for the Respondents: Mr M Rudd, instructed by Clarion Solicitors
Outcome: Appeal allowed on the failure to provide a reasonable opportunity to make representations before strike-out; the strike-out was overturned and the matter remitted to the Leeds Employment Tribunal. The separate fixed-notice-period ground was dismissed, and other grounds were not determined.
Official judgment: Read the full EAT judgment (PDF)
