Strike Out vs Preliminary Determination: Differentiating Tribunal Procedures

In Mesuria v Eurofins Forensic Services Ltd [2025] EAT 103, the Employment Appeal Tribunal examined the procedural distinction between striking out a claim due to time limits and determining limitation as a preliminary issue. These routes are not interchangeable and carry different legal consequences.

Two Procedural Routes: Separate Tests, Separate Outcomes

When time limits are in issue, tribunals may approach the matter either by:

• Applying Rule 37 of the Employment Tribunal Procedure Rules 2014, which permits a strike out where the claim has no reasonable prospect of success, there is no separate power for assessing a “prima facie” case on time limits; or
• Addressing it as a preliminary issue under Rule 53, requiring a substantive hearing and findings of fact.

Under Rule 37, a tribunal may strike out a complaint that, even if all the claimant’s pleaded facts are accepted, could not succeed—for example, if the claim is clearly out of time and no just and equitable extension appears possible. This is a procedural filtering device and does not involve weighing competing evidence.

By contrast, if the tribunal proceeds under Rule 53, it is making a binding decision on the jurisdictional question of whether the claim is in time. This requires the tribunal to hear evidence, make findings of fact, and apply the relevant legal tests. Once determined, the issue cannot be revisited at final hearing.

Why the Distinction Matters

The EAT made clear that these two routes are conceptually and procedurally distinct. They involve different levels of preparation, different evidential burdens, and different consequences. 

Most importantly, a strike out does not conclusively resolve a limitation issue—it simply removes a claim that cannot succeed on its face. A preliminary determination, on the other hand, conclusively decides the jurisdictional point.

In Mesuria, the tribunal failed to make clear which of these two approaches it was adopting. It proceeded to evaluate the merits of the claimant’s case and make findings without stating whether it was conducting a strike out or a substantive determination. The EAT held that this procedural ambiguity was unfair, particularly given that the claimant was unrepresented.

Practical Guidance

Where limitation is disputed, tribunals must clearly indicate:

• Whether they are applying a strike out under Rule 37 or a preliminary determination under Rule 53;
• The test they will apply;
• Whether factual evidence will be heard and findings made.

For practitioners:

• Clarify the Tribunal’s Approach at the Outset: Always ask whether the tribunal is treating limitation as a preliminary issue or a strike out application.
• Ensure Proper Framing of the Issue: ensure that any case management order or hearing notice clearly identifies the legal basis on which time is being addressed—Rule 37 or Rule 53. Ambiguity risks unfairness

Sources

• Mesuria v Eurofins Forensic Services Ltd [2025] EAT 103
• Employment Tribunal Rules 2013, Rules 2, 37, 53
• Barclays Bank Plc v Kapur [1991] 2 AC 355
• Abertawe Bro Morgannwg University LHB v Morgan [2018] EWCA Civ 640
• Caterham School v Rose UKEAT/0149/19/RN

28th Jul 2025

Michael Salter

Call 1999