Byczko v Manchester University NHS Foundation Trust: EAT upholds strike-out of unmanageable claims

The Employment Appeal Tribunal has dismissed an appeal against the strike-out of whistleblowing, disability discrimination and constructive dismissal claims, after a litigant in person declined to engage with a list of issues prepared for her by an employment judge. In Byczko v Manchester University NHS Foundation Trust [2026] EAT 167, Andrew Burns KC, sitting as a deputy High Court judge, held that tribunals are not required to hold repeated hearings to cure a party's failure to articulate her case.

Two years of case management

The claimant resigned from the trust in 2022 and issued proceedings the same year. Her claim form was a dense narrative that obscured the legal claims. Over roughly 18 months, the Employment Tribunal held five preliminary hearings and two adjourned attempts, adjusting its procedures for her asserted disability. Employment Judge Ross eventually drafted a 10-page list of issues and ordered the claimant to amend it by a fixed date.

She instead filed a 37-page document that ignored the draft. It alleged 32 protected disclosures, against the four to six previously identified, and 67 detriments, many of which appeared to confuse disclosures with complaints about the employer's conduct. After exploring an intermediary assessment, which the claimant declined, Employment Judge Dunlop concluded that a fair trial was no longer possible and struck out the claims under rule 37(1)(c) of the 2013 Rules, now rule 38.

The limits of judicial assistance

The appeal turned on how far a tribunal must go to assist a party who does not cooperate. Burns KC reiterated that the tribunal's system is adversarial. A judge may clarify claims and suggest legal labels for complaints already pleaded, but must not make a party's case for her. He cited Moustache v Chelsea and Westminster NHS Foundation Trust [2025] ICR 1231, Mervyn v BW Controls Ltd [2020] IRLR 46 and Nagra v Unipart Group Ltd [2026] EAT 157, and noted that tribunals are not "bloodhounds".

The overriding objective also requires regard to the impact on other litigants. With many claimants waiting months or years for hearings, the judge said, repeated preliminary hearings to coax a party into identifying her claims would unfairly delay others. A fair trial, applying Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327, is not one achieved at any cost.

Grounds rejected

The tribunal had applied the two-stage test in Tedd v Surrey CC [2026] EAT 66, asking first whether a strike-out ground was made out and then whether strike-out was proportionate. It was entitled to find that no lesser measure would work. An unless order would have been pointless, given the claimant's record of ignoring final warnings. Proceeding without a list of issues would have left the respondent unable to know the case it faced, and staged final hearings to identify and then determine each head of claim would have been unworkable.

On reasonable adjustments, the claimant could not identify any adjustment that had been refused. Her difficulty with the draft list was that she was not a lawyer, not any consequence of disability. The "second claim" was in fact an application to amend, which did not need determination until the existing claims were clarified.

Burns KC observed that Employment Judge Ross had arguably stepped into the arena by drafting the list, though the respondent had not objected. He cautioned that the decision is no licence to strike out difficult cases routinely. Strike-out remains a last resort, and tribunals should ordinarily make a genuine attempt at one or two preliminary hearings to identify issues before it is considered.