Addressing time limits at preliminary hearings: Mesuria v Eurofins Forensic Services Ltd [2025] EAT 103

Overview & Key Issues

The paper discusses a decision of the Employment Appeal Tribunal (EAT) concerning when and how tribunals should deal with time limit issues at preliminary hearings, and the risk of conflating two different legal routes:
1. Determining the issue as a preliminary issue (i.e. ruling on it substantively), and
2. Striking out the claim (or part of it) on the basis of no reasonable prospects.
It stresses that tribunals must carefully consider which route is intended when directing a preliminary hearing, and communicate this clearly at the outset.

The claimant (a senior document examiner) with disabilities brought claims of disability discrimination in September 2021 and again in May 2022.
The tribunal ordered a one-day preliminary hearing to deal with whether certain claims were out of time or whether they had a reasonable prospect of success (including issues like “conduct extending over a period” and whether the tribunal should exercise its discretion to extend time).
At the actual hearing, the claimant (represented by her sister) said she would only address the time-limit issue. But the Employment Judge proceeded as though strike-out and merits issues would also be considered, without clarifying the legal basis.
The tribunal’s ruling was very terse: the first claim was held out of time (no jurisdiction), and the second was struck out for no reasonable prospects.
On appeal, the claimant argued that she had been denied a fair hearing because of the lack of clarity and structure at the hearing.

HHJ Tayler reviewed the rules and principles applicable to preliminary hearings and strike-out:
- Under Rule 52 (formerly Rule 53) tribunals may determine a preliminary issue substantively.
- Under Rule 38 (formerly Rule 37) they may strike out part or all of a claim for lacking a “reasonable prospect” of success.
The distinction is important:
- A preliminary issue hearing requires more robust preparation and evidence, because the tribunal is giving a definitive ruling.
- A strike-out exercise is less demanding: the tribunal considers whether, taking the pleaded case at its highest, there is no prima facie case (i.e. even on the best version, the claim cannot succeed). Evidence is not always required.
The EAT found that the Employment Judge had failed to clarify which approach was being used, and had strayed beyond the scope of the hearing as directed (for instance by evaluating merits not properly before the hearing).
The appeal was upheld on grounds that the process had been unfair, and the decision was remitted.

When a preliminary hearing is directed on time-limit issues, parties (and tribunals) must decide in advance whether the hearing is to be a preliminary determination or a strike-out exercise, because the procedures differ markedly.
Orders and directions should clearly specify which route is intended, so that parties know what kind of evidence to present, how arguments should be structured, and what legal test the tribunal will apply.
It is particularly important in cases involving litigants in person, who may not be able to adapt on the spot to shifts in approach during a hearing.
Tribunals should avoid going beyond the scope of the hearing as notified: if the hearing is limited to time issues, judges should resist delving into broader merits unless explicitly permitted.
Even if a tribunal effectively “wins” by striking out additional claims, doing so improperly may lead to appeal, delay and cost.