PRACTICE AND PROCEDURE – Imposition of deposit
RACE DISCRIMINATION
AGE DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
In 2013 the Claimant brought claims against the Respondent employer including race and age discrimination, harassment and victimisation. In March 2014, the ET made an Unless Order for particulars of the claims, warning that this was the last chance to present a coherent case. Following receipt of those particulars, the Respondent applied under Rules 37 and 39 for the claims to be struck out as having no reasonable prospects of success, alternatively for Deposit Orders.
There was a history of delays and adjournments. The day before the hearing of the application the Claimant and her representative applied for an adjournment on the grounds of her ill-health. This was refused. The application proceeded in her absence and without representation on her behalf. In February 2015 the ET struck out all the claims, save the claim of direct race discrimination in respect of her dismissal for which it made a Deposit Order of pounds 250 within 21 days. As to Rule 39(2) and the ability to pay, the ET had evidence that the Claimant had been on state benefit for part of the previous year but no information as to her current financial position. The Claimant failed to pay and the claim was struck out.
The Claimant appealed against the refusal of the adjournment application/decision to proceed with the hearing in her absence, the Rule 37 strike out and the Deposit Order. As to the latter, she submitted there was no evidence to show ability to pay: cf. Rule 39(2). In any event the copy Order served on her did not contain the second page with its notice of the potential consequence that in default the claim would be struck out: cf. Rule 39(3).
At the Rule 3(10) Hearing, the EAT dismissed the ground of appeal in respect of the decision to proceed with the hearing but allowed the other grounds to proceed to a Full Hearing. The Judge ordered service of affidavits as to the disputed factual issue concerning the notice.
The EAT dismissed the appeal against the Rule 37 Strike Out Orders; but allowed the appeal in respect of the Deposit Order and subsequent strike out, holding that on the financial information available the only appropriate Order was a deposit of a nominal sum. It was therefore unnecessary to determine the ground of appeal under Rule 39(3), which would have required remission of the question of fact to the ET.
Citations:
[2018] UKEAT 0225 – 15 – 0607
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 11 July 2022; Ref: scu.625445