EAT PRACTICE AND PROCEDURE – Imposition of deposit
Deposit Order – Rule 39 Employment Tribunal Rules 2013
The Claimant had pursued claims of disability discrimination under sections 13 (direct discrimination) and 15 (discrimination because of something arising in consequence of disability) Equality Act 2010 (‘EqA’). At a Preliminary Hearing listed to determine time limit issues, the Employment Judge (having found it would be just and equitable to extend time) raised the question whether it would be appropriate to make Deposit Orders in respect of these claims. There was then a short exchange between the Employment Judge and counsel for the Claimant before a Deposit Order was made in the sum of pounds 1,000. The Claimant appealed.
Held: Allowing the appeal in part.
When making a Deposit Order, an Employment Tribunal needed to have a proper basis for doubting the likelihood of a Claimant being able to establish the facts essential to make good her claims (see the guidance in Jansen van Rensburg v Royal Borough of Kingston-upon-Thames UKEAT/0096/07; Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14 and Hemdan v Ishmail [2017] ICR 486 EAT). In the present case, whilst the ET had correctly recorded the way the Claimant was putting her section 15 case in its case management Order, it was not apparent it had regard to the way in which that case was being pursued when reaching its decision on the Deposit Order. Moreover, the ET’s reasoning in respect of section 15 EqA demonstrated a misunderstanding of that provision and of the guidance laid down in Pnaiser v NHS England [2016] IRLR 170 EAT. In the circumstances, the Deposit Order in respect of the section 15 claim could not be upheld. As for the section 13 claim, however, even if the ET had been wrong in its view as to the identity of the comparator for the purposes of section 23 EqA (something arguably better left to the Full Merits Hearing), it had been entitled to take the view that the Claimant had little reasonable prospect of succeeding with her complaint of direct discrimination on the ‘reason why’ question (given the difficulties identified in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL); the Deposit Order would be upheld in respect of this part of the claim.
As there was no appeal against the amount awarded, the ET’s global Deposit Order of pounds 1,000 would be set aside and substituted with an Order for pounds 500 in respect of the section 13 claim alone.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0043 – 17 – 0407
Links:
Jurisdiction:
England and Wales
Employment
Updated: 29 March 2022; Ref: scu.593138