D Carryl v Governing Body of Manford Primary School
[2023] EAT 167
Brian Rowe v Ashmore Group PLC & Ors
23 November 2023
[2023] EAT 172
Employment Appeal Tribunal
Brian Rowe was ordered to pay £1000 before his employment discrimination case could continue. A higher court decided the lower court didn't properly understand his case and cancelled the £1000 payment.
Key Facts
- •Brian Rowe (Claimant/Appellant) brought nine claims against Ashmore Group PLC and two others (Respondents) at the Employment Tribunal (ET).
- •Claims included direct sex and race discrimination, harassment, victimisation, unlawful wage deduction, disability discrimination, failure to make reasonable adjustments, and whistleblowing detriment.
- •The claims stemmed from Rowe's suspension and disciplinary proceedings following allegations of sexual harassment of a colleague (Y).
- •Rowe had a previous final written warning for sexual harassment (of X) in 2019.
- •The ET imposed a £1000 deposit order on Rowe for pursuing his claims.
- •Rowe appealed the deposit order to the Employment Appeals Tribunal (EAT).
Legal Principles
When considering a Deposit Order, the focus should be on the case or arguments relied upon by the party facing the Order.
EAT Judgment
The test for ordering a deposit is that the party has 'little reasonable prospect of success'; less rigorous than the 'no reasonable prospect of success' test for strike-out.
Wright v Nipponkoa Insurance Europe Ltd UKEAT/0113/14/JOJ
An Employment Tribunal has broad discretion when deciding on deposit orders, considering the likelihood of establishing essential facts.
Wright v Nipponkoa Insurance Europe Ltd UKEAT/0113/14/JOJ
The Tribunal must give reasons proportionate to the issue's significance (Rule 62(4)(5) of the Employment Tribunal Rules of Procedure).
Employment Tribunal Rules of Procedure
Reasons must enable the EAT to see if a question of law arises (Meek v City of Birmingham District Council).
Meek v City of Birmingham District Council [1987] IRLR 250
Deposit orders aim to identify claims with little prospect of success, discourage their pursuit, and avoid wasted resources. They are not to hinder access to justice or be a backdoor strike-out.
Hemdan v Ishmail & Ors [2017] ICL 486
When determining a deposit order, the ET must properly identify and characterise the claimant's case.
Tree v South East Coastal Ambulance UKEAT/0043/17/LA
A mini-trial on the papers is not an adequate basis for a deposit order.
Javed v Blackpool Teaching Hospitals NHS Foundation Trust UKEAT/0135/17/DA
Appellate courts should read tribunal decisions fairly as a whole, avoiding hypercriticism and assuming relevant evidence was considered.
DPP Law v Greenberg [2021] EWCA Civ 672
Outcomes
The EAT allowed the appeal on Grounds 1 and 3.
The ET failed to properly identify and characterise Rowe's case, conducted a mini-trial on the papers, considered irrelevant matters, and failed to consider relevant aspects of Rowe's pleaded case. The ET's reasoning was inadequate.
The deposit order was quashed.
The ET's decision was based on an improper assessment of Rowe's claims and insufficient reasons.