W Davey v Harrods Ltd
[2023] EAT 133
T Amber v West Yorkshire Fire and Rescue Service
14 August 2024
[2024] EAT 146
Employment Appeal Tribunal
A worker sued her employer for unfair treatment. The judge threw out parts of the case and demanded money upfront before continuing. A higher court said the judge didn't properly look at the worker's documents and made a mistake. They ordered the case to be heard again fairly.
Key Facts
- •Miss Amber appealed Employment Judge Lancaster's decision to strike out her whistleblowing claim and order deposits on race discrimination and harassment claims.
- •The claim was presented on 22 September 2021, initially without a specific whistleblowing claim but mentioning it in the ET1 form.
- •A preliminary hearing on time limits was hampered by an unreadable Scott schedule.
- •The judge struck out the whistleblowing claim as out of time and ordered deposits, without fully considering the claimant's pleadings or following the guidance in Cox v Adecco.
- •The claimant argued that her pleadings showed claims within the time limit and that the judge erred in making deposit orders without proper analysis.
Legal Principles
Guidance in Cox v Adecco on considering deposit orders applies equally to strike-out applications.
Cox v Adecco and Others [2021] ICR 130
Employment Tribunal Rules of Procedure 2013, Rules 37 and 39 regarding strike-out and deposit orders.
Employment Tribunal Rules of Procedure 2013
The test for a deposit order is less rigorous than for a strike-out, requiring 'little reasonable prospect of success'.
Hemdan v Ishmail and another [2017] ICR 1307
In assessing deposit orders, tribunals should avoid mini-trials and consider potential communication difficulties for litigants in person.
Hemdan v Ishmail and another [2017] ICR 1307
Nine elements from Cox v Adecco to be considered in strike-out applications, largely applicable to deposit applications.
Cox v Adecco Group [2021] ICR 1307
In strike-out applications, the claimant's case must be taken at its highest, but this doesn't mean naively accepting it; it requires testing against reality.
Ezsias v North Glamorgan NHS Trust [2007] 4 All ER 940 and Van Rensburg v The Royal Borough of Kingston-upon-Thames
Outcomes
Appeal upheld.
The Employment Judge erred by striking out the whistleblowing claim and making deposit orders without adequately considering the claimant's pleadings and following the guidance in Cox v Adecco. The judge relied heavily on the claimant's oral explanations at the hearing, rather than a thorough examination of the written documentation, placing the claimant in a disadvantaged position.
Remittal to the Employment Tribunal.
Disputed facts and the need for a proper consideration of the claimant's case require a rehearing.