EAT clarifies requirements for deposit orders in employment tribunal cases

Citation: [2023] EAT 167
Judgment on

Introduction

In the case of Carryl v Governing Body of Manford Primary School [2023] EAT 167, the Employment Appeal Tribunal (EAT) examined several procedural and legal principles relating to the issuance of a deposit order by an Employment Tribunal (ET), the subsequent strike-out of a claim for non-payment, and issues concerning time limits for an appeal. The EAT provided guidance on the requirements of reasonable enquiries into a claimant’s ability to pay a deposit, as well as the necessity for a tribunal to give adequate reasons for the amount of a deposit ordered.

Key Facts

The appellant, Carryl, originally brought claims of unfair dismissal based on constructive dismissal and discrimination against the Governing Body of Manford Primary School. An Employment Judge (EJ) initially heard the claims and dismissed them, but following a procedural error, a full re-hearing was ordered. At the same time, the EJ imposed a deposit order of £500. Carryl challenged these orders due to her inability to pay, but the ET, under Judge Barrowclough, did not vary the order. Consequently, her claim was struck out following non-payment.

Carryl was not provided with the usual judgment document outlining the appeal process, which contributed to her lack of awareness regarding her right to appeal the deposit order. She eventually appealed, albeit out of time, and the case was brought before the EAT for consideration of whether the appeal should be allowed despite the delay and whether the deposit order and subsequent strike-out were lawfully made.

Employment Tribunal’s Rules of Procedure 2013, Rule 39(2)

Rule 39(2) mandates that the ET must make reasonable enquiries into a party’s ability to pay a deposit and take such information into account when deciding the amount. This requirement ensures that access to justice is not disproportionality restricted. The EAT cited Hemdan v Ishmael UKEAT/0021/16/DM in underlining that a deposit order should not impair fair trial rights or access to justice and should be set at a level the paying party can afford.

Duty to Give Reasons for Deposit Order Amount

Following Adams v Kingdom Services Group Limited UKEAT/0235/18/LA, the EAT affirmed the obligation of ETs to give clear reasons for the specific amount of a deposit. It must show how the claimant’s ability to pay has been factored into determining the deposit figure.

Exceptional Circumstances for Time Limit Extension

When considering the extension of time for an appeal, the EAT applied the principles laid out in United Arab Emirates v Abdelghafar [1995] ICR 65 and further expounded upon in Green v Mears Ltd [2018] EWCA Civ 751. The EAT must determine if the explanation for the delay constitutes an acceptable excuse and if there are exceptional circumstances warranting an extension.

Outcomes

The EAT granted an extension of time for the appeal on exceptional grounds, noting the misleading nature of the original ET judgment, the lack of the usual judgment document, and the Claimant’s diligent communication which underscored a lack of knowledge concerning the right to appeal.

Additionally, the EAT found that the deposit order was not lawfully made because the EJ had failed to take into account the Claimant’s ability to pay and had not provided adequate reasons for the amount set, as required under Rule 39(2). As a result, the related strike-out order was considered unfair, and the EAT set a new, affordable deposit amount.

Conclusion

The EAT in Carryl v Governing Body of Manford Primary School [2023] EAT 167 provided important clarifications on the principles governing deposit orders in the employment law context. It underscored the responsibility of the ET to make a reasoned evaluation of a claimant’s financial situation before making such an order. The EAT’s decision ensures that while tribunal procedures attempt to dissuade unsustainable claims, they must also protect the claimant’s right to access justice without facing undue financial barriers.

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