EAT confirms approach of ET to deposit orders in discrimination claims

Tree v South East Coastal Ambulance Service NHS Foundation Trust UKEAT/0043/17/LA

Judgment of the EAT (HHJ Eady QC), 16 August 2017.

The claimant appealed against the Ashford ET’s (EJ Kurrein) making of a deposit order regarding her disability discrimination claims (ss. 13 and 15, EqA).

The issue of a deposit order had been raised unilaterally by the EJ at a PH and been discussed for no more than a matter of minutes with the claimant’s counsel before a deposit order of £1000 was made.

The EAT confirmed that when making a deposit order an ET needed to have a proper basis for doubting the likelihood of a claimant being able to establish the facts essential to make good his or her claims (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).

Importantly, whilst the immediate effect of a deposit order was obviously different to that of a strike out order, the EAT nonetheless noted that ultimately a deposit order was “potentially fatal” to a claim (per Wilke J in Sharma v New College Nottingham UKEAT/0287/11) and thus comparable to the strike out sanction. Therefore, the well-known injunctions against striking out discrimination claims (e.g. Anyanwu v South Bank Students' Union [2001] IRLR 305 HL) were “potentially of relevance” in the case of deposit orders ([20]).

Whilst the EAT did not disturb the deposit order in respect of the s.13 claim per London Borough of Lewisham v Malcolm [2008] IRLR 700 HL, the appeal in respect of the s.15 claim was permitted for the following reasons:

a) whilst the ET had correctly recorded the way the claimant was putting her s. 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. A deposit order was not to be used in place of proper case management. As held by HHJ Eady QC at [39], “I am concerned that, when determining whether or not to make a Deposit Order, the ET failed to properly identify or characterise the way the Claimant was putting her case. Even if there was a problem identifying the claim on the pleadings, I do not consider that a Deposit Order process is to be used as a shortcut substitute for case management Orders more appropriate in such circumstances (such as the ordering of further Particulars, or requiring a party to formally amend the claim, or using Unless Orders if need be).”

b) In any event, the extent of the dispute between the parties regarding the s.15 claim meant that the matter was not amenable to summary determination. It required all of the evidence to be heard [40]

c) The rationale of the EJ betrayed a “fundamental misunderstanding of the approach to s.15, and the guidance provided in [Pnaiser v NHS England [2016] IRLR 170 EAT]” [41].

David Mitchell acted for the appellant, instructed by Paul Maynard of Gaby Hardwicke Solicitors. You can read a report of the case here