Spring v First Capital East Ltd

An Employment Tribunal may consider oral or written evidence at a pre-hearing review when deciding whether to impose a deposit order. Rule 18(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, read with rule 14, permits that course where appropriate.

The governing question under rule 20(1) is whether a party's contention has little prospect of success. This is a less demanding threshold than the test for strike-out. The Tribunal may therefore make a provisional assessment of disputed facts and credibility, provided it has a proper basis for doubting that the party can prove facts essential to the claim.

The claimant, a bus driver, alleged unfair dismissal and age discrimination after his employment ended at age 64. He contended that retirement was used to conceal dismissal because of protected disclosures and his criticism of the respondent.

At a pre-hearing review, the Employment Tribunal ordered him to pay a £250 deposit as a condition of continuing those claims. It later refused a review of that order. The claimant appealed the deposit order, alleging errors concerning evidence, review powers, the applicable deposit test, disclosure and procedural fairness.

The central issue was whether the Tribunal had lawfully concluded that the claimant's contentions had little reasonable prospect of success.

1. Appeal dismissed. The Employment Judge applied the correct test and was entitled to order a £250 deposit.

2. Rule 18(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, particularly sub-paragraphs (c) and (d), read with rule 14, permits an Employment Judge to consider oral or written evidence when deciding whether to make a deposit order, if and to the extent appropriate. Although the Judge's review reasons incorrectly suggested that evidence could not be admitted, he had in fact considered material submitted by both parties at the deposit hearing.

3. The applicable test was rule 20(1): whether the relevant contention had little prospect of success. The court followed Van Rensburg. A deposit order is a materially less severe step than strike-out under rule 18(7)(b), and the rule 20(1) threshold is correspondingly less rigorous. The Tribunal may assess disputed factual assertions and credibility provisionally, but must have a proper basis for doubting that the party can establish facts essential to the claim.

4. The Judge was entitled to balance the claimant's allegation that retirement concealed a retaliatory dismissal against the undisputed facts concerning the termination, notice, procedure, refusal of continued work and oversupply of drivers. He could conclude that, although the alleged motive was possible, the claimant had little prospect of producing an evidential basis for it. Outstanding disclosure did not make that conclusion impermissible on the facts.

5. The challenge to the review decision was not pursued. The allegations of unfair procedure also failed: the Judge had considered the written material, no disclosure application had been refused, and the usual interlocutory hearing procedure had been followed. The written reasons were adequate and compliant with Meek.

• Employment Appeal Tribunal: dismissed the claimant's appeal from the deposit order.
• Employment Tribunal: at a pre-hearing review held on 23 February 2011, ordered a £250 deposit as a condition of continuing the unfair dismissal and age discrimination claims. Its decision was sent on 11 March 2011. Employment Judge Ryan later rejected a review application by a decision sent on 19 April 2011.