Bensted v A Star Education Ltd (Practice and Procedure : Imposition of Deposit)

A deposit order requires more than a statement that the tribunal considered the party’s ability to pay. Under Employment Tribunal’s (Constitution Rules of Procedure) Regulations 2004, the Employment Judge must take reasonable steps to ascertain that ability and take the information obtained into account when fixing the amount. The recorded grounds must enable the parties and an appellate tribunal to identify the material considered, the engagement with it, and the reasoning for the sum selected.

Where the reasons do not disclose those matters, the order cannot stand. On remittal, the amount must be determined on the party’s circumstances at the date of redetermination.

The Claimant brought claims including automatic unfair dismissal. At a telephone pre-hearing review, the Employment Judge held that the automatic-unfair-dismissal claims had little reasonable prospect of success and ordered deposits of £300 for each claim. The Claimant did not challenge the finding on prospects of success.

She did not pay the deposits, and the claims were struck out. At a Rule 3(10) hearing, the appeal was permitted to proceed solely on whether the Employment Judge had erred in making the deposit order. The appeal concerned the adequacy of the inquiry into the Claimant’s means, the reasons for the amount ordered, and the appropriate disposal.

1. Appeal allowed. The deposit order was set aside and the question of the amount of the deposits was remitted to the same Employment Judge.

2. Rule 20(2) of the Employment Tribunal’s (Constitution Rules of Procedure) Regulations 2004 required the Employment Judge to take reasonable steps to ascertain the Claimant’s ability to comply with a deposit order, and to take account of the information obtained when fixing its amount. The order merely stated that available information had been considered. It did not identify that information, show how the Judge had engaged with it, or disclose what reasonable steps had been taken to ascertain ability to pay.

3. Rule 20(3) also required the order and grounds to be recorded. The grounds gave no reasoning for choosing £300 for each claim. They therefore did not permit either the Claimant or the Appeal Tribunal to understand the basis on which the amount had been assessed. The comparison with Simpson reinforced the importance of detailed information about means and reasoned consideration of it. The reference to Meek supported the need for adequate and intelligible reasons.

4. Substitution was inappropriate because the Appeal Tribunal lacked a record of questions asked about the Claimant’s means. The issue had to be determined afresh on circumstances at the date of redetermination. Applying the remittal considerations in Sinclair Roche & Temperley v Heard, none justified sending the discrete issue to a different Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal against the amount of the deposit order and remitted that issue to the same Employment Judge.
• Employment Appeal Tribunal (Rule 3(10) hearing): On 23 April 2013, permitted the appeal to proceed only on whether the Employment Judge erred in making the deposit order; there was no challenge to the Rule 20(1) assessment of little reasonable prospect of success.
• Employment Tribunal (Bristol): At a pre-hearing review on 1 March 2012, ordered deposits of £300 in respect of each automatic-unfair-dismissal claim. Following non-payment, those claims were struck out on 20 April 2012.