Akanu-Otu v Secretary of State for Justice

A deposit order under rule 20 need not expressly state that non-payment will result in striking out. It is sufficient that the order makes payment a condition of being permitted to continue participating in the proceedings. Rule 20(4) supplies the legal consequence of non-payment.

A mandatory note accompanying the order may also clarify or cure any deficiency, and its prescribed content is not exhaustive. On a review application, an Employment Judge may refuse to proceed where the application has no reasonable prospect of success. The Employment Appeal Tribunal will interfere with that assessment only where the stringent threshold for perversity is met.

Two appeals concerning deposit orders made under rule 20 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 were heard together.

In Akanu-Otu, a race discrimination claim was struck out after the claimant failed to pay a deposit. She argued that the deposit order was defective because it did not expressly warn that the claim would be struck out.

In Ahmadi-Assalemi, allegations were struck out after an out-of-time deposit payment. The claimant challenged the refusal to review that decision, arguing that the review application should have succeeded or should have been treated as an application to extend time. The central issues were the legal sufficiency of the deposit order and whether the Employment Judges’ decisions were perverse.

1. Akanu-Otu appeal dismissed. The deposit order was legally valid. It stated that the claimant had to pay £300 within 21 days as a condition of being permitted to continue taking part in the proceedings relating to the race discrimination claim. That language clearly conveyed that non-payment would prevent continuation of the claim.

2. There was no requirement in rule 20 that the order expressly use the words “strike out” or “striking out”. Rule 20(4) specified that failure to pay within the prescribed period required the claim, response, or relevant part to be struck out. The order therefore contained no defect preventing the later strike-out order.

3. The accompanying note was integrally linked to the order because rule 20(3) required such a note. Its prescribed function was not exhaustive. The note expressly stated that failure to pay within 21 days would lead to striking out. If the order had otherwise been deficient, the note would have cured that deficiency. The validity of a deposit order does not depend on proof that the recipient was actually misled or suffered unfairness.

4. Ahmadi-Assalemi appeal dismissed. The Employment Judge was entitled to conclude that the review application had no reasonable prospect of resulting in the strike-out decision being varied or revoked. The application principally asserted that payment had been made in time and did not clearly seek a retrospective extension under rule 20(4)(b).

5. The EAT applied the restraint required when reviewing a discretionary or evaluative judgment. The fact that another judge might have interpreted the application more generously did not establish perversity. Nor was the Employment Judge required to search procedural rules for relief that the claimant’s representatives had not sought or identified.

6. Both appeals were dismissed. Costs were awarded against the appellants because the changes in the points pursued were not notified to the respondents until late.

• Employment Tribunal: In Akanu-Otu, the unfair dismissal claim was dismissed as out of time and the race discrimination claim was later struck out for non-payment of the deposit. In Ahmadi-Assalemi, specified age and race discrimination allegations were struck out for late payment, and the Employment Judge refused a subsequent review application.
• Employment Appeal Tribunal: The appeals were dismissed. The EAT upheld the validity of the deposit order and rejected the challenges based on perversity and alleged failure to treat the review application as an extension application.