Hemdan v Ishmail

A deposit order under rule 39 is discretionary. It may be made where a specific allegation has little reasonable prospect of success, but the amount must be proportionate and realistically capable of payment. The tribunal must make reasonable enquiries into the paying party’s ability to pay and have regard to that information. The order must serve the legitimate aims of discouraging weak claims and warning of potential costs without becoming an indirect strike-out or impairing access to justice. A summary assessment is required, and a mini-trial of disputed facts should be avoided. Where means are extremely limited, a nominal deposit may be appropriate.

The claimant brought Employment Tribunal claims arising from alleged trafficking and mistreatment in domestic employment, including race discrimination. At a preliminary hearing, the Employment Judge concluded that three allegations had little reasonable prospect of success and ordered deposits of £75 for each. On reconsideration, the orders were maintained, although the payment period was extended.

Permission to appeal was limited. One allegation concerning restricted access to food was conceded by the respondents and could proceed without a deposit. The remaining issue was whether the deposits for the allegations concerning sleeping on a sofa and being locked in a bedroom were set at an excessive and legally impermissible level.

1. Appeal allowed. The deposit order concerning restricted access to food was set aside by concession. The two remaining £75 orders were also set aside and replaced by orders of £1 each.
2. Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires a proper basis for concluding that a specific allegation has little reasonable prospect of success. This is a less rigorous test than strike-out, which requires no reasonable prospect of success. The assessment is summary. A mini-trial of core factual disputes is inappropriate because it defeats the cost-saving purpose of the jurisdiction.
3. The power to order a deposit is discretionary and must be exercised consistently with the overriding objective. Relevant considerations include case management, likely costs savings, tribunal resources and, where relevant, the wider public interest. Communication difficulties, including interpretation problems, may justify reasonable leeway in understanding an allegation.
4. Under rule 39(2), enquiries into the paying party’s ability to pay and consideration of the information obtained are mandatory. A deposit order has both a payment consequence and a costs-warning function. It is not intended to make pursuing a claim difficult or to effect a strike-out indirectly.
5. The order must be capable of compliance and proportionate to its legitimate purpose. A sum which the paying party is unlikely to raise, assessed individually or cumulatively, may impair access to justice and fair-trial rights. Given the claimant’s subsistence-level means and trafficking status, £225 was not realistically capable of being raised. A nominal £1 deposit preserved the costs warning while avoiding disproportionate restriction of access to justice.

• Employment Tribunal: on 30 September 2015, and on reconsideration promulgated on 30 November 2015, ordered deposits of £75 for each of three allegations.
• Employment Appeal Tribunal: allowed the appeal. The restricted-access-to-food order was set aside by concession; the two remaining orders were replaced with £1 deposits.