Tree v South East Coastal Ambulance Service NHS Foundation Trust (Practice and Procedure)

An Employment Tribunal may make a deposit order only where it has a proper basis for doubting that the party can establish facts essential to the identified allegation. It may assess factual likelihood, but must proceed cautiously and avoid resolving a core factual conflict through a mini-trial.

In a claim under section 15 of the Equality Act 2010, the relevant “something” may include disability-related absence or the need for adjustments. Although proof of an employer’s motivation is unnecessary, an employer which acts to avoid dealing with those consequences may fall within the provision. A deposit order is not a substitute for proper case management where the claim needs clarification.

The Claimant, a disabled former Clinical Audit Manager, brought claims for direct disability discrimination under section 13 and discrimination arising from disability under section 15 of the Equality Act 2010, following her redundancy dismissal.

At a preliminary hearing, the Employment Tribunal extended time for the discrimination claims but made a global deposit order of £1,000 under rule 39. It considered that both claims had little reasonable prospect of success. The Claimant appealed against the deposit order. The central issue was whether the Tribunal had correctly assessed the claims actually advanced and lawfully applied the threshold for a deposit order.

1. Appeal allowed in part. The global deposit order was set aside. A substituted deposit order of £500 was made solely for the section 13 claim; no deposit order remained for the section 15 claim.

2. Under rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a tribunal requires a proper basis for doubting whether a party can establish facts essential to the allegation. The wider discretion available for a deposit order permits assessment of factual likelihood, but the tribunal must proceed cautiously. It must not use the order as a shortcut to decide a core factual dispute or as a substitute for appropriate case-management directions.

3. The Tribunal was entitled to conclude that the section 13 claim had little reasonable prospect of success. Even if its comparator analysis under section 23 was premature, it could assess the separate “reason why” issue. On the Claimant’s own case, the alleged treatment concerned the consequences of disability and the potential need for adjustments, rather than disability itself. The difficulties identified in London Borough of Lewisham v Malcolm supported the conclusion that the direct-discrimination claim had little reasonable prospect.

4. The Tribunal’s approach to section 15 was erroneous. It had not properly addressed the clarified case, namely that disability-related absences and the resulting need for adjustments were matters which the Respondent wished to avoid. It also failed to recognise the factual dispute requiring determination at a full merits hearing.

5. The Tribunal misunderstood section 15 and Pnaiser v NHS England. A claimant need not prove an employer’s motivation. But an employer’s wish to avoid dealing with something arising in consequence of disability can itself found liability. That possibility does not fall outside section 15 merely because it concerns the employer’s motivation.

• Employment Appeal Tribunal: allowed the appeal in part and substituted a £500 deposit order limited to the section 13 claim.
• Employment Tribunal (Ashford): on 19 December 2016, made a global £1,000 deposit order under rule 39 after extending time for the discrimination claims. The decision was sent to the parties on 5 January 2017.