Bovell v Reading Borough Council

A tribunal considering a deposit order must make reasonable enquiries into the paying party’s ability to pay and must set an amount supported by the information available. The purpose is to prevent a deposit order from operating in substance as a strike-out because the party cannot pay it within the prescribed period.

A strike-out for no reasonable prospects of success remains a high threshold in discrimination cases. Nevertheless, where a claimant has been given a final opportunity to particularise the case and still fails to articulate a coherent claim capable of identifying issues for trial, the tribunal may conclude that it has no reasonable prospects of success.

The claimant, a long-serving council employee dismissed on capability grounds, brought claims including age and race discrimination, harassment and victimisation. After an unless order requiring coherent particulars, the Employment Tribunal struck out most claims under Rule 37. It made a deposit order of £250 in respect of the direct race discrimination claim concerning dismissal, and later struck that claim out when the deposit was not paid.

The claimant appealed the Rule 37 strike-outs, the deposit order and the consequential strike-out. The principal issues were whether the tribunal could order a £250 deposit on the available information about means, whether the required warning of strike-out had been given, and whether the remaining discrimination claims had no reasonable prospects of success.

1. Appeal allowed in part. The deposit order of £250 and the consequential strike-out were set aside. The appeal against the Rule 37 strike-outs of the other claims was dismissed.

2. Rule 39(2) of the Employment Tribunal Rules required reasonable enquiries into the claimant’s ability to pay. The Employment Judge had not failed to make reasonable enquiries: in the claimant’s absence, he reasonably examined the available papers, and she had notice of the possible deposit order. However, the only material identified showed receipt of state benefits during part of the preceding year and gave no basis for concluding that she could pay £250 within 21 days.

3. The discretion was therefore exercised outside its generous ambit. On the available information, only a truly nominal deposit could lawfully have been ordered. The deposit order was set aside, as was the Rule 39(4) strike-out which followed from non-payment. No remission was required; the amount of the nominal sum was to be addressed separately. This conclusion was confined to the facts and did not establish a general rule on deposit orders.

4. The judge further held, though it was unnecessary to decide the factual issue, that Rule 39(3) requires an express notification that non-payment will result in strike-out. Words saying that payment is a condition of continuing a contention did not themselves give that notice.

5. Applying the high Rule 37 threshold explained in Ahir v British Airways Plc [2017] EWCA Civ 1392, the EAT upheld the remaining strike-outs. Despite a final opportunity to particularise the claims, the claimant had not presented coherent age discrimination, victimisation, harassment, or non-dismissal race discrimination claims from which a trial list of issues could be formulated. The Employment Judge’s incidental observation that some race allegations appeared out of time was not material to that conclusion.

• Employment Appeal Tribunal: Allowed the appeal against the deposit order dated 27 February 2015 and the consequential strike-out dated 25 March 2015; dismissed the appeal against the other Rule 37 strike-outs.
• Employment Tribunal, Reading: Struck out the claimant’s age discrimination, victimisation, harassment and most race discrimination claims under Rule 37. It ordered a £250 deposit for the direct race discrimination dismissal claim and later struck out that claim for non-payment.