Simpson v Air Business Ltd

A deposit order under Regulation 39(1) may be made only where a specific allegation has little reasonable prospect of success. It is not appropriate where the decisive issue is a genuine factual dispute about causation that requires evidence and findings of fact at trial.

In a victimisation claim, the tribunal must accurately identify the case advanced, assess each alleged detriment individually, and determine whether the protected act was the reason for the treatment. It must not treat earlier, differently characterised complaints or a suggested multiplicity of causes as resolving that factual issue at a preliminary stage.

The Claimant appealed against an Employment Tribunal deposit order of £750, made as a condition of continuing her victimisation claim under the Equality Act 2010. Her grievance of 3 June 2016, alleging sex discrimination, was accepted as a protected act.

She alleged ten later detriments, principally involving HR and employment decisions, including dismissal. The Respondent contended that the treatment had multiple causes and continued difficulties predating the grievance. The Employment Judge held that the claim had little reasonable prospect of success. The central issue on appeal was whether that conclusion impermissibly resolved a disputed question about the cause of the alleged detriments without hearing evidence.

1. Appeal allowed. The deposit order was set aside and the £750 already paid was to be repaid.

2. Under Regulation 39(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a deposit order depends on a proper conclusion that the allegation has little reasonable prospect of success. The decisive issue in this victimisation claim was whether the alleged detriments occurred because of the admitted protected act.

3. That was a fundamental factual dispute. The Claimant alleged one cause, her grievance of 3 June 2016. The Respondent alleged multiple causes, including earlier workplace difficulties. The issue could not be determined without evidence from both sides and findings of fact. On that ground alone, the Employment Judge's decision could not stand.

4. The Employment Judge had also misunderstood the claim. The alleged post-grievance detriments concerned HR actions and employment decisions. They differed from the earlier allegations of personal conduct by co-workers. The absence of a complaint against the HR manager in the grievance did not establish that she could not have subjected the Claimant to a detriment because of it.

5. Each alleged detriment required individual consideration. The matter was listed for a substantive hearing, and it would not be in the interests of justice for Employment Judge Martin to have further involvement in the claim.

• Employment Appeal Tribunal: Allowed the Claimant's appeal and set aside the Employment Tribunal's £750 deposit order.
• Employment Tribunal: Employment Judge Martin, by a judgment sent on 7 November 2018, ordered a £750 deposit as a condition of continuing the victimisation allegation.