I Laing v Bury and Bolton Citizens Advice

An employment tribunal may make a deposit order where a discrimination complaint has little reasonable prospect of success, provided it identifies a proper basis for doubting that the necessary facts can be established. The assessment must remain alert to factual disputes, unconscious discrimination and stereotyping, but those features do not prevent a deposit order.

A tribunal may retrospectively extend time to pay a deposit. If it wrongly considers it lacks that power, the error is immaterial where it subsequently and properly rejects the extension application on its merits.

A fair-minded and informed observer may find a real possibility of unconscious bias where a tribunal’s strong and repeated criticism of a litigant’s conduct during the hearing appears to influence its analysis of the substantive issues. The resulting decision is unsafe and must be reheard by a fresh tribunal.

The claimant, a recently dismissed immigration adviser, brought claims of direct race and sex discrimination and victimisation. Deposit orders were made against the direct discrimination claims and were not paid by the deadline. At the merits hearing, the Employment Tribunal declined to extend time, refused or discharged several requested witness orders, and dismissed the victimisation complaint.

On appeal, the claimant challenged the deposit orders and their consequences, the witness decisions, the tribunal’s findings that his alleged complaints were not protected acts and had not caused his dismissal, and the fairness of the hearing. The central issue was whether the tribunal’s treatment of the claimant during and in its reasons for the hearing created an appearance of bias that rendered the victimisation decision unsafe.

1. Appeal allowed in part. The Employment Appeal Tribunal quashed the dismissal of the victimisation complaint and remitted it for a fresh hearing before a differently constituted tribunal. The challenges to the deposit orders, their ultimate consequences, and the witness-order decisions failed.

2. The deposit-order test under rule 39 was less stringent than strike-out. A tribunal must identify a proper basis for doubting that essential facts can be proved, and must take proper care with discrimination claims involving factual disputes, stereotyping or unconscious discrimination. The Employment Judge had sufficiently engaged with the claimant’s case and was entitled to regard the direct discrimination claims as weak though arguable. The timing of the orders did not render them improper.

3. The merits tribunal erred in treating rule 39(4) as removing power to extend time retrospectively. Sodexho Limited v Gibbons established that an expired deposit-payment deadline could be varied or revoked. But, when reconsidering the matter, the tribunal effectively evaluated the claimant’s explanation for non-payment and was entitled to find it insufficiently compelling. The strike-out of the direct discrimination claims therefore stood.

4. The tribunal was entitled to refuse witness orders where the proposed witnesses were unlikely to assist the applicant’s case, their attendance would be disproportionate, and their evidence was not necessary to decide what influenced the dismissing manager. It was also entitled to admit hearsay evidence, subject to fair evaluation, under the Employment Tribunals Rules of Procedure 2013.

5. The tribunal’s reasoning on whether the claimant had made a protected act, and whether any protected act caused dismissal, was not independently erroneous. An allegation of harassment under the Protection from Harassment Act 1997 did not necessarily allege harassment related to sex or race under the Equality Act 2010.

6. However, the tribunal repeatedly blended its strong assessment of the claimant’s behaviour as his own representative with its assessment of his workplace conduct. In the particular context, the fair-minded and informed observer would perceive a real possibility that antipathy generated during the hearing had unconsciously reduced the rigour of the tribunal’s analysis of the protected-act and causation issues. That appearance of bias made the victimisation decision unsafe.

• Employment Appeal Tribunal: Allowed the appeal against dismissal of the victimisation claim, quashed that decision and remitted it to a fresh tribunal. Dismissed the remaining challenges.
• Employment Tribunal: Made deposit orders, treated the direct discrimination claims as struck out for non-payment, refused or discharged witness orders, and dismissed the victimisation complaint.