D Carryl v Governing Body of Manford Primary School

Under Rule 39(2) of the Employment Tribunal Rules of Procedure 2013, an Employment Tribunal must make reasonable enquiries into a party’s actual ability to pay a deposit and have regard to that information when fixing both its amount and the time for payment. It must give reasons which show that exercise.

Gross salary and a willingness to pay a deposit do not, without more, establish ability to pay. The Tribunal should consider take-home income, regular outgoings and available disposable income. The merits of the claim concern whether a deposit order should be made, not its level. A deposit must prompt reflection on a weak claim without operating as a disproportionate barrier to access to justice.

The Claimant brought constructive unfair dismissal and part-time worker discrimination claims. An Employment Judge sitting alone dismissed them after a contested hearing. On reconsideration, the Judge set aside that judgment because the discrimination claim required a full panel, ordered a rehearing, and made deposit orders totalling £500.

The Claimant sought reduction or removal of the deposits and supplied financial material. The Tribunal refused reconsideration. Her claims were then struck out for non-payment. She appealed the deposit, reconsideration and strike-out decisions. The Respondent contended that all appeals save that against the strike-out were out of time and that the strike-out necessarily followed a regular order.

The central issues were whether time should be extended and whether the Tribunal had lawfully assessed and explained the Claimant’s ability to pay the deposits.

1. Appeal allowed. Time was extended for the appeals against the deposit and reconsideration decisions. Although the Claimant’s initial approach to the EAT did not use the prescribed form, the exceptional combination of circumstances justified an extension. The deposit documentation did not indicate a right of appeal and lacked the usual explanatory leaflet. The Employment Tribunal’s administrative delay contributed to the position. Once informed of the correct procedure, the Claimant acted promptly. This was consistent with Hancocks.

2. The Employment Judge erred in law by failing to comply with Rule 39(2) of the Employment Tribunal Rules of Procedure 2013. Reasonable enquiries required more than asking about gross annual pay and willingness to pay a deposit. The Tribunal had to investigate actual take-home income and regular financial commitments, assess disposable income, and consider whether the sum could practically be paid within the specified period.

3. The Tribunal gave no adequate reasons for fixing £250 for each complaint, for its conclusion that the Claimant could pay £500 within 28 days, or for refusing reconsideration after receiving evidence which prima facie showed that the deposit was unaffordable. The merits of a claim may justify making a deposit order, but they cannot determine its amount. The amount is governed solely by the paying party’s ability to pay.

4. The defective deposit decisions could not stand, and the associated strike-out was overturned. The EAT substituted deposits of £30 for each complaint, totalling £60, payable by 4 pm on 18 December 2023.

5. Per curiam, where a deposit order may be considered, it would be advantageous to warn the party in advance and identify the financial information required, so that evidence of means can be provided at the hearing.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s deposit, reconsideration and consequential strike-out decisions; substituted deposits totalling £60.
• Employment Tribunal: Set aside its earlier merits judgment and ordered a rehearing, but made deposits totalling £500. It later refused reconsideration and struck out the claims for non-payment.