Brian Rowe v Ashmore Group PLC & Ors

On an application for a deposit order, the Employment Tribunal must focus on the specific allegation or argument actually advanced by the party facing the order. It must properly identify and characterise that party’s pleaded case. A generic view that the respondent was responding lawfully to an allegation does not suffice.

A deposit order requires a proper basis for concluding that the identified case has little reasonable prospect of success. Core factual disputes, including the context and meaning of alleged conduct and allegations of stereotyping or unconscious bias, are ordinarily for trial. The Tribunal may raise a deposit order of its own motion and need not hear evidence, but it must not conduct a summary trial on incomplete papers.

The claimant brought nine Employment Tribunal claims, including direct race and sex discrimination, harassment, victimisation, disability discrimination, unlawful deduction from wages, reasonable adjustments and whistleblowing detriment. The claims arose from the respondents’ handling of allegations that he had sexually harassed a colleague, including the complaint, investigation, suspension, grievance process and cessation of sick pay.

At a preliminary hearing, the Employment Judge raised a deposit order without prior notice and ordered the claimant to pay £1,000 to continue all claims. The Judge relied principally on aspects of the pleaded allegations concerning salsa dancing, massage and an invitation to the colleague’s home, together with an earlier final written warning.

The claimant appealed. The central issue was whether the Tribunal had applied the statutory deposit-order test to the case which the claimant had actually pleaded.

1. Appeal allowed. The deposit order was quashed and any sum paid was to be repaid to the claimant.

2. Under Rule 39 of the Employment Tribunals Constitution and Rules of Procedure Regulations 2013, the inquiry concerns a specific allegation or argument. The necessary first step is to identify and characterise the case advanced by the party facing the order. The Employment Judge instead treated the case too broadly, as an attempt to prevent an appropriate response to a sexual-harassment complaint.

3. The claimant’s pleaded case was not confined to an assertion that the colleague had invented the complaint. It included allegations that the complaint had been pressed or instigated by another respondent, that innocent comments had been inflated into sexual harassment, and that the investigation had used leading questions. The Judge failed to engage with that case and thereby considered irrelevant matters while failing to consider relevant ones.

4. The admission that salsa dancing had been discussed, the pleaded inability to recall discussing massage, and the invitation to visit the claimant’s home could not, without the disputed context, rationally establish that the discrimination and harassment claims had little reasonable prospect of success. The meaning and context of those matters, and the alleged stereotyping or unconscious bias, raised factual issues for trial. A paper assessment expressed in terms of what “seems” to be the position was an inadequate basis for a deposit order.

5. A Tribunal may consider a deposit order on its own initiative. Prior notice, witness evidence and documentary evidence are not prerequisites, and a deposit hearing must not become a mini-trial. However, where the issue is raised late and documents may affect the assessment, the Tribunal should proceed cautiously. No separate procedural unfairness arose from the claimant’s disability because counsel was offered further time and declined it.

6. The respondents properly conceded that the reasons gave no rationale for deposits in respect of substantial parts of the claims. The EAT allowed grounds 1 and 3. Ground 2 failed because the correct test had been stated; ground 4 failed for the reasons stated above.

• Employment Appeal Tribunal: allowed the claimant’s appeal and quashed the £1,000 deposit order.
• Employment Tribunal, London Central: Employment Judge Burns made a deposit order on 23 March 2023 requiring £1,000 as a condition of pursuing the claims.