Bibi Adilah Rojha v Zinc Media Group Plc

An Employment Tribunal may make an unless order affecting an entire claim only where that consequence is a proportionate means of securing fair case management. The order is not punitive. Care is required where separate causes of action are pleaded, but a case-wide sanction may be justified where the required information is material to the fair trial and management of the claims as a whole.

Before making a deposit order, the Tribunal must make a reasonable attempt to identify the pleaded claims and issues. It may require a deposit where the claim as pleaded has little reasonable prospect of success and there is a proper basis to doubt that essential facts, including facts establishing jurisdiction, can be proved. It need not seek further particulars where they would not assist.

The claimant brought claims following dismissal, including unfair dismissal, race discrimination, sex and/or pregnancy and maternity discrimination, redundancy pay and unlawful deductions from wages.

Having proceeded in the claimant's unexplained absence at a case management hearing, the Employment Tribunal directed further particulars of parts of the claim, a statement of all remedies, and payment of a deposit for the sex and/or pregnancy and maternity discrimination allegation. The claimant neither complied nor attended a later hearing. The Tribunal made an unless order providing that the entire claim would be struck out if the earlier directions were not met.

The claimant appealed the deposit order and the unless order. The central issues were whether the case-wide sanction was disproportionate and whether the Tribunal had misconstrued, or insufficiently clarified, the discrimination claim before imposing the deposit requirement.

1. Appeals dismissed. The Employment Tribunal did not err in making an unless order whose non-compliance consequence was the striking out of the entire claim.

2. An unless order has a potentially claim-ending and draconian effect. It must be proportionate, serve case management rather than punishment, and be framed with particular care where several legally separate claims are advanced. A Tribunal should not impose a whole-claim consequence unless it is satisfied that this is proportionate.

3. Those requirements were met here. The requirement for further particulars of race discrimination encompassed the asserted enhanced redundancy entitlement. The claimant's case that redundancy was not the genuine reason for dismissal also overlapped with her race discrimination complaint. The direction to provide a statement of all remedies was relevant to the just and fair management of every claim, including unfair dismissal.

4. The claimant had unreasonably failed to attend two case management hearings and had made no attempt to comply with the earlier directions. The Tribunal was entitled to conclude that the lack of progress jeopardised the listed trial and that a case-wide unless order was necessary and proportionate.

5. The deposit-order appeal also failed. The Tribunal reasonably identified the pleaded sex and/or pregnancy and maternity discrimination allegation as a complaint about pay on return from maternity leave in February 2018. The later grievance narrative did not plead a separate discriminatory omission or a continuing act. The nearly two-year delay supplied a proper basis for doubting that the claimant could establish jurisdiction.

6. The Tribunal was not required to order further particulars before making the deposit order. The claimant had deprived herself of the opportunity to clarify her case by failing to attend, and nothing indicated that particulars would alter the position. It was open to the Tribunal to find that the allegation had little reasonable prospect of success and to make its continuation conditional on a deposit.

• Employment Appeal Tribunal: dismissed the claimant's appeals against the deposit order and unless order: [2023] EAT 39.

• Employment Tribunal (London Central): at a case management hearing on 31 March 2021, proceeded in the claimant's absence, gave case management directions and made a deposit order.

• Employment Tribunal (London Central): on 11 October 2021, made an unless order. Following non-compliance, the claim was automatically struck out on 17 November 2021.