A Tribunal’s ability to make multiple deposit orders was recently considered by the Employment Appeal Tribunal (EAT) in Wright v Nipponkoa Insurance (Europe) Ltd. In this case the Employment Judge considered that 7 out of Mr Wright’s 11 allegations for race discrimination and whistleblowing had no reasonable prospect of success. Therefore, if Mr Wright wished to continue with these allegations, the Employment Judge found that each one should be subject to Mr Wright paying a deposit.
In making the deposit orders the Employment Judge noted that the maximum amount he could impose for each of the seven deposits orders was £1,000 (rather than an overall limit of £1,000). To determine the appropriate level for each award the Employment Judge took into account Mr Wright’s means, including the fact that Mr Wright was on a salary of £58,000 and due to soon receive a bonus of about £2,000. The Judge concluded that the total amount Mr Wright should have to pay was £2,100, being £300 for each order.
Mr Wright appealed. He argued that the Employment Judge had failed to consider the proportionality of the total award and that the Judge had erred in finding that the 7 allegations had little reasonable prospect of success.
The EAT dismissed the appeal. It noted that Tribunals have a broad discretion when deciding if a deposit order should be made and any appeal would need to demonstrate that the order was one which no reasonable Tribunal could make. Here the Claimant had not demonstrated this.
In terms of the amount of the deposits orders, the EAT found that a Tribunal was entitled to make a number of orders as long as the question of proportionality was considered. Here the EAT felt that that the Employment Judge had demonstrated that he had considered the question of proportionality by expressly having regard to what he considered to be “appropriate” including Mr Wright’s means and to the totality of the award.
Under the Employment Tribunal rules in force before 29 July 2013 it was only possible for a Tribunal to make one deposit order in respect of a party’s claim or response. Under the new Employment Tribunal rules, which came into force on 29 July 2013, the Tribunals have the ability to make orders for each weak aspect of a claim or response, meaning that more than one deposit order can be made in respect of each claim. This helps to identify weak aspects of a claim/response at an early stage and highlight these to a party. They can then consider whether they wish to continue to pursue those aspects of their claim.
Following this case we can expect Tribunals, when making more than one deposit order, to take into account the total possible order (here £7,000) and means of the Claimant. We can also expect Tribunals to assess the proportionality of the award before spreading the appropriate amount between the claims that have been identified as having little prospect of success.
For more information, please contact a member of the Employment Team.