The ET ordered that the claimant, a university student, pay a deposit order and explained that a claimant’s financial circumstances were not the sole determining factor. He said that even where a claimant could show that he has zero assets and zero bank balance or worse, a deposit order could still be made. The EJ looked at the whole of the claimant’s financial circumstances and considered that he ought to regard the claimant’s student loan as income. He rejected the claimant’s argument that the imposition of the deposit order amounted to pressure being put on the claimant to drop her case and pointed out that the purpose of the order was to give fair notice to the claimant of the risks being run regarding expenses if the claim was persisted with. Counsel for the respondent also drew the claimant’s attention to the possibility of a costs order in excess of £10,000. The claimant appealed against the deposit order.

The EAT ruled that it was not wrong for the ET to have included her student loan. It was money that was available to her and it was not ring-fenced to be spent only on essential living costs. They also said that the argument that the EJ was wrong to allow submissions to be made about the extent of the likely costs of continuing with the case to be manifestly ill founded.

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Appeal No. UKEATS/0030/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 10 January 2012

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

MS CLAIRE SIMPSON (APPELLANT)

(1) CHIEF CONSTABLE, STRATHCLYDE POLICE; (2) SCOTTISH POLICE SERVICES AUTHORITY (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR T SIMPSON (Representative)

For the First Respondent
MS C MARTIN (Solicitor)

Legal Services Department
Strathclyde Police
173 Pitt Street
Glasgow
G2 4JS

For the Second Respondent
MS A JONES (Solicitor)

Maclay Murray and Spens LLP
Quartermile One
15 Lauriston Place
Edinburgh

EH3 9EP

PRACTICE AND PROCEDURE – Imposition of deposit

Deposit Order: Employment Tribunal Rules, rule 20. Amount. Claimant's ability to pay; whether student loan could be taken into account. Whether sufficient reasons. Whether deposit order for £380 perverse.

1. This is an appeal against a judgment of the Employment Tribunal sitting at Glasgow, (Employment Judge R Gall) registered on 23 February 2011, requiring the Claimant to pay a deposit order of £380. The Employment Judge had previously, by an order of 4 November 2010, which was not appealed against, found that the Claimant's claims of discrimination and breach of the Public Interest Disclosure Act 1998 had little reasonable prospect of success. Whilst he found, at that stage, that, in principle, there should be a deposit order, he did not quantify it. He could not do so as he did not have information which enabled him to assess her ability to pay (see: rule 20(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch 1). The terms of his order of 4 November 2010 were:

"The applications by the first respondents and second respondents to have an Order made against the claimant requiring the claimant to pay a deposit in terms of Rule 20 of the Rules are continued in order that the ability of the claimant to comply with such an order is ascertained so that prior to any such order being made any information so ascertained can be considered and taken account of in assessing the amount of such a deposit all in terms of Rule 20(2) of the Rules."

1. A further pre hearing review ("PHR") was, accordingly, fixed, took place on 18 February 2011 and the deposit order for £380 was issued.

1. The Claimant was represented by her father, Mr T Simpson, at the hearing on 18 February and before me. The First Respondent was represented by Ms C Martin, solicitor, before the Tribunal and before me. The Second Respondent was represented by Ms C Nisbet, solicitor, before the Tribunal and by Ms Jones, solicitor, before me.

1. I will, for the sake of clarity, continue referring to parties as Claimant and First and Second Respondents.

1. The issue for the Employment Judge was what should be the amount of the deposit order?

1. In addressing that issue, he required to have regard to (a) his having assessed her claim as having little reasonable prospects of success; (b) his having decided, as explained in his judgment of 2 November 2010, that the Claimant should be ordered to pay a deposit as a condition of her being permitted to continue with her claim; (c) her ability to comply with such an order; and (d) that any such order could not be for more than £500: see rule 20(1) and (2) of the 2004 Rules.

1. The information provided to the Employment Judge, which was not disputed was:

* The Claimant was a student at the University of the West of Scotland which is based in Paisley; * She began her then current course on September 2010; * The course was for four years; * The Claimant was in receipt of: * A bursary of £100 per month; * Student loan payments of £494 per month during the academic session (September to May); the loan is a "Standard Loan" and will not be repayable until her earned income exceeds £15,000 per annum; * Earned income from a part time job of £183.44 per week * The Claimant was looking for alternative part time employment which would pay a higher wage; * The Claimant moved into rented accommodation in East Kilbride (from the family home in Strathaven) in November 2010; * The Claimant runs a car; * The Claimant's weekly expenditure, at that time, was, according to a list she provided:

rent - £75
heating/ electricity - £8.75
phone - £8.75
Insurance/phone - £3.50
Internet - £7.50
Insurance/ laptop - £2.12
Fuel - £15
Parking - £15
Car insurance £12.50
Car Tax - £4.50 
Food/ household items - £65
TV licence - £3
Furniture - £13
Uniform (for work) - £2.50
Clothing £25
Books - £3.75

* The Claimant has an overdraft facility, which she uses.

1. The Employment Judge explained that with regard to deposit orders, a claimant's financial circumstances were not the sole determining factor. At paragraph 28, he points to the possibility of a deposit order being made even where a claimant shows he has "zero assets and a zero bank balance, or worse" (paragraph 28); he is correct – it would not be incompetent for an Employment Judge to issue a deposit order.

1. By way of general observations, the Employment Judge remarked that in almost every case in which a deposit order is made, the vast majority of claimants will suffer a degree of "financial pain" (paragraph 27). That is, he recognised that it will not be easy for many claimants to find the sums that are liable to be involved in a deposit order. He also took account of the background, namely his views, as previously explained, that the Claimant's claim has little prospect of success (paragraph 29).

1. The Employment Judge looked at the whole of the Claimant's financial circumstances. He considered that he ought to regard the Claimant's student loan as income. He had regard to the possibility of the Claimant rearranging matters so as to, as he put, rebalance her income and expenditure. At paragraph 30 - 31, he explained:

"30. I understand the claimant's that the income which she receives is exhausted by her expenditure. I am including in this regard her student loan as income. I accept that it is of the nature of borrowed money. It does, nonetheless, provide her with a source of funds at present. I am conscious that she stays in a flat in East Kilbride. She has a car. East Kilbride is certainly closer to Paisley than Strathaven, where her parents stay, is. It was not said in evidence that moving back in with her parents would result in any particular difficulty. The point did not arise in evidence in chief or in cross examination. Certainly there would be no rental payable to an external landlord if she did move back in with her parents.

31. I should make it clear that I am not suggesting that the claimant follows that course. I am merely highlighting that there may be ways in which the claimant's income and expenditure can be rebalanced if necessary."

1. He noted that the Claimant's father had sought to argue that the imposition of the deposit order amounted to pressure being put on the Claimant to drop her case and pointed out that that was not its purpose; rather, it was to give fair notice to a Claimant of the risks being run regarding expenses, if the claim was persisted with and there was an element of it being thus highlighted to her that careful consideration should given to proceeding.

1. Against that background, the Employment Judge set the deposit order at £380, that being what he considered to be an appropriate amount and one which, in his assessment, would not be impossible for the Claimant to meet (see: paragraph 33).

1. Regarding the arguments presented to him on behalf of the Respondents at the PHR, the Employment Judge records that Ms Martin, in a submission which was adopted by Ms Nisbet, submitted that costs were likely to exceed £10,000 (the tribunal cap) and that if the assessment of costs was remitted to the Auditor for taxation, the recoverable amount could exceed that figure; the Claimant should have her attention drawn to the costs risk which she was running.

Submissions for Claimant

1. Mr Simpson made twelve submissions.

1. First, he submitted that Ms Martin should not, at the PHR, have been allowed to refer to the risk of the Claimant being found liable in expenses up to £10,000. That was not the purpose of the PHR.

1. Secondly, Ms Nisbet should not have been allowed to adopt that submission.

1. Thirdly, Ms Nisbet should not have been allowed to submit that the Claimant's student loan could be used to pay the deposit order.

1. Fourthly, Ms Nisbet should not have been allowed to make any reference to rule 47. It was not relevant.

1. Fifthly, it was unjust for the Employment Judge to regard the Claimant's student loan as income. The Employment Tribunal was a publicly funded body. The government regarded a student loan as being for essential maintenance; it was for living costs. He referred, for support of submission, to two documents. The first was the interpretation section of Part 1 of The Education (Student Loans) (Scotland) Regulations 2007 which states:

"'loan' means a loan towards a student's maintenance under the Act and any regulations made thereunder, including the interest accrued on the loan and any penalties or charges made in connection with it;"

1. The second was an extract from a government website entitled:

www.direct.gov.uk/en/MoneyTaxBenefits/BenefitsTaxCreditsAndOtherSupport/On a low income? DG 070816

which contains a list of the types of student finance which are counted as income when working out benefits and includes:

"the majority of any Maintenance Loan you are entitled to, even if you choose not to take it out"

and

"bursaries.."

1. Mr Simpson accepted that the government has no control over the use to which a student loan is put by the student but he pointed to the governmental intention being that it be used for maintenance. To use the student loan to pay the deposit order would be to misuse it. It was unreasonable to say that the order was affordable.

1. Sixthly, the Employment Judge was wrong to have considered any matter other than the Claimant's ability to pay. He was not entitled to look at his prior finding that the case had little prospects of success; that was a road already travelled.

1. Seventhly, the Employment Judge had failed to explain his finding that the claim had little reasonable prospects of success; neither the February 2011 nor the November 2010 judgment gave adequate reasons. He disavowed any attempt to appeal against the November 2010 judgment. He said that he recognised that it was too late to do that. He did, however, at a number of points in his argument, revert to a complaint that the November 2010 judgment did not give reasons for that finding. He relied on rule 47 for a submission that the rules required the Employment Judge to give clear reasons for his rule 20 decision.

1. Eighthly, the Employment Judge had failed to provide clear reasons for setting the deposit order at £380.

1. Ninthly, the Employment Judge had erred in his proposition that the Claimant move back into her parents' home. It was age discriminatory; she did not believe that he would have done so if she had been older or male. Further, he did not know whether she would have wished to do so or whether her parents would have agreed to her doing so. Her rights under article 8 of the Convention required to be considered, as did Article 14. Her right to live where she wished required to be respected. The Employment Judge was wrong to assess her ability to pay on the basis of a hypothetical situation.

1. Tenthly, the Employment Judge was wrong to find it acceptable for the Claimant to feel pain notwithstanding that she had already suffered age and sex discrimination and victimisation (these being references to the content of her claim).

1. Eleventhly, the Employment Judge had misapplied the Employment Tribunal Rules regarding his November 2010 judgment, as was apparent from his response to the Claimant's application for a review (which was refused by letter dated 10 March 2011, against which refusal there was no appeal).

1. Finally, Mr Simpson stated that the Employment Judge had failed to provide comprehensive reasons in his response to the Claimant's review application.

1. In the light of these submissions, Mr Simpson asked that the order that the Claimant pay deposit order of £380 be revoked which failing that the Employment Judge be directed to provide reasons which failing that he be afforded any other remedy that I considered appropriate.

Submissions for Second Respondent

1. Ms Jones made submissions which were adopted by Ms Martin and which can be summarised as follows.

1. The appeal was, she submitted, hopeless. It had not been demonstrated that the Employment Judge erred in law. The high test for perversity was not met. Insofar as the appeal sought to make discrete points regarding the student loan and the provision of reasons, it was wholly ill founded.

1. As a generality, it was not irrelevant to consider the generality of the risk that a claimant would be running regarding an award of expenses where the litigation was continued in the face of a determination that a claim had little reasonable prospects of success; the need for a claimant to do so was implicit in the making of a deposit order. The Respondents' position was that the Claimant in this case had failed properly to understand the risk that she was running so far as expenses were concerned. It was, in these circumstances, incumbent on the Respondents to spell matters out for her since she was not legally represented. It was only fair that she be warned that an order for expenses may be sought against her.

1. Regarding the government guidance relied on, it did not support the Claimant's case. Rather, it showed that the government would regard a student loan as available income, when assessing a student's application for benefits. Such loans were not conditional. There was nothing to tell a student that they were only to be used in a restricted way.

1. Regarding rule 47, it was not relevant to the reasons issue. Rule 47 was not, at this stage, a live issue.

1. Regarding the submission that the Employment Judge was not entitled to look beyond the Claimant's financial circumstances, it was not well founded; rule 20 required an Employment Judge to look at the whole circumstances. This was a case which already had a lengthy history and despite informal and formal questions procedures, the Claimant's case remained unsatisfactory and had been assessed as having little reasonable prospects of success.

1. Regarding reasons, the November 2010 judgment did explain why the Employment Judge had concluded as he did and it was not to be expected that he would reiterate those reasons in the February 2011 judgment dealing only with the matter of the amount of the deposit order.

1. Regarding the amount of the order, an arithmetical calculation was not to be expected. All that was required that the figure be a reasonable one, which it was.

1. Otherwise, the Claimant was not now entitled to appeal against the November 2010 judgment, he had not found that she was required to move house – he had simply pointed out that her costs were not fixed, the comment about "pain" was being taken out of context and the Claimant was not now entitled to seek to appeal the review decision, which she seemed to be trying to do.

Submissions for the First Respondent

1. As above noted, Ms Martin adopted Ms Jones' submissions. She added that the Claimant was entitled to fair notice about the expenses risk she was running; that was all that was sought by referring to their likely amount, the Employment Judge had not made any error of law and the appeal was misconceived.

1. By way of preliminary, I would observe that this is an appeal only against the amount of the deposit order. It is not an appeal against the determination that the Claimant's case has little reasonable prospects of success and that a deposit order should, in principle, be made. There are no statutory rules requiring an Employment Judge to calculate a deposit order in any particular way; the only requirement is that the figure be a reasonable one. Provided the figure arrived at is not unreasonable in all the circumstances, it will be unappealable as no question of law arises.

1. The Employment Judge was correct to take as his starting point that he had previously satisfied himself that the Claimant's claim had little reasonable prospects of success and that the circumstances were such that a deposit order should be issued. The nature and circumstances of those findings provide the context in which the amount of the order is to be assessed. Mr Simpson was wrong to suggest that the Employment Judge could only consider the Claimant's finances, closing his mind to the circumstances which had led up to the continued PHR. It would have been wrong for him to consider the amount of the deposit order in a vacuum, which, essentially, was Mr Simpson's argument.

1. The context to which I refer was, to use a colloquialism, that the Employment Judge had, in November 2010, concluded that it was fair to require the Claimant to "put her money where her mouth was" before she took the claim any further. It is to be assumed that claimants will not readily part with money that they are likely to lose – particularly where it may pave the way to adding to that loss a liability for expenses or a preparation time order (see rule 47(1)). Both of those risks are spelt out to a claimant in the order itself (see rule 20(2)). The issuing of a deposit order should, accordingly, make a claimant stop and think carefully before proceeding with an evidently weak case and only do so if, notwithstanding the Employment Tribunal's assessment of its prospects, there is good reason to believe that the case may, nonetheless succeed. It is not an unreasonable requirement to impose given a claimant's responsibility to assist the tribunal to further the overriding objective which includes dealing with cases so as to save expense and ensure expeditious disposal (rule 3(1)(2) and (4).

1. Insofar as the present appeal proceeded on the basis that the Employment Judge was wrong to allow any submissions to be made about the extent of the likely costs of continuing with the case (whether as awarded by the Tribunal or after taxation by the Auditor of Court), it was manifestly ill founded. It is not an error of law to allow submissions to be made. If the point was intended to be that questions of the nature and extent of the likely expenses were irrelevant, it too was ill- founded; as explained above, the expenses risk to a claimant of proceeding in the face of a rule 20 deposit order are an inherent part of the procedure.

1. Regarding the reasons for the Employment Judge's conclusion that rule 20(1) applied, it was not, contrary to Mr Simpson's submission, incumbent on him to set out those reasons in his judgment of 23 February 2011. The application of rule 20(1) was not an issue at the continued PHR; indeed, Mr Simpson accepted as much, in his reference to it being a road already travelled. The order contained in the judgment of 2 November 2010 was not appealed against and it is not open to the Claimant to do so now – the same can be said of the Employment Judge's response to the application for review. In any event, any complaint that the November 2010 judgment lacked adequate reasons is not sustainable. The Employment Judge explains, in that judgment, that he had considerable sympathy with the Respondents' submissions (which he refers to in detail) to the effect that the Claimant had had an informal and formal opportunity to clarify her claim yet her averments remained unclear in many significant respects. Further, he accepted that it could well be the case that the Claimant would be able to go no further than demonstrate that she felt that had been unfairly treated (though not in a manner which amounted to discrimination or victimisation). That concerned him.

1. Mr Simpson presented an argument that there was a failure to comply with the rules regarding the provision of reasons because rule 47 required reasons to have been given at the earlier stage. I am not persuaded that rule 47 is of any relevance as regards the issue of reasons. Rule 47 considerations are not a live issue between parties. Further, it does not contain any requirement regarding reasons. It refers only to those "grounds" which were, at the rule 20 stage, identified as having little reasonable prospects of success, not the reason why the earlier Employment Judge decided that those grounds had little reasonable prospects of success.

1. Turning to the amount of the deposit order, it is clear from a reading of the Employment Judge's decision as a whole that he arrived at the figure of £380 in the light of the whole circumstances of the case, without taking account of any irrelevant considerations.

1. Regarding the Claimant's available resources, he was not wrong to include her student loan. First, it was money which was available to her and was, accordingly, a resource. Secondly, it was not ring fenced so as to be spent only on essential living costs but even if it had been, it was not the only money available to the Claimant from which the deposit could have been paid.

1. Regarding the Employment Judge's comments about the possibility of the Claimant returning to live at home (as she appears to have done for the first couple of months of her course) thereby avoiding having a rental liability to a commercial landlord, contrary to what was argued, he did not suggest or indicate that that was what she should do. It was plainly referred to as being an example of a means by which she could rebalance her income and expenditure in circumstances, I would add, where her costs were not fixed, her expenditure list was not backed by vouchers and it disclosed a number of other items that could also have been subject to adjustment – weekly expenditure of £25 on clothes, for instance. Articles 8 and 14 of the Convention are not engaged. The Employment Judge did not make any decision which impinged on those rights.

1. Regarding the Employment Judge's reference to "pain", the ground of appeal takes the comment out of context and the ground of appeal proceeds on the basis that the Claimant had as a matter of fact suffered the discrimination and victimisation complained of (issues which, at that stage, had not been determined). The observation was no more than a statement that it is not enough for a claimant to show that it will be difficult to pay a deposit order; it is not, in general, expected that it will be easy for claimants to do so. It also showed recognition on the part of the Employment Judge that the Claimant fell into that category.

1. Otherwise, Mr Simpson's submissions related to the response to the Claimant's application for review and the original November 2010 but those decisions were not the subject of this appeal.

1. In these circumstances, no error of law was identified by Mr Simpson. The appeal is, accordingly, refused.

1. I will pronounce an order dismissing the appeal and upholding the order of the Employment Tribunal that the Claimant be required to pay a deposit of £380 as a condition of being permitted to continue with her claim. I will also order that that deposit be paid to Employment Tribunal at Glasgow within 21 days of 20 January 2012.