The claimant was a bus driver whose employment was terminated the day before he turned 65. The statutory requirements of notice had been given, the proper procedure had been followed, the claimant’s request to work beyond 64 had been denied and his appeal had been dismissed. The respondent’s reason for those decisions was that there was an over supply of bus drivers due to routes being lost. The claimant contended that the real reason for his dismissal was because he had made protected disclosures and the respondent just wanted an excuse to get rid of a thorn in their side. He brought claims of unfair dismissal and age discrimination to the ET. The EJ ruled that his claims had such little prospect of success that the claimant should be ordered to pay a deposit of £250  as a condition of being permitted to continue with his complaints. The claimant appealed.

The EAT dismissed the appeal. Firstly, Rule 18(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, read together with rule 14, permits an ET determining whether a deposit shall be paid to consider evidence, written or oral, if and to the extent it is appropriate to do so.  Secondly, the test on a deposit application is as set out in rule 20(1).  The approach of Elias P in Von Rensburg followed. Finally, there was no basis for the allegation that the procedure adopted at the PHR was unfair.

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Appeal Nos. UKEAT/0567/11/LA

UKEAT/0569/11/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 20 July 2012

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

(SITTING ALONE)

MR W J SPRING (APPELLANT)

FIRST CAPITAL EAST LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR BARRY BLAKESLEY (Representative)

For the Respondent
MR RUSSELL BAILEY (of Counsel)
Instructed by:
Moorhead James LLP
Kildare House
3 Dorset Rise
London
EC4Y 8EN

PRACTICE AND PROCEDURE – Imposition of deposit

Employment Tribunal ordered that Claimant pay a deposit of £250 as a condition of being permitted to continue to take part in proceedings relating to his claim that he was unfairly dismissed and discriminated against on grounds of age.

Appeal dismissed.

(1) Rule 18(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, read together with rule 14, permits an ET determining whether a deposit shall be paid to consider evidence, written or oral, if and to the extent it is appropriate to do so.

(2) The test on a deposit application is as set out in rule 20(1). The approach of Elias P in Von Rensburg followed.

(3) There was no basis for the allegation that the procedure adopted at the PHR was unfair.

1. This is an appeal against the decisions of an Employment Tribunal, Employment Judge Ryan presiding, at a Pre Hearing Review sitting at Watford on 23 February 2011 and sent to the parties on 11 March 2011, that the Claimant is ordered to pay a deposit of £250 as a condition of being permitted to continue to take part in the proceedings relating to his claim that he was unfairly dismissed and discriminated against on the grounds of age. By a decision sent to the parties on 19 April 2011 Employment Judge Ryan rejected an application for a review of the deposit order. Mr Blakesley appears as a friend for the Claimant, and Mr Bailey appears for the Respondent. Both Mr Blakesley and Mr Bailey appeared at the hearing before Judge Ryan and indeed at an earlier case management discussion before Employment Judge Hodgson.

1. The facts are that the Claimant was employed by the Respondent as a bus driver. It was not in dispute that his employment was terminated at the end of his last day of being 64, that the statutory requirements of notice had been given and that the proper procedure had been followed, that the Claimant's request to work beyond 64 had been denied and his appeal had been dismissed, and that the Respondent's reason for those decisions was that there was an over supply of bus drivers due to routes being lost. The issue before the Employment Tribunal was whether the Claimant's contentions that he was dismissed for a reason other than retirement or that the Respondent had committed an act of age discrimination had little reasonable prospect of success such that the Claimant should be ordered to pay a deposit as a condition of being permitted to continue with his complaints.

1. Mr Blakesley referred to the Claimant's allegation that he was dismissed as a result of making protected disclosures, which are set out in paragraph 11 of the CMD summary Employment Judge Hodgson made on 11 January 2011. The disclosures, in summary, are as follows: (1) in 2004 the Claimant reported allegedly excessive driving hours to his employer; (2) in the same year he reported his perception of the relationship between the Respondent and the union to the London Assembly and Transport for London; (3) in January 2005 the Claimant informed the press and the police commissioner about alleged violence at Southgate bus stand; (4) from November 2006 to February 2007 he campaigned against alleged inadequate washing and toilet facilities at Edmonton Green bus stand; (5) in March 2009 the Claimant raised health and safety concerns in relation to "Green Road", a computer system designed to monitor the driving of buses, with management and the union; (6) in April 2009 he co-ordinated the preparation of notices under the Data Protection Act and sent them to the Respondent's data controller; (7) in or about April 2009 the Claimant issued advice leaflets to drivers; (8) in June and July 2009 the Claimant complained to the Information Commissioner that the Respondent had acted unlawfully; and (9) in September 2009 he complained to Norman Baker MP about the working conditions of London bus drivers and in particular Unite's alleged monopoly status within the M25, management/Unite collusion, bus drivers' conditions and health and safety at Green Road.

1. In particular, Mr Blakesley focussed on the Claimant's concerns about the Green Road technology, which were said to have been raised in March 2009, and also the Claimant's letter to his Member of Parliament in September 2009 about working conditions. It was accepted that the Claimant had raised the Green Road technology as an issue in his appeal. In effect, the Claimant's case is that the Respondent, whilst utilising the legal mechanism available to it to effect retirement at the age of 65, by doing so disguised that it wished to dismiss by way of retirement those who are thought to be a thorn in the company's side.

1. At paragraph 11.8 of the summary Judge Hodgson set out what are said to be the relevant detriments; for present purposes, I need only refer to the first one, which is, "Conducting a biased election for employees – the director's election and failing to disclose the results". Employment Judge Ryan accepted the possibility that the Respondent may have wished to dismiss by way of retirement those who were thought to be a thorn in its side, but in his judgement the Claimant had little reasonable prospect of providing an evidential basis to demonstrate that. In reaching this judgement he balanced the contentions on the one side against the undisputed facts on the other.

1. The Claimant, through Mr Blakesley, advances four grounds of appeal: first, that the Judge erred in concluding that he could not hear evidence on a PHR; second, that the Judge erred in concluding that he could not review his decision to order the Claimant to pay a deposit; third, that in a claim of unfair dismissal where the Claimant's contention was that the true reason for his dismissal had been that he had made protected disclosures rather than that he was aged 65 the Judge erred in ordering a deposit to be paid, as it was inappropriate to assess the prospects of success at a preliminary stage prior to settlement of disclosure requests in such a fact sensitive case; and fourthly, that the procedure adopted at the PHR was unfair in the respects described at paragraph 8 13 of Mr Blakesley's witness statement of 24 November 2011, and, in particular, the Judge did not consider the Claimant's prior requests for disclosure and no opportunity was given to the Claimant to make oral submissions about why a deposit should not be ordered. I shall deal with each of these grounds in turn.

1. Rule 18 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 sets out the procedure governing the conduct of PHRs. It states:

"(2) At a pre hearing review the employment judge may carry out a preliminary consideration of the proceedings and he may— […]

(c) order that a deposit be paid in accordance with rule 20 without hearing evidence;

(d) consider any oral or written representations or evidence […]."

1. Mr Blakesley submits that it is apparent from the word "may" in the first sentence of rule 18(2) that whilst a Judge has the power to order a deposit without hearing evidence that does not mean that he cannot hear evidence at a PHR. Mr Bailey agrees that an Employment Judge may consider evidence at a PHR. I agree. In my judgment, it is clear from rule 18(2), in particular sub paragraphs (c) and (d), read together with rule 14, the general rule on hearings, that an Employment Judge determining whether a deposit shall be paid may consider evidence, written or oral, if and to the extent that it is appropriate to do so.

1. Indeed, Mr Bailey says that at the deposit hearing both parties put material before the Judge, the Respondent produced written submissions (see pages 71 76 of the bundle) and a small bundle of documents (see pages 77 107), and the Claimant produced written submissions (see pages 108 114). At paragraph 4 of his Judgment the Judge said:

"The claimant did not attend the hearing and I decided the issue on the submissions of Mr Blakesley and Mr Bailey. Mr Bailey's submissions were essentially set out in a written document."

1. As Mr Bailey observes, since the Claimant did not seek to put any other evidence or material before the Judge, the purpose of this ground of appeal is not apparent. Mr Blakesley at paragraph 3 of his skeleton argument refers to paragraph 15 of the review decision where the Judge says:

"The second ground, new evidence, must also fail. Rule 18 makes it clear that an application for a deposit order shall be decided without hearing evidence. If no evidence can be admitted, no new evidence can be relevant."

1. However, the fact is that, despite these observations, at the deposit order hearing the Judge did consider evidence with the agreement of both parties and, in my judgment, properly did so in accordance with the terms of rule 18(2).

1. I make the following observations. First, Mr Blakesley confirms that he is not challenging the review decision. In paragraph 1 of his skeleton argument he says that the reason for referring to the review decision is because it, "illustrates the EJ's judicial reasoning as it was at the time of the deposit order and in the months thereafter". Secondly, having said he had no power to review his decision under rule 34, Judge Ryan did go on to consider the issue of review in any event. Mr Blakesley submits that a consideration that was preceded by a conviction that there was in actuality no power to reconsider the matter at all resulted in the Judge adopting a closed mind to the question of whether he should change his order. I reject this suggestion; the review decision discloses careful consideration of the issue by the Judge, but in any event, as I have noted, there is no appeal from this decision. There is nothing in this ground.

1. Mr Blakesley submits that whistleblowing cases are highly fact sensitive, as are discrimination cases. He refers to the observations of Lord Hope in Anyanwu v South Bank Student Union [2001] ICR 391 at paragraph 37:

"I would have been reluctant to strike out these claims on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out."

1. Mr Blakesley submits that whilst the present case was not struck out at the PHR the same caution that should be exercised before striking out should similarly apply to the ordering of a deposit, as the consequence of a failure to pay a deposit is that the claim is automatically struck out. Alternatively, he submits, it can pressurise a claimant into dropping their claim for fear of being faced with a substantial costs order should they ultimately be unsuccessful. Mr Blakesley further submits that the Judge should not have made a deposit order at a time when there were outstanding applications for disclosure of documents. As to that point, I am satisfied that at the time that Judge Ryan made his order there had been disclosure of documents pursuant to the order of Judge Hodgson: a schedule of drivers over 65 had been served. Mr Blakesley said the schedule was incomplete, but that was not a matter that he complained about at the deposit application hearing, and there has been no further application made to the Employment Tribunal for disclosure.

1. In Van Rensburg v Royal Borough of Kingston-upon-Thames and Ors UKEAT/0096/07 the council sought an order under rule 20 of Schedule 1 to the 2004 Regulations that the claimant be required to pay a deposit. This was in fact as an alternative to striking out the claims altogether under rule 18(7), the application for which was refused. Rule 20(1) is as follows:

"At a pre hearing review if an employment judge considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little prospect of success, the employment judge may make an order against a party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings in relation to that matter."

1. Elias P, as he then was, considered the language of rule 20(1) to be clear. He saw no reason to limit the words "the matter to be determined" to legal matters only. If that had been the draughtsman's intention, the rule would, he suggested, surely have been differently formulated so as to render the intention clear. Elias P continued at paragraphs 24 27:

"24. I am reinforced in this view by the fact that there is a more draconian rule under rule 18(7)(b) which empowers a Tribunal to strike out a claim or any part of it on the grounds that it is scandalous or vexatious or has no reasonable prospect of success. In the recent decision in the Court of Appeal, North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 Maurice Kay LJ, with whose judgment Ward and Moore Bick LJJ concurred, recognised that in principle – albeit that the cases would be very exceptional – it would be possible for a claim to be struck out pursuant to this rule even where the facts were in dispute.

25. Maurice Kay LJ gave as an example a case where the facts as asserted by the applicant were totally consistent with the undisputed contemporaneous documentation. It is also to be noted that in that case the Employment Tribunal had, prior to making the strike out order, indicated that subject to the question of means the case would be an appropriate one for a deposit to be made. No such order was in the event made because the strike out order disposed of the case altogether. However, the Court of Appeal noted that the possibility of a deposit under rule 20 remained open and they made it plain that that would have to be considered afresh by a tribunal, but they were not 'indicating any view of the ultimate merits of this case one way or the other'. The Court was clearly acting on the assumption that the power to order a deposit could in principle be exercised where the Tribunal had doubts about the inherent likelihood of the claim succeeding.

26. Ezsias then demonstrates that disputes over matters of fact, including a provisional assessment of credibility, can in an exceptional case be taken into consideration even when a strike out is considered pursuant to rule 18(7). It would be very surprising that the power of the Tribunal to order the very much more limited sanction of a small deposit to not allow for a similar assessment, particularly since in each case the tribunal would be assessing the prospects of success, albeit to different standards.

27. Moreover, the test of little prospect of success in rule 20(1) is plainly not as rigorous as the test that the claim has no reasonable prospect of success founded in rule 18(7). It follows that a Tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of a party being able to establish the facts essential to the claim or response."

1. Mr Bailey has drawn to my attention a recent decision of this Tribunal in Sharma v New College Nottingham UKEAT/0287/11, which, he submits, has been interpreted as adopting a different approach to that adopted in Van Rensburg. In Sharma Wilkie J concluded that the approach to be adopted on disputed facts is the same for a striking out as for an order for a deposit. The decision in Van Rensburg does not appear to have been brought to the attention of the Tribunal in Sharma. In any event, the decision in Sharma provides, in my view, no support for the submission that the test in a strike out claim is the same as that in an application for an order for a deposit. The test on a deposit application is as set out in rule 20(1).

1. In my judgment, Judge Ryan applied the correct test and was entitled to conclude on the evidence before him that whilst he accepted the possibility that it might be the case the Claimant had little prospect of providing an evidential basis to demonstrate that the Claimant was dismissed by way of retirement because he was a thorn in the side of the Respondent. In reaching this Judgment Judge Ryan balanced the contentions on the one side against the undisputed facts on the other.

1. I have read the witness statement of Mr Blakesley indicating the respects in which he says the hearing proceeded unfairly. First, he says that although the CMD order made on 23 December 2010 by Judge Hodgson recorded that it was agreed that there should be a PHR, this was wholly untrue; the holding of a PHR was not agreed by the Appellant or Mr Blakesley. Secondly, at the PHR the Appellant's prior written request for specific disclosure of a list of drivers aged 65 and over was not considered by Employment Judge Ryan. This was, he submits, unjust and procedurally unfair, as such evidence, particularly evidence of drivers who continued to be employed after reaching the age of 65, was clearly relevant in rebutting the Respondent's contention that the unfair dismissal claim had little prospect of success because the sole reason for dismissing the Claimant was that he had reached retirement age. Thirdly, Mr Blakesley submits that the Judge appears not to have taken into account his written submissions and, finally, that he was afforded no opportunity to make opening or closing submissions.

1. Mr Bailey responds to these points as follows. The first is really a background point, he submits. It may be there was no agreement, but it was inevitable that there would be a deposit hearing. Secondly, the document drafted by Mr Blakesley for the hearing before Judge Ryan and placed before him did not ask for disclosure of a list of drivers. There was no application for specific discovery, no order was made refusing such an application, and there was no appeal. Thirdly, there was no basis for the allegation that Judge Ryan did not look at and consider Mr Blakesley's submissions; quite the contrary is the case. Fourthly, the usual procedure was adopted at an interlocutory hearing: Mr Bailey went first, and then Mr Blakesley.

1. I have considered with care the submissions that have been made and the documentation to which I have been referred. I accept the submissions made by Mr Bailey, and I consider there is no basis for the allegation that the procedure adopted at the PHR was unfair.

1. Finally, Mr Blakesley submits that no adequate reasons were given by Judge Ryan for his decision and that the reasons as noted by Mr Colin McDevitt of counsel, who was present at the hearing but involved in another case and who noted the reasons in the instant case and sets them out in a witness statement, are different to those given in the Judge's written reasons. This is a new point taken by Mr Blakesley; there was no reasons challenge in the grounds of appeal. In my view, there is no inconsistency between what Mr McDevitt has recorded and what appears in the Judge's written reasons, albeit they are written in different terms. Further, in my judgement, the reasons given are adequate and Meek v City of Birmingham District Council [1987] IRLR 250 compliant.

1. In conclusion, for the reasons I have given, this appeal fails.