The Employment Appeal Tribunal (EAT) has held in Adams v Kingdom Services Group Ltd that, when making a deposit order under rule 39 of the Tribunal Rules 2013, an employment tribunal must give reasons for setting the deposit at a particular amount.
The claimant sought to bring a claim of automatically unfair dismissal, alleging that he was dismissed because he had complained that his employer had breached his statutory right to take annual leave. He claimed that while he was on holiday his employer had disputed whether the holiday had been properly authorised, ordered him back to work, and then dismissed him when he refused to comply. The tribunal made a deposit order under rule 39 stating that it was unlikely that the tribunal would find that the reason for dismissal was that the claimant took annual leave, and that it was likely that it would conclude that there had been ongoing performance issues which formed the basis for dismissal. The deposit was set at £900.
The claimant applied for a reconsideration of the deposit order stating that he had around £40 per month available to him (after living expenses and loan payments were taken out of the equation). The tribunal amended it to £300, "having proper regard to the claimant's financial position", and the claimant appealed to the EAT on the basis that the tribunal had failed to give any, or adequate, reasons for setting the amount of the deposit order. The EAT allowed the appeal. It was not possible to discern from the tribunal's reasons what its conclusion about the claimant's ability to pay the deposit ordered was, or how it had taken the claimant's means into account in fixing the amount. This was a material error of law requiring the deposit order to be set aside. The EAT set the deposit amount at £25, reasoning that this was an amount that the claimant would be able to raise within 28 days and one which would not impede his access to justice.
Take note: A tribunal should always give reasons for setting a deposit order. In this instance it was clearly unreasonable to expect the claimant to pay the amount stipulated given his financial circumstances.
