Deposit Orders

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Do the procedural rules governing employment tribunals require that a deposit order should set out that the effect of a breach of the order would be achieved by the legal mechanism of striking out?

No, held the EAT in the case of Akanu-Otu v Secretary of State for Justice in the first of the appeals by two Claimants.

The Claimant, a prison service nurse, was ordered to pay a deposit order in respect of her race discrimination claim. The order provided she should pay £300 within 21 days, failing which she would not be allowed to "take part in the proceedings relating to that [the discrimination] matter". It did not specify that failure to do so would result in the claim being struck out.

The claim was struck out following a failure to comply. After her application to review the strike out decision on the ground that the deposit order was defective was refused, the Claimant appealed.

The EAT dismissed her appeal, finding no deficiency in the deposit order. The order used the language in the then rule 20(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (its replacement, rule 39 of the 2013 Rules, was noted to be different in terminology and content) and made it clear that the Claimant's failure would not allow her to continue with her claim.

There was no requirement in the rules, nor anywhere else, that deposit orders must set out that the effect would be achieved by the legal mechanism of striking out

The EAT also held, at paragraphs 25 - 28, that had the order been found to be defective, as the accompanying guidance notes explained the effect of a deposit order, it would have been capable in the circumstances of remedying the defect.

Interestingly, in both cases, failure to give earlier indication of a change of the basis of each appeal from the terms in the appeal notice led to an award of costs.