Under the Employment Tribunal Rules which came into force in July 2013, at a preliminary hearing, if an Employment Judge considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, they can make an order requiring a deposit to be paid as a condition of continuing that argument or allegation (rule 39(1)). In the case of Wright v Nipponkoa Insurance (Europe) Ltd, the Claimant brought a claim for race discrimination and whistleblowing.
At a preliminary hearing, the Tribunal decided that seven of the eleven allegations had little reasonable prospects of success and that the continuation of each of them was subject to a deposit order. Given Mr Wright’s means the judge ordered a deposit order of £300 for each order totally £2,100 as he felt that to order the maximum of £1,000 notwithstanding the Claimant’s means would be inappropriate and not in accordance with the overriding objective.
The Claimant appealed to the EAT but the EAT dismissed the appeal stating that the Judge had regard to his means and considered the totality of the award and that tribunals had a wide discretion when deciding whether to make a deposit order. Under the old rules it would have only been possible for the Tribunal to make one deposit order of £1,000 and now this can be any number of deposit orders each subject to the maximum and provided they are considered as a totality.