The case of Chumbu v. The Disabilities Trust provides a critical examination of the Employment Tribunal’s (ET) use of “unless orders” – a type of order that requires a party to do something by a certain deadline, or face a specific consequence for failing (often the striking out of their case). This blog post discusses the decision of the Employment Appeal Tribunal (EAT), which upheld the dismissal of employment claims made by Mr D Chumbu (the Claimant) due to non-compliance with an unless order, but which also overturned the ET’s decision to make a previous cost award the subject of an unless order.
Case facts
In January 2019, the Claimant commenced legal proceedings against his former employer, The Disabilities Trust (the Respondent). The Claimant brought claims for unfair dismissal, whistleblowing detriment and discrimination based on sex and race, in addition to various financial claims, resulting in a lengthy litigation process involving extensive case management directions and culminating in a fourth preliminary hearing on 14 June 2021. At this hearing, the ET issued a deposit order in respect of three of the Claimant’s claims of £10 each. A deposit order is an order made by a tribunal which requires a party to pay a sum of money to the tribunal as a condition of being permitted to continue with certain parts of their claim. There are various safeguards set out in the Employment Tribunals Rules of Procedure 2013 (the ET Rules) in relation to deposit orders including:
- a cap on a deposit order of £1,000;
- a requirement for the tribunal to make enquiries into a party’s ability to make payment of any deposit before making such an order; and
- a requirement for the tribunal to assess the claim (or part of the claim) as having little reasonable prospect of success before making such an order.
The ET instructed the Claimant to submit an amended witness statement by 6 August 2021 and ordered him to pay costs of £1,875 associated with a previously aborted hearing to the Respondent. In assessing the financial burden placed on the Claimant by these orders, the ET took his financial means into consideration.
Despite being granted additional time, the Claimant failed to provide the necessary updated witness statement. This failure was not an isolated incident, but part of a broader pattern of intermittent participation and various instances of non-compliance with ET orders, which significantly impacted the case management of the claims and the litigation timeline. In response, on 13 December 2021, the ET issued an unless order, which declared that the Claimant’s claims would be struck out unless he complied with two obligations by a certain deadline. These were (i) making payment of the costs award and (ii) submitting his updated witness statement. The Claimant did not comply with these obligations and this resulted in the dismissal of his claims.
The EAT decision
The Claimant appealed to the EAT which undertook a detailed re-evaluation of the unless order. The EAT’s analysis was particularly focused on the inclusion of the costs award payment.
The EAT upheld the ET’s decision with respect to the part of the unless order concerning the provision of the witness statement, agreeing that the Claimant’s failure to comply was sufficient grounds for the dismissal of his claims.However, the EAT found fault with the ET’s handling of the other part of the unless order relating to the costs award. It held that incorporating the costs award into the unless order was improper and effectively transformed it into a quasi-deposit order, but without the associated safeguards which are set out in the ET Rules in relation to deposit orders. This misstep led the EAT to criticise the ET’s conflation of costs with deposit orders, marking it as perverse.
The EAT also noted that, while the ET had initially considered the Claimant’s financial situation when making the costs award, it had failed to properly consider the subsequent change in his circumstances when making the unless order. This oversight was deemed a significant error.
Although the Claimant’s appeal ultimately failed due to the upheld decision in relation to the witness statement, the EAT’s findings on the costs award component highlight the importance of the procedural safeguards which apply to deposit orders. It is important for tribunals and parties to recognise the different purposes of costs and deposit orders to ensure fair treatment in tribunal proceedings.
Comment
The EAT’s decision underscores a tribunal’s obligation to apply procedural rules fairly and in accordance with the ET Rules.
Crucially, the EAT’s critique of the ET’s handling of costs awards as part of an unless order highlights the essential differences in safeguards between costs orders and deposit orders. Costs orders are a penalty for unreasonable conduct of a case and compel payment of costs to the other side, generally following a case’s resolution. Deposit orders, governed by Rule 39 of the ET Rules, require a party to make a payment to a tribunal during proceedings in order to continue pursuing their claim or defence. This is why specific safeguards are in place in respect of deposit orders which include the Judge needing to make an assessment of the claim’s prospects and the party’s ability to pay. This is paramount in ensuring that any deposit order is fair and does not unjustly impede access to justice.
