The financial cost and consequences of Tribunal proceedings are
currently under the Government's microscope as it consults
interested parties on the proposed introduction of a system of fees
that will be payable by claimants when they raise an action or have
a hearing fixed.
Such a move, aimed at deterring vexatious claims with no
realistic prospects, will be welcome news for employers even if
some claimants will be eligible to have their fees remitted in part
if not waived altogether should their income, or rather lack of it,
justify such a step.
In the meantime and while the system is still free to use the
Tribunal's powers to deter claims with little reasonable prospects
of success are limited.
Unless a Tribunal takes the exceptional step of finding a claim
is so wholly misconceived that it has no reasonable prospects
whatsoever, to the extent that it should be dismissed without a
hearing on its merits, then the best an employer can realistically
hope for is that the Tribunal will find it has little reasonable
prospects and make a deposit order; requiring the claimant to
lodge, and thereby put at risk, a financial deposit of up to £500
as a condition of taking the case any further.
Employers may however be heartened by a recent decision from the
Employment Appeal Tribunal in the case of
Simpson v The Chief Constable of Strathclyde Police and another
(UKEATS/0030/11).
Here the EAT upheld a Glasgow Tribunal Judge's finding that a
deposit order of £380 was reasonable in a case with little
reasonable prospects of success even though the claimant had
effectively demonstrated her total inability to pay such a deposit
from her small income, most of which consisted of her student loan
and where the Judge accepted that lodging the deposit would
inevitably cause her ''financial pain''.
Dismissing the claimant's appeal against the deposit order, the
EAT concluded it was fair for the Judge to require the claimant to
''put her money where her mouth was'' even where, on the face of
it, she had none.
The claimant's inability to pay was not a determining factor and
if her case had little reasonable prospects then a deposit was
competent even if she had ''zero assets and a zero bank balance, or
worse''.
The EAT even endorsed the Judge's entitlement to suggest that
perhaps giving up her rented accommodation and moving back in with
her parents might allow her to rebalance her finances in order to
pay the deposit.
It was also at pains to point out that the purpose of the order
was not to pressure the claimant to throw in the towel but rather
to give her fair notice of the risks she ran of a far greater
finding of expenses, as much as £10,000, in the event she proceeded
and ultimately lost her claim.
So, was it fair to demand blood from a stone or was the deposit
an impossible and unfair barrier to this individual's search for
justice?