The Employment Appeal Tribunal (EAT) has delivered its judgment in the case of Chumbu v The Disabilities Trust. An Employment Tribunal (ET) before this had made an Unless Order requiring Mr Chumbu to do two things or else his claim would be dismissed/thrown out, where there had been a history of non-compliance by him.
He had to:
- serve his witness statement; and
- pay the sum of £1,875 previously awarded against him under a Costs Award.
Costs awards in the Employment Tribunal are the exception and not the rule but can be made on merits based and behavioural grounds.
Mr Chumbu, who was not in good health, took neither step, and his claim was dismissed. He then appealed the ET’s decision not to grant him relief from the sanction applied of his claim having been dismissed.
The EAT decided as follows.
Witness Statement
The ET’s decision not to allow relief from sanction in relation to the late witness statement was not irrational or perverse and was upheld.
It is explained at paragraph 52 of the EAT’s judgment (my emphasis added):
“The implication of [the ET’s] reasoning was that it had found that the claimant had consciously chosen not to start the preparation of his witness statement in good time… and, subsequent to the unless order, had then made the further choice to use his energies in drafting a detailed response to that order rather than focusing on compliance with it.”
Costs Order
The ET had been wrong to turn the costs award into a form of Deposit Order, making it a condition for the continuance of the claim. The safeguards of Rule 39 of the Employment Tribunals Rules of Procedure 2013 (as subsequently amended up to 6th October 2021) had not been applied. The effect of this was to impose a condition on Mr Chumbu with which he was unable to comply, a condition on his access to justice.
The safeguards of Rule 39 include the tribunal making “reasonable enquiries into the paying party’s ability to pay the deposit” and having “regard to any such information when deciding the amount of the deposit”.
It will, therefore, not usually be appropriate for an ET to make such an order, in the interests of justice.
Deposit orders are usually made in cases where the merits of the claim are weak.
Mr Chumbu’s appeal was unsuccessful, on the ground that the EAT upheld the part of the Unless Order relating to the late witness statement, and the two elements of the Unless Order were separable.
This blog was written by Ben Lindsay, Solicitor at didlaw.
