Ms Bryce v Department of Work and Pensions: 1803008/2020
JUDGMENT
[1]Indirect discrimination based on the respondent’s refusal to postpone the disciplinary hearing on 5 July 2020;[2]The claim for failure to make reasonable adjustments; and[3]The claim for breach of s 10 ERelA 1999; are struck out.REASONS
[1]The claimant was ordered to pay a deposit of £130 in relation to each of those claims following a preliminary hearing held on 13 May 2021. The Order was sent to the claimant on 14 May 2021. The claimant failed to pay this deposit by the date specified in the order (21 days from the date the order was sent to the parties, i.e. 4 June).[2]According to the Bristol Finance Support Centre, the claimant paid an amount of £260 on 7 June 2021. The claimant has not indicated to which claims this payment is intended to relate. No explanation has been provided as to why the payment was made late, nor has any application for an extension of time been made by the claimant.[3]Rule 39 of the Employment Tribunal Rules of Procedure 2013 provides that ‘If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out’. The use of the word ‘shall’ appears to allow no exercise of discretion.[4]Given the indication in Arvunescu v Quick Release (Automotive) Ltd UKEAT/0135/16/DA that a strike out under rule 39 does involve the exercise of judicial discretion, I have considered all the circumstances and in particular the relevant factors below. 3. In the absence of any explanation from the claimant or any application to extend time, I consider that the balance of prejudice favours the respondent and the interest of justice favour striking out the claim. The deposit order makes clear the date by which 7.6C Deposit not paid – Judgment - claimant Rule 39 payment has to be made, and the consequences of not making the payment by that date. The purpose of a deposit order is to discourage the pursuit of claims with little prospects of success. Although the claimant will not be able to pursue her claim if it is struck out, the claimant could have avoided this simply by paying the deposit by the specified date. She has failed to do so, without explanation. If the claim is not struck out despite the claimant’s failure to pay the deposit by the specified date, the respondent will incur the costs and inconvenience of defending a claim with little prospects of success. I have taken account of the fact that the delay is short, but I also take into account the need to enforce compliance with time limits. 2. The complaints of(i) indirect discrimination based on the respondent’s refusal to postpone the disciplinary hearing on 5 July 2020;(ii) The claim for failure to pay reasonable adjustments and(iii) the claim for breach of s 10 ERelA 1999 are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. 3. The hearing fixed for 28 and 29 September 2021 will not take place and the claimant will be entitled to a refund of the deposit paid late.[5]When considering whether to strike out the claim, I considered all the circumstances and the balance of prejudice. In particular I considered that the deposit order made clear the date by which payment has to be made, and the consequences of not making the payment by that date. The purpose of a deposit order is to discourage the pursuit of claims with little prospects of success. Although the claimant will not be able to pursue her claim if it is struck out, the claimant could have avoided this simply by paying the deposit by the specified date. I noted that she had failed to do so, without explanation.[6]The application for reconsideration does not provide an explanation for the delay. It simply states that the payment was made in time. This is not a sustainable argument. The order is to ‘pay’ the deposit, which means that the cheque has to be put in the hands of the Finance Support Centre. Putting the cheque in the post is not paying the deposit.[7]There is therefore no reasonable prospect of the original decision being varied or revoked.[8]Although this has not been argued by the claimant, I have also considered whether there is any reasonable prospect of the original decision being varied or revoked on the basis that the claimant sent the cheque on 4 June because she was operating on a mistaken assumption that the deadline could be complied with by putting the cheque in the post by the relevant date. It could be argued that this provides the explanation as to why the deposit was paid late.[9]The claimant’s interpretation is not, in my view, a reasonable interpretation. The legal meaning of ‘pay’ accords with the everyday meaning of that word. It means to give or handover or transfer money to someone, not simply to place a cheque in the post. It is generally understood that if there is a deadline for paying something, for example a fine, if the sender decides to send payment by post then they must allow time for delivery.[10]Although it may be inconvenient that there is no option to pay in any other manner than cheque or postal order, this is made clear in the deposit order. This inconvenience does not justify an assumption, without checking, that the deposit is ‘paid’ on the day that it is posted. The claimant simply posted the deposit on the date that the payment was due without allowing any days for delivery, or checking her understanding with the tribunal or the finance office.[11]On the basis of the above I determine that there is no reasonable prospect of a different conclusion on the balance of prejudice or the interests of justice and therefore there is no reasonable prospect of the decision being varied or revoked even if the application were argued on the basis of the claimant’s misunderstanding of the rules.[12]On that basis the complaints of(i) indirect discrimination based on the respondent’s refusal to postpone the disciplinary hearing on 5 July 2020;(ii) The claim for failure to pay reasonable adjustments and(iii) the claim for breach of s 10 ERelA 1999 remain struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.