Mr OC. UzomahClaimantDurham County CouncilRespondentDate 13 June 2023
JUDGMENT
The claim under Section 47B Employment Rights Act 1996 is struck out.
REASONS
[1]The claimant was ordered to pay a deposit of £3000 following a preliminary hearing held on 18th November 2022. The Order was sent to the claimant on 13th December 2022. The claimant has failed to pay this deposit. The complaint of detriments following the making of a Public Interest Disclosure under Section 47B Employment Rights Act 1996 is therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. For the avoidance of doubt this applies to all four detriments alleged by the claimant.[2]The hearing fixed for 6th, 7th, 8th February 2023 will not take place.[1]This is a reconsideration of the decision to strike out the claimant’s claim for failure to comply with a deposit order and to reconsider the deposit order.[2]The claimant was ordered to pay £3000 as a condition of proceeding with his claims. He did not pay that sum and the claims were struck out on 12th January 2023.[3]At the time the decision was taken I was not in possession of the Income and Expenditure of the claimant, as referred to in paragraph 3 of the original Order. It has now been brought to my attention that the claimant’s solicitors did send the information via an email on 20th November 2022 and resent it on 3rd December 2022. I have therefore reconsidered the strike out and the amount of the deposit order itself.[4]I note that the only information sent related only to the claimants income. A request was made, on 9th February 2023 for the claimant to provide further information in relation to any assets or savings he possessed and whether there was any other person contributing to the household income. A second request was made on 4th April 2023. In reply to the second the claimant raised an objection to my involvement in the case and applied for me to recuse myself on the basis that I had previously lied about receipt of the emails. I have dealt with this separately. 11.12 Judgment on reconsideration – no hearing - rules 70 and 73 Case No: 2500326/2022[5]The claimant has an income of £2108.20 per month. His outgoings are £2090 per month. He has an excess of £18 per month. I have not been provided with any information as to any assets the claimant owns. The claimant has now moved from his rental property in the northeast of England to a property in London. I have no information as to whether the claimant owns this property outright or is paying a mortgage or is renting the property. I have not been provided with any information as to savings the claimant may have nor whether there is another person who contributes to the household.[6]I note that the purpose of a deposit order is to identify claims with little prospect of success and to discourage pursuit of such claims. Hemdan v Ishmail and anor 2017 ICR 486. Having said that a deposit order has to be one that is capable of being complied with. A party without the means to or ability to pay should not be ordered to pay a sum that he is unlikely to be able to raise.[7]I take into account that the cost of living is higher living in London. I also take account of the fact that the claimant has failed on two occasions to comply with requests for his financial information. I draw an inference from the fact that the claimant has not provided the information requested.[8]The claimant’s excess income is low, however I cannot rule out that the claimant has savings or another person is contributing to the household. I must balance that against discouraging the claimant from pursuing his claims because they are weak.[9]In conclusion I will reduce the amount of the deposit to £375 per claim. That is a total of £1500. The sum to be paid by 23rd May 2023.[1]The claimant was ordered by EJ Pitt to pay a deposit in respect of a claim consisting of four complaints of being subject to a detriment. That deposit order was contained in a reconsideration judgement dated 18 April 2023 and that was sent to the parties on 5 May 2023.[2]The order required the claimant to make a deposit of £375 in respect of each of the four detriments alleged in the claim form, amounting to a total of £1,500 by 23rd May 2023. The claimant has failed to pay any deposit.[4]The complaints of having suffered a detriment contrary to s. 48 ERA 1996 is therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.[5]First I note that this application is outside the 14-day time limit of the date the Order was sent to the claimant set down in R 71 of the Employment Tribunal Rules of Procedure 2013. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 2500326/2022[6]The application only comes before me because the Employment Appeal Tribunal has refused to interfere with my original decision since I went on to reconsider it and change the terms of the order. It is not open to a claimant in such circumstances to now argue they have complied with the order, and they should be permitted to proceed. There must be finality in litigation. Ebury Partners UK Ltd v Acton Davis [2023] EAT.[7]The essence of the application is that it is in the interests of justice, in particular of child R, that the case be reinstated and heard. It is to some extent laudable that the claimant has the interest of a child at heart, however the Employment Tribunal is not the correct forum for such interests to be debated. The Employment Tribunal is ONLY concerned with the rights of the claimant which may have been infringed by the respondent.[8]The claimant raises the issue again of the typographical error. I dealt with this at paragraph 10 of the first reconsideration of the judgment. I accepted the error was mine, but also stated that it should have been obvious to the claimant that it was such an error.[9]The claimant has raised no new factors, save, that he has now paid for one part of his claim to proceed, which would persuade me that the claim should be reinstated. However, the sum should have been paid on or before 23rd May 2023. It is too late for the claimant to try and resurrect the proceedings. The application is refused.