Appeal court finds that deposit orders must not limit access to justice

H was a victim of trafficking, and brought proceedings against the respondents before the employment tribunal in relation to their alleged role in her trafficking. The respondents were acquitted of trafficking-related offences in criminal trials and, on that basis, applied to the tribunal for deposit orders against H. The tribunal may choose to make such an order when it considers that any specific allegation, argument or response has ‘little reasonable prospect of success’. The tribunal judge found in favour of the respondents, and ordered H to pay £75 in respect of each of three specific allegations.

H appealed to the Employment Appeals Tribunal, which found largely in her favour and reduced the contested deposit orders to the nominal sum of £1. In particular, the appeal court held:

  1. That the tribunal judge had made an error of law by stating that a deposit order could be used to order a party to pay a sum which they would find ‘difficult but not impossible to pay’. This would risk deposit orders being strike outs ‘by the back door’ – which is inappropriate given the distinct legal test for a strike-out claim. Given the court’s obligations to comply with Article 6(1) of the ECHR, a deposit order must not impair access to justice. A party should not be ordered to pay a sum (s)he is unlikely to be able to raise. Deposit orders must pursue a legitimate aim and demonstrate a degree of proportionality between the aim pursued and the sum set.
  2. That the tribunal judge, in finding alleged inconsistencies in H’s evidence for her allegations, erred by failing to consider the possibility of communication difficulties. Where inconsistencies could be explained by badly expressed translations, the court ought grant ‘some leeway’.
  3. That the tribunal judge erred when he failed to consider, as part of his deposit order decision, that H was a victim of trafficking. In particular, the appeal judgment referred to Articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings (which came into force in the UK in 2009). Article 12 imposes an obligation to ensure subsistence for victims of human trafficking, and the judgment held that hefty deposit orders, which diverted victims’ limited resources away from subsistence, could lead to a breach of this obligation. Article 15 requires that victims have access to compensation from perpetrators of trafficking. As employment tribunal proceedings are one means of providing this compensation, hefty deposit orders that render access to such tribunals almost impossible for victims are at risk of breaching this obligation. Therefore, if a claimant is a victim of trafficking, the tribunal must take this fact into account before deciding upon a deposit order against them.

Read the full judgment here