Van Rensburg v The Royal Borough of Kingston-Upon-Thames & Ors

Factual and Procedural Background

The Appellant, who was the Claimant below, served for over two years as the corporate equality advisor to the Respondent Council. She initiated three separate originating applications alleging sex, race, and victimisation discrimination, an equal pay claim, and constructive unfair dismissal. Preliminary hearings resulted in various procedural orders, with this appeal focusing on two specific orders.

The Respondent Council sought an order under rule 20 of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, requiring the Appellant to pay a deposit as a condition to continue participation in the proceedings. The Tribunal Chairman found the claims had little prospect of success and ordered a deposit of £100. The Appellant failed to pay the deposit, initially due to a misunderstanding that the appeal suspended the payment obligation, though the Chairman extended the payment deadline. Upon failure to pay by the extended deadline, the Tribunal struck out the claims pursuant to rule 20(4).

The Appellant lodged appeals against both the deposit order and the strike out order, alleging procedural errors including failure to properly assess means and arguing that the strike out was disproportionate and infringed Article 6 rights to a fair trial. Initial appeals were rejected, but permission was later granted by a High Court judge to challenge (1) whether the Tribunal was entitled to assess credibility at the deposit stage, and (2) whether the Tribunal was obliged to strike out the claims mandatorily upon non-payment of the deposit or if a discretion existed to avoid injustice.

Legal Issues Presented

1. Whether the Employment Tribunal may assess the credibility of factual assertions when deciding to order a deposit under rule 20.
2. Whether the Tribunal is obliged to strike out claims mandatorily under rule 20(4) upon non-payment of a deposit, or if a discretion exists to avoid breaching the right to a fair trial under Article 6 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The deposit order was improper because no adequate assessment of the Appellant’s means was made.
• The order was unclear regarding whether it was suspended pending appeal.
• The strike out order was disproportionate and infringed the Appellant’s Article 6 rights to a fair trial.
• The Tribunal should not assess credibility of factual assertions at the deposit stage.

Respondent's Arguments

• The Tribunal properly considered the Appellant’s means, noting her part-time employment as a psychotherapist.
• The claims were weak, unclear, and had little prospect of success; the Tribunal was justified in ordering the deposit.
• Rule 20 permits consideration of both factual and legal matters, including credibility assessments.
• The mandatory language of rule 20(4) requires striking out upon non-payment, with no implied discretion.
• Potential unfairness is addressed by rule 34, which allows review of judgments in the interests of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the two principal issues raised on appeal. Regarding the strike out order under rule 20(4), the Court reviewed correspondence and found the Appellant had been explicitly informed that the appeal did not suspend the deposit order. The Appellant knowingly chose not to pay the deposit, removing any basis for a discretionary exception to the mandatory strike out rule. Consequently, the Court declined to imply a discretion under rule 20(4) to prevent strike out, affirming the mandatory nature of the provision.

On the issue of whether the Tribunal may assess credibility when ordering a deposit under rule 20(1), the Court considered the language of the rule and related case law. It rejected the argument that only legal matters may be considered, holding that "contentions" naturally encompass both factual and legal matters. The Court found no support for limiting the Tribunal’s assessment to legal sufficiency alone. It noted that the threshold for ordering a deposit (little prospect of success) is less rigorous than for striking out (no reasonable prospect of success), allowing broader discretion. The Court accepted that the Tribunal may make a provisional credibility assessment when considering the likelihood of success, consistent with precedent including the Court of Appeal’s decision in North Glamorgan NHS Trust v Ezsias.

Accordingly, the Court concluded that the deposit order was properly made and that the subsequent strike out was mandated by the rules due to non-payment.

Holding and Implications

The Court dismissed the appeal in relation to both the deposit order and the strike out order. The deposit order was properly made following a reasonable assessment of the claims’ prospects, including credibility considerations. The strike out order was mandatory under rule 20(4) due to the Appellant’s failure to pay the deposit despite clear notification and extended deadlines.

The direct effect is that the Appellant’s claims remain struck out. The Court did not establish any new discretion under rule 20(4) to avoid strike out in cases of non-payment. No broader legal precedent was set beyond affirming the existing interpretation of the relevant Employment Tribunal procedural rules.