Deposit Order to pay £3000 quashed by the Court of Appeal.

19 August 2014

Tribunals should be free to consider the most practically effective means of dealing with cases consistent with the interests of justice e.g. a strike out application.

Dr Malgozata Stadnik-Borowiec v Southern Health and Social Care Trust, Health and Social Care Board and Others(Ref: COG9177)

The appeal to the Court of Appeal relates to Orders by two separate Chairmen to impose deposit orders against the Appellant in the Tribunal to allow her to continue with her claims.

The Appellant was recruited as a GP by the Trust and latterly the HSSCB. A complaint was received by the Trust from the family of a patient about the alleged failure of the Appellant to attend a patient properly and subsequently the Trust Emergency Department consultant advised that she had administered a dose of medication to another patient which amounted to an overdose that would have been fatal if there had been a respiratory arrest.  These incidents were set against a background of previous incidents of concern relating to the Appellant’s work practices and conduct which had been investigated informally and discussed with the employee.  

A formal disciplinary hearing took place. A decision was taken on 20 January 2009 to summarily dismiss for gross misconduct on the basis that the Appellant had displayed serious misconduct and unprofessional behaviour when she refused to visit a terminally ill patient’s home despite three separate requests from the family. She appealed the decision and the sanction of dismissal was reduced to one of a final written warning and a three month period of retraining. The Appellant was referred to the General Medical Council (“GMC”) which concluded that she was not fit to practice by reason of deficient professional performance and her registration would be subject to conditions for 24 months from November 2011.

With effect from 23 January 2012 the Trust terminated the Appellant’s contract of employment. The Appellant issued Tribunal proceedings against the Trust and the Board claiming unlawful dismissal, unlawful deduction of wages, breach of contract, race, sex and disability discrimination.  At a Case Management Discussion the Chairman imposed a deposit order of £500 as a condition for the Appellant being permitted to take part in the proceedings stating that “The Tribunal having taken reasonable steps to ascertain the ability of the Claimant to comply with such an Order and having taken into account the information so ascertained in determining the amount of the deposit”. It was the Chairman’s conclusions that the contentions with regard to race and sex discrimination had little or no prospects of success. The Appellant paid the deposit of £500 by taking out a loan with the Employment and Benefits Agency in respect of which she was under an obligation to repay £7.17 per week. On 8 January 2013 she lodged further proceedings with the Tribunal grounded upon the same allegations of unfair dismissal, arrears of pay, race and sex discrimination but on his occasion adding 15 additional Respondents.  The Chairman at this Case Management Discussion imposed deposits of £200 as a condition of permitting her to continue the proceedings against the 15 additional Respondents, amounting in total to a payment of £3,000, as the £200 deposit was to be paid in respect of each Respondent. This figure clearly exceeds the limit for a deposit order which in Northern Ireland is £500. The previous deposit order was not drawn to the attention of the Chairman who dealt with the second deposit order.

The Court of Appeal quashed both deposit orders and substituted the first for a deposit of £200 and remitted the case to a different Tribunal for case management. The Court of Appeal stated that the first decision itself did not refer to the specific details of the employee’s financial resources or explained the manner in which they were taken into account. It is possible that the intention was to divide the £500 equally between the claims for race discrimination and sex discrimination, although an alternative view might be that the relevant matter was a single claim for compensation for discrimination whether it was based on race or sex or both. Again, such detail was missing from the decision.  In relation to the second decision the Chairman did record the evidence relating to the Appellant’s means and stated that she was in severe financial difficulties because of her inability to work as a doctor and that she was “in imminent danger of having her house repossessed” and then proceeded to impose a deposit order of £200 in respect of each additional 15 Claimants, a figure which is six times the amount of the maximum deposit payable under the rules.

The Court stated that the Tribunal should be free to give consideration to the most practically effective means of dealing with these cases consistent with the interests of justice, e.g. a strike out application under Article 18 of the Rules as the Court noted that “The joining of 15 additional defendants clearly has the potential to generate an enormous increase in the complexity, timing and expense of these proceedings.  Apart from any other orders and/or directions the Tribunal may wish to give consideration to a strike out application/s in accordance with Order 18”.  The Court stated that the Tribunal might ask itself whether, apart from mere assertion, a prima facie factual case of discrimination has been made out by the Appellant.

Maxine Orr is a Partner with Worthingtons Solicitors specialising in Employment law. 

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