Ms D Tucker v Safer Wales Limited — 2020

This was not a final liability decision. The case had been listed for a final hearing on 21 and 22 April 2020, but because of the Presidential Direction during the Covid-19 pandemic it was converted into a telephone case management hearing on 21 April 2020. Before that hearing, the Claimant applied for a deposit order under Rule 39, asking the tribunal to require the Respondent to pay a deposit if it wished to continue defending the procedural fairness of the dismissal.

The tribunal set out the Rule 39 test, namely whether a specific allegation or argument has little reasonable prospect of success, and referred to Van Rensburg, Hemdan v Ishmail, and Wright v Nipponkoa Insurance. It also noted that, at the eventual merits hearing, the dismissal would be assessed under the Burchell three-stage test and by reference to the range of reasonable responses.

The Claimant relied on a number of alleged procedural defects in the dismissal process, including the handling of witness evidence, anonymity and redactions, disclosure, investigation, and the separation between the dismissal hearing and the appeal. The Respondent argued that the application was premature and that the tribunal would otherwise be conducting a mini-trial of disputed facts without oral evidence.

The tribunal accepted that the matters raised by the Claimant would be relevant at the final hearing and could, if resolved in her favour, lead to a finding of procedural unfairness. However, it was not satisfied that the Respondent's defence had little reasonable prospect of success, because there were core factual conflicts that should be resolved at a full merits hearing. The application for a deposit order was therefore refused.