Mr Walter Gardner v - Student Advisor [Strathclyde University Law Clinic] Bavarian Bakehouse Ltd — 2023

At a preliminary hearing on 27 January 2023, Employment Judge Ian McPherson considered the respondents' applications to strike out the claimant's unfair constructive dismissal and holiday pay claims, or alternatively to require deposits as a condition of continuing those claims. The claimant, represented by the Strathclyde University Law Clinic, asked for a postponement so that he could prepare an amendment application to add disability discrimination claims, but that request was refused because no amendment application was then before the tribunal. The judge later recorded that a written amendment application was lodged on 1 March 2023 and would be dealt with separately on the papers.

On the claimant's evidence about means, the tribunal found that he was unemployed, in receipt of Universal Credit, had very limited free income, and had limited ability to pay any deposit. It also noted that the household had a mortgage-free home with an estimated value of about £87,000, but concluded that the claimant had no readily available savings and no disposable income from which to fund a deposit. The judge reviewed the law on strike-out and deposit orders, including Rule 37, Rule 39, the overriding objective, and authorities such as Western Excavating, Ezsias, Balls, Tayside, Van Rensburg, Hemdan and Cox v Adecco, and treated the dispute as fact-sensitive and unsuitable for summary disposal without oral evidence.

The tribunal refused the strike-out application and refused a deposit order. It held that the respondents had not shown that the unfair constructive dismissal claim had no reasonable prospect of success, and it also was not satisfied that the claim had only little reasonable prospect of success. The judge said that, even if a deposit order had been made, he would have set it at £25 per head of claim, but he considered that even that amount would have been a barrier to justice on the claimant's means. The existing unfair constructive dismissal and holiday pay claims were therefore allowed to proceed to an in-person final hearing, and no monetary award was made in this judgment.