In Chumbu v The Disabilities Trust [2024] EAT 113 the EAT held that the employment tribunal had erred in making an earlier costs award the subject of an unless order. This had the effect of turning the costs award into a form of deposit order, absent the safeguards provided by Rule 39 ET Rules. It was, further, inapt in this case, given that deposit orders had previously been made for far lesser sums, and with a longer period for compliance. The effect of this aspect of the unless order was to place a condition on the claimant’s access to justice in respect of claims that had either been considered to have reasonable prospects of success or in respect of which he had already paid a deposit under Rule 39. Moreover, since there had been a material change to the claimant’s circumstances since the costs award had been made, it was no answer to say that his means had previously been taken into account. The employment tribunal’s decision in respect of the claimant’s non-compliance with the costs award aspect of the unless order demonstrated a failure to consider the interests of justice and was properly to be described as perverse.
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