Addison Lee v H Afshar & Ors

This is an appeal against deposit orders made under Rule 39 of the Employment Tribunals Rules of Procedure by Employment Judge Tynan sitting alone (“the Judge”). He ordered Addison Lee Ltd (“Addison Lee”) to pay deposits in respect of 329 named claimants as follows:

In 2016, three drivers for Addison Lee issued proceedings in the Employment Tribunal claiming that they were “workers” within the meaning of section 230(3)(b) of the Employment Rights Act 1996 (“limb (b)”) and the related provisions of the Working Time Regulations 1998 and the National Minimum Wage Act 1998 (“the Lange proceedings”). The three drivers were Mr M Lange, Mr M Olszeski and Mr M Morahan (“the Lange claimants”).

Section 230(3)(b) provides:

The Lange claimants’ case was heard over 5 days in July 2017 before Employment Judge Pearl and two lay members (“the Pearl tribunal”). The Pearl tribunal then deliberated for three days in chambers before delivering a reserved decision on 25 September 2017.

The decision was in favour of the Lange claimants (“the Lange decision”). It concluded that all the Lange claimants were, indeed, within the limb (b) definition of a worker. It also decided that they were entitled to be paid as workers for the whole period of time that they were logged on to Addison Lee’s system, whether or not they were actually driving. As the Lange decision said (in para 50) “…the drivers, when they logged on, were undertaking to perform driving services personally. No other conclusion is possible.”

Paragraph 1 of the Lange decision said “These claims are in the nature of a test case…” However, this was only because it decided a point of general importance. There were no other claimants other than the three Lange claimants themselves.

On 21 November 2018 the Employment Appeal Tribunal dismissed an appeal against the Lange decision. It concluded (quoting its Summary of a 23-page decision) that Judge Pearl “did not err in law in finding that the Claimants were limb (b) workers and that the time spent logged on other than break times was “working time””.

Addison Lee applied to the Court of Appeal for permission to appeal. A hearing took place on 16 April 2021 and a reserved judgment was given by Bean LJ on 22 April 2021. Bean LJ noted that the question of whether Addison Lee should be given permission to appeal had been held in abeyance until the outcome of the appeals in Uber BV v Aslam and others [2021] UKSC 5, [2021] ICR 657, which considered similar issues. Uber itself cited an earlier relevant decision of the Supreme Court, which was Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157.

In February 2021, the Supreme Court in Uber BV v Aslam found against Uber, as had the Court of Appeal, the Employment Appeal Tribunal and the Employment Tribunal. The Supreme Court held that it was wrong in principle to decide the question of whether Uber drivers were limb (b) “workers” by looking at their written contracts. The question was to be decided on the facts and not on the documentation, having regard to the purpose of the statutory provisions and interpreting their language, so far as possible, in the way which best gave effect to that purpose, which was to protect vulnerable workers, in a position of subordination and dependency in relation to an organisation which exercised control over their work. The Supreme Court held that, on the facts found by the employment tribunal, which showed that the service performed by the drivers was very tightly defined and controlled by Uber and that the drivers had little or no ability to improve their economic position through professional or entrepreneurial skill, the employment tribunal had been entitled to find that the drivers were “workers”. It also held that the employment tribunal had been entitled to find, on the facts of the Uber case, that the drivers were working whenever they were logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips.

After consideration of the Uber decision, Bean LJ refused Addison Lee permission to appeal the Lange decision. He found that there was no arguable appeal in law and no arguable basis for challenging the findings of fact in the Lange decision. Although Bean LJ was refusing permission to appeal, rather than deciding a substantive appeal, he gave a formal and fully reasoned judgment on 22 April 2021, citing both facts and law at some length. He concluded “As the case is of some general significance I give permission for this judgment to be cited” (Addison Lee Ltd v Lange and others [2021] EWCA Civ 594 at para 20).

Meanwhile, hundreds of Addison Lee drivers, almost all represented by Leigh Day (who had also represented all but two of the Uber drivers in Uber BV v Aslam and others [2021] UKSC 5, [2021] ICR 657, and all the Lange claimants in their proceedings against Addison Lee) had brought claims against Addison Lee. Like the Lange claimants, they alleged that they were limb (b) workers and claimed similar relief to the successful Lange claimants. The earliest ET1 of which I am aware was filed by Mr Veloso on 28 November 2017. Although the hundreds of claimants represented by Leigh Day in the proceedings before me (“the current claimants”) brought their claims in three sets of proceedings (all three of which are before me), the pleadings, at least on Addison Lee’s side, were (as the pleadings themselves put it) “generic”, which is to say essentially identical, in respect of all the claimants.

It will be recalled that the deposit orders under appeal were in respect of:

In these paragraphs, Addison Lee argues against the current claimants’ claims as follows. In paragraph 11:

On 7 November 2022, the current claimants (all represented by Leigh Day) applied to strike out certain parts of Addison Lee’s Amended Grounds of Resistance and for deposit orders in respect of them. The precise scope of the attack was later clarified and refined. Addison Lee then filed a written response on 16 January 2023.

A hearing of the applications to strike out and for deposit orders took place before EJ Tynan on 30 and 31 March 2023. EJ Tynan took time to consider his decision. He sent it to the parties on 17 May 2023 (“Decision 1”). He refused the strike out applications. In respect of the deposit order applications, he made the following decisions:

These orders were, therefore, provisional. The order in para 2 was “subject to” a future agreement or determination of the identities of Deposit Claimants. The order in para 3 imposed a cap or limit, rather than awarding an amount. The order in para 4 provided for further proceedings and a further determination in respect of Deposit Claimants in the absence of agreement.

A further hearing took place on 19 July 2023. EJ Tynan again reserved his decisions, which were in two parts. They were both sent to the parties on 15 August 2023. In the first part (“Decision 2”) he declined to vary, set aside or suspend Decision 1. He gave Reasons for this in paras 1-18 of Decision 2, to which I will return. Second, he proceeded to make the deposit orders under appeal (“Decision 3”). Decisions 1 and 2 fed into Decision 3, and are also appealed. Decision 3 explained its Reasons by reference to those earlier decisions by saying “The Tribunal adopts and repeats the reasons contained within [Decision 1] and in its further reasons contained within [Decision 2]”.

Before making the deposit orders, Decision 3 recorded that EJ Tynan:-

The deposit orders were made under rule 39 of the Employment Tribunals Rules of Procedure (2013, Schedule 1 of SI 2013/1237) which says:

The effect of Rule 39 is that the making of a deposit order does not prevent a party from pursuing the “specific allegation or argument” in question, even though the tribunal considers that it has “little reasonable prospect of success.” However, a deposit “not exceeding £1,000” must be paid as a condition of doing so (Rule 39(1)). If that payment is not made, the relevant allegations or arguments are struck out (Rule 39(4)), whether they come from a claimant or a respondent.

Initially, the payment is paid as a deposit, and it does not go to any opposing party. If the allegation or argument in question is, in due course, successful, in a way not anticipated by the tribunal (which made the deposit order on the basis that it had “little reasonable prospect of success”), the deposit is refunded (Rule 39(5)). If, however, it is decided against the paying party “for substantially the reasons given in the deposit order”, there are, under Rule 39(5), two consequences.

An automatic consequence under Rule 39(5)(b) is that “the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders)”. The £1,000 cap applies to that consequence, since the deposit itself is subject to a limit of £1,000.

However, an additional consequence, under Rule 39(5)(a), is that “the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown”. Rule 76(1) provides:

The effect of the Rule 39(5)(a) consequence is, therefore, that the party which pays the deposit, and continues with the allegation or argument which was the subject of a deposit order, is put on risk of having to pay a wider costs order in that respect, although that is ultimately a matter for the tribunal to consider and decide under Rule 76. The existence of the deposit order increases that risk beyond what it might have been had the costs risk been limited to the operation of Rule 76 alone (as illustrated by the decision in Keighley v Age UK Leeds UKEAT/0229/19/AT (2020, EAT) at paras 54-55).

In this case, the strike out applications were refused but the deposit orders were granted. (The current claimants have not appealed or cross-appealed the failure of their strike out applications.) Because different tests applied to the two applications, that was a permissible outcome: see Hemdan v Ishmail [2017] ICR 486 at para 12 per Simler J, President of the EAT. Mr Jonathan Swift QC (as he then was) described the strike out remedy as “the red card” and the deposit order remedy as “the yellow card”: HM Prison Service v Dolby EAT/0368/02 ILB (2003, EAT) at para 14.

In Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14/JOJ (2014, EAT) Judge Eady QC said, at para 34:

She noted that the £1,000 maximum leaves open the possibility of a total sum greater than £1,000, because an award may be made under Rule 39(1) in respect of “any specific allegation or argument”, and there may be more than one of those (Wright v Nipponkoa Insurance at para 77). She therefore suggested that, in addition to the check based on affordability, there should be a final check based on proportionality (which is not a check required by the words of Rule 39 itself). See Wright v Nipponkoa Insurance at para 78:-

However, she was not thereby writing additional words into Rule 39, or giving anything more than guidance. Standing back and looking at the total sum awarded is a matter of good sense and good judgment, consistent with the making of a deposit order being the exercise of a discretion. This is clear from the remainder of the passage in which Judge Eady both accepted the Employment Judge’s reference to what was “appropriate” rather than what was “proportionate”, and emphasised, also, the importance of the Employment Judge’s discretion. She said (at para 78 of Wright v Nipponkoa Insurance):-

In Hemdan v Ishmail [2017] ICR 486, Simler J (President of the EAT) also considered the question of proportionality, but linked it particularly to the question of affordability, because of the potential obstacle that a deposit order might present to access to justice. She said (at para 15):

An order to pay a deposit must accordingly be one that is capable of being complied with. A party without the means or ability to pay should not therefore be ordered to pay a sum he or she is unlikely to be able to raise. The proportionality exercise must be carried out in relation to a single deposit order or, where such is imposed, a series of deposit orders. If a deposit order is set at a level at which the paying party cannot afford to pay it, the order will operate to impair access to justice.”

What, then, is the legitimate aim pursued by deposit orders? Hemdan provides a clear and important articulation of this in para 10 (Hemdan v Ishmail [2017] ICR 486 at 490):

The initial purpose of a deposit order is, therefore, not punitive, or even preventive, but persuasive. It does not stop a party proceeding with an allegation or argument which appears (at least at the outset) to have “little reasonable prospect of success”. It must not be fixed at a level which would have that punitive or prohibitive effect. But it is intended to have a deterrent or chilling effect (what Simler J describes as “a warning, rather like a sword of Damocles”). Even if the sums are small (in comparison with the means of the litigant, for some of whom they may appear very small indeed), the fact of a deposit order provides food for thought, in the form of the tribunal’s evaluation of the allegation or argument as having “little reasonable prospect of success”. It encourages a pause for thought, because of the enhanced costs risk. The hope is that (as is often the case), a litigant may, with the benefit of that evaluation and encouragement, and on second thoughts, not pursue the allegation or argument in question. The chilling effect (as I have described it) must not restrict access to justice (that would go too far), but it is desirable and legitimate that it should create a serious opportunity and motive for cool reflection and reconsideration. This may benefit the party which might otherwise proceed too far in the heat of an unjustified confidence, just as much as it benefits the tribunal system and the other parties who otherwise have to spend time and money addressing weak points. Of course, if the party continues regardless, and pays the deposit ordered, and is eventually found to have been wrong in that respect, the more serious consequences of an enhanced costs exposure under Rule 39(5) may follow, and at that point the effect may be said to be punitive. The sword of Damocles, initially suspended above the litigant to concentrate the mind, then falls upon him. But only time will tell whether that should or will happen, and that time has not been reached in the present case.

It would defeat the object of simplifying cases by encouraging weak points to be dropped, thereby shortening (or, in some instances, ending) those cases, and saving future drain on everyone’s resources (winners and losers), if the deposit order process became too elaborate and long drawn out. As Simler J said in Hemdan v Ishmail [2017] ICR 486 at 491, para 13:

A deposit order in respect of allegations or arguments which ultimately prove to be stronger than expected has no effect; because the deposit is then returned and there will be no adverse costs order. It is therefore fair to proceed in the summary fashion suggested by Simler J, because the consequences of what may later turn out to be an error of judgment are so limited. This is not only a reason for avoiding a mini-trial of the facts, however. It is also a reason for avoiding excessive technicality or pedantry, and encouraging a broad brush assessment by the independent Employment Tribunal judge in accordance with the prima facie merits of the case which can be carried out in a period of time proportionate to the exercise in question.

Separate appeals have been lodged in respect of Decision 1, Decision 2 and Decision 3. If each were to be considered separately, there would be unnecessary repetition and overlap. The appeal has therefore helpfully proceeded on the basis of a consolidation of the various points in Addison Lee’s skeleton argument. In oral submissions, Addison Lee did not appear to abandon any point from its skeleton argument, although the points were re-grouped under fewer headings.

A total of 11 points were argued by Addison Lee, as follows:

I will consider each of these in turn.

The employment tribunal (“ET”) erred in taking into account the findings of fact made in the Lange decision. To do so was contrary to the rule in Hollington v Hewthorn because the parties were different.

Decision 1 considered the rule in Hollington v Hewthorn and later cases (paras 5-13). It noted (para 17) that Addison Lee “put forward no information or evidence whatsoever” in respect of the period covered by the deposit orders, which was the same as the period covered by the Lange decisions, to distinguish the current claims from the Lange claims in that period. All the changes which Addison Lee rely upon took place after the period of time considered in the Lange decision.

Decision 1 recognised that the Lange claims were not de facto lead or sample cases (para 21).

When deciding not to strike out the allegations and arguments which underpinned the deposit orders, Decision 1 decided that the strike out threshold was not met and there was also no abuse of process (para 24). It also recognised the possibility of a future tribunal reaching a different outcome from the Pearl tribunal (para 32) but noted that there had, in fact, been “few factual disputes between the parties” in the Lange cases, as the Pearl decision itself observed (quoted in para 32).

Decision 1 recognised that Addison Lee had the right to have the claims heard and determined by a new tribunal, but said Addison Lee “has not explained why there is at least some prospect, even if it is not a significant prospect, of the Tribunal next year reaching different findings and conclusions to those reached by the Pearl Tribunal” (para 36).

Decision 1 said that “if the deposits are paid and the claims go forward… the Tribunal will have a free hand…” (para 38).

Addison Lee argues that it was impermissible for the ET to have regard to Addison Lee’s defeat in the Lange litigation because of the rule in Hollington v Hewthorn. In oral and written submissions, I was taken to a number of cases and to a passage in Phipson on Evidence citing other cases.

Hollington v F Hewthorn & Co Ltd [1943] KB 587 CA decided that evidence of a criminal conviction (for careless driving) was inadmissible in a subsequent civil action (for negligent driving on the same occasion). The plaintiff did not suggest that the conviction was conclusive evidence but he did suggest that it was relevant, probative and admissible. Giving the judgment of the Court of Appeal, Lord Goddard LCJ said (at [1943] KB 587, 595-596):

The decision was based in part (although other reasons were also given) on the fact that a criminal conviction contains no narrative and no reasoning. In that, it is quite unlike the decisions of the ET in the Lange cases, and, indeed, the decisions of the EAT and of the Court of Appeal which rejected Addison Lee’s appeals, because those decisions make, not only the fact of Addison Lee’s defeat clear, but also the precise basis of it, factual and legal, which the Leigh Day claimants contended were in every respect indistinguishable from the case being run against them by Addison Lee in respect of the period covered by the deposit orders.

Lord Goddard LCJ also said (at [1943] KB 587, 596):-

The judgment in Hollington v Hewthorn has been criticised. In Hunter v Chief Constable of the West Midlands [1982] AC 529 HL at 543, Lord Diplock noted that its effect, in cases of the type that Hollington itself dealt with, had ceased to be relevant because of the Civil Evidence Act 1968. But he also said:

Other judges have defended and applied the decision even in relation to criminal convictions (see Morritt V-C in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, [2003] EWCA Civ 321, at paras 18-19, citing examples).

Notwithstanding doubts about Hollington v Hewthorn, it is has been accepted that the same rule applies at least to some extent to prior civil judgments and not only prior criminal convictions (at common law; sections 11 – 13 of the Civil Evidence Act 1968 having effected a radical relaxation of the rule in respect of criminal convictions).

In Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, [2003] EWCA Civ 321, Morritt V-C reviewed the authorities (at paras 20-26) and at para 27 held that the findings of a High Court judge in earlier civil proceedings between a director and the company were neither conclusive nor even admissible in subsequent disqualification proceedings brought against the director by the Secretary of State. He expressly rejected the distinction which had been drawn in argument between a civil judgment and a criminal conviction. However, in reaching his conclusion, he considered and cited with approval two previous decisions about somewhat different situations: Symphony Group plc v Hodgson [1994] QB 179 CA and Hawaz v The Thomas Cook Group Ltd (27th October 2000) Keene J.

Symphony Group plc v Hodgson [1994] QB 179 CA concerned orders for costs against non parties and decided that the unsuccessful defendant (Mr Hodgson) could not rely on the findings made against him when seeking costs against a non-party to the proceedings in which they had been made (his new employers). The judgment of Balcombe LJ (with whom Staughton and Waite LJJ agreed) made it clear, however, that although the Court of Appeal was applying the rule in Hollington v Hewthorn in that respect, there were some circumstances in which it would not be applied. He said (at 193E-G):

Similarly, the judgment of Staughton LJ (with whom Waite LJ agreed) said (at 196G-H):-

In the present case, of course, Addison Lee was a party to the proceedings brought by the Lange claimants.

In Hawaz v The Thomas Cook Group Ltd [2000] 10 WLUK 763 (quoted in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 para 23), Keene J decided an appeal against three rulings by a county court judge. The context was that Ferris J had decided in separate civil proceedings against Mr Hawaz (to which Thomas Cook were not parties) that he had forged the signature of Sheikh Ahmed (the claimant in those proceedings) on land transfers. In subsequent civil proceedings brought by Mr Hawaz against The Thomas Cook Group Ltd, in which the defence was that he had committed a different fraud involving travellers cheques, the county court judge made three rulings. He ruled (1) the finding by Ferris J of forgery and fraud by Mr Hawaz against Skeikh Ahmed was not admissible in evidence on the issues in the Thomas Cook action; (2) The topic of Mr Hawaz’s activities in respect of the Sheikh Ahmed properties could not be the subject of evidence or cross-examination irrespective of Ferris J’s findings; and (3) Thomas Cook could not put any of these matters to Mr Hawaz by way of cross-examination as to credit. It is an important feature of the Thomas Cook case that, although Mr Hawaz was a party to the prior civil proceedings, per Keene J, he “played no part in those proceedings. He gave no evidence and was not represented”.

Keene J upheld the county court judge on issue (1) but reversed him on issues (2) and (3). On issue (1), he said:

In R. (on the application of PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) [2011] PTSR 269, Hickinbottom J found that a local authority had acted unlawfully when adopting a decision of the First Tier Tribunal about the age of the claimant, because the local authority had to make the decision for itself and had not been party to those proceedings. In doing so, he referred to the rule in Hollington v Hewthorn. However, he construed that rule as permitting the local authority (while making its own determination) to examine the basis upon which the earlier determination had been made, rather than excluding it altogether. He said (at para 83):-

Finally, I have been referred to the unanimous judgment of the Court of Appeal given by Christopher Clarke LJ in Rogers v Hoyle [2015] QB 265, [2014] EWCA Civ 257. In that case, the Court of Appeal upheld Leggatt J who had refused to exclude a Department of Transport accident investigation report from subsequent proceedings for negligence against the pilot. In particular, they dismissed an appeal against the judge’s ruling that the whole report was admissible as evidence in the proceedings because it was the report of an expert whose opinions might properly be admitted in evidence.

Leggatt J recognised that Hollington v Hewthorn “has always been a controversial case” (para 84) and went so far as to say that some of its reasoning “is absurd” (para 92). He nevertheless accepted that the rule must be taken to represent the law “unless and until it is reconsidered by the Supreme Court” and “except in so far as it has been reversed by statute” (para 92). He said (at para 104)

His reasoning was, therefore, based on the requirements of a trial, not of a preliminary, non-binding and inconclusive merits assessment such as that required by a deposit order application. Leggatt J supported (at para 107 of Rogers v Hoyle [2015] QB 265, 290) the minority opinion of Buckley LJ in Stupple v Royal Insurance Co Ltd [1971] 1 QB 50 that a conviction admissible in civil proceedings under section 11 of the Civil Evidence Act 1968 was not “a weighty piece of evidence in itself” (as Lord Denning MR thought) but gave rise to a presumption “which, like any other presumption, will give way to evidence establishing the contrary on the balance of probability without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged”.

In the Court of Appeal, the rule in Hollington v Hewthorn was also considered, and criticism of it, and some of the limits to be placed upon it, were again rehearsed (paras 34-37). Like Leggatt J, however, Christopher Clarke LJ re-stated the rule as applying to a trial, because of the obligation on a trial judge to make an independent decision by reference to the evidence called before him, rather than relying on another judge who had heard proceedings between different parties. He said (at para 39):

These authorities do not persuade me that the rule in Hollington v Hewthorn should be extended to the summary consideration by an employment tribunal under Rule 39 of whether a specific allegation or argument “has little reasonable prospect of success”. If anything, they point away from that proposition. The tribunal in this situation is not making a binding decision about the allegation or argument in question. It is not conducting a trial, or anything like a trial. It is simply forming a view, well before the final hearing and determination, about whether (in the words of Rule 39) it “considers” that any specific allegation or argument in a claim or response “has little reasonable prospect of success”. This must necessarily be matter of impression, since the tribunal is not (as Simler J said in Hemdan) to conduct a mini-trial, let alone a trial.

It would be extraordinary if any rule of practice or law from other jurisdictions and contexts were allowed to exclude from that preliminary and non-binding consideration an available and on the face of it reliable indicator which is (in this case) that, in proceedings in which the same points were taken, and in which no distinction of fact appears from the pleadings or submissions made by Addison Lee, all the allegations and arguments under scrutiny failed. This is particularly so when Addison Lee was a party to and vigorously contested the earlier proceedings, although the current claimants were not. Addison Lee was not able to show to the employment tribunal any difference of fact between the position of the current claimants and the position of the Lange claimants. The period of time covered by both the Lange decisions and the deposit order determinations was the same (and so, therefore, were all the contractual and general arrangements between Addison Lee and its drivers, there being no reliance on any exceptions attributable to any specific current claimant).

There is no injustice in introducing the previous proceedings in this situation, not as evidence of truth, but as indicators of a future outcome, because the party which has to make a deposit order can proceed to the full hearing by paying the deposit, and the deposit will be set at a level which is within the means of the paying party so that they may do that. They are not prejudiced by the deposit order unless and until the subsequent hearing has taken place and they are only prejudiced at that point if they are the losers on these issues at the final hearing.

The connection between the previous proceedings and the current proceedings was so close, by reason of their similarity and Addison Lee’s full participation, that Addison Lee suffered no injustice by not having the previous proceedings excluded. Moreover, it was just and fair that the outcome of proceedings on identical facts and law should be admitted into the Rule 39 consideration, all the more so because Addison Lee were parties to both, and could not have argued their corner with stronger representation, greater resources, or to a higher level than they did in those earlier proceedings.

The previous findings were not determinative (as Decision 1 recognised at para 38), but the employment tribunal was entitled to consider them relevant and to take them into account when assessing prospects of success. They were worthy of respect. They did not have to be ignored. They did not prove anything, but they were suggestive. This was so whether the Lange decision made findings of primary fact or drew inferences from the facts. This was the decision of an independent and expert employment tribunal and, while findings of fact were not a matter for the Employment Appeal Tribunal or the Court of Appeal, both the findings and the inferences of the employment tribunal were in no way weakened by the decisions of both those appellate courts to uphold them.

The rule in Hollington v Hewthorn does not apply to a non-binding assessment of merits under Rule 39. The fact that the same case had been fought on the same facts and in respect of the same period albeit with different parties was admissible and relevant to the non-binding assessment (similar to an early neutral evaluation) required by Rule 39. Whilst a different outcome before a different tribunal on identical facts might, to the extent that it was purely a question of fact or inferred fact, be possible, it was not particularly likely. That was the reasoning of Decision 1, and it was permissible.

The reasons given by the ET for declining to strike out the allegations and arguments in question were inconsistent with proceeding to make deposit orders in respect of them.

Decision 1 gave reasons in principle for making deposit orders (which were ultimately made in Decision 3) in respect of claimants driving for Addison Lee “in the period 1 July 2014 to 24 May 2016 inclusive” (para 2). That period was chosen because it coincided with the period when the successful Lange claimants had also been driving for Addison Lee (para 48). EJ Tynan pointed out that it was likely that the same arrangements for Addison Lee drivers had been in place for some time before the beginning of that period and for some time afterwards, but noted “there is no further information available to me in that regard” (para 15). This meant that the same arguments which had led to the deposit orders might (depending on the extended period during which the same arrangements were actually in place) be applied to a longer period as well, before 1 July 2014 and after 24 May 2016.

Decision 1 decided that the threshold test for striking out Addison Lee’s allegations and arguments was not met, although the test for making deposit orders in respect of them was met. There is nothing wrong with that in principle, since the tests are different. Addison Lee argues, however, that the following passage of Decision 1, which the employment tribunal decided went against striking out, ought by parity of reasoning have precluded deposit orders too. The passage (in para 24 of Decision 1) said as follows:

The “reasons below” are in para 38 of Decision 1 (although it mistakenly cross references to para 25 instead of para 24):

Addison Lee says that this reasoning is flawed because it might have declined to pay the deposit orders, in which case the claims would have been struck out and the same consequences envisaged in para 24 of Decision 1 would then have followed. It argues that, if these were unacceptable consequences of a strike out order, they were equally unacceptable consequences of a deposit order.

I am not persuaded by this.

It was up to Addison Lee whether it dropped the arguments assessed as having “little reasonable prospect of success” or not. It was able to (and did) pay the deposits ordered, and so the deposit orders left that decision entirely up to Addison Lee. What Addison Lee decided could not bring justice into disrepute, because no decision by a litigant is a decision by the justice system.

Addison Lee never suggested it could not pay the deposit orders. The reality was, therefore, that it would either reject the employment tribunal’s assessment and pay the deposits (which is what it swiftly did, after Decision 3), thereby avoiding the consequences now suggested, or it would accept the tribunal’s assessment and abandon those aspects of its case. However, if Addison Lee accepted that the challenged arguments were too weak to be pursued because of the deposit order costs threat, it is fanciful to suggest it would not apply the same logic to any longer period in which the same considerations applied, unless there was some material difference in the case other than the dates in question. If there was no difference of fact, the risk of being held to have acted unreasonably in pursuing the points outside the deposit order time frame would be just as great. There was no reason to expect that Addison Lee would drop the arguments only for the period covered by the deposit orders rather than in respect of the whole period in which they were equally weak. Nor did they ever suggest they might do that. Nor did they in fact do that. The employment tribunal was not required to refrain from making deposit orders in respect of arguments with little reasonable prospect of success on the basis of the vanishingly unlikely situation now envisaged by this ground of appeal.

There was therefore nothing wrong with the employment tribunal’s reasoning in this respect. The decision to leave the consequences of the tribunal assessment up to Addison Lee, while concentrating its mind on the weaknesses in its case by making the deposit orders, was fair, just, reasonable, consistent, and in accordance with the interests of justice.

The ET had no jurisdiction to make an inchoate deposit order which fails to identify beneficiaries and the amounts payable in respect of each relevant allegation in respect of each beneficiary.

One consequence of a deposit order may be that “the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders)” (rule 39(5)(b)). This will only happen when the allegations or arguments in question are finally decided. However, rule 39(1) requires the deposit order made at the outset not to exceed £1,000 and indicates that it will be in respect of a “specific allegation or argument”. That does suggest that the amount in respect of each allegation or argument, and in respect of each claimant, should be fixed when the deposit order is made. That also makes the operation of 39(5) more straightforward in due course.

Addison Lee argues that when, as in this case, there is more than one party on the other side, the deposit order needs to identify at the outset the claimants who are to be beneficiaries and how much is payable in respect of each relevant argument in relation to each claimant. It says that Decision 1 was made without jurisdiction, because it was “an inchoate Order, omitting the beneficiaries or the amounts applicable to each relevant argument raised in respect of each beneficiary” (Addison Lee skeleton argument para 55). It also says that the failure to drill down to the amounts awarded in respect of each individual claimant encouraged looseness of thinking generally.

This misunderstands the nature of Decision 1 and its relationship with Decisions 2 and 3. Decision 1 considered whether the conditions for making deposit orders were met (examining the challenged arguments to see whether they had little reasonable prospect of success), and whether in the exercise of the employment tribunal’s discretion (the word in rule 39(1) being “may”) such orders would in principle be made. It answered both questions in the affirmative, giving reasons. It also considered proportionality and placed a cap on the amounts to be paid, irrespective of the number of claimants winning deposit orders, in respect of the various arguments in question (the word in para 3 of the Order in Decision 1 being “limited as follows”). If there had not been enough claimants (entitled in respect of each argument to a maximum deposit order of £1,000 each, under rule 39(1)), the cap might not have been reached. That is why it was a cap, stated to be “limited as follows”, rather than an absolute and final sum. Decision 1 made it clear that the deposit orders themselves would be “Subject to the parties agreeing or, in default of such agreement, the Tribunal determining” which of the current claimants drove for Addison Lee at the relevant times (para 1 of the Order in Decision 1). Decision 1 was therefore an order made as part of a staged decision making process. Decision 2 maintained Decision 1, so far as reasoning and outcome was concerned, but took it no further. It was not until Decision 3 that the decision to make deposit orders was completed, and a deadline (21 days) for payment was set.

The employment tribunal decided to proceed in this way as part of its case management powers and it was entitled to do so. By doing so, it allowed the arguments to proceed in an orderly fashion. It is not uncommon for decisions of principle to precede agreement (or, in the absence of agreement, a ruling) on what precise order or orders should be made as a result.

The final order was in Decision 3. This said:

There was then a schedule of 7 pages containing the full names and case numbers of 327 individual claimants, who were (accordingly) the claimants in respect of which the deposit orders were made. There was liberty (in para (2) of the Reasons) for names to be added by agreement or subsequent decision. By agreement, another two names were added on 7 September 2023, bringing the number from 327 to 329.

No distinction was drawn in the pleadings, or in the arguments before the employment tribunal, between any of the 327 claimants (subject to limitation points which form a separate ground of appeal). No distinction was, therefore, drawn between them in the orders made in Decision 3.

This was not an inchoate order. It did name the beneficiaries. Although Decision 1 made decisions in principle, it was only Decisions 2 and 3 (issued at the same time) which made the final deposit orders and Decision 3 listed each of the 327 beneficiaries by name, to which two others were later added by agreement, making a final total of 329 names. The amounts payable in respect of each relevant allegation were stated separately. There is no basis for suggesting that the total amounts (reached by way of cap in the way explained in the Decisions) were to be divided other than equally between the 329. Therefore, the amounts payable to each of them were sufficiently clear from Decisions 2 and 3, i.e. one three hundred and twenty-ninth part of the total specified in respect of each allegation. This was less than £1,000 in each case, because no allegation attracted a deposit order of as much as £327,000 in total.

Both sides agreed that this was the natural meaning of the order. For the avoidance of doubt, this meant that if (as it seems has happened) any of the 329 named claimants was taken out of the proceedings before the end, for whatever reason, the deposit order in respect of that claimant was not reallocated between those who remained. There is nothing in the Decisions to suggest otherwise.

The deposit orders were therefore made within the rule 39 jurisdiction and were not wrong in principle. They were clearly divided between specific allegations and attributed to named claimants.

The claimants’ failure, at the hearings in March 2023 (before Decision 1), to provide a list of relevant claimants should have resulted in the dismissal of their application.

Addison Lee argues that the claimants ought to have provided a list of the Leigh Day claimants who provided services in the period to March 2020 (or any other period in respect of which they might seek an order) at the hearing on 30-31 March 2023 which preceded Decision 1 on 17 May 2023. It says that the employment tribunal ought to have treated the failure to do this as fatal to the application and ought to have dismissed it on those grounds immediately. Addison Lee argues that identifying the claimants who were to benefit from the deposit orders was a basic jurisdictional requirement of deposit orders.

There was no doubt on whose behalf the applications to strike out and for deposit orders were being made. They were identified on the facts of Decision 1 which stated that the applications were made by “The Leigh Day Claimants” and that these were the claimants who appeared (on instructions from Leigh Day) by “Ms M Tether, Counsel”. In other words, the applications were made on behalf of those claimants who had instructed Leigh Day. As the arguments before, and the decisions of, the employment tribunal progressed, through Decisions 1, 2 and 3, it became clear that not all of them worked as Addison Lee drivers in the period upon which, by Decision 1, any deposit orders would be focussed. This meant (as para 2 of the Orders at the beginning of Decision 1 made clear), the total body of Leigh Day claimants who would benefit had to be narrowed down to those who drove for Addison Lee in that period. Those drivers were duly discussed and agreed between the parties, before Decisions 2 and 3 (both dated 19 July 2023) and were listed in the schedule of 327 names and case numbers annexed to Decision 3 accordingly.

Proceeding in this way was a case management decision well within the powers and discretion of the employment tribunal.

The ET erred in taking into account its own private researches into Addison Lee’s finances.

Addison Lee objects to para 51 of Decision 1, which came as a surprise to it. Para 51 said:

Addison Lee objects that it did not know the employment tribunal would do its own research in this way and it was contrary to fairness and natural justice that it did so without giving Addison Lee an opportunity to make submissions. It does not challenge the accuracy of the figures, however, or indicate why it would have wanted to make submissions on its own filed accounts, or what it would have said about them.

Para 51 falls within a section of Decision 1 headed “The amounts of the deposits” (paras 49-53). In para 49, the tribunal said that its starting point would be to make deposit orders of £1,000 per Deposit Claimant (defined as those claimants represented by Leigh Day who drove for Addison Lee in the relevant period, that is, the period targeted by the deposit orders). However, the tribunal decided to place an upper limit on the total amount of the deposit orders, in recognition of the references to the need for proportionality in the cases of Wright and Hemdan which I have already considered (para 49 of Decision 1).

In this context, para 50 of Decision 1 agreed with Addison Lee “that it would be disproportionate to make deposits totalling £400,000 as the claimants suggest”. It referred to the likely costs of arguing the points identified in the deposit orders as having little reasonable prospect of success, which Decision 1 estimated (in para 50) “in the region of £192,000 inclusive of VAT”. Decision 1 then said (at para 50):

This made it clear that Decision 1 was already considering the requirements of Rule 39(2), which says “The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit”. Indeed, that point was made explicit in the deposit orders finally made in Decision 3, which said (at the end of the section stating those orders) “The Judge has had regard to any information available as to the Respondent’s ability to comply with the orders in determining the amount of the deposits”.

The reference to company accounts in para 51 then follows. It was, therefore, a sense check, to make sure that Addison Lee could afford even the maximum sums being envisaged by Decision 1 (which totalled, even if the cap was reached in every case, no more than £125,000).

However, it was no part of Addison Lee’s submissions at any stage that it would not be able to afford even the £400,000 total being sought by the claimants. Its objections were on the grounds of proportionality, not affordability. That point was expressly confirmed to me by Mr Jeans KC in argument. Addison Lee duly paid the £125,000 total as soon as it was ordered, without difficulty.

Had there been any doubt about Addison Lee’s ability to pay, then the tribunal would have been bound to hear submissions and receive any relevant evidence in the usual way. But there was no doubt about its ability to pay the sums being discussed (let alone the much lower sums at which the deposit orders were capped), and so that was not an issue.

A glance at the company accounts by way of sense check was unnecessary, but it did no harm and was of no consequence in this case.

The ET erred in taking account of anecdotal evidence of brief fees in another case not canvassed with the parties.

Addison Lee also objects to one sentence in a passage within the tribunal’s consideration of the likely costs of arguing the challenged points, in para 50 of Decision 1. This passage immediately precedes the passage beginning “In my view it would be disproportionate to make deposit orders equal to or indeed which exceed the Deposit Claimants’ potential legal costs in relation to the issues that I consider to have little reasonable prospect of success”, which I have just quoted.

The passage says (with the sentenced objected to underlined by me):

Addison Lee objects that the employment judge’s prior experience of a £90,000 brief fee in a 5-day case “had not been shared with the parties for comment and submission” (Addison Lee skeleton argument para 62). It argues that this was a breach of natural justice, and fairness required that the parties should have had an opportunity to comment.

At this point, the employment judge was considering proportionality, which is not an explicit component of Rule 39. The Hemdan authority deals with proportionality in relation to affordability, which is not the same as the proportion any deposit order total might bear to the costs of the disputed arguments on both sides. It is only Wright which suggests a broader “look at the total sum awarded” which considers “the question of proportionality before finalising the orders” in any sense that might go beyond affordability. Even then it is not said that this has to be based on the legal costs involved. Decision 1 chose to use likely legal costs as a measure of proportionality, and that was legitimate. However, it was by no means a first order issue.

Having decided to bear likely costs in mind, the employment tribunal was (as Addison Lee’s own skeleton recognises, at para 62) “entitled to use his or her general experience in assessing likely fees”. Decision 1 makes it clear that the judge’s experience was not limited to the recent example mentioned, but also followed a career “as a solicitor in practice until 2021”.

The objection is, therefore, that the employment judge was too explicit in articulating the basis of his estimate from his own experience, by referring to a specific recent example. Had he not done so, the objection would not have been possible. I do not think this is a criticism of any substance.

In any event, it is not suggested that the estimate in Decision 1 was wrong. Although there was a further hearing after Decision 1 and before Decisions 2 and 3, Addison Lee did not comment on this passage or submit evidence or make submissions to the effect that costs were likely to be lower than the tribunal’s estimate. Nor was this suggested to me.

These decisions were made after a total of three days of hearing, not including the time in chambers required for them to be formulated and written up in the absence of the parties. I have already mentioned the need to keep what should be a summary procedure within bounds. The suggestion that the decision in this case was flawed because of this aspect and that this provides a ground of appeal is rejected.

The ET erred on proportionality, penal approach and “big picture”.

Addison Lee relies on the cases of Hemdan and Wright (discussed in paras 26 to 33 above) for a requirement that any deposit orders should be proportionate and not penal.

Addison Lee emphasises the £1,000 cap on the deposit order for each allegation or argument imposed by rule 39(1).

Addison Lee objects to the deposit orders in this case being awarded to each of the 327 (later, 329) claimants, thereby increasing the total sums (after application of the total limits imposed in Decision 3) to £75,000 in respect of one set of arguments (which, divided by the original 327 claimants, is £229 each), £25,000 in respect of another set of arguments (which, divided by 327 claimants, is £76 each) and £25,000, again, in respect of the final set of arguments (£76 per claimant).

It argues that it is not the number of claimants but the number of allegations or arguments which should swell the size of the deposit orders awarded. It says that there will be necessarily sample or test cases among the claimants, although no order to that effect has been made. It says that granting the deposit orders to every one of the claimants affected, rather than a smaller number based on an estimate of the numbers of those who might be selected as test cases (which was not an exercise that had been carried out before Decisions 1, 2 or 3) results in a total sum which is penal and disproportionate.

Addison Lee suggests that, in order to be proportionate, the orders should have been a total of £1,000 per contention, resulting in orders not exceeding £3,000 in total. As a matter of mathematics, this would have given each of the original 327 claimants the benefit of a deposit order (which might be forfeited to them in due course) of just £3 per contention in due course. This is an extraordinarily low sum. It is derisory in fact. The alternative, that the whole £1,000 might be allocated to a single claimant, would exclude the other 326 claimants, not only from the benefit of any sum by way of forfeit in due course, but also the wider cost advantages of rule 39(5)(b) (the presumption of unreasonable conduct by the paying party).

I do not see how an order which is well within Addison Lee’s means (as it concedes) can be said to be penal, any more than any deposit order payment is penal. I also consider that the nature of a deposit order, which is refundable if the assessment of the argument as having little prospect of success proves to be wrong, means that it cannot sensibly be regarded as penal unless (which is not the case) it is a sum which Addison Lee has difficulty in paying in the first place. As I have explained in para 31 above, the purpose of a deposit order is not penal but persuasive. Making the party which wishes to pursue arguments which have been evaluated as lacking any reasonable prospect of success pay a sum of money in respect of them is designed to concentrate the mind and force reflection. The sum is limited to £1,000 by rule 39(1) in each case, but that does not mean that it is meant to be negligible. £1,000 is not a negligible sum even in cases where there is only one beneficiary. It is enough to make the person who has been made subject to a deposit order stop and think, and that is the point. It ensures that the reasoning behind the deposit order is not simply ignored, but that there is an appreciation that the view expressed by the tribunal has some force, and a real effect, a practical consequence. The decision to make a deposit order is therefore not merely the expression of an opinion on a piece of paper, or delivered orally by the employment tribunal. It forces action on any party which contemplates ignoring what has been said about the weakness of its argument as a condition of carrying on with it. There is nothing wrong with it being a sum which makes that party sit up and take notice. On the contrary, that is a good thing, provided it is within the £1,000 cap for each case, and consistent with ability to pay, as required by rule 39(1) and (2); and, in general terms, proportionate.

The reason that the order totals exceeded £1,000 per argument in this case is that that weak points which Addison Lee has decided to persist with affected 327 other parties. Addison Lee may consider that some of them need not be considered because they may not be involved in any test or sample cases, but I disagree. Everyone is affected by a test or sample case, even if they are not one of those selected for the purpose. The weak arguments hang over them. They may to a greater or lesser extent be involved in meeting them. Their cases are made more complex by their inclusion. They are as entitled to a deposit order if the weak points are directed against them as they would be if they had no other parties standing with them. That being the case, the sums awarded in respect of each of the 327 claimants must not exceed £1,000 and, in this instance, amount to £229, £76 and £76 as their share of the totals ordered in Decision 3 (and even less when the number was increased to 329 relevant claimants). Those are very substantial reductions. It is not arguable that further reductions were required.

Mr Jeans KC on behalf of Addison Lee concedes that there was jurisdiction to make deposit orders in respect of each argument and in respect of each claimant, but he argues that it was disproportionate to do so. Proportionality is however a matter for the employment tribunal, which has a broad discretion, and I see no basis for saying that it erred in that respect.

I should add that Addison Lee also, in both written and oral submissions, cited a comment by Michael Ford QC in Sami v Avellan [2022] EAT 22 at para 26 (quoted in para 29 of Decision 2) as authority for the suggestion that deposit orders can be reduced below even what is affordable, and even below the rule 39 £1,000 cap per argument and per claimant, because it is the costs warning implicit in the deposit order which is the normal deterrent, not the scale of the payment. This is more of an extrapolation of what Mr Ford QC said in that passage than a faithful reflection of it. He said in para 26 of Sami that “the practical effect of a deposit order on the right of access to justice – probably due more to the costs warning if the case is pursued than to the deposit itself – means that there must be a proper case for making such an order”, citing Hemdan. He did not say that, once the overall sum has been tested for affordability and proportionality, it should be driven down further to no more than £1,000 per argument regardless of the number of claimants. Nor did he say that the deposit order can be driven down, below what is required by affordability and proportionality, to what might be a negligible sum because the sum is immaterial and it is only the costs warning that matters. That would not be correct.

The ET ought not to have made deposit orders where some claimants (undisclosed in number and identity) had their costs covered by damages-based agreements.

It was accepted at the employment tribunal hearing before Decision 1 that a number of the Leigh Day claimants had their costs covered by damages based agreements. Addison Lee does not know, and it is not entitled to know, the terms of those agreements.

Addison Lee speculates that any such damages based agreements may have been incorrectly drafted, with the result that they would be unenforceable and the current claimants will not have to pay any costs. There does not appear to be any basis for this suggestion. Firms such as Leigh Day which enter into damages based agreements for the benefit of parties who may be unable or unwilling to proceed on a purely fee-based or hourly-retainer regardless of whether they win or lose are likely to want their agreement to be lawful and effective, and one would ordinarily expect them to have the professional competence to ensure that. Damages based agreements in employment matters are lawful and enforceable provided they comply with section 58AA of the Courts and Legal Services Act 1990 and the Damages-Based Agreements Regulations 2013.

Leaving aside the speculative nature of the submission, however, it was dealt with by the employment tribunal in Decision 1, paras 41-42.

The point made in para 41 seems to me to be a fair one. It is not a requirement of rule 39 that the beneficiary should be paying a legal representative. For each claimant, the benefit in respect of each weak argument is a maximum of £1,000 (and for those not incurring legal costs, that will be the total of any possible benefit). This is a benefit to which a claimant may be entitled for the trouble, anxiety and complication of weak claims being persisted with even if they are incurring no legal costs.

But the deposit does not have to be about a benefit to the successful claimant anyway. It is a measure directed against the paying party. The deposit, if forfeit, has to go to someone. The rules could have directed that it go to the tribunal system, or to charity. There was no reason why the rule should have done that, and it does not do that. It directs that it should go to the claimant against whom the failed argument was made. It does so as a matter separate to the overall risk of an adverse costs order established by rule 39(5)(a). I agree with the employment tribunal that the costs arrangements entered into by the beneficiaries of the deposit orders were not relevant and did not entitle Addison Lee to conduct an enquiry into them, or to require disclosure of them, as an additional pre-condition to the award of a deposit order in favour of any particular claimant. Moreover, such an enquiry would not only have been irrelevant and beside the point; it would also have further complicated a process which is to be kept as simple as possible.

The ET refused in Decision 2 and failed in Decision 3 to take account of limitation-related issues.

Para 44 of Decision 1 decided to limit the deposit orders to periods of time which exactly coincided with the period of time in question in the Lange proceedings.

Addison Lee then argued that deposit orders should not be made in respect of claimants whose claims were vulnerable to limitation arguments in respect of those periods (paras 6-7 of Decision 2).

This argument was rejected (paras 8-11 of Decision 2). Decision 2 said (at para 10):

Addison Lee challenges that reasoning but it seems to me to be sound. The arguments which attracted the deposit orders were arguments being advanced by Addison Lee itself. They were being advanced indiscriminately against all 327 claimants named in Decision 3. Addison Lee might have dropped or refrained from those arguments in respect of those claimants it considered could be effectively dealt with by taking a limitation point, but it has not done so. The issue under rule 39 is not whether the paying party will win the case as a whole. It is whether a specific allegation or argument is considered to have little reasonable prospect of success. The rule 39 remedy for such an argument having little reasonable prospect of success is that it should not be pursued, or, if it is pursued, that it is pursued only upon payment of the deposit. The remedy is not that the weak argument is rendered irrelevant by another, better argument (said in this case to be limitation). Such points can be argued on their merits in due course. The tribunal observed that there had been no request by Addison Lee for any time limit or jurisdiction issues to be determined as a preliminary issue (Decision 1 para 7).

The tribunal was entitled, in the exercise of its case management powers, to decline to enter into a consideration of limitation issues when exercising its discretion on whether to make a deposit order in circumstances where the requirements of rule 39 had been met, namely, arguments were being advanced which had little reasonable prospect of success. Limitation did not form part of those arguments. It did not have to be considered as an adjunct to them.

It is impractical and undesirable that deposit order hearings should become mini-trials, considering, potentially, all the issues in the round, and their impact upon each other, and not merely the “specific allegation or argument” in question.

Decision 2 made a procedural error when requiring Addison Lee to show grounds for reconsideration of Decision 1 and/or denying the existence of such grounds.

After considering and rejecting the limitation point on its merits in Decision 2 paras 9-11, the employment tribunal said (in para 12 of Decision 2):-

Addison Lee argues that there was, in fact, a change of circumstances because it was only after Decision 1 and the identification of the claimants who were within scope of the time period to which Decision 1 was limited that it was able to argue (as it then did) that many of them were at risk of limitation arguments, whatever the merits of the arguments identified in the deposit orders. It complains that it has been precluded from succeeding on limitation points because of a mistaken approach to whether there had been a material change of circumstances since Decision 1, prior to which no limitation arguments had been advanced.

I think that this is to mis-read the reasoning of Decision 2. Decision 2 did, in fact, consider the limitation point on its merits. This was done in paras 8-11 (which I have considered under appeal point (ix) above). It arguably continued to do so in para 12, because the final sentence is a merits point, not a procedural point.

The procedural objection that there had not been a material change of circumstances was not the primary basis for upholding the deposit orders notwithstanding the limitation arguments. The primary basis was that the limitation arguments were a different part of the case and should not distract from the question in issue, which was “a specific allegation or argument in a claim or response has little reasonable prospect of success” rather than whether the person advancing such an argument had better arguments elsewhere which were not the subject of challenge (and which had yet to be decided).

Ground (x) cannot therefore alter the outcome of the appeal.

It is not a particularly strong ground in any event. The employment tribunal said (in para 14 of Decision 2) “I see no reason why the arguments now advanced by [Addison Lee] could not equally have been made in March this year.” It said (in para 15) that Addison Lee was in a position before Decision 1 to identify the cut-off date for each claimant resulting from the operation of section 23(4A) of the Employment Rights Act and to identify the dates when new terms for drivers were introduced, such as potentially to trigger a three-month time limit for bringing pay in lieu of holiday claims under Regulation 14 of the Working Time Regulations 1998.

Decision 2 made a substantive error when deciding that limitation points were not relevant to the deposit order decision.

This is the same point as (ix) and fails for the same reasons.

The appeals are dismissed.