Next we have some case law about remedy hearings. This is the second time we have done a case on ET procedure this month, feel free to insert your own buses analogy. The question which is being asked in this case is if the Respondent is excluded from contesting liability after failing to present a response, does this exclude them from contesting a remedy?
The Claimant, Miss Hughes, put in her Employment Tribunal Form 1 (ET1) claiming unfair dismissal, sex discrimination, notice pay, holiday pay and overdue pay against Office Equipment Systems Ltd, the Respondent. The Respondent failed to put its defence in on time and its application for an extension of time was dismissed so they were excluded from the proceedings.
The Tribunal wrote to the company as follows:
“you did not present a response to the claim. You are entitled to receive notice of any hearing, but you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case”.
The Respondent then sought to lodge a form ET3 (a response to the claim) accompanied by a draft of detailed grounds of response. The Respondent’s reason for the lack of response was that their employee, Mr Jackson, who was in the position to give instruction about the case, had been ill at the time of the Claimant’s claim.
The ET noted that the merits of the illness defence could be relevant to the grant of an extension of time. In this case however, the ET concluded that there was no reasonable explanation for the delay in submitting the response and that on the documentation before the tribunal the defence of the Respondent appeared to have little merit. The ET held that the Respondent’s application should be dismissed.
The case proceeded to remedy. The Respondent requested to participate in the remedy hearing but was refused. The Respondent then lodged an appeal against the decision that they could take part in the remedy hearing, this appeal was eventually heard by the Court of Appeal. The CoA allowed the appeal. They held that Employment Tribunals should allow Respondent’s to participate in remedy hearings even if they have been debarred from contesting liability.
This case means that default judgments will become less likely as Respondent’s will no doubt contest remedy after failing to contest liability. Previously, default judgments would be the entirety of a Claimant’s schedule of loss, a lot more than they would get if the matter was contested. This means employers can still mitigate their losses if they fail to present a defence.