Our next case, despite having the word ninja deceptively placed in the title, concerns the not always exciting topic of employment tribunal procedure. For those looking for something a touch more light-hearted why not check out our lighter side of the news feature from last month’s employment law update.
The questions in this case are:
Can a claimant be awarded notice pay if it is unclear whether or not he has claimed it?
Can a defence be submitted out of time?
Mr Succu, the Claimant, worked for Red Ninja Ltd, the Respondent, as a Project Manager. The Claimant had his employment terminated due to lack of upcoming projects. The Claimant was not paid his final salary or holiday pay.
The Claimant brought unlawful deductions claims before the employment tribunal. The claims included one for notice pay. On his claim form the Claimant put that he worked his notice period. The claim was served on the Respondent, giving them a date to put in a defence.
The Respondent failed to put in a defence and a hearing was listed. The Respondent submitted a late defence, stated it was issuing a counter-claim. The Respondent also requested the hearing be postponed as its CEO, who dismissed the Claimant, was working abroad at the date of the hearing.
The ET informed both parties that the application to consider the defence would be dealt with at hearing but the hearing would not be postponed. The hearing went ahead in the absence of the Respondent and the defence was not allowed out of time. The Claimant was awarded one month’s salary, four weeks’ notice and three days’ holiday.
The Respondent appealed that his defence should be allowed and the entire case should be reheard. The EAT dismissed the parts of the appeal in relation to the defence, holiday pay and salary. However, it allowed the appeal for notice pay and remitted that part of the claim back to ET. The EAT held that the Claimant was unclear whether or not he had worked and been paid for his notice, and the ET needed to examine this
The takeaway point:
No, the Claimant cannot be given an award for pay if it is unclear whether or not they have claimed this. Following the decision in Office Equipment Systems v Hughes employers should be given an opportunity to contest remedy even if they have failed to contest liability.
No, as with a claim, a defence can rarely be submitted out of time. Usually employment tribunals will only allow a defence to be submitted out of time if the employer can prove that either: a) the claim was not properly served on them; or b) it was not reasonably practicable to lodge a defence on time.