EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Respondent’s ET3 struck out for failure to comply with an unless order. No judgment entered against the Respondent. Employment Tribunal refused to permit Respondent to have order reviewed but applied rule 34 of ET Rules of Procedure. Also, applying rule 9 Employment Tribunal refused to permit Respondent to participate in remedy hearing; Employment Tribunal’s attention not drawn to North Tyneside Primary Care Trust v Aynsley and Ors [2009] ICR 1333 nor D and H Travel Ltd v Foster [2006] ICR 1537.
Employment Tribunal went on to hear the Claimant’s claim for unfair dismissal unopposed and enter judgment in her favour.
The effect of a strike-out of an ET3 (following Underhill J in Aynsley) was to be equated with the case of failure to present an ET3 within time, or of rejection of the ET3 by the Employment Tribunal so that rule 9 of ET Rules of Procedure applied and the Respondent was not permitted to participate further; however this did not apply in appropriate circumstances to participating in the remedy hearing; Foster applied.
The Respondent might also apply for a review of the strike-out under rule 10 of the ET Rules of Procedure. The principles applicable to such an application were similar to those relating to applications under rule 34.
On the particular facts of the case, the appeal relating to the application to review the judgment of the Employment Tribunal was refused but the application to participate in the remedy hearing was remitted for further consideration by a new constitution of the Employment Tribunal.
Judges:
Serota QC J
Citations:
[2012] UKEAT 0019 – 12 – 2105
Links:
Jurisdiction:
England and Wales
Employment
Updated: 03 November 2022; Ref: scu.462306