EAT PRACTICE AND PROCEDURE – Appearance/response
PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, Rules 20 and 21 – Employment Tribunal refusing to allow the Respondent’s application for an extension of time to lodge its response to the ET claim – whether the ET failed to have regard to a relevant factor – adequacy of reasons
Subsequent refusal to permit the Respondent to participate at the remedy stage – whether an error of law – adequacy of reasons
The Respondent failed to lodge its response to the Claimant’s claims of unfair dismissal, unpaid holiday pay, unpaid wages, sex discrimination and breach of contract in time. It subsequently applied, under Rule 20 ET Rules 2013, for an extension of time in which to lodge its response. Its substantive defence to the claims was essentially two-fold: (1) the Claimant was not an employee, she had only ever been a Director of the Respondent; alternatively, (2) if she had been an employee, the Claimant’s employment had been terminated by reason of her conduct which was an answer to all her claims.
The ET concluded that the Respondent had been guilty of deliberate and intentional default in failing to lodge its response to the claim in time and its defence lacked merit. Whilst it would suffer greater prejudice than the Claimant if not permitted to lodge its response out of time, that was outweighed by other factors; its application for an extension of time was thus refused.
Subsequently – Judgment having been entered for the Claimant on liability – the Respondent sought to make representations on remedy. A different Employment Judge, having decided the issue of remedy could be determined on the papers, declined the Respondent’s request.
The Respondent appealed both decisions.
Held: Allowing the first appeal but dismissing the second.vHaving taken the view that the merit of the proposed defence was a relevant factor in its determination of the application for an extension of time (applying Kwik Save Stores Ltd v Swain and Ors [1997] ICR 49 EAT), the ET had considered the first way in which the Respondent was putting its case (the employment status argument) – finding this had no merit – but had failed to address the second, alternative, case (the repudiatory breach argument). On its face that disclosed an error as the ET had failed to consider a factor that it apparently saw to be relevant to the exercise of its discretion (the merit of the Respondent’s case); alternatively, the ET had failed to provide any reasons for rejecting this second aspect of the Respondent’s case. Although the appropriate course in these circumstances would have been to apply to the ET for a reconsideration of the decision (on the basis that it had failed to address a relevant point in its Reasons), or to ask the EAT to make a reference under the Burns/Barke procedure, the first appeal would be allowed and the matter remitted to the same ET to address the question of the merits of the Respondent’s alternative defence and its potential relevance to the determination of its application for an extension of time, such reconsideration to be on the basis of the material already before the ET.
As for the second decision under challenge, this related to an exercise of the ET’s broad case management discretion in determining the appropriate way forward in terms of deciding remedy. The Claimant having provided extensive further information, the Employment Judge took the view that remedy could be determined on the papers without need for any hearing. That being so, the possibility of the Respondent’s participation (as allowed under Rule 21(3)) did not arise. The Respondent had not raised any questions as to the information provided by the Claimant at any stage such as to suggest that the decision to determine remedy on the papers was other than a permissible exercise of discretion. The ET was not thereby depriving the Respondent of its right to a fair hearing; rather, the Respondent had failed to lodge a response to the ET claim in time and thus acted in breach of the Rules of the ET and thereby failed to avail itself of the right to participate in the proceedings. As for the reasons for declining the Respondent’s request to make representations on remedy, the ET was entitled to give reasons proportionate to the decision it was then making. Subject to the point raised by the first appeal, detailed reasons had already been provided as to why the Respondent had not been granted an extension of time to lodge its response; the ET was not obliged to re-visit those reasons at the remedy stage. Otherwise, there was nothing further the ET needed to explain, given its case management decision that the issue of remedy should be determined on the papers.
Judges:
Eady QC HHJ
Citations:
[2016] UKEAT 0183 – 16 – 2212
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 February 2022; Ref: scu.577870
