Practice and Procedure – Right To Be Heard
The Respondent’s ET 3 in response to a claim for unlawful deduction of wages and holiday pay was lodged six days out of time. An ET refused to extend time and held that judgment be entered, and that the Respondent could be permitted to participate in any hearing only to the extent permitted by an Employment Judge.
The Claimant was asked to and did produce details as to the computation of his claim. This was not copied to the Respondent by the ET, which went on to make a default judgment of pounds 4,615.38 by way of unauthorised deductions, and pounds 5,769.21 representing a failure, ‘to pay the Claimant’s holiday entitlement.’ A different Employment Judge refused to reconsider the matter, and also refused to give reasons.
The Claimant had not kept a copy of the material he provided to the ET, and the ET refused to provide the Respondent with a copy, no reasons for this refusal being given.
In Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 the Court of Appeal held that it would generally be wrong for an ET to refuse to read any written representations or submissions as regards remedy sent to it by the defaulting respondent. It also held that where then computation of loss was not straightforward only an exceptional case would justify an ET excluding the respondent from participating in any oral hearing. It should be rarer still for a tribunal to refuse to allow the respondent to make written representations on remedy.’
The EAT held that the refusal to provide the Respondent with the opportunity to comment on the Claimant’s computations was an error of law on the ET’s part. It commented that the refusal to reconsider the decision and/or to provide reasons as to how the awards were calculated offended both common sense as well as basic fairness and justice.
Citations:
[2019] UKEAT 0050 – 19 – 1909
Links:
Jurisdiction:
England and Wales
Employment
Updated: 19 October 2022; Ref: scu.646849