Employment claim: Beware of Employment Tribunal oversight

29 November 2018

There can be dire consequences of failing to submit a defence during an employment claim. In this case Office Equipment Systems Ltd v Hughes [2018], we look at details not to be missed when an employee brings a claim.

The employer, Office Equipment Systems, failed to submit a defence to an employment claim within the required deadline. The company later tried to persuade the court to allow them to participate claiming that the failure was due to staff absences. However, the court was not persuaded by this excuse stating that no reasonable explanation for the delay had been presented. This meant that a judgment was issued without the employer’s defence being taken into account. In this case, the judge upheld claims for unfair dismissal, unpaid holiday pay, unpaid wages, sex discrimination and breach of contract.

Whilst the employee was successful in her claim, the Judge didn’t reach a decision on the amount of award to be made to the employee at the time. It was later decided that the employee should be awarded £75,000 (the remedy).

The company had already launched an appeal against the decision on liability, but, having written to the judge asking for permission to participate in the remedy hearing which had been refused, now added an appeal against its exclusion from the hearing to deal with the award to be made to the employee. The court refused, stating that the reason why the Respondent was not permitted to make representations was obvious: it had not entered a response to the claim in time and had been refused an extension of time. The Employment Appeal Tribunal (EAT) agreed with the tribunal’s decision on this point.

The employer appealed to the court of appeal who disagreed with the decision of the tribunal and EAT. They said it was wrong to refuse the company’s submissions when addressing the award to be made. Lord Justice Bean stated that: ’In a case which is sufficiently substantial or complex to require the separate assessment of remedy after judgment has been given on liability, only an exceptional case would justify excluding the respondent from participating in any oral hearing.’ This case was not exceptional and so the company should have been permitted to participate.

The draft order for the £75,000 has been set aside and the case has been sent back to the employment tribunal for a further remedy hearing to include the company’s submissions. It will be interesting if the remedy remains at the original £75,000 or if the company can persuade the judge to reduce the award.

This is a timely reminder of the importance of filing a defence to a claim to ensure that you are able to fully participate in proceedings and put forward a full defence.
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