The claimant brought proceedings in the employment tribunal for unfair dismissal, sex discrimination, notice pay, holiday pay and arrears of pay against her employer. The employer failed to submit a response within the time limit prescribed by the Employment Tribunal Rules of Procedure 2013. Acting pursuant to rule 21(2) of the 2013 Rules, the employment judge issued a judgment on liability upholding the claims. The employer sought to make representations or participate in the remedies determination, but the employment judge refused and decided the matter on the papers. The Employment Appeal Tribunal dismissed the employer’s appeal against the decision to debar it from making submissions on remedy.
On the employer’s appeal—
Held, appeal allowed. The position in the civil courts was that on an assessment of damages all issues were open to a defendant save to the extent that they were inconsistent with the earlier determination of the issue of liability, whether such determination took the form of a judgment following a full hearing on the facts or a default judgment. There was no reason why it should not be the same in the employment tribunals. There was Court of Appeal authority showing it was wrong to assume that unless the default judgment was set aside a respondent could play no further part in the proceedings. To exclude the respondent in those circumstances was simply a punishment for failing to comply with the Rules. There was no absolute rule that a respondent who had been debarred from defending an employment tribunal claim on liability was always entitled to participate in the determination of remedy. At the lower end of the scale of cases employment tribunals routinely dealt with claims for small liquidated sums, such as under Part 2 of the Employment Rights Act 1996 where liability and remedy were dealt with in a single hearing. In such a case, a respondent who had been debarred from defending under rule 21 of the Employment Tribunal Rules of Procedure 2013 could have no legitimate complaint if the employment tribunal proceeded to hear the case on the scheduled date, determined liability and made an award. Even in that type of case it would generally be wrong for the tribunal to refuse to read any written representations or submissions as regards remedy sent to it by the defaulting respondent in good time, but proportionality and the overriding objective did not entitle the respondent to a further hearing. But in a case which was sufficiently substantial or complex to require the separate assessment of remedy after judgment had been given on liability, only an exceptional case would justify excluding the respondent from participating in any oral hearing; and it should be rarer still for a tribunal to refuse to allow the respondent to make written representations on remedy. The present case was not exceptional. There was no reason why the employer should have been precluded from making submissions on the quantum of the claimant’s claim following the judgment on liability. An appropriate course would have been to invite the employer to make such submissions by a specified date and for an employment judge then to consider whether an oral hearing was required (paras 16–21, 29).
David Reade QC and Keith Webster (instructed by Wace Morgan, Shrewsbury) for the employer.
The claimant did not appear and was not represented.