The claimant brought proceedings against her employer in the employment tribunal for wages and breach of contract. The claim was defended and the employer presented a contract claim arising out of the same facts. The claimant was informed by the tribunal office that if she wished to contest the employer’s claim she needed to respond within 28 days, that if no response was received she would only be permitted to participate in any hearing to the extent permitted by the employment judge and that a default judgment might be entered against her. The claimant wished to contest the counterclaim but failed to enter a response in accordance with rule 25 of the Employment Tribunal Rules of Procedure 2013 or apply for an extension of time to do so. At the hearing attended by the claimant and her representative, the employment judge gave judgment on the employer’s claim because it was undefended and, deciding that it was not in accordance with the overriding objective to hear evidence, dismissed the claimant’s claim upon the employer agreeing to a set-off.
On appeal by the claimant—
Held, appeal allowed. (1) Where on the expiry of the prescribed time limit no response had been received to an uncontested claim, rule 21(2) of the Employment Tribunals Rules of Procedure 2013 enabled the employment judge to determine the claim and issue a judgment if he was satisfied that the essential factual elements were made out, obtaining further information from the parties if necessary to enable a determination to be properly made. Otherwise a substantive hearing should be fixed before a judge sitting alone and, in accordance with rule 21(3), a respondent would only be allowed to participate to the extent permitted by the judge. It would be an error of law for the judge not to consider and decide judicially whether, and the extent to which, the respondent should be permitted to participate and, if the employment judge failed to consider the matter and simply proceeded to a full hearing, he would still need to be satisfied at the hearing that it was appropriate to grant judgment. Rule 21(3) was also applicable where judgment had been given under rule 21(2) on one aspect, such as liability, but with a hearing directed on another aspect, such as remedy, or where no judgment had been given, in which case a respondent wishing to participate in the hearing would need pro-actively to obtain permission to do so in advance of, or at, the hearing, at which point it was for the judge to consider and decide whether or to what extent to permit such participation. Further, a judgment on liability in an undefended claim should not be treated as an automatic bar to the respondent contesting issues in respect of remedy (paras 26, 33).
(2) The employment judge had erred in law in failing to actively consider whether, on the evidence, there was a proper basis to grant judgment on the employer’s claim and whether the claimant should have been permitted to participate at the hearing. Accordingly, the case would be remitted to the tribunal to decide whether a determination of the employer’s claim could be made without a hearing and the extent to which the claimant should be permitted to participate (paras 43, 44, 46).
Per curiam. The decision in Hughes v Office Equipment Systems Ltd [2019] ICR 201 should be followed in every case where the tribunal is dealing with remedy in respect of an undefended claim, whether on paper or at a hearing. In all cases a proper balance needs to be struck between avoiding the delays and costs associated with the holding, prolonging or possibly postponing of a hearing given that the claim is undefended, and, where appropriate, allowing the other party to participate to some extent (para 36).
Imogen Egan (instructed directly through the Free Representation Unit) for the claimant.
The employer did not appear and was not represented.