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An employer can still raise issues on remedy despite failing to lodge a claim on time

20 August 2018

The Court of Appeal has recently ruled that an employer who failed to lodge an ET3 in response to an employee’s Employment Tribunal claim should still be able to make submissions in relation to the amount of damages to be awarded.

The employee, Jane Hughes, issued a claim in the Employment Tribunal (‘the ET’) on 2 November 2015 against her employer, Office Equipment Systems Limited (‘the Company’) for claims including unfair dismissal, sex discrimination and unpaid wages. The Company failed to submit its response by the deadline of midnight on 3 December 2015. The ET sent a letter to the Company on 8 December stating that it was aware that it had not presented a response and a judgment may now be issued. The Company would be entitled to receive notice of any hearing but it would only be able to participate in a hearing to the extent permitted by the Employment Judge who hears the case.

The Company tried to submit an ET3 to the ET on 22 December 2015 along with grounds of resistance, an application for extension of time to submit a response and an order to set aside the judgment in the matter. The Company explained the reason for submitting its response late was because one of its employees had been ill during the relevant timeframe and it stated there were merits in its defence as the Claimant had committed a repudiatory breach of contract. The application for an extension of time failed and the matter was listed for a remedy hearing.

The Company’s solicitor wrote to the ET asking it to exercise its discretion to allow the Company to fully take part in the consideration of remedy. On 14 April 2016, the ET sent correspondence to the parties saying that it had considered all the information and it was able to make a determination on remedy without the need for a hearing. It dismissed the Company’s request to be able to participate in any remedy discussion. A letter was sent to the parties on 27 April 2016 enclosing ‘draft findings in the remedy decision’, setting out compensation of just under £75,000.

The Company lodged two appeals: one on the issue of liability and one on the refusal to allow it to participate at the remedy hearing. Both appeals failed.

The Company then appealed the decision on remedy to the Court of Appeal. Lord Justice Underhill stated that "there is no absolute rule that a respondent who has been debarred from defending an employment tribunal claim on liability is always entitled to participate in the determination of remedy" but in this case, did not see "any reason why the Company should have been precluded from making submissions on the quantum of Ms Hughes" claim following the judgment on liability.’ The appeal was therefore allowed and the draft decision on remedy has been set aside and remitted back to the ET to consider the issue of remedy.

Comment

This case is a useful reminder to employers of the importance of ensuring that ET3 responses are lodged in time. However, whilst is it not the preferred or favoured course of action, it does confirm that if a response is unfortunately submitted out of time and an extension is not granted, there is still the potential to reduce the amount of damages awarded at remedy stage.

By Emily Jones

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