In the case of Office Equipment Systems v Hughes, the Court of Appeal held that even though the respondent was debarred from contesting liability, they should have been allowed to participate in the remedy hearing.

The Claimant, Ms Hughes, issued a claim in the Employment Tribunal for unfair dismissal, sex discrimination, notice pay, holiday pay and arrears of pay against the Respondent, Office Equipment Systems Ltd. The deadline for filing a response was 3 December 2015, however the Respondent missed that deadline and, as a result, was debarred from contesting liability.

The Respondent applied for an extension of time, alleging that the reason for the delay in submitting the response was because their employee, Mr Jackson, who was in a position to give instructions about the case had been off work ill.

The Employment Tribunal concluded that there was no reasonable explanation for the delay in submitting the response and that the defence put forward by the Respondent appeared to have little merit. The Respondent’s application to extend time was therefore denied.

The Employment Tribunal upheld the Claimant’s claims and matters proceeded towards remedy. The Respondent made a request to participate in the remedy stage, however his request was refused.

As a result, the Respondent lodged an appeal against the decision excluding it from participating at the remedy stage.

The Employment Appeal Tribunal rejected the appeal, holding that excluding the Respondent from participating at the remedy stage was a permissible case management decision. The Respondent appealed against this decision.

The Court of Appeal held that, for a respondent debarred from contesting liability, the position in the employment tribunals should be the same as in the civil courts, which is that the respondent should be able to defend all issues other than liability.

It was announced 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.

In conclusion, the Respondent’s appeal was allowed as it was held that there was no reason why the Respondent should have been precluded from making submissions on the level of damages to be awarded following the judgment on liability. An appropriate course of action would have been to invite the Respondent to make such submissions by a specified date and for an employment judge then to consider whether an oral hearing was required.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 029 2034 5511 or employment@berrysmith.com 

Michael Shutt – Solicitor