The Court of Appeal has held that an employer who had been debarred from participating in proceedings at the liability stage should have been allowed to make representations on remedy.
In this case the claimant had issued various claims in the employment tribunal, including for unfair dismissal and sex discrimination. The employer had failed to submit its ET3 response within the 28 day deadline and had been refused an extension of time. Default judgment on liability was issued in favour of the claimant. Remedy was duly considered without a further hearing, but the employment judge refused to consider the employer’s representations on remedy. On appeal to the EAT, it was held that the Tribunal’s decision not to hear the employer on remedy was permissible. The employer appealed to the Court of Appeal.
The Court of Appeal noted the position in the civil courts, as well as employment case law which had been decided under the old 2004 Tribunal rules which held that employers ought to be permitted to participate in a remedies hearing notwithstanding that default judgment had been awarded against them. The Court of Appeal was of the view that the same principle should apply under the 2013 rules, such that the employer should be heard on remedy issues. In practice this meant that if remedy was to be dealt with at the liability hearing, then the Tribunal should as a minimum consider written representations from the employer. If remedy was dealt with at a separate hearing, then the employer should generally be allowed to participate in that subsequent remedy hearing. This should only be deviated from in exceptional circumstances, which did not exist in the current case.
Why this matters
This is good news for employers. In circumstances where a default judgment is awarded, the employer should not only focus on challenging the liability judgment but also on submitting written representations on remedy for the Tribunal to consider and, in more complex cases, arguing for a separate remedies hearing at which they can make oral representations on remedy.