Office Equipment Systems Ltd v Hughes, Court of Appeal - Civil Division, August 01, 2018, [2018] EWCA Civ 1842,[2018] WLR(D) 510

Resolution Date:August 01, 2018
Issuing Organization:Civil Division
Actores:Office Equipment Systems Ltd v Hughes
 
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Case No: A2/2017/0095

Neutral Citation Number: [2018] EWCA Civ 1842

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HER HONOUR JUDGE EADY QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/08/2018

Before:

LORD JUSTICE UNDERHILL

and

LORD JUSTICE BEAN

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Between:

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David Reade QC and Keith Webster (instructed by Wace Morgan, Shrewsbury) for the Appellant

The Respondent did not appear and was not represented

Hearing date: 18 July 2018

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JudgmentLord Justice Bean :

  1. On 3 November 2015 Ms Hughes issued a claim in the employment tribunal at Cardiff for unfair dismissal, sex discrimination, notice pay, holiday pay and arrears of pay against Office Equipment Systems Ltd (``the company''). The deadline for filing a response was 3 December 2015 but the company failed to meet that deadline. On 8 December 2015 the Tribunal wrote to the company as follows:

    NO RESPONSE RECEIVED

    Employment Tribunals Rules of Procedure 2013

    ``You did not present a response to the claim. Under rule 21 of the above Rules because you have not entered a response a judgment may now be issued. You are entitled to receive notice of any hearing but you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case''.

  2. Where no response has been presented in time rule 21 subparagraphs (2)-(3) provide:

    ``(2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide) a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise a hearing shall be fixed before s Judge alone.

    (3) The respondent shall be entitled to notice of any hearing and the decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.''

  3. On 22 December 2015 the company sought to lodge a form ET3 accompanied by draft detailed grounds of response and an application under Rule 20 of the ET rules for an extension of time and an order that the Rule 21 judgment be set aside. Their grounds for doing so was that their employee Mr Jackson, who was in a position to give instructions about the case, had been ill between 6 November and 7 December 2015.

  4. On 11 January 2016 the parties were given notice of a Preliminary Hearing to consider these applications.

  5. That hearing took place before Employment Judge Emery (sitting alone) on 12 February 2016. Ms Hughes was represented by a solicitor and the company by counsel. Reference was made to the decision of the EAT in Kwik Save Stores v Swain [1997] ICR 49. The company put forward Mr Jackson's ill health as a reason for the delayed response. On the merits of the proposed defence, counsel for the company submitted that ``the defence had a knock-out blow that the claimant was not an employee''; and alternatively that there had been a repudiatory breach by the claimant.

  6. EJ Emery concluded that there was no reasonable explanation for the delay in submitting the response and that on the documentation before the tribunal the defence of the company appeared to have little merit. He decided that the discretion to extend time should not be exercised in favour of the company and that its application under rule 20 should be dismissed. Written reasons were issued for that decision.

  7. On 15 March 2016 Employment Judge Cadney issued a judgment in the following terms:-

    ``A decision having been made to reject the ET3 response form from the respondent, and there being sufficient material before me to enable a proper determination to be made, I uphold the following claims:

    · Unfair dismissal

    · Unpaid holiday pay

    · Unpaid wages

    · Sex discrimination

    · Breach of contract

    This judgment applies to liability only.

    The matter will now proceed to a hearing on remedy before an Employment Judge sitting alone.

    I act in accordance with my powers under Rule 21 of the Employment Tribunal's Rules of Procedure 2013.''

  8. The company's solicitors wrote to the tribunal on 31 March indicating that they would be appealing ``the decision made following the hearing on 12 February. They added:

    ``If despite this appeal the Tribunal still considers it appropriate to issue a judgment on remedy without the need for [a] hearing, the Respondent would like the Employment Judge to exercise his/her discretion to allow the Respondent to fully take part in the consideration of remedy and to take part in any hearing on remedy.''

  9. This request fell on deaf ears. On 14 April 2016 an email was sent from the tribunal to the solicitors for both parties in the following terms:

    ``An employment judge has considered the information received from the claimant and it appears there is sufficient material on which to make a determination on remedy without the need for a hearing. The respondent's request to participate at remedy stage is declined. The matter will be considered on paper and judgment issued in due course.''

  10. Although the email does not, as it should have done, identify the judge who made this decision, which is the one now under appeal to this court, we...

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