Labour & European Law Review Weekly Issue 282 16 August 2012
Once a claimant has lodged their claim at the Tribunal, the employer (known as the respondent) has to respond on a form called the ET3. In E P E M Ltd v Huggins, the Employment Appeal Tribunal (EAT) said that respondents can still take part in a hearing about compensation even if their ET3 has been struck out for failing to comply with a Tribunal order.
Following a breakdown in her relationship with Mr Shiell, the company director, Ms Huggins resigned and claimed constructive dismissal in November 2010. The company lodged its ET3 in December, part of which was in Mr Shiell’s handwriting.
On 10 February, the Tribunal directed him to file a typewritten copy within 14 days of the date of the order and on 16 February, wrote to the parties telling them that the hearing would take place in May.
Mr Shiell replied saying he could not attend as he would be on holiday and supplied confirmation of the booking. On 7 March his travel agent confirmed the booking but did not say when it had been booked.
On 10 March, the employment judge refused to adjourn the case and made an unless order which stated that unless Mr Shiell complied with the order, his response to the claim would be struck out. It was, however, not entirely clear what the order required him to do as the Tribunal had filed other directions at the same time.
He failed to submit a typewritten copy and the Tribunal duly struck out his ET3, but did not enter judgement against him. His solicitors then wrote to the Tribunal arguing that they should be allowed to attend and cross examine Ms Huggins on the issue of compensation (called remedy) in the interests of justice.
The Tribunal refused that request and went ahead with the hearing, finding in favour of Ms Huggins.
Grounds of appeal
The company appealed, arguing that the Tribunal had relied on the wrong rules when it rejected the request to be allowed to take part in the hearing, adding that it was unjust not to allow the company to challenge the merits of the claim nor to participate in the remedy proceedings.
It said that, as Ms Huggins was well aware of the company’s case, she had not been prejudiced in any way by the fact that some of its response had been handwritten.
The EAT allowed part of the appeal.
Relying on the case of North Tyneside Primary Care Trust v Aynsley and ors, it said that the Tribunal had based its decision on the wrong rule and that it could have exercised its discretion and heard the company’s application.
It was held in Aynsley that striking out an ET3 should be dealt with as though it had not been presented within time or had been rejected by the Tribunal, with the result that the respondent could not participate further.
However, the EAT said that, following the decision in the case of D & H Travel Ltd v Foster this no longer applied in appropriate circumstances (such as here) to participating in the remedy hearing.
On that basis, the EAT rejected the company’s appeal to review the Tribunal judgment, but remitted its application to participate in the remedy hearing to a new Tribunal.