VMI (Blackburn) Ltd v Camm

Where a respondent has failed to lodge an accepted response in time, and no extension has been granted, rule 9 prevents participation in the proceedings. That restriction applies to both liability and remedy, including a separate remedy hearing. The respondent remains entitled to appeal, but an appeal cannot ordinarily be used to introduce evidence that was available but not adduced below or to reopen factual findings on compensation. The appropriate route for such evidence is generally an application for review before the Employment Tribunal.

The claimant brought proceedings for unfair dismissal after being selected for redundancy and dismissed for alleged gross misconduct. The respondent failed to lodge its response within time because of an alleged clerical error. The Employment Tribunal refused to extend time, and the respondent did not appeal that decision.

The respondent was therefore excluded from the subsequent remedy hearing. The Tribunal assessed compensation, including earnings, future loss and mitigation, and awarded £22,264.19. The respondent appealed, seeking to challenge the assessment of quantum and the absence of a reduction for the possibility of dismissal in any event.

1. Appeal dismissed. The respondent’s principal difficulty arose from the unchallenged refusal to extend time for lodging the response. That decision was the decision seriously open to challenge, but it was not appealed.
2. Under rule 9 of the Employment Tribunal Rules, a respondent whose response has not been presented or accepted is not entitled to take part in the proceedings. The rule’s exceptions include requests for written reasons, review applications and, in appropriate circumstances, being called as a witness or receiving documents.
3. Following NSM Music Ltd v Leefe [2006] ICR 450, the prohibition applies to a remedy hearing as well as to a merits hearing. The respondent consequently had no right to make submissions on quantum, mitigation or any potential reduction.
4. ATOS Origin IT Services UK Ltd v Haddock [2005] IRLR 20 establishes that a barred respondent remains entitled to appeal. That right did not enable this Tribunal to reopen factual findings or admit evidence which had been available but was not before the Employment Tribunal.
5. The rules governing fresh evidence on appeal are strict. Where evidence should have been placed before the Tribunal, the proper course is generally an application for review, as explained by Underhill J in Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA. The Tribunal was therefore powerless to revisit the compensation assessment, and the appeal was dismissed.

• Employment Tribunal: refused to accept the respondent’s late response and later awarded the claimant £22,264.19 at a remedy hearing in which the respondent was not permitted to participate.
• Employment Appeal Tribunal: dismissed the appeal. The respondent had not appealed the refusal to extend time and could not use the appeal to reopen factual issues or introduce previously available evidence.