Crouch v Ant Marketing & Ors

An Employment Tribunal may treat a single ET3 and accompanying grounds of resistance as a response by more than one respondent where, read as a whole, the document sufficiently indicates that intention. An omission to name one respondent in a particular section of the form is not necessarily decisive.

Even if a default judgment has been wrongly refused, the Employment Appeal Tribunal may enter one and review it. A technically defective response should be revoked where the response was plainly intended to cover the respondent and the claimant has suffered no prejudice.

The claimant brought employment claims against Ant Marketing Ltd and its HR manager, Adam Jones. The ET1 named both respondents, but the ET3 identified only the company in the relevant section of the form. The attached grounds of resistance referred to both respondents and addressed Mr Jones’s role.

The Employment Judge accepted the response as having been entered on behalf of both respondents and refused the claimant’s application for default judgment against Mr Jones. The claimant appealed, arguing that Mr Jones had not entered a response. The central issue was whether the ET3, read with its attached grounds, constituted a response by both respondents.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the ET3 and attached grounds of resistance, read as a whole, constituted a response lodged on behalf of both Ant Marketing Ltd and Mr Jones.
2. Although representatives should expressly identify in the ET3 on whose behalf a response is lodged where there are several respondents, the intention to respond for both respondents was sufficiently implicit. The grounds referred to both respondents in their heading, described Mr Jones’s role in the defence, and addressed the discrimination claim brought against both of them.
3. The conditions for a mandatory default judgment under Rule 8 were therefore not met. Mr Jones had, in substance, entered a response within time.
4. Alternatively, if the Employment Judge had been wrong and a default judgment ought to have been entered, the EAT would have exercised its power under section 35(1) of the Employment Tribunals Act 1996 to enter it and then reviewed it under Rule 33. In the interests of justice it would have revoked the judgment because the defect was technical, the intention to defend was clear, and the claimant had suffered no prejudice.
5. Accordingly, even on the alternative basis, the outcome was plainly and unarguably correct: no default judgment would remain in force.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Judge’s refusal to issue a default judgment against the second respondent.
• Employment Tribunal: accepted the ET3 response as having been entered on behalf of both respondents and declined to issue default judgment.