Thornton v Jones

Where a respondent fails to lodge an ET3 in time, rule 9 operates automatically to prevent further participation. The proper procedure is to lodge the late response, allow its rejection, and apply for a review of that rejection under the applicable review rules.

The review discretion is broad and is governed by the interests of justice. The tribunal must consider the explanation for default, the length of delay, prejudice to each party and, in principle, the merits of the proposed defence. It must not treat the existence of a breach, without more, as determinative.

The respondent appealed against two Employment Tribunal decisions. He had failed to lodge a response after receiving a claim, partly because the tribunal had misspelt his name. His late ET3 was not admitted, and the tribunal proceeded to determine the claimant’s claims in his absence, awarding compensation.

The first appeal concerned refusal to review the rejection of the late response. The second concerned the substantive judgment, which had been made without the respondent being able to participate. The central issues were the correct procedural route and the proper exercise of the interests-of-justice discretion.

1. First appeal allowed. Rule 9 operated automatically when the respondent failed to lodge a response in time. There had been no separate judicial decision debarring him. The proper course was to lodge a late ET3, which would necessarily be rejected, and then seek review of that rejection under rules 6(6) and 34(3)(e), as explained in Moroak (t/a Blake Envelopes) v Cromie and D & H Travel Ltd v Foster.
2. The applicable review discretion was the broad interests-of-justice discretion described in Pendragon Plc v Copus, applying the principles in Kwik Save Stores v Swain. Relevant factors included the explanation for the default, whether it involved abuse or intentional failure, the length of delay, prejudice to both parties and the merits of the proposed defence. The tribunal had misdirected itself by asking only whether there was a good reason for the breach. It had failed to assess prejudice and the merits.
3. The Employment Appeal Tribunal exercised its power under Employment Tribunals Act 1996, section 35, rather than remitting the issue. The late response should be admitted. The respondent had not ignored the proceedings entirely, the further delay was limited, and the injustice of a substantial judgment without an opportunity to defend outweighed the prejudice caused by a fresh hearing. There were arguable issues on liability and quantum.
4. The amended ET3 was directed to stand as the respondent’s response. Rule 9 therefore ceased to apply. The second appeal succeeded because the respondent had not been given an opportunity to appear at the substantive hearing. The case was left to the Employment Tribunal for consequential directions, likely including a case management discussion.

• Employment Tribunal: refused the review application on 22 March 2010 and proceeded with the claimant’s substantive claims, awarding £9,419.45 in compensation. The substantive judgment was sent on 12 November 2010.
• Employment Appeal Tribunal: allowed both appeals, admitted the amended ET3 and left consequential directions to the Employment Tribunal.