Bal v Parallel Realisations 1 Ltd (Practice and Procedure : Review)

Where a respondent states that it will not resist a claim, the Employment Tribunal may give a default judgment determining liability and remedy on the information before it. A review of such a judgment is available to either party and should be approached more liberally than review of a contested judgment.

New evidence should be admitted on review where it was unavailable at the original determination and could materially affect compensation. A later-discovered relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations may mean that employment would have continued with the transferee. It is therefore wrong to cap compensatory loss at the transferor's administration merely because of that administration.

The claimant was dismissed before the respondent entered administration. The administrators filed a response but said that they would not resist his claim. The Employment Tribunal awarded compensation by default and limited loss of earnings to the date of administration.

After judgment, the claimant obtained material indicating that the respondent's business had transferred to another company. He applied to review the compensation award on the basis of new evidence. Regional Employment Judge Gay refused the application on the papers, holding that the evidence had always been available and that there was no review ground or reasonable prospect of varying the judgment.

The claimant appealed against that refusal. The central issue was whether the later material concerning a TUPE transfer should be admitted and whether it required a fresh assessment of forward loss.

1. Appeal allowed. The original decision was properly characterised as a default judgment. The administrators' statement that they did not intend to resist the claim fell within rule 8(2)(c). A default judgment may determine both liability and remedy, and the Employment Judge could decide remedy on the available information without a hearing. She therefore had jurisdiction to sit alone.

2. The claimant's application should have been dealt with under the more liberal review jurisdiction for a default judgment in rule 33, although the result was the same whether rule 33 or rule 34 applied to the new material. A successful party may seek such a review. The Employment Judge erred by treating the evidence as evidence which should earlier have been obtained and by refusing to consider its potential effect.

3. The material was new and was capable of changing the award. It established a relevant transfer within the Transfer of Undertakings (Protection of Employment) Regulations. Had the claimant not been unfairly dismissed, he would have been employed at the transfer date and, absent material to the contrary, would have benefited from Regulation 4. His contract would have transferred to the transferee.

4. It followed that the administration did not justify capping loss on 31 January 2011. Applying the ordinary principles for admitting fresh evidence, the EAT admitted the evidence because it would have affected the compensation assessment. The appeal was allowed, the review granted, and the matter remitted to Regional Employment Judge Gay for a fresh assessment of losses from 1 February 2011, including the period for which the claimant would have remained employed by the transferee.

• Employment Appeal Tribunal: Allowed the claimant's appeal from the refusal of a review, granted the review, and remitted compensation for reassessment.
• Employment Tribunal: Regional Employment Judge Gay gave a default judgment sent on 19 December 2011, then refused the claimant's review application on the papers on 4 January 2012.