Fulthorpe & Anor v Heal (Contract of Employment : Damages for breach of contract)

An appeal against a remedy judgment cannot be used to reopen liability conclusively determined by an earlier default judgment where the time for appealing that judgment has expired and an extension has been refused. A party who disputes personal liability, the identity of the employer, or the effect of an earlier review decision must raise those matters by a timely appeal against the relevant liability or review judgment. Where liability is joint and several, compensation may be recovered from either liable respondent, including compensation for injury to feelings, without apportionment between them.

The claimant brought employment claims for breach of contract, unpaid wages and expenses, and sex discrimination. A default judgment determined liability against Mr Fulthorpe and Asturius Europe Ltd. A later review application failed. At the remedy hearing, the Employment Tribunal ordered the respondents jointly and severally to pay compensation of £37,411.80, together with £3,000 for injury to feelings.

The appellants lodged a notice of appeal against the liability, review and remedy decisions. The appeals against the first two decisions were out of time, and the Registrar refused an extension. The in-time appeal concerned only remedy. The central issue was whether Mr Fulthorpe could challenge his personal liability through that remedy appeal.

1. The appeal was dismissed. The Employment Appeal Tribunal heard the appeal only against the remedy judgment. The earlier default and review judgments were no longer open to challenge because the appeals against them were out of time and the Registrar’s refusal to extend time had not been appealed.
2. The default judgment conclusively determined that Mr Fulthorpe and Asturius Europe Ltd were jointly and severally liable for such compensation as the claimant was entitled to recover. The remedy appeal therefore could not be used to argue that Mr Fulthorpe was not the claimant’s employer or that another company bore responsibility.
3. Reasons for the review judgment were not required before an appeal could be launched. The written judgment was sufficient, and reasons could subsequently be requested by the Employment Appeal Tribunal under rule 30(3)(b) of the Employment Tribunal Rules.
4. The tribunal had properly declined to apportion the £3,000 injury-to-feelings award between the respondents. Liability for that head of loss, like the lost-earnings claim, was joint and several. The approach was consistent with London Borough of Hackney v Sivanandan and Ors [2011] IRLR 740.

• Employment Tribunal: A default judgment on liability was entered against Mr Fulthorpe and Asturius Europe Ltd. A subsequent review application failed. The tribunal later assessed compensation and ordered the respondents jointly and severally to pay the claimant.
• Employment Appeal Tribunal: The appeals against the default and review judgments were out of time. The appeal against the remedy judgment was dismissed.