Pallet Route Solutions Ltd v Morris

A respondent who presents a response late loses any right to insist on participating in subsequent proceedings under rule 9 of the 2004 Rules. However, the rule does not prevent the Employment Tribunal from inviting the respondent to participate, or from permitting participation if the respondent asks to be heard. The Tribunal must apply the overriding objective and consider whether exclusion would cause procedural unfairness. A blanket refusal to hear the respondent at a remedy hearing, following a default judgment determining liability only, may constitute a material procedural irregularity. The construction should also be understood consistently with access to a fair hearing under Article 6 of the European Convention on Human Rights.

The employer’s response to an unfair dismissal claim was received one day late. A default judgment was entered on liability only, and the employer’s application for review under rule 33 was refused. The Employment Tribunal then listed a remedy hearing and notified the employer that it could make written and oral representations.

After receiving the claimant’s evidence shortly before the hearing, the employer sought a postponement. It was told that it had no standing to participate because its response was late. The employer therefore did not attend. The appeal concerned whether rule 9 absolutely barred participation in the remedy proceedings, and whether the Tribunal’s refusal caused procedural unfairness.

1. Appeal allowed and remedy remitted. The Employment Tribunal’s conclusion that the respondent had no standing to attend or make representations at the remedy hearing was an error of law. The remedy issue was remitted for reconsideration, including whether the respondent should be invited to participate.

2. The two proposed alternative arguments based on the response having been presented, or having been accepted, could not succeed. In context, “presented” meant presented within the applicable time limit, and “accepted” meant properly accepted. The consequences of a late response could not depend on whether the Tribunal had initially made the default judgment required by the Rules.

3. Rule 9 removed the respondent’s entitlement to take part as of right. It did not state that the respondent could never be permitted to participate. The Tribunal retained power to invite participation or to permit it following an application. In exercising that power, the Tribunal had to apply the overriding objective and could refuse participation where there was good reason.

4. The artificial route identified in D&H Travel Ltd v Foster through review under rules 34 and 35 was unnecessary where the Tribunal could directly consider whether participation should be permitted. Excluding a respondent from a remedy hearing after liability had been determined by default could create an unjustified and disproportionate technical barrier to a fair hearing. The approach was consistent with section 3 of the Human Rights Act and Article 6 of the European Convention on Human Rights.

5. On the facts, the respondent would almost certainly have attended and would have had a strong case for being permitted to make submissions. The mistaken statement that it had no standing pre-emptively deprived it of that opportunity, and the Tribunal could not say that the remedy outcome would necessarily have been the same.

• Employment Appeal Tribunal: allowed the appeal and remitted the remedy issue to the Employment Tribunal.
• Employment Tribunal: entered a default judgment on liability, refused review under rule 33, and determined remedy without permitting the respondent to participate.