Rojas v Brent Association Of Disabled People Ltd (Debarred)

An Employment Tribunal's decision to review and revoke a default judgment must rest on an accurate factual basis. An application made outside the 14-day period under rule 33 requires a decision that an extension is just and equitable. A failure to comply with conditions imposed for pursuing the review application is material to that assessment.

Where the Employment Appeal Tribunal sets aside a review decision, the ordinary course is to remit the application for reconsideration unless a lawful application of the relevant principles admits of only one answer. The apparent merits of the underlying claim are relevant, but they are not the only consideration.

The Claimant brought claims of unfair dismissal and disability discrimination. The Respondent did not lodge an ET3, and the Employment Tribunal entered default judgment on liability on 14 December 2011.

At a later remedy hearing, the Respondent sought to challenge the default judgment. The Employment Judge permitted a review application subject to requirements for timely service of documents and witness statements. The Respondent was said not to have complied, but the Employment Judge nevertheless reviewed and revoked the default judgment by a judgment dated 18 May 2012.

The Claimant appealed. The central issues were whether the review decision rested on a false factual basis and whether the matter should be finally determined or remitted.

1. Appeal allowed. The Employment Judge's judgment of 18 May 2012 was set aside. The reasons stated that the Respondent had complied with the earlier order, but the uncontradicted affidavit evidence showed that it had not served the required witness statements and had served only two emails as documents. The review decision therefore rested on a fundamentally erroneous factual basis.

2. Under rule 33 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, an application to review a default judgment was subject to a 14-day limit, extendable only where just and equitable. The Employment Judge's reasons did not address that question. To the extent it had been considered, the assessment was also made on the false premise that the Respondent had met the conditions imposed for its review application.

3. The EAT accepted the affidavit evidence. It was proportionate to do so because the Respondent had neither participated in the appeal nor disputed the evidence, and the subsequent procedural steps were consistent with non-compliance with the earlier order.

4. The default judgment was not simply restored. An application for review implicitly included an application to extend time. The usual course after an EAT sets aside the decision is remittal for reconsideration on the correct basis unless only one result is legally possible. That threshold was not met. The apparent strength of the Respondent's proposed case, including the possible effect of insolvency on a TUPE claim, was relevant but not determinative.

5. The review application was remitted for reconsideration. The Respondent's participation in that reconsideration was a matter for it.

• Employment Appeal Tribunal: Allowed the Claimant's appeal and set aside the Employment Tribunal's judgment of 18 May 2012 revoking the default judgment. The review application was remitted for reconsideration.

• Employment Tribunal: On 14 December 2011 entered default judgment on liability after the Respondent did not lodge a response. On 18 May 2012 it reviewed and revoked that default judgment.