Office Equipment Systems Ltd v Hughes

Where an Employment Tribunal treats the merits of a proposed response as relevant to an application to extend time, it must address each materially distinct alternative defence advanced. It errs if it considers one defence but neither considers nor gives reasons for rejecting another.

Under Rule 21, a Tribunal may determine remedy on the papers where the available material is sufficient. In that event no hearing takes place and the discretionary question of permitting a defaulting respondent to participate in a hearing does not arise. Reasons for such a case-management decision need only be proportionate to the issue decided.

The Respondent failed to present a response in time to claims for unfair dismissal, unpaid holiday pay and wages, sex discrimination, and breach of contract. Its application under Rule 20 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 was refused by the Cardiff Employment Tribunal. The Tribunal found deliberate and intentional default and no merit in the Respondent’s employment-status defence.

The Respondent had also advanced an alternative case that the Claimant’s conduct justified her dismissal. It appealed on the ground that this defence had not been addressed. It separately appealed a later decision to assess remedy on the papers and refuse it participation at that stage.

1. First appeal allowed and remitted. The Employment Tribunal had applied the discretionary factors in Kwik Save Stores Ltd v Swain and Ors [1997] ICR 49 EAT. It regarded the merits of the proposed defence as relevant, considered the employment-status defence, and found it had no merit. However, it did not address the distinct alternative defence that the Claimant’s conduct or repudiatory breach justified dismissal.

   The Employment Appeal Tribunal could not infer from the rejection of the employment-status case that the Tribunal had also rejected the alternative defence. Nor could it determine that issue itself, since the Tribunal might find merit in that alternative case. The omission was therefore either a failure to consider a factor which the Tribunal treated as relevant or an inadequate failure to give reasons. The matter was remitted to the same Employment Judge, if practicable, to consider the alternative defence on the material already before the Tribunal and decide whether it affected the Rule 20 application.

2. The ordinary course for an alleged omission in reasons is an application for reconsideration or a request for a Burns/Barke reference. That course avoids unnecessary appeal costs and delay. Since this matter had already reached a Full Hearing, an adjournment for that purpose would achieve little and could cause injustice.

3. Second appeal dismissed. Under Rule 21(2) and (3), the Employment Judge permissibly decided that the Claimant’s further material allowed remedy to be determined on the papers. The Respondent identified no error in the proposed calculations, factual material, or injury-to-feelings assessment. There was therefore no basis to treat the case-management decision as impermissible.

   As no remedy hearing was required, the question whether to permit the Respondent to participate in a hearing did not arise. The Respondent’s lack of participation followed from its failure to present a response in time, rather than any denial of a fair hearing. The brief reasons were proportionate: detailed reasons had already been given for refusing an extension, and no substantive remedy issue required further explanation.

• Employment Appeal Tribunal: first appeal allowed and remitted to the Employment Tribunal; second appeal dismissed.
• Cardiff Employment Tribunal: refused the Respondent an extension of time to present its response, then determined that remedy could be decided on the papers without the Respondent’s participation.