Red Ninja Ltd v Succu

A late Employment Tribunal response must be rejected under rule 18(1) of the Employment Tribunals Rules of Procedure 2013 unless an application for an extension has already been made or accompanies the response. The rule is mandatory.

A rejected respondent may nevertheless be entitled to participate on remedy. A tribunal may determine straightforward, small and liquidated wage and holiday claims without that participation. It must, however, act fairly where an unpleaded additional claim or remedy is contemplated and the respondent has not had a fair opportunity to address it.

The Claimant sought his final month’s wages and payment for three untaken holiday days following the termination of his employment. The Respondent filed a proposed response about two and a half weeks late. It did not apply in writing for an extension of time, but requested a postponement because its two employees were in the United States.

The Employment Tribunal rejected the response, refused the postponement, and awarded wages, holiday pay and a further four weeks’ contractual notice pay. The Respondent appealed. It challenged the rejection of its response and the refusal to postpone, including the additional notice-pay award.

The central issues were whether the late response could stand, whether it was fair to determine remedy without the Respondent, and whether the Tribunal could make an additional notice-pay award not fairly identified in the claim.

1. The appeal was allowed in part. The appeal against rejection of the late response was dismissed. Rule 18(1) of the Employment Tribunals Rules of Procedure 2013 required its rejection because it was late and neither contained nor was accompanied by a written extension application. The Employment Judge therefore had no discretion to accept it.

2. Even if a discretion had existed, there was no error of law in rejecting the response. No explanation for the lateness had been put before the Tribunal. The proposed response disclosed no arguable defence to the wage and holiday claims. An asserted counterclaim did not itself justify withholding wages, and no contractual or other agreed right of set-off was pleaded.

3. The refusal to postpone was potentially unfair in the particular circumstances. The Respondent had identified that its relevant personnel were abroad and had repeatedly sought a response to its application. The Tribunal did not give a substantive response until the working day before the hearing, when it said the application would be decided at the hearing in the Respondent’s absence. That procedure deprived the Respondent of a meaningful opportunity to participate if the postponement were refused.

4. Applying the guidance in [2019] ICR 201, the Tribunal was nevertheless entitled to determine the straightforward wage and holiday claims without further input. Their existence and amount were clear, and the Respondent had no proper defence. Those awards therefore stood.

5. The further award of four weeks’ notice pay was different. Properly read, the claim form sought wages for a notice period which the Claimant said he had worked, not an additional contractual notice-payment claim. The Tribunal did not explain the basis for adding such a claim and the Respondent was not fairly on notice that it might be awarded. The notice-pay award was quashed and remitted. If the Tribunal contemplates considering that additional claim, it must first allow both parties a fair opportunity to address whether it should be considered and, if so, its merits.

• Employment Appeal Tribunal: Appeal allowed in part. The wage and holiday awards were upheld; the additional notice-pay award was quashed and remitted.
• Employment Tribunal: On 8 October 2018, the Tribunal rejected the late response, refused a postponement, and awarded wages, holiday pay and contractual notice pay.