Talash Hotels v Smith

A respondent barred from disputing liability under Rule 21 should generally be permitted to make timely written representations on remedy. Where remedy requires a separate assessment and is substantial or complex, exclusion from an oral remedy hearing will ordinarily be justified only exceptionally.

An Employment Tribunal acts unfairly if it determines remedy from the claimant's unshared calculations without giving the defaulting respondent a meaningful opportunity to comment. The Tribunal must take particular care where the calculation is not straightforward or appears anomalous.

The employee claimed unpaid wages, including alleged underpayment for additional hours, and 15 days' holiday pay. The employer's ET3 was lodged six days late. The Birmingham Employment Tribunal refused an extension of time and then entered a Rule 21 judgment awarding unauthorised deductions and holiday pay.

The Tribunal asked the employee for calculations but did not provide them to the employer. A different Employment Judge refused reconsideration without reasons, and also refused reasons for the Rule 21 judgment. The employer appealed on the ground that it had been denied an opportunity to participate in the assessment of remedy.

1. Appeal allowed. The Employment Tribunal erred in law by determining remedy without providing the employer with the claimant's calculations or allowing it any meaningful opportunity to make representations.
2. The Tribunal applied Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842. A Rule 21 default does not invariably entitle a respondent to a further hearing on remedy, particularly for a small and straightforward liquidated claim. However, written representations on remedy should generally be considered. Where remedy requires a separate assessment in a substantial or complex case, exclusion from an oral hearing is exceptional.
3. The employee's calculation was partly based on average working hours and was expected to be informed by the employer's clocking records. The employer should therefore have been notified of the material supplied to the Tribunal and permitted to respond.
4. The holiday-pay award appeared strikingly disproportionate to the pleaded 15-day entitlement. In those circumstances, the refusal to reconsider the award or explain its calculation was contrary to common sense and basic fairness.
5. The judgment of Employment Judge Hughes was quashed. The matter was remitted for a remedy hearing before a new Employment Judge, in a form to be determined by the Regional Employment Judge, with meaningful employer participation. The Tribunal was directed to provide the employer with the claimant's documents, or explain in writing why that was impossible.

• Employment Appeal Tribunal: Allowed the employer's appeal, quashed the Rule 21 judgment, and remitted remedy to a newly appointed Employment Judge.
• Employment Tribunal, Birmingham: Refused an extension for the late ET3, entered judgment under Rule 21 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, and later refused reconsideration and reasons.