Chelmsford Unisex Hair Salon Ltd v Grunwell

An Employment Tribunal does not err in law by determining remedy in a respondent's absence where the respondent was properly notified of the remedy hearing and did not attend. A respondent debarred from defending liability is not thereby entitled to reopen factual merits on appeal. Complaints about service, the merits of the defence, or a failure to respond may instead be matters for a timely reconsideration application.

The position differs where a tribunal refuses a debarred respondent any opportunity to make representations on a separate assessment of remedy, particularly without an oral hearing.

The Claimant obtained a liability judgment after the Respondent failed to present an ET3. The Employment Tribunal then notified the parties that the listed hearing would proceed as a remedy hearing. The Respondent did not attend, and the Tribunal awarded holiday pay and compensation for pregnancy discrimination.

The Respondent appealed, alleging that its director had not known of the proceedings and advancing factual challenges to the claim. The appeal was stayed so that it could seek reconsideration, but it made no such application, did not request written reasons, and supplied neither an ET3 nor draft grounds of resistance. The central issue was whether the Tribunal erred in law by proceeding to assess remedy in the Respondent's absence.

1. Appeal dismissed. The Employment Tribunal was entitled to determine remedy in the Respondent's absence. The claim form, judgments and hearing notice were sent to the Respondent's correct salon address. Correspondence had reached that address before the remedy hearing, and the Respondent had notice of it.
2. The appeal grounds did not identify an error of law. The Employment Appeal Tribunal determines appeals on points of law; it does not retry factual issues or make a fresh merits decision merely because the appellant disputes the claim.
3. The case was materially different from Office Equipment Systems Ltd v Hughes, [2018] EWCA Civ 1842. In that case the tribunal had refused the respondent's express request to participate in a separate paper assessment of remedy. Here, there was an oral remedy hearing, notice was sent to the Respondent, and it simply did not attend.
4. The factual assertions in the grounds might potentially have been advanced in an application for reconsideration under Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. However, no reconsideration application was made despite a stay for that purpose. The absence of an ET3, draft defence, written reasons, or adequate explanation reinforced the conclusion that no error of law was shown.

• Employment Appeal Tribunal: dismissed the Respondent's appeal in [2019] UKEAT 0135_19_2910.
• Employment Tribunal, East London: after entering liability judgment following the absence of an ET3, assessed remedy at a hearing on 23 July 2018 and issued its remedy judgment on 25 July 2018.