The Executor or Personal Representative of Iqbal Khan v A Vijendran

A respondent barred from contesting liability for failure to present a response has no absolute right to participate in remedy. However, it will generally be wrong to refuse to read or consider its written representations on remedy, particularly in light of proportionality and the overriding objective. A tribunal errs in law where it both excludes such representations and refuses reasons, leaving the respondent and an appellate court unable to understand the basis of awards.

The Employment Appeal Tribunal may substitute its own decision only where there is one possible outcome. Where the correct redundancy or holiday-pay calculation remains open, the case should be remitted to the Employment Tribunal.

The claimant, an accounts assistant employed by a sole trader, claimed a statutory redundancy payment and accrued but untaken holiday pay after her employment ended. The employer had died and the appeal was pursued by his executor. No response was lodged in the Employment Tribunal.

The Tribunal entered judgment for the claimant and awarded £8,850 for redundancy and £4,039.36 for holiday pay. It later refused the executor’s requests for written reasons and reconsideration, treating the executor as unable to participate further under rule 21 of the ET Rules of Procedure 2013.

The executor appealed, challenging the calculations and the refusal to consider her written representations. The central issue was whether the Tribunal’s procedural decisions and unexplained calculations disclosed an error of law.

1. Appeal allowed and remitted. The combined refusal to permit effective participation on remedy, to provide written reasons, and to reconsider the judgment was an error of law, alternatively a serious procedural irregularity. Although a defaulting respondent has no absolute entitlement to participate in the assessment of remedy, it will generally be wrong to refuse to consider written representations on remedy. The approach in Talish Hotels v Smith and Office Equipment Systems Ltd v Hughes was applied.

2. The error was material. The Tribunal’s redundancy award did not explain why it used an annual gross figure of £15,340 when both the claim form and the respondent asserted monthly gross pay of £1,200. The parties disputed the correct week’s pay and the Tribunal’s reasoning did not resolve that dispute.

3. The basis of the holiday-pay award was also unclear. It was not apparent whether the claim was made under the Working Time Regulations or for unlawful deduction from wages, when the holiday year began, whether any contractual holiday entitlement applied, or why net rather than gross pay had been used.

4. The EAT could not substitute a remedy decision. Under the principle illustrated by Jafri v Lincoln College, substitution is appropriate only where one outcome is possible. The Employment Tribunal must determine the proper procedure on remission, which may include written submissions, further evidence, reconsideration, or a hearing.

• Employment Appeal Tribunal: Allowed the appeal in [2025] EAT 125 and remitted the claims to the Employment Tribunal.
• Employment Tribunal: Entered judgment, sent to the parties on 29 December 2021, awarding statutory redundancy pay and holiday pay after no response was presented. By a decision dated and sent on 10 February 2022, it refused written reasons and reconsideration.