Nalamolu Brahmaiah v Central and North West London NHS Foundation Trust

A party affected by an application to extend time for presentation of an ET3 must receive a fair opportunity to be heard before the Employment Tribunal finally determines that application and any linked request for default judgment. Where that opportunity was absent, the appropriate remedy is ordinarily to remit the issue for determination after a fair hearing. It is not to grant default judgment automatically.

Under Employment Appeal Tribunal Rules, unnecessary or misconceived applications and unreasonable conduct of appellate proceedings may justify a costs order. The Appeal Tribunal may exercise its discretion without allowing for means where the paying party, despite notice, provides no evidence of them.

The claimant, a nurse employed by the respondent Trust, presented Employment Tribunal claims including race discrimination and unlawful deductions from wages. The respondent lodged its ET3 after the prescribed date. At a preliminary hearing on 23 November 2021, held without the claimant having a proper opportunity to participate, the Employment Tribunal extended time for the ET3 and thereby refused his application for default judgment.

Employment Judge Wisby later refused to reconsider that decision. The claimant appealed. At the full appeal hearing, the respondent conceded that the claimant had not had a proper opportunity to oppose the extension application and that the issue should be remitted. The claimant nevertheless sought default judgment and further orders. The central issue was the proper remedy for the procedural unfairness.

1. Appeal allowed. The respondent rightly conceded that the claimant had not been given a proper opportunity to be heard on the application to extend time for the ET3. The Employment Tribunal therefore had to set aside or reconsider its earlier determination so that the claimant could make his opposition before a final decision was reached.

2. The procedural defect did not establish that the claimant was entitled to default judgment. His complaint was that he had not been heard. The proper remedy was to afford him that hearing, rather than to determine in his favour the merits of the extension application or the linked default-judgment application.

3. The issue whether to extend time for the ET3, and whether to enter default judgment, was remitted to the Employment Tribunal for hearing by an employment judge other than Employment Judge Wisby. The Appeal Tribunal declined to make orders requiring time off work or payment of the claimant’s wider legal costs and expenses.

4. Costs. Applying rule 34A of the Employment Appeal Tribunal Rules, the claimant’s pursuit of a draft order seeking relief beyond the proper remedy was unnecessary and misconceived. His refusal to agree the conceded remittal, failure to cooperate over the bundle, and non-attendance after notice were unreasonable conduct. Having been given notice of the costs application but providing no evidence of means, the claimant was ordered to pay the respondent’s costs of £1,800.

• Employment Appeal Tribunal: Allowed the appeal and remitted the extension-of-time and default-judgment issues for a fair hearing before a different employment judge: [2025] EAT 192.
• Employment Tribunal: On 13 January 2022, Employment Judge Wisby refused reconsideration of the earlier decision.
• Employment Tribunal: At the preliminary hearing on 23 November 2021, extended time for the respondent’s ET3 and implicitly refused the claimant’s application for default judgment.