Limoine v Sharma

Under rule 21(2) of the Employment Tribunals Rules of Procedure 2013, an Employment Judge must not enter judgment merely because a claim is undefended. Treating the pleaded facts as uncontested, the Judge must decide whether the available material establishes the factual elements necessary to make out the claim in law. If material uncertainty remains, a hearing is required.

Where the party against whom an undefended claim is brought seeks to participate under rule 21(3), the Tribunal must make a judicial decision on whether, and to what extent, participation is permitted. A request to participate in a liability hearing requires especially careful consideration and is not a substitute for a timely response or an extension of time.

The Claimant brought Employment Tribunal claims for unpaid wages and contractual payments arising from work as a flight nanny. The Respondent defended those claims and, in the same response, brought an employer's contract claim for the cost of flights, accommodation and taxi fares.

The Claimant did not file a formal response to the employer's claim. At the final hearing, the Employment Judge entered judgment for the Respondent on the basis that the employer's claim was undefended. The Judge treated the Claimant's claim as set off against that award and dismissed it without hearing evidence.

The Claimant appealed. The central issues were whether an undefended employer's claim could be determined solely because no response had been filed, and whether the Judge had to consider allowing the Claimant to participate in the hearing of that claim.

1. Appeal allowed. The Employment Judge erred in entering judgment for the Respondent's employer's contract claim merely because the Claimant had not filed a timely response. Rule 21(2) of the Employment Tribunals Rules of Procedure 2013 requires a Judge to decide whether a determination can properly be made on the available material. The Judge must treat the advancing party's factual case as uncontested, but must still be satisfied that the facts necessary to establish the claim in law are made out. If uncertainty remains after any further information is sought, a hearing must be fixed.

2. That requirement applies equally to an employer's contract claim. Rule 25 applies rules 20 and 21 where a claimant has not responded to such a claim. A party who wishes to resist an employer's claim should ordinarily seek an extension of time under rule 20, but the absence of such an application did not relieve the Judge of the rule 21(2) duty.

3. The Judge also erred by failing to consider whether, and to what extent, the Claimant should be permitted to participate under rule 21(3). A request to participate must be decided judicially. The approach in Office Equipment Systems Ltd v Hughes [2019] ICR 201 should be followed for remedy issues. Liability hearings require particularly close consideration because allowing participation cannot circumvent the requirement for a timely pleaded response. Here, the Claimant attended with representation, wished to contest the overlapping employer's claim, and both parties had prepared evidence. Those circumstances required substantive consideration of participation, although they did not dictate that permission had to be granted.

4. The EAT did not decide the Respondent's underlying contractual entitlement or the availability of the remedy claimed. The dismissal of the Claimant's claim also could not stand, because the Respondent's apparent concession of it was made on the basis of a set-off against the award which had been wrongly entered. The whole judgment was quashed. Both claims were remitted to the Employment Tribunal, with no substituted decision.

• Employment Appeal Tribunal: Allowed the Claimant's appeal, quashed the Employment Tribunal's judgment on both claims, and remitted both matters for further consideration.

• Employment Tribunal, Southampton: Entered judgment for the Respondent on her employer's contract claim, treated the Claimant's claim as set off against that award, and dismissed the Claimant's claim.