Are you out of the game: what if you miss the deadline?

Posted on Nov 8, 2018

What if you miss the deadline to respond to an employment tribunal claim?  Do you have to sit back and wait for judgment to be entered against you, then write the cheque?

This was something that was looked at again in the case of Office Equipment Systems Ltd v Hughes. In this case, the claimant, Ms Hughes, bought several claims against the company, including unfair dismissal, unpaid holiday pay and wages, sex discrimination, and breach of contract. The company did not respond to the claims within the required time period and as a result the tribunal told them that they had only limited participation in hearings.

At a preliminary hearing they filed for an extension, stating the reason for the failure to respond was due to staff illness. However, this request was denied on the basis that the delay was not reasonable. The claim was ultimately found in Ms Hughes’ favour and by way of remedy, she was awarded £75,000.

The company appealed the decision both on liability and for their exclusion from participating in the hearing that dealt with the appropriate remedy. Whilst their appeal for liability failed they were successful with the latter. The Court of Appeal held that a company blocked from defending its liability in tribunal should still be able to contest the remedy.

However, Lord Justice Bean reiterated that this right to contest compensation remedy is not an automatic one and should only be allowed in exceptional circumstances. He stated that it should only be allowed where the level of compensation and complexity of the case justifies it.

The moral of the story?  Well, obviously, don’t miss the deadline!  But if you do, then it’s worth exploring whether you can still challenge at the remedy stage, and if you can, then there is plenty of work that can be done, such as gathering evidence on mitigation of loss.  However, employers should not presumed that the right to participate is guaranteed as this will scrutinized carefully at the time.