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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Limoine v Sharma (PRACTICE AND PROCEDURE - Appearance /response - Right to be heard) [2019] UKEAT 0094_19_0907 (9 July 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0094_19_0907.html Cite as: [2019] UKEAT 94_19_907, [2020] ICR 389, [2019] WLR(D) 641, [2019] UKEAT 0094_19_0907 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS IMOGEN EGAN (of Counsel) Instructed by: Free Representation Unit 5th Floor Kingsbourne House 229-231 High Holborn London WC1V 7DA |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
SUMMARY
PRACTICE AND PROCEDURE Appearance /response
PRACTICE AND PROCEDURE Right to be heard
The Claimant in the Employment Tribunal presented claims for wages and breach of contract damages. The claim was defended and the Respondent presented an employer's breach of contract claim arising out of the same facts. The Claimant overlooked to enter a response to that claim. No judgement was entered under rule 20(2) of the Employment Tribunal Rules of Procedure 2013. Both parties prepared for the hearing in respect of both claims. At the hearing the Judge gave Judgment on the Respondent's claim because it was undefended, and dismissed the Claimant's claim upon the Respondent agreeing to a set off.
Held:
(1) It is an error of law to enter Judgment under rule 21(2) simply on the basis that a claim (whether of a claimant or respondent) is undefended. The Judge must first consider, and be satisfied, treating what is asserted in the claim as uncontested, that the essential factual elements of it are properly made out on the material presented to the Tribunal.
(2) Where the respondent to an undefended claim (brought by either party) wishes to be permitted to participate in a hearing in relation to that claim, under rule 21(3), it is an error of law not to consider, and decide judicially, whether, and if so, to what extent, they should be permitted to do so. Office Equipment Systems Limited v Hughes [2019] ICR 201 considered. Observations on the approach to be taken to an application by a respondent to an undefended claim to be permitted to participate in a liability hearing.
(3) The appeal was allowed in respect of the Judgment on the Respondent's claim, but also in respect of the Judgment dismissing the Claimant's claim. The Judge had done so on the basis that the Respondent had conceded that the amount of the Claimant's claim could be set off against the award on the Respondent's claim. However, it was not appropriate to substitute a Judgment allowing that claim. Both claims would be remitted.
HIS HONOUR JUDGE AUERBACH
"1. Oral judgment was given at the hearing and Miss Jagroo requested written reasons in accordance with Rule 62(3). This was a short hearing and no evidence was heard. In accordance therefore with Rule 62(4), these written reasons are succinct.
2. The claimant presented a claim form on 22/2/2018, claiming breach of contract. The respondent responded to that claim on 20/3/2018 and additionally, presented an employer's contract claim. That claim was accepted by the Tribunal and on 14/4/2018 the claimant was informed of that decision.
3. The Tribunal's letter stated if the claimant wished to contest the employer's contract claim, she needed to respond within 28 days. The claimant was informed that if no response was received, then she will only be permitted to participate in any hearing relating to that claim, to the extent permitted by the Employment Judge. The claimant was also advised a default judgment may be issued against her.
4. Miss Jagroo said she became involved in the case in June 2018, or alternatively in July 2018. No application was made to present a response to the employer's contract claim out-of-time once Miss Jagroo became involved.
5. The respondent seeks £1,970.00 by means of the employer's contract claim.
6. Default Judgment was therefore granted in the respondent's favour.
7. The respondent very sensibly agreed to off-set the sum sought by the claimant of £685.00. Judgment was therefore granted in the respondent's favour for the sum of £1,285.00. In view of this, it was not in accordance with the overriding objective to hear evidence in respect of the claimant's claim and taking into account the off-set, her claim is dismissed.
8. The parties were advised of the time limit for appealing this judgment and that it is the claimant's decision whether or not to appeal. They were also informed that the respondent does not have to enforce the Judgment if she does not wish to do so and is merely satisfied with Judgment in her favour. In the alternative the respondent could accept a lower payment than provided for in this Judgment and/or the parties could agree a sum between themselves and repayment terms."
"By concluding that the counter claim could properly be determined without hearing evidence or submissions the tribunal erred in law. No reasonable tribunal could have reached this conclusion in these circumstances given;
(a) No point had been raised in relation to default Judgment prior to the hearing by either of the parties or the tribunal;
(b) Both parties had attended anticipating that the counter claim would be heard;
(c) The Claimant's position on the counter claim had been set out in detail in the witness statement and correspondence, notwithstanding the lack of formal response;
(d) That the counter claim was fatally flawed on its face for the reasons set out below."
"Overriding objective
2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable
(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues; and
(e) saving expense.
A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.
Presidential Guidance
7. The Presidents may publish guidance for England and Wales and for Scotland, respectively, as to matters of practice and as to how the powers conferred by these Rules may be exercised. Any such guidance shall be published by the Presidents in an appropriate manner to bring it to the attention of claimants, respondents and their advisers. Tribunals must have regard to any such guidance, but they shall not be bound by it.
Response
16. (1). The response shall be on a prescribed form and presented to the tribunal office within 28 days of the date that the copy of the claim form was sent by the Tribunal.
(2). A response form may include the response of more than one respondent if they are responding to a single claim and either they all resist the claim on the same grounds or they do not resist the claim.
(3). A response form may include the response to more than one claim if the claims are based on the same set of facts and either the respondent resists all of the claims on the same grounds or the respondent does not resist the claims.
Applications for extension of time for presenting response
20. (1). An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application.
(2). The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed.
(3). An Employment Judge may determine the application without a hearing.
(4). If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.
Effect of non-presentation or rejection of response, or case not contested
21. (1) Where on the expiry of the time limit in rule 16 no response has been presented, or any response received has been rejected and no application for a reconsideration is outstanding, or where the respondent has stated that no part of the claim is contested, paragraphs (2) and (3) shall apply.
(2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise, a hearing shall be fixed before a Judge alone.
(3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.
Notification of acceptance
22. Where the Tribunal accepts the response it shall send a copy of it to all other parties.
EMPLOYER'S CONTRACT CLAIM
Making an employer's contract claim
23. Any employer's contract claim shall be made as part of the response, presented in accordance with rule 16, to a claim which includes an employee's contract claim. An employer's contract claim may be rejected on the same basis as a claimant's claim may be rejected under rule 12, in which case rule 13 shall apply.
Notification of employer's contract claim
24. When the Tribunal sends the response to the other parties in accordance with rule 22 it shall notify the claimant that the response includes an employer's contract claim and include information on how to submit a response to the claim, the time limit for doing so, and what will happen if a response is not received by the Tribunal within that time limit.
Responding to an employer's contract claim
25. A claimant's response to an employer's contract claim shall be presented to the tribunal office within 28 days of the date that the response was sent to the claimant. If no response is presented within that time limit, rules 20 and 21 shall apply."
"Action by the Employment Judge:
1.The Employment Judge will review all the material that is then available. This will normally consist of the claim form and any response form that has been validly submitted and any other supplementary documents.
2 They will consider whether the matter requires more information. If so, they will cause a letter to be written to the party/ies specifying the further information that is required.
3. If no such information is required, or once such information has been received then the Employment Judge will consider whether it is appropriate to: -
a. issue a Judgment in full for all claims and remedy; or
b. issue Judgment in full for all liability issues and hold a hearing for remedy or request further details of remedy matters; or
c. issue a Judgment in part for one or more of the items claimed, together with any remedy issues arising; or
d issue a Judgment in part for one or more of the items claimed but not remedy issues and hold a hearing for remedy or request further details of remedy matters; or
e. consider any of the combinations of Judgment for liability matters ore remedy matters which they consider appropriate on the facts available to them at the time of consideration; and
f arrange for hearing to be held for any part of the claim that has not had a Judgment issued or for any remedy matters remaining outstanding as result of such judgment having been issued and make appropriate case management orders.
4. If such a hearing is to be held then the Respondent will be entitled to receive notice
a. of any hearings and decisions but entitlement to participate in the hearing will limited as provided by Rule 21(3); and
b. the hearing that will be held ordinarily will be a hearing as provided for under Rule 57.
5. If a judgment is issued it will be copied to all parties as soon as possible thereafter and notice sent of any hearing if an Employment Judge has considered it appropriate for such a hearing to take place.
6. Judgment will be issued as provided for under paragraph 3 above where an Employment Judge is satisfied that they have sufficient information properly so do to. For example, an Employment Judge will examine whether the claim is clearly stated and whether there are nay matters which might affect whether the Tribunal has jurisdiction to hear the claim. The Employment Judge will consider all detail contained in the written matters before them; consider any obligation or burden on either of the parties in relation to proving such matters; the calculations that had been proved (if any) by the claimant; any case management orders that have previously been made; and any response. If the Employment Judge has any reasonable doubt as to the whole or any part of such matters contained in the claim then the claim will be listed for hearing. The provisions of Rules 57-59 will apply.
7. Any party who wish to ask for reconsideration of such decision must make such application in accordance with the provision of Rule 70-72.
8. Any party who considers lodging an appeal against such a judgment must comply with the Rules of the Employment Appeal Tribunal."