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What happens if an employer doesn't respond to an employment tribunal claim?

View profile for Emily Yeardley
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There are various claims an employee can bring against their employer at an Employment Tribunal. Once a claim has been issued, the Employment Tribunal will send a copy to the employer to give them an opportunity to defend or respond to the claim. Following receipt of the employer’s response, the Employment Tribunal will set directions and list a hearing date, at which both sides will have the opportunity to present their case.

What happens if an employer doesn’t respond?

In most cases, employers will respond to a claim. However, if an employer fails to respond within the required timeframe, the Employment Tribunal has the power to order a default judgment. This is a ruling in the employee’s favour, leaving only the question of how much compensation (remedy) should be ordered to be paid to the employee to be determined. Alternatively, if a default judgment is not issued, a hearing date will be listed to consider the claim.

Can the employer still participate in any remedy hearing even when they have failed to respond?

The short answer is yes, according to the recent case of Office Equipment Systems v Hughes

The employer, Office equipment Systems Ltd failed to respond to the employee, Hughes’s unfair dismissal claim within the required timeframe. No extension of time was granted. The Employment Tribunal held that Hughes had been unfairly dismissed. The employer requested that it be permitted to participate in the remedy hearing, effectively to seek to minimise any award the tribunal might order. The tribunal refused and awarded Hughes the sum of £75,000.  However, the employer was permitted to comment on two points relating to remedy. These were the ‘grossing up’ of the amount over £30,000 and the claim for interest.

The employer appealed. The case went to the Court of Appeal.

The Court held that although the employer had not been permitted to contest liability, they should still be entitled to defend the proposed remedy. The Court noted that there is no automatic right for an employer who failed to respond to a claim and was prevented from participating in any liability hearing to be permitted to participate in a remedy hearing. However, the Court of Appeal Judge, David Bean said: ‘In a case which is sufficiently substantial or complex to require the separate assessment of remedy after judgment has been given on liability, only an exceptional case would justify excluding the respondent from participating in any oral hearing.’ 

We will have to wait and see whether Office Equipment Systems are successful in appealing against the £75,000 damages award.

If you would like to discuss any of the issues in this case, please do not hesitate to contact a member of the Employment team.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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