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Bear Traps for Employers in the new Employment Tribunal Rules Procedure
The new Employment Rules of Procedure which came into force on the 1st October pose a number of bear traps for employers filing responses to the claim.
Practical Tips
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For the large organisation create a system which ensures that when Employment Tribunal claims are received they are immediately actioned and forwarded to your lawyer or whoever will be responsible for preparing your response. |
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Note that all the Claimant has to give when filing the claim form is the “Respondent’s address”. This could include trading addresses, the address of the registered office or the address of any of the Respondent’s outlets or offices. Therefore all personnel who might receive Employment Tribunal claims must be alerted to immediately forward any employment tribunal papers to the relevant person. |
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Bear Trap 1
Time limit for responding to a claim: “sent” not “received”
Under the new rules the employer must present his response to the Employment Tribunal within 28 days of the date on which he was sent a copy of the claim. In other words the 28-day period starts running as soon as the Tribunal send a copy of the claim to the employer. Under the old rules the 21-day period started running only when the employer received the claim. Obviously this could be particularly significant if e.g. the document is delayed in the post.
Bear Trap 2
The “Required Information” in the Response
The response of the employer must include “all the relevant required information”. This is:
(a) The Respondent’s full name
(b) The Respondent’s address
(c) Whether or not the Respondent wishes to resist the claim in whole or part and
(d) If the Respondent wishes to so resist on what grounds.
Items (a) (b) and (c) should cause no difficulty. Note however that it is likely that a “bare denial” will not be sufficient to comply with (d) and your substantive grounds of resistance must be included. If all the relevant required information is not included then there are potentially dire consequences (see “non acceptance of response” and “default judgment” below”).
Bear Trap 3
Extensions of time – but only if applied for within the 28-day period
If you wish to apply for an extension of the time limit within which to present the response you must present your application within the 28 day period and must explain why you cannot comply with the time limit. The Chairman will only extend the time limit if he is satisfied that it is “just and equitable” to do so. Your bear trap here is that if you sit and wait for the result of your application to extend time and the 28 day period expires and then the Chairman refuses your application to extend time you are then out of time!
Bear Trap 4
Although your response has been “presented” has it been “accepted”?
Presenting the response to the Tribunal does not mean that you can yet breathe easily. The Tribunal then has to decide whether the response is to be “accepted” or not.
The claim will not be accepted if it’s clear that either the response does not include all the required information (as above) or that the response has not been presented within the 28 day time limit.
The bear trap here is that if the response is “not accepted” then “the claim shall be dealt with as if no response to the claim had been presented”. This in turn means that (if you are out of time) a “default judgment” may be entered by the Tribunal against you which can not only determine liability but in some cases determine remedy as well.
Bear Trap 5
Default Judgments
There is worse to come. If the time limit for presenting a response has passed then the Tribunal can issue a default judgment against the employer when either:
(a) No response has been presented within the relevant time limit; or
(b) A response has been presented but a decision has been made not to accept it (unless an application to review the non-acceptance has been made).
The frightening point to note is that there is no reason why Tribunals should not issue a default judgment directly after the time limit has passed and there has been a “non-acceptance”.
This leads us back to the importance of knowing if possible within the original 28 day time limit whether or not your claim has been “accepted”. If it is not accepted and you are still within the 28 day period nothing prevents you curing the defect and presenting the response again.
Bear Trap 6
The difficulty of reviewing a default judgment
If you are unlucky enough to have a default judgment made against you it will be difficult not to say expensive to have it revoked or varied on a review.
A detailed application for review must be filed within 14 days of the date on which the default judgment was sent to the parties.
The application must set out:-
- Why the default judgment should be varied or revoked
- The Respondent’s proposed response to the claim (which must be included)
- An application for an extension of the time limit for presenting the response
- An explanation of why the claim was not responded to within the original 28 day period and why no application for an extension of time was made within the original 28 day period.
The Chairman may revoke or vary all or part of the default judgment if the Respondent has a reasonable prospect of successfully responding to the claim or part of it. This may not be a cake walk in a marginal case.
In addition however the Chairman must have regard to whether there was a “good reason” for the response not having been presented within the applicable time limit originally.
There is no guidance on what a “good reason” is. However “it was put in the drawer and forgotten about” or “the person who deals with these sorts of things was away” are unlikely to be!
The moral must be don’t ever get in a position where you have to apply to set a default judgment aside.
