RESPONSE

Moroak (trading as Blake Envelopes) v Cromie

EAT: Burton J (President): 19 April 2005

The employers' response to the claimant's complaint of unfair dismissal was lodged by fax 44 minutes after the expiry of the 28-day time limit for entering a response prescribed by rule 4(1) of the Employment Tribunals Rules of Procedure 2004. The tribunal immediately wrote to the employers refusing to accept the response, notifying them that they could take no further part in the proceedings and informing them of their right to apply, within 14 days, for a review of the decision with an explanation of why the decision was wrong. The following day the employers' representative wrote to the tribunal giving a detailed explanation of the computer failure that had led to the late service and requesting that the response be accepted in the interests of justice or that time be extended. The tribunal refused the request.

The employers appealed.

BURTON J (PRESIDENT) held:
The decision by the chairman to refuse to accept the response because it was out of time was a decision falling within the ambit of rule 34 of the Employment Tribunals Rules of Procedure 2004, by virtue of paragraph (1)(a), and could be reviewed on the ground, in paragraph (3)(e), that the interests of justice required a review. Where a decision not to accept a response was made and an order made that the respondent could not take part in the action and that was then reviewed, it was a necessary concomitant that the decision not to accept the response was also reviewed under rule 6(6). Accordingly, once the employer's explanation had been given, the tribunal had a discretion to review its decision and its refusal to accept the response; and that discretion was to do what was just and equitable and, as on any application for review under rule 34, the merit of the response had to be considered. Since there was no prejudice to the claimant by virtue of the delay in the service of the response and a full explanation for the delay had been given, no reasonable tribunal would do other than accept the response.

The appeal was allowed.

Appearances: Akua Reindorf (Russell Jones & Walker) for the employers; the claimant did not appear and was not represented.