D & H Travel Ltd v Foster

EAT: Elias J (President), Mr P M Smith and Mrs R A Vickers: 2 August 2006

The claimant made a complaint of sex discrimination against her employers and their senior manager, claiming that she had been sexually harassed by the manager. No response was entered within the 28-day time limit prescribed by rule 4(1) of the Employment Tribunals Rules of Procedure 2004, and a tribunal chairman entered judgment in default with regard to liability, pursuant to rule 8. The manager attended the subsequent remedies hearing and produced a copy of a letter he claimed he had sent to the tribunal stating that he had a defence to the claimants' allegations, namely that his conduct had been in the nature of banter to which the claimant had voluntarily contributed. The tribunal chairman, while dubious as to whether the letter had actually been sent, decided that, in any event, as it gave no explanation for failing to put in a response in time and did not identify the proposed defence, it did not satisfy the requirements of an application for a review of the default judgment under rule 33. In accordance with rule 9 he refused to allow the respondents to participate in the proceedings and awarded the claimant compensation.

The respondents appealed.

The Employment Appeal Tribunal held:
While the chairman was correct in deciding that there was no valid application for a review of the default judgment on liability, he had assumed that unless the default judgment was set aside the respondents could play no further part in the proceedings, whereas he could have considered a review under rule 34 of the decision, inherent in his refusal to review the default judgment, not to accept the late submission of a response. The fair inference was that the respondents wanted to play whatever part they could in the proceedings and were, in effect, saying that the interests of justice required a review. Given that the respondent manager was present and could have cross-examined the claimant and made submissions, it would have been proportionate, and in accordance to the overriding objective of dealing with cases justly, to have allowed the respondents to participate in the remedies hearing. Moreover, that would have involved no prejudice to the claimant, whereas there was obvious prejudice to the respondents in denying them the right to participate. Accordingly, the matter would be remitted for rehearing on remedies.

The appeal was allowed.

Appearances: David Pievsky (Forbes, Blackburn) for the respondents; Joanne Woodward (Thomson Wilson Pattison, Kendal) for the claimant.