RESPONSE

Bone v Fabcon Projects Ltd

EAT: Judge Burke QC: 7 July 2006

The claimant presented a claim of unfair constructive dismissal to an employment tribunal. On 18 May 2005 the tribunal sent a copy of the claim to the employers and informed them of the procedure and time limits for presenting a response, in accordance with rule 2(2)(a) and (c) of the Employment Tribunals Rules of Procedure 2004. On 17 June, having been informed of the claim by Acas, the employers wrote to the tribunal stating that they had not received the papers. A tribunal chairman directed another claim form to be sent and on 19 July the employers entered a response disputing the facts as alleged in the claim. The claimant applied for a default judgment under rule 8(2)(a) on the ground that no response had been presented within the relevant time limit. The chairman refused the application, deciding that the 28-day time limit for presenting a response prescribed by rule 4(1) ran not from the date the claim form was sent by the tribunal but from its receipt by the respondent; that the original claim form had not been received by the employers; and that the response had been presented within 28 days of re-service.

The claimant appealed.

JUDGE BURKE QC held:
"Sent" in rule 4(1) of the Employment Tribunals Rules of Procedure 2004 could not be construed as "received" and, accordingly, time for presentation of a response began to run when a copy of the claim was sent to the respondent by the tribunal and not from its receipt. In the absence of a default judgment, a respondent who had not entered a response in time was, pursuant to rule 9, not entitled to take any part in the proceedings, other than as expressly permitted by that rule, even if the reason for his not presenting a response in time was that the necessary papers had never reached him. There was no power in the Rules for the claim to be re-sent, and the tribunal ought to have rejected the employers' response as out of time, indicating that, as permitted by rule 9(b), they had a right to apply for a review under rule 34. On such a review, the tribunal would have a discretion either to extend time for the presentation of the response or to consider issuing a default judgment. The case would be remitted to the tribunal chairman to decide whether time should be extended and, if not, whether the claimant was entitled to a default judgment.

The appeal was allowed and the matter remitted.

Appearances: T Vachaviolos, solicitor, (Hatch Brenner, Norwich) for the claimant; J Sharman, representative, (Atlantic Management Consultancy, Norwich) for the employers.