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23 Dec 2020 News

Employment Tribunals

What should you do if you have missed the deadline to respond to an employment tribunal claim made against you?

The Employment Tribunal has seen an increase in claims during the pandemic due in part to rising unemployment and changing working conditions.  When an individual raises a claim against their employer, there is a period of 28 days in which the employer has to file a response.  Delays in the postal service and the change to working from home has resulted in an increasing number of employers missing the 28-day deadline.

As soon as an employer becomes aware of a missed deadline, they must apply for an extension of time in writing. The application must outline the reasons an extension is sought, accompanied by a draft response.  Without this application, an employer will not be allowed to substantively participate in the tribunal claim and an Employment Judge can issue a default judgement.  A copy of the application must be sent to the individual raising the claim. They will have 7 days to oppose the extension.

An extension will be granted if it is just and equitable to do so. The tribunal will consider the reasons given by the employer, the merits of the defence and the balance of prejudice. The time taken between the employer becoming aware of the claim and making an application will also be considered. Therefore, it is important to act quickly and provide full and detailed reasons.

If an extension is granted, the employer is entitled to participate fully in proceedings as if it had provided a response in time.

Employment Appeal Tribunal gives guidance on applications to amend tribunal pleadings 

During the life of an employment tribunal case, a party can make an application to amend their claim or response at any stage of the proceedings.

In the recent case of Vaughan v Modality Partnership, the Employment Appeal Tribunal confirmed the correct approach to be followed by tribunals and representatives in determining applications to amend pleadings. In this case, the claimant alleged they had suffered a detriment and had been automatically unfairly dismissed because they made protected disclosures. During the case management process, the claimant applied to amend her pleadings and add two further alleged protected disclosures. Permission was refused by the tribunal.

The EAT held that the ET should consider the factors established in the case of Selkent Bus Co Ltd v Moore, and that they had been correctly applied in this case. When considering an application, a tribunal is required to balance the injustice or hardship of allowing the amendment against the injustice or hardship of refusing it. These Selkent factors include the nature of the amendment, the applicability of time limits and the timing and manner of the application. However, the EAT made clear that this is not a checklist and other factors may also be relevant.

Ultimately, an employment tribunal has a broad discretion over any application to amend pleadings and it will be difficult for their decision to be overturned. The EAT will only interfere if persuaded that the tribunal judge clearly made an error of law. This is a high bar to pass, especially if a party has been represented in their tribunal pleadings.

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