The claimant Ms Hughes issued a claim in the employment tribunal in Cardiff for unfair dismissal, sex discrimination, notice pay, holiday pay and arrears of pay against her employer, Office Equipment Systems Ltd. The respondent company failed to lodge a response within the specified timeframe.

Where no response has been presented in time rule 21 states a judge can decide whether on the available material a determination can properly be made of the claim.

The respondent subsequently lodged a response accompanied by an application under Rule 20 for an extension of time and an order that the Rule 21 judgment be set aside. Their reason for the delay was that their employee Mr Jackson, who was in a position to give instructions about the case, had been ill.

At preliminary hearing, EJ Emery concluded that there was no reasonable explanation for the delay in submitting the response and that an extension of time should not be granted.

Judgment was issued upholding the claims for unfair dismissal, unpaid holiday pay, unpaid wages, sex discrimination and breach of contract on liability only. The respondent sought to participate in the remedy hearing, yet this was declined and a judgment was issued. The respondent sought to appeal this decision "and any subsequent determinations which were influenced by it."

On the liability appeal, Judge Eady considered that the employment tribunal had made an error of law in that it had failed to address the company's argument that Ms Hughes had committed a repudiatory breach of contract. Judge Eady therefore allowed the appeal on liability and remitted the case to the same employment tribunal to address the question of the merits of that defence and its potential relevance to the company's application for an extension of time.

Permission to appeal it’s exclusion from making representations on remedy was granted by the Court of Appeal. The judge had to decide whether such a determination takes the form of a judgment following a full hearing on the facts or a default judgment. The Court followed the decision of D & H Travel Ltd v Foster [2006] ICR 1537:

“A respondent who has been debarred from defending under Rule 21 could have no legitimate complaint if the employment tribunal proceeds to hear the case on the scheduled date, determines liability and makes an award… it would generally be wrong for the tribunal to refuse to read any written representations or submissions as regards remedy sent to it by the defaulting respondent in good time, but proportionality and the overriding objective do not entitle the respondent to a further hearing.

“But in a case which is sufficiently substantial or complex to require the separate assessment of remedy after judgment has been given on liability, only an exceptional case would justify excluding the respondent from participating in any oral hearing; and it should be rarer still for a tribunal to refuse to allow the respondent to make written representations on remedy.”

The judge allowed the appeal concluding this was not an exceptional case, and the draft award of compensation was of just under £75,000. There was no reason why the company should have been precluded from making submissions on the quantum of Ms Hughes' claim following the judgment on liability.
https://www.bailii.org/ew/cases/EWCA/Civ/2018/1842.html