Appeal No. UKEAT/0031/11/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 February 2011

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR R CROUCH	APPELLANT

ANT MARKETING LTD & ORS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ABOU KAMARA
(Free Representation Unit)	
For the Respondents	Written Submissions	

SUMMARY

PRACTICE AND PROCEDURE
Appearance/response
Striking-out/dismissal

Employment Tribunal Rules 4,8,33.  ET3 response accepted.  Claimant contended that response lodged on behalf of Respondent 1 (employer) only and not also Respondent 2 (HR Manager) and applied for default judgment to be issued against Respondent 2.  Employment Judge declined to do so.  Claimant appeal dismissed.  Employment Judge entitled to treat ET3 as joint response but if not review of default judgment would be allowed.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This appeal concerns the power of Employment Judges to enter a default judgment.  Employment Judge Rostant, sitting at Sheffield, declined to do so on the application of the Claimant, Mr Crouch, in a letter dated 9 December 2010.  Against that decision the Claimant now appeals.  The Respondents to the appeal are (1) Ant Marketing Ltd (“the Company”), and (2) Adam Jones (“Mr Jones”).

Background
2.	The Claimant was employed by the Company as a telesales operative from 30 July 2007 until his summary dismissal by Mr Jones, the Company’s HR Manager, on 3 September 2010.  By a form ET1 presented to the Tribunal on 26 October the Claimant brought various claims against the Company and also named Mr Jones as an additional Respondent at section 11 of that form.  At the end of his detailed particulars of claim, he summarised five claims, only one of which, a complaint of disability discrimination, was brought against both the Company and Mr Jones.

3.	On 12 November, within the 28 days allowed under rule 4(1) of the Employment Tribunal Rules of Procedure 2004, a form ET3 response denying all claims was entered by Mr Warren-Jones of the EEF.  At section 2.1 of that form, against the rubric “Name of individual company or organisation”, he inserted “Ant Marketing Limited” only.  At section 5 he ticked “yes” to the question “Do you resist the claim?” and referred to “attached grounds of resistance”.  Those grounds have a heading showing the Claimant and both the Company and Mr Jones as First and Second Respondents respectively.

4.	Mr Jones’ part in the defence account of events is mentioned on a number of occasions.  As to the complaint of disability discrimination against both Respondents, at paragraph 22, this is said:

“It is denied that the Claimant is disabled within the meaning of section 1 of the Disability Discrimination Act 1995 or that the Claimant was treated less favourably in relation to his alleged disability.” 

5.	On 16 November the Tribunal wrote to Mr Warren-Jones in the matter of Mr Crouch, Claimant v Ant Marketing Limited and Others, Respondent, informing him that the response has been accepted.  That acceptance letter was copied to, among others, the Claimant.  On 25 November the Claimant wrote to the Tribunal, acknowledging that the Company had entered their response in time but applying for a default judgment against Mr Jones.  He put his application in this way:

“As there are two respondents in this case each are required to complete an ET3 in relation to the claim that has been made against them, the second respondent has not exercised this right.  Therefore, I apply for a default judgment to be issued against this respondent and that he is barred from taking part in these proceedings.  
In addition, to this there is likelihood this Respondent will be called as a witness by either side.  
I also contend that as the second respondent has not answered the issues made against him, this has an impact on the first respondent’s case, in relation to claim 2 (‘the DDA claim’).  Exactly how this is assessed moving forward is not a matter for myself to consider.  However, I do suggest that this matter is given attention by a employment judge.  
Once again, a default judgment is sought against the second respondent.” 

6.	That application was referred to Employment Judge Rostant, who responded in the letter of 9 December as follows:

“I am not prepared to issue a Default Judgment against the second Respondent.  The response received on 12 November 2010 was on behalf of both Respondents.  The second Respondent has therefore complied with the requirement to enter a response, and the conditions for issuing a Default Judgment have not been met.” 

7.	Against that judgment this appeal is brought.  It was permitted to proceed to a full hearing on the paper sift by Underhill J, President by an order seal dated 3 February 2011.  In giving permission the President added this note to his order:

“The President invites the Appellant to consider as a matter of urgency, and, if possible take advice about, what he hopes to achieve by pursuing this appeal.  Even if he succeeds the Tribunal has power to revoke any default judgment under Rule 33 and is likely to do so if the default is merely technical and there is no real prejudice to the Claimant or if it can be cured.  But the choice, of course, remains his.” 

The Employment Tribunal Rules of Procedure
8.	The scheme of the relevant rules contained in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (as amended) is, so far as is material, as follows.  Once a claim has been accepted by the Tribunal in accordance with rule 3, a copy is sent to the respondent or respondent(s).  In this case the Claimant gave Mr Jones’ address as care of the company’s address.  Any respondent wishing to respond to the claims must do so by presenting a response, containing all the relevant information as required by the form ET3 [see rule 4(3)] to the Tribunal within 28 days [rule 4(1)].

9.	I should also refer to rule 4(6) which states, so far as material:

“A single document may include the response of more than one respondent to a single claim provide that – 
(a) each respondent intends to resist the claim and the grounds for doing so are the same for each Respondent;” 

10.	By rule 5(2) where, as in the present case, the response is accepted by the Tribunal, the Tribunal sends a copy to the other parties: see the Tribunal letter of 16 November.  Rule 60 deals with non-acceptance by the Employment Tribunal of a response where (a) the response does not contain all the information required by rule 4(3) and/or (b) the response was not lodged in time, rule 6(2).

11.	Rule 8 deals with default judgments.  By rule 8(1), subject to sub-paragraphs (2A) and (6) of rule 8, which do not apply in the present case:

“If the relevant time limit for presenting a response has passed, an Employment Judge shall, in the circumstances listed in paragraph (2), issue a default judgment to determine the claim without a hearing.”

Pausing there, the mandatory requirement for an Employment Judge to issue a default judgment in the paragraph (2) “Circumstances” was inserted by S.I. 2008/3240 with effect from 6 April 2009.  Previously, an Employment Judge had a discretion to issue a default judgment if he considered it appropriate to do so under the old rule 8(1).

12.	The circumstances in which a default judgment must now be issued after time has expired, 28 days subject to any extension, are set out at rule 8(2) as follows:

(a) No response has been entered within the relevant time limit, 
(b) a response has been entered but not accepted under rule 6(3), or 
(c) the Respondent has indicated in his response that he does not intend to resist the claim.  

A default judgment may determine liability only or it may determine liability and remedy (8(3)).  A Respondent who has not presented a response, or whose response has not been accepted shall not be entitled to take any part in the proceedings save to the limited extent set out at rule 9.
 
13.	As the President pointed out in the note to his sift order in this case, a Respondent may apply to have a default judgment issued against him reviewed under rule 33: see rule 8(5), or, I would add, an Employment Judge has power to review a default judgment on his own initiative under rule 33(8).

The Appeal
14.	Today the Appellant is represented by Mr Kamara appearing under the FRU scheme.  The Respondents do not appear but rely on written representations, which I take to be the case advanced in their joint answer to this appeal.

15.	Mr Kamara’s submission is commendably brief and to the point.  He has taken me to the form ET3 lodged in this case and submits that, because Mr Jones is not named together with the Company at section 2.1, this cannot be treated as a response on behalf of both Respondents; although he accepts that if it is to be so treated then it complies with the rules by virtue of rule 4(6).  He therefore submits that the circumstances mentioned at rule 8(2)(a) apply in relation to the second Respondent: he has not entered a response.

16.	I put to Mr Kamara, in the course of discussion, the argument raised in the Respondent’s answer, paragraph 3.2, that the response form included grounds of resistance which indicated that the response was on behalf of both Respondents named in the heading.  He submitted that that was insufficient to indicate that the response was lodged on behalf of both Respondents.

Conclusion
17.	The first question for me in the appeal is whether Judge Rostant was entitled to take the view that the response was received and accepted by the Tribunal on behalf of both Respondents.  Reading the form ET3 and attached grounds of resistance as a whole, I prefer the submission of the Respondents.  Although, as a matter of practice, it is plainly desirable that representatives indicate at section 2.1 of the form ET3 or elsewhere in the response, expressly, on behalf of which Respondents the response is lodged, where there is more than one named in the form ET1, it seems to me that that intention is sufficiently implicit in the document in this case that the response was lodged on behalf of both the Company and its employee, Mr Jones, for whose acts it appears to accept responsibility.

18.	At any rate, in my judgment, the Employment Judge was entitled to reach that view and consequently the appeal fails.  However, had I been driven to conclude that the Claimant’s appeal was a good one I should then have exercised my powers under section 35(1) of the Employment Tribunals Act 1996 and entered a default judgment.  Having done so, as I indicated in argument to Mr Kamara, the point having been raised by the President in his sift order note, I should then have exercised the Employment Judge’s power to review the default judgment just made and, having invited submissions from Mr Kamara as I did earlier, I would have exercised my discretion in favour of revoking the default judgment in the interests of justice, since it is perfectly plain to me that the response was intended to be lodged on behalf of both Respondents and the Claimant has sustained no prejudice since the defence of both Respondents is apparent from the pleading.

19.	Finally, since, in my view, the inevitable outcome would be that there would be no default judgment following review, even if the Employment Judge was wrong in law to refuse the Claimant’s application to issue a default judgment, since the result (no default judgment issued) was plainly and unarguably right, I would dismiss the appeal on this ground also.  It follows that this appeal fails and is dismissed.