Case ref: 11.5 / Feb '06, ET Claims - employers response (ET3), time limits and default judgements
Summary of case
The case was concerned with a member who had been dismissed for gross misconduct. An ET claim had been submitted.
General advice was sought on merits. prospects of success etc. Information was also sought on "default judgements" as the respondents had not submitted an ET3 response within the required time limit.
Key advice provided by Thompsons
The key extract from the advice letter was as follows:
"There is a separate issue in relation to the failure by the Employer to submit the ET3 on time, in the proper form. In my view, given the decision of the EAT in the case of Moroak t/a Blake Envelopes v Cromie (2005) IRLR 535, it is more likely than not that the Respondent will succeed in persuading a Tribunal that it is in the interests of justice to review the decision not to accept the ET3 that was submitted 2 days late on the proper form and that the Respondent will be allowed to carry on to defend the claim. According to the EAT in Morak:
"In deciding whether to exercise its discretion in favour of allowing a review against a refusal to accept a response by a respondent which was out of time, the test to be applied must be the same as under rule 4(4) for an extension of time for entering a response, or an application under rule 33 for a review of a default judgement, namely that which is just and equitable. In determining what is just and equitable, the Tribunal should apply the same principle as those identified by the EAT in Kwik Save Stores Ltd v Swain with regard to an application for an extension of time for serving a notice of appearance: that the process of exercising a discretion involves taking into account all relevant factors, including the explanation or lack of explanation for the delay and the merits of the employer's defence, weighing and balancing them one against the other and reaching a conclusion which is objectively justified and taking into account the possible prejudice to each party."
Given the circumstances in which the ET3 was submitted, late in our member's case, the solicitor was of the view that the ET was likely to agree that the respondent could go on and defend the claim.
Legal department comment
The legal advice provided confirms that the same principles apply when the ET considers making decisions on default judgements and late response of ET3s.
The Legal Department's view is that representatives should consider seeking advice through the Employment Law Scheme, probably through telephone contact made by designated BU officials where on these matters is required.