Employment Flash - 27th November 2009

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Different approaches may apply to the sophisticated and the rather less sophisticated employers dealings with the ET...

P A Haulage Ltd v Gaffney [2009] UKEAT 0297 09 JOJ

P A posted their ET3 in response but failed to keep a copy or send by recorded delivery or follow up with ET that it had been received. When P A received the notice of hearing they realised their ET3 had not been received. They sent another which was received. The response was rejected as being out of time and P A were debarred from defending and their application for review of that decision was refused as well. G received a judgment in his favour on an uncontested unfair dismissal/provision of particulars of employment/unpaid wages claim. P A sought review of that decision and that too was refused.

The EAT observed that TC who did the paperwork for P A was not a sophisticated administrator or letter writer. The letter written seeking a review of the rejection did not refer to Rule 34 Employment Tribunal Rules of Procedure or the "interests of justice" or that there was a "substantive defence to the claim"; it did say it had returned all correspondence sent to them well within the time limit and that they had not dismissed G, he had left; and that he did have a contract of employment and that he was paid all sums that were owing. In substance P A had sufficiently touched upon 34(3)(e) - interests of justice.

The refusal to review was it appeared to the EAT taken under rule 35(3), the Judge from his expression of his decision taking the view there were no grounds for the decision being reviewed or any reasonable prospect of the decision being varied or revoked. P A's correspondence was sufficient to raise a question as regards the interests of justice and therefore the application could not be disposed of summarily.

The EAT observed that a sophisticated well organised employer would have kept a copy of the original ET3 and would have sent it by recorded delivery, but there was no requirement to do so. Therefore an oral investigation of P A's position was required, the hearing for which notice had been given would provide the opportunity and if P A were successful an adjournment of the full hearing is sometimes necessary in the interests of justice.

On the face of their notice of appeal P A appealed the decision on the full hearing and the refusal to review that decision. In substance though P A relied on the original refusal to review the rejection of the late response. The EAT were prepared to give leave to amend if necessary. It was not necessary as CAB on behalf of G had discerned the true nature of the appeal and acknowledged the same in their letter to the EAT explaining why neither they nor G would be attending.

The EAT had given prior direction for P A to submit a witness statement in support of their appeal. The evidence from P A not being challenged the EAT felt it could only be rejected if it was inherently implausible or contradicted by other material. The loss of the ET3 in the post or at the ET although surprising was not so implausible that it entitled the EAT to reject P A's evidence. Both TC and Counsel otherwise provided satisfactory answers to other anomalies.

Therefore where a respondent has put in a response in time but for reasons beyond its control it has not reached the ET, it is just in a case like the present to allow the presentation of a late response. With a more sophisticated employer, who might have been expected to chase up the non-acknowledgment of a response by the ET a different view would be possible.

Employment Team