The employment tribunal had been wrong in law to direct that, by reason of its failure to respond to a claim for unfair dismissal, an employer should take no part in the proceedings, without the tribunal having recourse to the employer, and without directing a review hearing. Out of fairness the employer should at the very least have had an opportunity to respond.
The appellant employer (B) appealed against a decision of the employment tribunal rejecting an application for a review of a direction that since no response had been received to the claim brought by the respondent employee (F) B should take no part in the proceedings. F had presented a claim form complaining of unfair dismissal and wrongful dismissal. No response was entered and the tribunal issued a direction that B should take no part in the proceedings. B replied with a letter stating that no documents had been received and seeking their service from the tribunal, which treated the letter as a review application and, without further recourse to B, dealt with the matter on paper. The review application was rejected on the grounds that B's explanation for failing to lodge a response was implausible, that B must have been aware of the claim, and that it had knowingly shut its eyes to the obvious. B argued that the tribunal, having deemed B's letter to be a review application, had properly obtained F's comments, but had failed to get those of B in reply.
HELD: As a matter of simple fairness, in circumstances where the tribunal was effectively making a finding rejecting the account given by B in its letter, it should, at the very least, have given B an opportunity to respond, before dealing with the matter on paper, without a hearing. It was wrong in law for the tribunal to do so without recourse to B and, also, in all the circumstances, not to direct a review hearing under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.36.
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