Bournemouth Borough Council v Leadbeater, [2011] ICR D15
The Employment Appeal Tribunal (EAT) ruled in favour of the employer, deciding that the default judgment issued by the employment tribunal should be set aside.
Key Principles:
An application to extend the time for lodging a response doesn't necessarily need to be made expressly; it can be implied.
Rule 33(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 does not stipulate that applications to extend time must be overtly stated.
Employment tribunals should scrutinise applications to determine if there's an implicit request to extend the deadline for submitting a response.
Prejudice to both parties, resulting from revoking a default judgment, should be evaluated.
Facts & Application: In August 2009, the employee initiated a claim alleging unfair dismissal by the employer. Despite sending the claim to the employer in the same month, an incorrect postcode caused a communication breakdown. The employer didn't respond, leading to a default judgment in November 2009. The employer made two attempts to have the default judgment reviewed and revoked, arguing that they never received notification of the claim.
The tribunal, examining the details, noted that although the claim had arrived timely, it hadn't reached the employer's HR department, typically responsible for addressing such matters. Furthermore, the tribunal highlighted that the employer failed to expressly apply for an extension under Rule 33(2).
The employer's appeal to the EAT hinged on the argument that their January letter either directly or indirectly sought an extension. Contrary to the employee's standpoint that extensions must be explicit, the EAT confirmed that such requests could indeed be inferred. Given the context – where the employer's delay was due to an honest misapprehension resulting from an unintentional oversight – and the significant prejudice the employer would face if unable to present a potentially valid defence, the EAT deemed it appropriate to set aside the default judgment.
If you're considering an appeal from the Employment Tribunal to the Employment Appeal Tribunal, particularly surrounding implied requests to extend time and the revocation of default judgments, this case offers pertinent insights and guiding principles.
