The pandemic has resulted in an increasing number of respondents missing the 28-day deadline to provide a response to a claim presented in the Employment Tribunal (ET), as required by rule 16(1) of the Employment Tribunals Rules of Procedure 2013 (ET Rules).
Delays in the postal service, the closure of some workplaces and a significant proportion of the workforce working from home has meant that a number of claims served in the post have been received too late in the day or missed entirely. Moreover, a rapidly increasing backlog of claims being presented to ETs has resulted in a failure to serve claims on respondents, or has led to an expectation that a claim is unlikely to be forthcoming and thus overlooked. This article examines steps that a respondent ought to take to participate substantively in proceedings when the deadline for the response has been missed.
If an employer becomes aware of an undefended claim, it is imperative that an application for an extension of time for the response is made, pursuant to rule 20(1) of the ET Rules. This is because any response which is served late will be rejected by the ET, unless an application for extension of time has already been made or accompanies the response.
Moreover, if no response has been validly presented, an Employment Judge is entitled to take a number of steps in respect of the claim, which include issuing default judgment for liability and even remedy, pursuant to rule 21(2). In such circumstances, while a respondent would be entitled to notice of any hearings and the ET’s decision, it will only be allowed to participate in any further hearing to the extent permitted by the Employment Judge, pursuant to rule 21(3). That said, respondents are usually allowed to make written or oral representations on remedy if a default judgment for liability has been issued; it will only be an exceptional case that would justify the exclusion of the respondent (see Office Equipment Systems Ltd v Hughes  EWCA Civ 1842).
An application for an extension of time must be in writing, copied to the claimant, set out the reason why the extension is sought and state whether a hearing is sought to determine the application. Assuming the deadline has passed, the application must be accompanied by a draft response or an explanation as to why it is not possible to attach a completed draft response. The claimant can submit written reasons to the ET explaining why the application is opposed, within seven days of receiving the application, pursuant to rule 20(2).
In deciding the application, the ET will consider whether it is just and equitable to extend time for the presentation of the response (see Kwik Save Stores Ltd v Swain and others  ICR 49, a case which concerned the 2004 ET Rules, but remains good law). The types of factors that the ET are likely to have regard to include:
- The explanation supporting the application for an extension of time.
- The merits of the defence.
- The balance of prejudice.
Under the just and equitable test, the ET will likely consider the promptness with which the respondent acted once it became aware of the undefended claim. This means that respondents ought to act quickly and proactively, even if their representatives have not yet had the opportunity to take detailed instructions from their client or are in possession of the barebone documents. In the light of the difficulties in making contact with ET staff, it could be unwise for respondents to wait for the ET to provide a copy of the claim and/or any correspondence, orders or judgments, in response to any such request. If necessary, a respondent should approach the claimant or their representative to request copies of the relevant documents.
If the explanation for the application is not straightforward, or there is a significant delay in applying for an extension, a respondent should consider asking for the application to be determined at a hearing. A witness statement could then be provided from either the respondent or their representative, explaining the delay and attaching any supporting evidence.
If a respondent has not provided a draft response with its application, it is suggested that the same should be provided as soon as possible or within 28 days of receiving notification of the undefended claim, or a copy of the claim, depending on the circumstances. An Employment Judge could then better understand the merits of the defence at any hearing to determine the application, if a substantive response has already been provided.
Parties should be aware that, subject to confirmation in a practice direction, it may be possible for Employment Judges to delegate their function of deciding whether to grant an application for an extension of time under rule 20 to a legal officer, pursuant to regulation 10A(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended (2013 Regulations). However, parties will be able to apply for any decision made by a legal officer to be considered afresh by an Employment Judge, provided that an application is made within 14 days of the ET sending the notice of the decision, pursuant to regulation 10A(2) of the 2013 Regulations.
If the decision is to allow an extension, any judgment issued under Rule 21 will be set aside, pursuant to rule 20(4). The respondent is then entitled to participate in the proceedings as if it had provided the response in time.