What steps should an Employer take if it misses the deadline to respond to an Employment Tribunal Claim?
When an employee or ex-employee (the ‘Claimant’) issues a claim in the Employment Tribunal (‘ET’), the employer (the ‘Respondent’) has 28 days to provide a response.
This is a very strict deadline and, if no response is received by the ET within this time period, the ET is entitled to issue a ‘default judgment’ in favour of the Claimant, which means that the Claimant automatically wins their claim.
The pandemic has resulted in an increasing number of Respondents missing the 28-day deadline, due to delays in the postal service and the closure of workplaces. Furthermore, the current backlog in the Tribunal service has resulted in a failure to serve claims on Respondents promptly and has led to an expectation that a claim is unlikely to be forthcoming and subsequently overlooked.
Once a Respondent becomes aware that they have missed the deadline for responding to a claim, it is crucial that they act quickly and proactively to ensure they are able to participate substantively in proceedings.
The Respondent should immediately make an Application to the ET for an Extension of Time, attaching the Response, a Witness Statement explaining the delay and supporting evidence. The Application must be copied to the Claimant. The Claimant then has 7 days to submit written reasons opposing the Application.
In making a decision, the ET will consider whether it is just and equitable to extend the time for the Response, taking into account the explanation provided by the Respondent, the merits of the defence and the balance of prejudice.
If the ET agrees to allow an extension, any judgment will be set aside and the Respondent will be entitled to participate in the proceedings as if it had provided a response in time.
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