Failure to enter an appearance

The EAT has just placed a new 'starred' judgment on its website, indicating a judgment of particular importance to practitioners. It is one of the last decisions of Burton P. during his tenure as president.

The employer, NSM Music Ltd., missed the 28-day deadline for lodging its Response Form. Under the 2004 procedural rules, a tribunal has the option of entering default judgment under rule 8 (allowing the employer to defend quantum), or ordering that the Respondent take no further part in the proceedings under rule 9 (which has the effect that the employer cannot even defend quantum).

The employer applied for a review, which was rejected without consideration of the merits. The employer then failed to lodge an appeal against the refusal of the review, which Burton P. stated should be "the sensible course for a Respondent (para. 13).

Thus the tribunal's decision, as unreviewed and unappealed, had the draconian effect that the employer was not only debarred from contesting liability at any hearing, but also remedy.

Compensation was assessed in due course, and the employer was ordered - in a short judgment - to pay £48,000 to the Claimant.

The employer wrote to the tribunal (within the necessary 14 days) asking for written reasons for the judgment - as a precursor for a possible appeal against the amount of the award. However, the tribunal refused on the grounds that rule 9, prohibiting the employer from taking any further part in the proceedings, included a prohibition on requesting written reasons.

That decision (the refusal to provide written reasons) was the subject of the appeal to Burton P..

Burton P. held:

• rather than a point blank refusal to provide written reasons, it would be good practice for an employment tribunal to first ask the employer why it wants them (paras. 20+22)
• that the rules - properly interpreted - allow an employer to request written reasons for the purpose of a review, even when it has been debarred from taking further part in the proceedings (para. 24+25)
• but the rules do not allow the employer to seek written reasons for the purpose of an appeal (para 26). However, this problem can be bypassed if the employer presents an appeal, and then the Employment Appeal Tribunal requests written reasons under rule 30(3)(b)
• it is important that an amendment to rule 9 should be carefuly considered when the Rules are reviewed (paras. 23+26)
• the Employment Appeal Tribunal has no power to order that the employer pay the judgment debt as a condition of being permitted to continue with the appeal - but it is open to a Claimant to go to the County Court and ask that the judgment debt be paid into court pending the outcome of any appeal (paras. 34-36)

A good summary of the (fairly complex) decision can be found at paragraph 28.

NSM Music Ltd v Leefe