Be late at your own cost
British School of Motoring (BSM) v Fowler, EAT 24 February 2006
Mr Fowler, a former manager with BSM, presented tribunal complaints of unfair and wrongful dismissal. Although BSM’s response to the claim on an ET3 form was due on 1 November 2005, no response was entered and, as a result, on 5 December, the tribunal said BSM could not participate in the proceedings.
A week later, a BSM representative wrote to say that the original tribunal papers had not been received and therefore it had no idea of when their response was due. The tribunal treated this letter as an application for review, and contacted Fowler’s solicitors for comment before dismissing the application without a hearing. BSM appealed.
The 28-day time limit within which an employer must respond to a tribunal claim is strictly applied and, if not met, will normally result in the employer being barred from defending the claim. However, the tribunal can hear an employer’s application for the automatic barring to be reviewed, including the explanation for the delay, the merits of the defence, and possible prejudice to the parties of allowing or refusing an extension of time for entering a response. BSM alleged the tribunal had failed to do this, and should have sought further comment from BSM before deciding no review hearing was necessary. BSM considered this omission to be procedurally incorrect and unfair.
The EAT agreed that the tribunal had not adequately weighed up the issues on review or given BSM sufficient opportunity for comment. It ordered the tribunal to conduct a full review hearing to address whether BSM should be allowed to defend the tribunal claims. But the EAT also noted that the appeal proceedings were unnecessarily caused by BSM’s errors, and that they should therefore pay Fowler’s costs in full.
Employment tribunals have extensive powers to award costs against parties who behave unreasonably. Initially it was uncertain how employers that were late in filing their defence could challenge the tribunal over being prevented from taking part in the case. New tribunal rules allow a review to take place but, regardless of whether employers win or lose, they are now more likely to be penalised on costs for being late with their defences. This could prove expensive.