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Procedure: Respondent should normally participate in remedy hearing even if debarred from contesting liability

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Should a respondent normally be permitted to contest remedy even if debarred from contesting liability after failing to present a Response?

Yes, held the Court of Appeal in Office Equipment Systems v Hughes.

The Respondent failed to present a response in time, and was not granted an extension of time. Matters proceeded towards remedy, with the Respondent's request to participate in the remedy stage refused, except that it was invited to comment on the 'grossing-up' of the award over £30,000 and calculation of interest on a sex discrimination claim.

Following various appeals, the Court of Appeal held that, for a respondent debarred from contesting liability, the position in the employment tribunal should be the same as in civil courts, that a Respondent can defend all issues other than liability. The court noted that there is no absolute rule that a Respondent debarred on liability is always entitled to participate in hearings determining remedy.

At the lower end of the scale, e.g. a 'wages' claim, a tribunal might deal with remedy and liability in one hearing, but it would generally be wrong not to consider a debarred Respondent's written submissions on liability if provided in good time. In a case sufficiently complex or substantial to require a separate assessment of remedy after judgment, it would only be in exceptional circumstances that a tribunal could justify excluding a respondent from a remedy hearing, and rarer still to refuse to allow a respondent to make written representations on remedy.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.