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Striking Out ET3 - Effect

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[Thanks to Jack Feeny of No5 Chambers for preparing this case summary]

Can a respondent be permitted to take part in a remedy hearing after its ET3 has been struck out for non-compliance?

Yes, said the EAT in EPEM Ltd v Huggins, confirming the previous decision of D & H Travel Ltd v Foster. In EPEM the respondent had its ET3 struck out for failing to comply with an unless order. Although a default judgment was not entered the tribunal refused the respondent's application for permission to cross-examine the claimant on remedy.

The EAT recognised that there is a lacuna in the rules of procedure as rule 9 does not specifically cover circumstances where an ET3 is accepted but then later struck out. Nonetheless, the EAT held that rule 9 should be read as including this position. Furthermore, the correct mechanism for the respondent's application was rule 10(4) (rather than rule 34) which allows for a review of unless orders.

The EAT found that the tribunal erred in not considering the application in light of Foster. If it had done so, the application may have been allowed on the basis sanctions should not be solely punitive and the prejudice to the respondent would outweigh the prejudice to the claimant.