The comparator relied on ?

[Confused80]

Good morning, My wife received the letter attached yesterday, can you advise what will happen now ? As the reasons are within the judgment will it just be a case of waiting to see if they appeal within the 42 days ? as a hearing was scheduled for 5 days in February 2023, Am I right in thinking this will no longer go ahead and a remedy hearing will be set after 42 days are up ?

[ULA]

That is good news for your wife, I am very pleased for her.

So they have 14 days to lodge a request for reconsideration or 42 days to make an appeal. Given the track record of the respondent I would think this unlikely but who knows. If they did though, I am hard pushed to know how they would do this on a point of law, given the response has been struck out due to their lack of engagement in the process.

The next you will get is a remedy hearing date, however even they are taking some time to come through. The 5 day hearing in Feb 2023 will now be vacated i.e. not go ahead.

[Confused80]

Another update ... The 42 days was up on March 22nd at 4pm, however we have just (march 24th 7pm) recieved an email from a solisitors previously not involved claiming they have just taken over this case making the application below ... We are completly baffled as no emails had ever bounced back and the email used was filled out 3 times on the ET3 so find it hard to belive this was an error of someone in such an important role. either way this application is outside of the legal timescale and the surley the the claimant and tribrunal cant be held accountible for the the respondents actions ?

URGENT APPLICATION TO BE PLACED BEFORE AN EMPLOYMENT JUDGE


Dear Sirs



******* v ********

Case number: ********



We have just been instructed to act for the Respondent (referred to as “*******” within the ET1) in relation to the above claim.



We write to apply for a reconsideration of the Judgment striking out the response (a copy of which is attached for ease of reference) under rule 71 of the Employment Tribunals Rules of Procedure 2013 and/for it to be set aside under rule 38(2) in the interests of justice, for the reasons that follow.



By way of background, with effect from 7 January 2022, the Respondent’s Company name changed from ******* (part of the ****** - which, for the avoidance of doubt, is not a legal entity) to *******d. The Respondent’s in house counsel submitted an ET3 and Grounds of Response on 5 July 2021 - this was submitted to the Tribunal from the following email address - *************@*******.com. Since that date, the Respondent has not received any correspondence or documentation from the Tribunal or the Claimant.



************ were appointed to represent the Respondent in this case last week, and upon a search of the Employment Tribunal Decisions, discovered that a Judgment was issued on 8 February 2022 which stated that the Respondent’s response is struck out. As the Tribunal will appreciate, this came as a significant surprise to the Respondent, as they had never received any communication from the Tribunal, and as such, were not notified of the various case management orders (CMOs), and were not aware that a Case Management Preliminary Hearing (PH) had been listed for 5 January 2022. If the Respondent was aware of the relevant CMOs and letters from the Tribunal, they would have of course complied with them, responded to the letters from the Tribunal, and would have attended the Preliminary Hearing on 5 January.



In order to attempt to determine why the Respondent had not received any communication from the Tribunal/Claimant in the period from 5 January 2022 to present day, we wrote to the Tribunal and requested that they provide copies of all of the relevant correspondence and documentation in relation to the case. To date, the Tribunal has helpfully provided a copy of the CMOs pursuant to the PH of 5 January 2022, and the corresponding email from the Tribunal to the parties in which the CMOs were attached. We await receipt of the additional documentation.



From a review of the email, we can see that the correspondence in question was sent to an erroneous email address '*****.***@*****.com' which to the Respondent’s knowledge, does not exist. The Tribunal will note that the ET3 was of course sent from the correct email address - ********@******.com (there being no full stop in between the first and second name). We note that, unfortunately, the erroneous email address was provided within the ET3, due to an accidental and wholly unintentional administrative error. We understand that ******** ***** was a temporary employee in the Respondent’s employment/HR team in July 2021 when the ET3 was filed, and left soon after, which might explain why she did not put the correct email address in the ET3 and why it was not noticed within the Respondent that no communications were subsequently received from the Tribunal.



By way of further background, the Children’s and Education Services part of the Respondent demerged from the ********** in July 2021 and became **********. This, combined with the lack of any communications from the Tribunal and the Claimant resulting from the erroneous email address, meant that the team at ******* were completely unaware of developments/lack of developments in the case until very recently.



We submit that our application for reconsideration and request for the Judgment to be set aside, is in line with the overriding objective and in the interests of justice as it would allow the Respondent the opportunity to defend itself in response to allegations raised by the Claimant in accordance with the Grounds of Resistance attached to the ET3. The Respondent has always intended to, and still intends to actively defend the case, and, although it is unfortunate that an erroneous email address had been provided in the ET3, the Respondent wishes to emphasise to the Tribunal that this was an unintentional and accidental administrative oversight, for which it apologises.



Further, we have acted swiftly in bringing this situation to the attention of the Tribunal as soon as we were notified of the existence of the Judgment, and as soon as the error become apparent. We believe that it would cause significant, and disproportionate prejudice to the Respondent and be contrary to the interests of justice, if it were prevented from defending itself against the allegations made.



Whilst the Respondent apologises to the Claimant and the Tribunal for the administrative error we submit that the Claimant will not have suffered any prejudice if the Judgment is set aside and the Respondent is allowed to defend the case as the final hearing is still 11 months away.



We request that further case management orders are given and/or the Case Management Preliminary Hearing is re-listed so that a timetable can be set for preparation and exchange of evidence leading to the final hearing on 13 – 21 February 2023.



We confirm that we have complied with rules 30(2) and 92 of the ET Rules and copied the Claimant’s representative in to this application. We also advise the Claimant that if she opposes the application, she should submit written reasons to the Tribunal as soon as possible.



We thank you in anticipation for your consideration of the above.

[ULA]

An interesting turn of events and may explain why the respondent "went quiet" on the claim. However given that this application has been made by the respondent's solicitor, I suggest that you to need to submit written reasons to oppose the application. If you do not then a decision will be made by a Judge based on this application.

They have asked to apply for reconisderation under rule 71 however this sets out that this needs to be "within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)". In addition rule 38 (2) also has the 14 day timescale. This is going to be your first argument. These timescales are set out in the Employment Trbunals Rules of Procedure. Given that the respondent knew an ET claim has been made they should have been well aware they are bound by therse rules.

Second argument is that the respondent clearly had an HR department/in house counsel dealing with the ET3 and Grounds of Resistence (GoR). Therefore even if the employee left and an erroneous email was set out 3 times in the ET3, the respondent was aware that there was an ET claim against them and in the absence of hearing anything from the Tribunal should have followed this up. A Tribunal does not go silent!

Third point to pick up on is this para:

"By way of further background, the Children’s and Education Services part of the Respondent demerged from the ********** in July 2021 and became **********. This, combined with the lack of any communications from the Tribunal and the Claimant resulting from the erroneous email address, meant that the team at ******* were completely unaware of developments/lack of developments in the case until very recently."

The fact that there was a demerger is not relevant to the case, again only points to the lack of oversight by the respondent. It is erroneous to state that there has been no communication from the Tribunal and the Claimant, as their clearly had been and would be in any event as part of the ET process and goes back to point 2.

Quick question did your wife go through Early Conciliation? If so adds further weight to the fact that the respondent had been dealing with this employment claim for a while even before the ET1 was submitted.

Bounce back of emails is a point. I would suspect but cannot verify that is emails had been bounced back the tribunal may have tried to contact the respondent via post.

Found this case which may help in regard to the similarities (albeit post not email) of the respondent not receiving Tribunal/claimant correspondence and asking for reconsideration, although the decision was not to reconsider, this was given weight by the fact the Judge did not think there was any merit in the defence provided.

https://assets.publishing.service.go...sideration.pdf

[Confused80]

Thank you Ula, Please can you advise if the letter bellow will be sufficient ?


Dear Sir’s

I write to oppose the late application made by the Respondent to overturn the striking out judgment from Employment Judge ***.

On February 8th 2022 Employment Tribunal sent a copy of their judgment to both the Claimant and the Respondent.

On March 24th 2022 at 18:55, The Respondent has asked to apply for reconsideration under Rule 71 however this sets out that this needs to be "within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)". In addition Rule 38 (2) also has the 14 day timescale.

An appeal must be made within 42 days after the date the judgment with reasons is sent or 42 days after the date the separate written reasons are sent if you ask for them. You must appeal by 4.00pm on the last day (March 22nd 2022). These rules are very strictly enforced. Therefore, an appeal made 3 days late should not be considered.

These timescales are set out in the Employment Tribunals Rules of Procedure. Given that the Respondent knew an ET claim has been made, they should have been well aware they are bound by these rules.

To clarify, the ET3 was completed by The ***** *****’s Solicitor ********* *****. On July 5th 2021 the Respondent submitted the ET3 to the Claimant and Tribunal. Within the completed ET3 section 2.5, the Respondent ticked for all correspondence to be sent via email only; within sections 2.6 and 8.9 the email address provided for this correspondence is clearly listed as *********.*****@************.com

The Respondent has advised within their email that their representative ********* ***** left the ***** ***** shortly after submitting the ET3 in July 2021. The Respondent failed to make the Claimant or the Tribunal aware that Ms ***** was no longer their representative, nor did the Respondent provide alternative contact details to those provided within the ET3. To the Claimant’s knowledge, there has been no application for Notice of Change of Solicitor (N434).

Either way, the Respondent clearly has an HR department/in house counsel that had previously dealt with the Early Conciliation of this case. This confirms the Respondent had been dealing with this employment claim for a significant period of time even before the ET1 was submitted, and had since been dealing with the ET3 and Grounds of Resistance (GoR). Therefore, even if the employee left and an erroneous email was set out 2 times in the ET3, the Respondent was aware that there was an ET claim against them and in the absence of hearing anything from the Tribunal should have followed this up. A Tribunal does not go silent!

The email address provided within the ET3 by the Respondent has accepted all emails without correspondence being returned as undelivered, suggesting all correspondence has been received by the Respondent. The Respondent has confirmed within paragraph 4 and 9 of their email dated March 24^th 2022 that they were aware of the judgement prior to the end of the 42 day time limit, yet still failed to meet this deadline or make representation.

The fact that there was a demerger is not relevant to the case, this again only points to the lack of oversight by the Respondent. It is erroneous to state that there has been no communication from the Tribunal and the Claimant, as their clearly had been and would be in any event as part of the ET process.

The judgement from the case of Higgins and Beckinsale V Jagpal (Case number 3201665/2017 & 3201666/2017) can be applied to the context of this case. Sections three, nine and ten describe how communication was sent to the address provided by the Respondent, yet the Tribunal did not receive any response. It was decided by Employment Judge Brown that it was not in the interests of justice to reconsider the previous judgement made. Given the similarity of circumstances, it would be reasonable to follow the same decision made by Employment Judge Brown within this case.

In summary, the case has been neglectfully managed by the Respondent for over eight months. This is reflected in their avoidance of the case and decision to not appoint a new counsel until after the ET decision had been made. Judge *** has applied the law correctely, thus the decistion should not be overturned.

Yours faithfully

[Confused80]

As there has been no official application N434 by the Respondent to the court to change representative, can a solicitor who is not officially listed as the Respondents representative make an application of reconsideration of the Judgment ? any help with what rule this would fall under would be great

We have not been included in any communication to the tribunal from the respondents new solicitor prior to the application so would presume this breaks some rules also ?

[ULA]

There are some changes I would personally make and some elements I would remove, however you have the general points set out. Below I have set out the paras where I am suggesting some changes, blue type is about additions and red type about deletions. They are just my opinion and feel free to ignore.

On March 24th 2022 at 18:55, The Respondent has asked to apply for reconsideration under Rule 71 however this sets out that this needs to be "within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)". In addition Rule 38 (2) also has the 14 day timescale. This application does not met the timescales of the Rules as set out in the Respondent's application.

An appeal must be made within 42 days after the date the judgment with reasons is sent or 42 days after the date the separate written reasons are sent if you ask for them. You must appeal by 4.00pm on the last day (March 22nd 2022). These rules are very strictly enforced. Therefore, an appeal made 3 days late should not be considered. I would delete this whole paragraph - my perspective is that the Respondent has not made an application regarding an appeal just about a reconsideration.

The Respondent has advised within their email application for reconsiderationthat their representative ********* ***** who appears to be referred to as in-house counsel, left the ***** ***** shortly after submitting the ET3 in July 2021. The Respondent failed to make the Claimant or the Tribunal aware that Ms ***** was no longer their representative, nor did the Respondent provide alternative contact details to those provided within the ET3. To the Claimant’s knowledge, there has been no application for Notice of Change of Solicitor (N434). - I would delete this as allthough an N434 is required as part of the civil procedure rules (CPRs) generally for Tribunals is it just a notification of acting or change of contact person for that party to the case that should be sent to the Tribunal and claimant, which can be done by email. So here I would state no notification by the Respondent that their contact, as previously notified, had changed to another member of the in-house counsel team or employment/HR department with their email address for correspondence. Each party is under an obligation to notify the Courts and the other party of a change of respresentative. This was clearly not adhered to, resulting in an inability of both the Tribunal and claimant to be assured of the safe receipt of documents directly relevant to the progress of the claim and the Tribunal process.


Either way, The Respondent clearly has an HR department/in house counsel that had previously dealt with the Early Conciliation of this case........
.... Therefore, even if the employee left and an erroneous email was set out 2 times in the ET3, the Respondent was aware that there was an ET claim against them. and In the absence of hearing anything from the Tribunal, due consideration to the process of a Tribunal and notifications that are sent to both parties and documents sent from the Claimant, the absence of which should have been an alert to the Respondent to followed this up, why they had not received any communication from either the Tribunal or the Claimant over such a long period of time. A Tribunal does not go silent!

The email address provided within the ET3 by the Respondent has accepted all emails without correspondence being returned as undelivered, suggesting all correspondence has been received by the Respondent. The Respondent has confirmed within paragraph 4 and 9 of their email dated March 24^th 2022 that they were aware of the judgement prior to the end of the 42 day appeal time limit, yet still failed to meet this deadline or make representation.

In addition there are a couple of typos in the final para.


I think I have dealt with your post #36 question in my above changes as the first sentance of the application clearly set out they are the new representative of the respondent.

[Confused80]

Another update, to our surprise the judge has decided to overturn his original decision to strike out the Respondent ! I really cannot understand how this is fair ? it makes a mockery of the there being rules to follow if the respondent can ignore the case for 8 months and not inform the court of a change of representation and still be sided with, also the judge has used unfounded aligations from the respondent within the background of the case.

where do we go from here ? we had the standard letter alongside this showing 14 days for reconsideration and 42 days to appeal but are not sure what is the best option ?

it would also seem there has been several emails between the respondent and the court that we have not been included in prior to the appeal etc so feel this has left us at an unfair disadvantage .

redacted.pdf

[ULA]

Where you go from here are 4 options:

1. Do nothing and now continue with the process for a telephone hearing for case management and then the final hearing.
2. Put in a reconsideration setting out your reasons why the Judge should reconsider the judgement but that needs to be done within 14 days either:

• the date on which the original decision was sent to the parties
• the date on which the written reasons were sent to you (if that’s later)

Not sure if you are out of time on this given the judgement is dated 8 April, may come under the latter point if you are in time still.
3. Appeal the decision, which you will need to do within 42 days, however that will need to be based on a point of law which has been incorretly applied.
4. If you go ahead with 3 then I would suggest given the times timescales of the Tribunals at the moment you should also then put in 3.

Given what I have read of the Judgement (and please take into account the fact that i am not an employment law solicitor) the Judge has set out the "interest of justice" argument well and I am not sure that under reconsideration they would find any differently.

[Confused80]

Sorry ULA I should have said the judgment was only sent out via email on Friday, so I believe the 14 days wouldn’t be up until May 6th.

can you clarify point 4 ? I’m not sure if it was a typo putting 3 twice.

many thanks

[ULA]

Then you have 14 days from 22nd April but I would make sure it is not left until the last minute if your wife does decide to ask for reconsideration.

Sorry I should have said at point 4, if your wife goes ahead with 2 then start preparing 3 and ensure it is sent to the Tribunal within 42 days. You are unlikely to hear about your reconsideration within the 42 day deadline for making an appeal.