Veitch Penny LLP - Exeter | Crediton, Devon

Case

Bone v Fabcon Projects Ltd
Employment Appeal Tribunal - (7 July 2006)

Issues

(1) Practice and Procedure
(2) Employment Tribunal Rules of Procedure 2004
(3) Time limit for presentation of Response

Facts

Mr Bone resigned from his employment on 19 February 2005. On 18 May 2005, his solicitors presented a claim to the Employment Tribunal of constructive unfair dismissal. On the same day it was received by the Tribunal it was processed and a letter was written to Mr Bone’s solicitor confirming that a copy of the claim had been sent to the employer and to ACAS. A conversation subsequently took place between ACAS and the employer’s managing director, as a result of which the director telephoned the employee. The employee later alleged that this conversation confirmed that the employer had received the claim papers. The employer subsequently received another telephone call from ACAS and it was this call which the employer later alleged had alerted him to the fact that a response should have been filed. On 17 June 2005, the employer wrote to the Tribunal advising that they had not received the claim documentation. The Tribunal responded on 23 June and sent further copies of the claim form. The employer then submitted their response on 19 July 2005.

The employee applied for a default judgment on the grounds that the employer had failed to respond to the claim within 28 days of the same upon which the copy was sent to the employer.

The Tribunal rejected the employee’s application for default judgment as they said the claim had not been received by the employer until re-service of the initial claim form on 23 June 2005. On that basis time for the presentation of the Response did not begin to run until the employer had received a copy of the Claim and therefore the employer’s response had been validly filed within 28 days of the date of re-service.

The employee appealed this decision on the basis that the employer was required to present a response within 28 days of the date of the sending of the claim form regardless of whether those papers were actually received by the employer.

Decision

The Employment Appeal Tribunal (EAT) allowed the appeal. It reviewed the construction of the Rules of Procedure. It was confirmed that the time limit to present a response by an employer ran from the sending of the claim form rather than receipt. There was no power in the Rules for the Tribunal to re-serve the claim form. On this basis, the original Tribunal had been incorrect and the Tribunal should have concluded that the employer had not presented a response within the time limit. It would then be up to the employer to apply for a review of the decision.

Comments

Prior to the change to the Rules of Procedure, the employer had to file their response within 21 days of receipt of the claim. The emphasis has now changed and it makes it more important than ever that employers are aware of the time limits which apply in tribunal cases and act promptly.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.