Responding to claims out of time because of the pandemic

With Covid causing problems and delays, Katie Maguire explains what employers can do if they miss the 28-day tribunal response deadline

Responding to an employment tribunal claim within the 28-day time limit is a fundamental rule in the tribunals and one that, in normal times, rarely gets breached. However, the pandemic has resulted in a growing number of respondents failing to respond in time, risking the wrath of the tribunal and the response being rejected. In these strangest of times, the reasons for this aren’t that businesses have suddenly developed a wanton disregard for the employment tribunals, but are down to various factors caused by the impact of coronavirus. 

When the tribunal is at fault

The pandemic has had an understandable impact on the court and tribunal system, but it is fair to say that the employment tribunals have struggled more than most. Tribunals have tried to enter the brave new world of virtual hearings with mixed results and there is a huge backlog of around six months on claims, applications and hearings. In the best of times the employment tribunals were creaking as a result of underfunding and staff shortages, but in a pandemic it has been shambolic. 

One consequence of this is that, for whatever reason, claims have not been served on respondents. For example, I have had a case where my client was served with a notice of a hearing when they hadn’t even been served with the claim. This has caused understandable chagrin for such respondents.

Postal delays 

Lockdown led to offices across the country being closed, and as a result some post did not find its way to the correct party. Unfortunately, this has resulted in some respondents missing the 28-day time limit as they hadn’t received the claim in time. While it is possible to express irritation with the antiquated system of the employment tribunals, which still requires claims to be served by post, it is the responsibility of businesses to have processes in place whereby people receive their post. 

What should you do?

If you find that you are out of time to submit a response to an employment tribunal claim because the tribunal failed to send you the claim, you will need to make an application for an extension of time to submit a response. Given the context of the reason for these applications, the tribunal can extend the time for presentation of a response if it is satisfied that it is just and equitable to do so.  

It is somewhat more difficult if, because of the post or a failure in a business’s processes, a response hasn’t been presented in time. In these situations, you need to make an application for an extension of time to submit a response and need to include the draft response that the respondent wishes to present. This means it is often necessary to draft the response extremely quickly as the application needs to be made as soon as possible once the claim is known. This can be especially difficult when you don’t have much of the necessary information to draft the response. 

What can happen if you are out of time?

An employment judge can issue a default judgment for liability and remedy. Under the new rules and presidential guidance, before issuing a default judgment the employment judge has the discretion to ask the parties to provide further information to assist them in making a decision on how to proceed. If the judge considers they are not able to determine all or part of the claim, for whatever reason, they can fix a hearing to consider the preliminary issue. Once the hearing has taken place and the preliminary issue has been dealt with, it is open to the judge to then issue a default judgment without a further hearing. Given the backlog the tribunals are facing, we are finding that, unless an application is made by the claimant, the tribunals are not actively issuing default judgments at present.

Ultimately, given we are in unprecedented times, if you never received the claim in the first place because of the pandemic, the tribunal is likely to look favourably on any application made for an extension of time to submit the response. If the deadline has been missed because of your own fault, they are less likely to be so generous and you may be left facing a default judgment against you. As a result, making sure you have effective processes in place so people receive their post will save you a lot of pain in the long run.

Katie Maguire is an employment partner at Devonshires