When can a tribunal refuse reconsideration without proper reasoning?

Background

In the case of Hypervolt Ltd v Jackson, the claimant brought claims in the Employment Tribunal. The respondent failed to present a response in time, and a default judgment was entered under the Tribunal rules. The Tribunal found that the claimant had been unfairly dismissed and had suffered unlawful deductions from wages.

The respondent later applied for an extension of time to submit its response and for reconsideration of the default judgment. It explained that the claim had been sent to a previous address following a change of premises and that, as a start-up business, it had experienced internal disruption and management absence during the relevant period. It also said that the claim papers were only identified at a later stage.

However, the chronology revealed a number of delays and gaps in that explanation. The papers had in fact been received, but not acted upon, and there were further delays in seeking advice and making the applications. A draft response was not initially provided, and there was limited follow-up to obtain missing documents.

The Tribunal refused the application, stating only that it had been presented out of time and that it was not in the interests of justice to extend time. The respondent appealed.

EAT decision

The EAT allowed the appeal.

It emphasised that the Tribunal Rules require a structured and mandatory process when dealing with reconsideration applications. The Tribunal must first consider whether there is any reasonable prospect of the original decision being varied or revoked. If there is such a prospect, further steps must follow, including seeking the other party’s views and deciding whether a hearing is required.

In this case, the EAT found that it was not clear from the Tribunal’s decision that this process had been followed. The refusal appeared to be based solely on the timing of the application, without addressing the substance of the application or the relevant factors.

The EAT also found that the Tribunal had failed to give adequate reasons. The decision did not explain how the judge had weighed the explanation for the delay, the potential prejudice to each party, or the merits of allowing a late response. A bare conclusion that it was not in the interests of justice to extend time was insufficient.

Importantly, the EAT did not endorse the respondent’s explanation for the delay. The issue was that the Tribunal had not demonstrated that it had properly considered and weighed that explanation, alongside the other relevant factors.

The case was remitted to the same employment judge to reconsider the applications afresh, applying the correct process and providing proper reasons.

Learning points for employers

This decision is a reminder that failing to respond to a claim in time can have serious consequences, including default judgment on liability. Employers should ensure that systems are in place to receive, monitor and act on Tribunal correspondence, particularly where there are changes to business addresses or personnel.

Where an employer seeks to engage late, a clear and well-evidenced explanation for the delay will be critical. This should be supported by prompt action, a draft response, and evidence of engagement with the process.

From a procedural perspective, the case also highlights that tribunals must properly explain their decisions. Where an application is refused without clear reasoning or without following the required process, there may be scope for challenge on appeal.

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For more information or advice, please get in touch with Sofia Efstathiou in our Employment team.