Legal Updates

Employment – Discrimination against a Woman – Default Judgment

In the case of Foster v D & H Travel Ltd and another [2006], an employee resigned from the respondent employer and claiming sexual harassment. She alleged that she was subject to lewd, suggestive and upsetting remarks whilst at work, and often received text messages of a sexual nature. The comments and texts were made by the second respondent. No response was submitted to the Employment Tribunal by either respondent in defence.

Subsequently, the Employment Tribunal ordered a default judgment in favour of the employee. No application for a review of the decision was made. Despite him not giving any notice, the second respondent attended the remedies hearing and attempted to challenge the employee’s case. The chairman made it clear that as there was no application for review, a review would not be granted, and that even if a valid application had been submitted he would not  have granted it. It was held that the second respondent was not allowed to participate in the proceedings, and the amount of compensation to be paid to the employee was determined. The respondents appealed.

The respondents argued that the chairman should have:

▪     set aside the default judgment;

▪     allowed their response to be entered late; and

▪     allowed them to participate in the remedies hearing.

The appeal was allowed in part due to the overriding objective. The second respondent should have been permitted to participate in the remedies hearing.

The chairman had been empowered to consider the second respondent’s application to participate in the remedies hearing, even though the application was late. This was achieved by reviewing the chairman’s refusal to accept the response out of time. It was decided that there would have been no real prejudice to the employee had the second respondent been allowed to take part.  It was held that the compensation award could not stand, and a second remedies hearing would be convened before a different chairman.

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© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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