Employment Tribunal - No ET3 Response

[middleman31]

I have an issue with an Employment Tribunal which has been running only a short time now.

 

The ET1 has been submitted.

 

The deadline for the ET3 has very recently passed and no response has been received. No request for an extension has been received either.

 

As I understand it, a Judge will now decide whether a default award is made.

 

My questions are:

 

1. Is the default awarded at the maximum level?

2. Is the Vento scale used for this award?

3. If an award to made by default and it is quite low what can I do to increase the award?

4. Do I need to put an 'Unless Order' forward to push things along?

5. What options would a solicitor have other than an 'Unless Order'?

6. Is there any guidelines as to what process a solicitor would follow as I am reluctant to leave the decision in the ET's hands?

7. What other orders are there that I could use?

8. Do I still need to produce a 'Schedule of Loss', 'Witness Statements', 'Mitigation Documents', etc in order that I receive the

best default award the Judge can offer?

9. Can I request a hearing to reinforce the default award?

 

Any help would be appreciated as I do not know what a solicitor would do next. I am not asking for legal advice here, merely what options do I have and what may a solicitor do from this point onwards.

 

Thank-you

[lbruk]

I would just wait for a while before getting too excited!

[middleman31]

Wait for what exactly?

 

Could one expect that the ET to relax their rules and deadlines for the ET3 response?

 

Is it the ET's prerogative from here in as to how to proceed or does a Claimant have any clout at this step in the process?

Edited May 3, 2012 by middleman31
addition

[lbruk]

I believe it is up to the Judge, firstly he will want an explanation of why they have not adhered to the tribunals timeline.

[lbruk]

I would complete your schedule of loss, as the judge may want to see it, you wont need to have witness statements etc, as the judge will just take your side as the truth as there has been no defense from the respondent.

 

An employment judge can, if the response has not been submitted or has been submitted and not accepted, issue a default judgment to determine a claim without a hearing. Such judgments may determine not only who is at fault, but also any appropriate remedy such as compensation.

[middleman31]

Thank-you for the explanation. Much appreciated.

 

In terms of default judgments.

 

How would the judge measure the award given if any?

Would this solely be based upon the Statement of Loss?

 

Would a judge be expected to jump upon this failure to respond rapidly or is this a slow turn of the wheel and just a waiting game?

[elche]

Hi middleman,

 

Well you have asked some specific questions and 'good' advice will be best given by an adviser who knows much more information about the background to this - for example why no defence was received - are they still trading?

 

Firstly, my advice would be that you get some tailored free F2F legal advice, can you get into a local law centre http://www.lawcentres.org.uk/lawcentres/detail/find/, or CAB. CLA used to offer eligible clients 2 hours of free employment advice which would be perfect help for the 'remedies' element of your claim 0845 345 4 345 - http://www.direct.gov.uk/en/Dl1/Directories/UsefulContactsByCategory/Governmentcitizensandrightscontacts/DG_195356

 

Secondly, I reckon you want to apply for default judgement on liability to the ET ASAP as this may better 'lock in liability'. You should speak to the ET (just ring them) and ask them if they are issuing default judgement.

 

Unless the quantum in your claim was clear (unlikely on what you say above), then normal practice will be a separate Remedy's Hearing and the Respondent could present a defence (of quantum) there 'all guns blazing' - so whilst they may be liable, how much is unlikely to have been assessed yet.

 

Try and get some free F2F advice, and if your likely award is high (you mention VENTO), then it might even be worth paying for professionally help with your schedule of loss.

 

Hope this helps and best of luck.

 

Che

[lbruk]

My advice would be to wait until after the Bank Holiday Weekend. Then phone the tribunal and ask if the ET3 has been received. If it hasn't then ask what happens next. That way you are simply inquiring about your case and not trying to sound like you want something done fast, but it will flag it to them and they will look at it!

 

Unfortunately I haven't met an employment tribunal that has jumped on anything quickly!

 

Are you saying that the tribunal has not received the ET3 or you have not? as it can take up to 2 months for the ET3 to be sent to you from the tribunal!

 

I honestly do not know what route the Judge follows, I have never heard of a non-response to an ET1

[middleman31]

Firstly,

 

Che,

 

Thank-you very much for the advice on the next steps. They were my next ports of call as I am reaching my limited knowledge. As mentioned in Ibruk's post, a non-response is not normal.

 

You mention a default judgment on liability... as opposed to what? What are the alternatives?

 

I would like to know if there is a list of orders or judgments at each stage of the ET process, which a solicitor may use. This would help a great deal with which process or order to follow. Maybe it is a student thing, in which case, the college of law would be best.

 

As you rightly suggested, the quantum is unclear in the ET1, this was expected to particularised in the SoL, subsequent to the Witness Statements, Disclosure and Bundle Preparation, which seem to now be surplus to requirements in a default judgment.

 

Seems a bit crazy to fail to submit an ET3 response and then be able to contest a Liability Hearing, very warped!

 

F2F?

 

If paying for legal advice for this stage and onwards, would it be reasonable to claim the costs back as the Respondent would be seen as displaying unreasonable behavior or is this something the court would not be expected to award under the circumstances of ignoring a court order.

 

 

Ibruk,

 

Agreed on the bank holiday waiting time.

 

I have telephoned the ET today, the deadline being 12pm the day before and the emails from that night do not show any responses, so in answer to your question, the ET has not received any response.

 

Waiting until after the bank holiday will certainly allow any responses to filter through the system, to be 100% sure of a failure to respond.

 

I will keep all informed as to how an un-responded ET1 fairs at the ET's hands.

[elche]

F2F?

Face to face (advice - I just mean 'real' advice) - if that makes sense.

 

Don't get too bogged down in procedure at this stage. ET's are not courts.

 

Just ring the ET and check if they are issuing default judgement on liability (i.e. do they agree that the the ER is liable of the specific allegations / heads of claim as set out in your ET1) - i.e. a default judgement on just liability at this stage.

 

Get that rolling first and come back....

 

Che

[middleman31]

Che,

 

Advice appreciated and understood.

 

All,

 

Thank-you for the input and responses so far.

 

Lets see after the weekend.

[elche]

Seems a bit crazy to fail to submit an ET3 response and then be able to contest a Liability Hearing, very warped!

 

Just reviewing this, and perhaps I wasn't clear sorry. - on this point alone, what I mean to say, and perhaps did not explain properly is that if you get default judgement then the issue of liability is (in theory) as dead as Monty Python's parrot - i.e. dead

 

Then the question is, "If they are liable, how much should they pay" - the remedies element of the claim. And at this remedy hearing your ER is perfectly entitled to turn up and say, "Ok we admit liability but we do not agree to any of the Claimant's figures in their Schedule, for example the Claimants's future loss is disputed because of their failure to mitigate losses etc etc... "

 

Hope that is some help and a bit clearer.

 

If you want to help yourself on this matter then I would recommend this book - http://www.lag.org.uk/Templates/System/Publications.asp?NodeID=90889&Mode=display You might find a copy of Naomi's book in your local library - assuming it has not been closed to pay a banker's bonus.

 

Let us know what the ET says on Tuesday, it helps all CAGGERS to know what actual ETs are doing in reality.

 

Che

[paxon]

Hi for the o.p,

 

What was the outcome here as I am in the same situation myself

[middleman31]

No response from the ET as yet, they are waiting on other issues, but I do expect a response any day now. Will keep you posted.

 

Who are the o.p. by the way

[paxon]

It meant "original poster" lol

 

My et3 form was supposed to be received by the ET 2 days ago and they have not got anything, and I can be sure they got it.

 

I think the best thing to do would be wait till the beggining or next week and call them again and ask about a default judgement.

 

Is it a complicated process of fairly strait forward? (if you dont mind responding)

[middleman31]

In my experience, it is a straight forward process, but the ET make it complicated.

 

Are you the Claimant or Respondent?

[paxon]

I am the claiment, I work for a rather large insurance firm so I was shocked to hear they never responed, hopefully the e.t will make it a strait forward process as the size of the claim is not big.

 

Thats unless they come out with some waffle about why they never sent the et3 back

[middleman31]

When was the deadline for the ET3?

 

Due to the number of cases being submitted having doubled in the last 1-2 years, the ET system is extensively overloaded and it can take some time for ET1's and ET3's to work their way through the system.

 

They could well have responded. Best bet would be to call up 4 or 5 days after the deadline, account for working days and ask if an ET3 or leave for an extension had been filed. I say 4 or 5 days because it can take some time for emails and post to work its way through to the pile.

 

If you do receive a refault judgment, it then comes down to your schedule of loss as mentioned by 'elche' in an earlier post.

[paxon]

Will do thanks for the advice it is greatly appreciated.