Striking out a claim

Case 5: The facts

When Mr Brown submitted a tribunal claim, his employer completed its response to a claim on the required ET3 form. However, the tribunal did not receive the form because the envelope had not been properly franked and it had arrived with postage to pay.

As soon as the employer realised (on the last day for submitting a response) that the form had not been received, it faxed the detailed contents – but it had to complete a new ET3 form, which arrived late. The tribunal refused to accept it, and refused to review its decision.

The ruling

The Employment Appeal Tribunal said the tribunal had to consider the reason for not submitting the response on the proper form and the merits of the defence, weighing up the prejudice to each party. It held that the tribunal should have accepted the response because the employer had put forward a valid reason, had an arguable defence to the claim and had acted immediately once it became aware that the ET3 had not been received; furthermore, Brown would not be put at a disadvantage if the employer were given more time to respond.