A recent Employment Appeal Tribunal (EAT) claim shows that an employment tribunal judgment can be set aside if the facts on which it is based are incorrect.  It also operates as a warning to respondents who choose to ignore employment tribunal proceedings until the last minute in the hope that they can contest any judgment that goes against them.

The appeal concerned judgment in default given in the absence of the respondent.  When the organisation that employed the claimant, Ms Rojas, became insolvent, the project she worked on transferred to the Brent Association of Disabled People (BADP) who refused to employ her.  She brought claims under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) and for disability discrimination.

BADP failed to submit a response to the claim or to attend the employment tribunal hearing, which took place in December 2011.  The hearing took place in their absence and judgment in default was given in favour of Ms Rojas.

However, the tribunal allowed BADP four months in which to apply for a review of the default judgment.  BADP were also ordered to provide the tribunal with evidence by a set date.  BADP failed to comply with any of the tribunal’s directions.

A further hearing took place in May 2012.  It was attended by a director of BADP who had no explanation for the organisation’s failure to provide the evidence ordered by the tribunal.  Despite this, the employment judge decided to revoke the default judgment.

Ms Rojas subsequently lodged an appeal at the EAT.  BADP chose not to participate in the appeal process.

The EAT decided that the tribunal judgment should be set aside.  It noted that the tribunal judgment stated that BADP had complied with the tribunal’s directions, but this was incorrect as BADP had failed to submit the requisite evidence by the deadline set by the tribunal.  The judgment had therefore been made on a false factual basis.

The EAT remitted the matter to the employment tribunal for reconsideration of the application.