Mr A Hassan v Physio Medicine Ltd — 2019

On 2 June 2021 Employment Judge Elliott, sitting at London Central by video, reconsidered the Rule 21 default judgment that had been sent to the parties on 30 December 2019. The claimant, Mr A Hassan, had originally presented claims on 8 June 2019 for unfair dismissal, race discrimination, harassment, victimisation, holiday pay, unlawful deductions from wages, breach of contract, and failure to provide a written payslip.

The judge found that the ET1 had not been validly served because it had been sent to the Wood Street business address rather than the respondent's registered office. On that basis, the respondent did not have notice of the claim when the default judgment was entered on 16 December 2019. The tribunal also accepted that it had not seen the respondent's 12 December 2019 application for copies of the ET1 and an extension of time when the default judgment was made. The judge rejected the claimant's argument that Early Conciliation meant the respondent must have expected a claim to follow.

Applying Rule 70 of the Employment Tribunal Rules of Procedure 2013 and the approach in Kwik Save Stores Ltd v Swain, the judge concluded that the respondent had acted promptly once it received the ET1 in February 2020 and had submitted a draft ET3 within days. The judge also found that the delay had not made a fair hearing impossible and that relevant documents and witness evidence remained available. The Judgment of 16 December 2019 was revoked and the case was allowed to continue; no substantive merits finding or remedy was made in this decision.