Adequate Reasons and Participation After Default Judgment

In Khan (Executor) v Vijendran [2025] EAT 125 (HHJ Tucker, 30 July 2025) the EAT addressed the extent of a respondent’s involvement at a remedy hearing after they had failed to enter a response.

A redundancy and holiday pay claim proceeded to default judgment after no ET3 was filed.

The Employment Tribunal refused the respondent executor’s requests for reasons and for permission to make written submissions on remedy.

The EAT allowed the appeal, holding that the ET erred in law and committed a serious procedural irregularity.

Legal Issue

Whether a debarred respondent, having failed to present an ET3, may still make written submissions on remedy, and whether an Employment Tribunal must give intelligible reasons for its remedy calculations. (§§38–56)

“There is no absolute rule that a respondent debarred from defending liability is thereby prevented from being heard on remedy.” (§44)

Key Legal Principle

The EAT reaffirmed that even where liability is determined by default, the tribunal must act fairly at the remedy stage.

A respondent’s written submissions on quantum should ordinarily be considered, and the tribunal must give sufficient reasons showing the legal route and evidential basis for any sums awarded.

Failure to do so constitutes an error of law or a serious procedural irregularity.

Tribunal Approach / Framework

When determining remedy following default judgment, the ET should:

1. Invite or accept short written submissions on remedy from the debarred respondent (§§42–44).

2. Consider those submissions even if the respondent may not participate orally (§44, applying Office Equipment Systems v Hughes [1990] ICR 854).

3. Give adequate reasons identifying:

1. the statutory route relied on (e.g., redundancy under ERA 1996 s.162, holiday pay under WTR 1998 or ERA s.13);
2. the factual inputs (period, week’s pay, gross or net figures);
3. any divergence from the parties’ figures (§§47–53).

4. Ensure transparency of computation so that parties and any appellate court can follow the calculation (§54).

“A default judgment cannot be a licence for opacity.” (§55)

Practical Implications

For tribunals: ensure remedy decisions contain explicit reasoning, even in defaults.

For respondents: even when debarred, submit concise written calculations; cite Hughes and Talash Hotels v Smith (EAT, UKEAT/0191/13).

For claimants: provide clear statutory basis and arithmetical schedule—awards resting on bare figures risk remittal.

Authorities Cited

Office Equipment Systems v Hughes [1990] ICR 854 (CA) – applied (§44)

Talash Hotels v Smith (UKEAT/0191/13) – applied (§44)

Jafri v Lincoln College [2014] EWCA Civ 449 – applied on substitution limits (§56)

Statutory Provisions

Employment Tribunals Rules of Procedure 2013 (r.21 now r.22 (2024 rev))

Employment Rights Act 1996 ss.135–162 (Redundancy)

Employment Rights Act 1996 s.13 (Unlawful Deductions)

Working Time Regulations 1998 reg.16

Notes

Failure to provide reasons or to engage with remedy submissions will usually justify remission.

Awards must specify whether calculations use gross or net pay.

“The combination of refusing reasons and refusing to read the respondent’s figures rendered the judgment unsustainable.” (§55)

17th Oct 2025

Michael Salter

Call 1999