Judgments set aside after tribunal failed to phone absent respondent
A tribunal has set aside its own earlier judgments after admitting it should have telephoned the respondent before proceeding in their absence. The case will now be reheard.
1 min read · Last updated 18 May 2026
Case details
- #sex-discrimination
- #constructive-dismissal
- #reconsideration
- #absence-of-respondent
- #procedural-error
Key facts
- The respondent did not attend the preliminary hearing on 21 March 2022.
- The tribunal proceeded in the respondent's absence without attempting to contact them by telephone.
- Employment Judge Camp found that he erred in law by not asking the clerk to telephone the respondent's director.
- The respondent applied for reconsideration in April 2023, which was several years late.
- The EAT ordered reconsideration, and the respondent's application was granted.
- Both the March 2022 and January 2023 judgments were set aside.
Timeline
-
Preliminary hearing
Employment Judge Camp held a telephone preliminary hearing. The respondent did not attend, and the judge proceeded in their absence without telephoning the respondent's director.
-
Judgment on liability
Employment Judge Camp issued a judgment finding that the respondent subjected the claimant to direct sex discrimination by constructively dismissing her.
-
Remedy hearing
Employment Judge Perry assessed compensation at £17,588.00, including injury to feelings and interest.
-
Respondent applies for reconsideration
The respondent applied for reconsideration of the January 2023 judgment, several years late.
-
Respondent appeals to EAT
The respondent pursued an appeal to the Employment Appeal Tribunal.
-
EAT order
His Honour Judge Shanks of the EAT ordered reconsideration and stayed the appeal.
-
Tribunal letter
The tribunal sent a letter expressing a strong provisional view that reconsideration should be granted.
-
Respondent's emailed letter
The respondent emailed the tribunal reiterating their reconsideration application.
-
Order and direction
Employment Judge Camp approved an order and direction regarding the reconsideration.
-
Reconsideration judgment
Employment Judge Camp set aside both the March 2022 and January 2023 judgments due to procedural error.
The legal issue
Whether the tribunal should set aside its earlier judgments because it failed to contact the absent respondent by telephone before proceeding in their absence.
The outcome
The tribunal granted the respondent's reconsideration application and set aside both the liability judgment of March 2022 and the remedy judgment of January 2023.
The key reason was a procedural error: at the preliminary hearing, the judge did not ask the clerk to telephone the respondent's director, even though the claimant had provided a phone number. The judge acknowledged this was a failure to make 'any enquiries that may be practicable' as required by the rules.
No compensation was awarded, as the case will now be reheard.
Lessons & takeaways
- If you are a respondent and miss a hearing, you may be able to apply for reconsideration if the tribunal did not take reasonable steps to contact you.
- Tribunals must consider any available information about why a party is absent — including making a phone call if a number is available.
- A late reconsideration application can still succeed if the procedural error is clear and the other side does not object.
- Claimants should be aware that even a successful judgment can be set aside if the tribunal made a procedural mistake.
This case shows how a procedural oversight can unravel an otherwise successful claim. The former employee had won a finding of sex discrimination and constructive dismissal, and was awarded £17,588 in compensation. But because the tribunal failed to make a simple phone call to the absent respondent, both judgments have now been set aside.
What went wrong
At the preliminary hearing in March 2022, the respondent did not attend. The judge proceeded in their absence, but later admitted he had not asked the clerk to telephone the respondent's director — even though the claimant had provided a phone number. The rules require the tribunal to consider any information available about the reasons for absence, after making 'any enquiries that may be practicable'. A phone call was clearly practicable here.
The respondent applied for reconsideration several years late, but the Employment Appeal Tribunal ordered reconsideration. The tribunal noted that the application was substantially unopposed and that no useful purpose would be served by a hearing.
What the losing side could have done differently
The respondent could have avoided this by attending the hearing or contacting the tribunal in advance. But once the judgments were issued, their best option was to apply for reconsideration promptly — though even a very late application succeeded here because the procedural error was clear.
Why this matters
For anyone bringing or defending a claim, this case is a reminder that tribunals must follow their own procedures. A failure to make reasonable enquiries about a party's absence can be enough to overturn a judgment, even after a long delay. It also highlights that respondents who miss hearings should not assume all is lost — especially if the tribunal did not try to contact them.
Similar cases
Black psychiatric nurse passed over for dual diagnosis lead role: race and sex discrimination upheld
A Black African community psychiatric nurse with 15 years' service was found to have been discriminated against when two white female colleagues were appointed to a specialist lead role he was qualified for. The tribunal upheld his claims of direct race and sex discrimination and harassment.
Firefighter forced out by sex discrimination and victimisation: constructive dismissal upheld
A firefighter with five years' service was constructively dismissed after being subjected to sex discrimination, harassment, and victimisation by colleagues. The tribunal upheld her claims and awarded a basic award of £2,284.
Senior hairdresser with long COVID wins constructive dismissal case over part-time return refusal
A senior hairdresser with 12 years' service who resigned after her employer refused her GP-recommended phased return of two days a week has been awarded £13,699 for constructive unfair dismissal and failure to make reasonable adjustments.
Pregnant physiotherapist forced out: constructive dismissal and discrimination at Barnet FC
A head sports physiotherapist was constructively dismissed after being investigated and having her grievance rejected following her pregnancy disclosure. The tribunal awarded £18,152.48.