Claimant v Crossways Playgroup (An Unincorporated Association) and others — 2023

Mrs Katharine Lamb-Robinson brought claims in January 2022 against Crossways Playgroup for unfair dismissal, redundancy payment, notice pay, holiday pay, arrears of pay and a section 23 National Minimum Wage Act 1998 detriment claim. She later amended the claim to add breach of contract. The first respondent’s undated response, completed by Andrew Brewer, stated that it did not deny that she was owed considerably more than the offer made, so the case was listed for a later hearing to determine remedy unless liability was still disputed.

This hearing was a preliminary issue about late responses and respondent status. The tribunal had added Andrew Brewer as the second respondent, and later added Rosina Mary Brewer and Barry Thomas as the third and fourth respondents, after material suggested they were members of the management committee of the unincorporated association. The reasons record correspondence from Ofsted and Dorset Council identifying the second, third and fourth respondents as committee members, alongside letters and emails from Mr Brewer describing himself as administrator and speaking for the playgroup.

Employment Judge Le Grys applied the Rule 20 extension-of-time discretion, with reference to Rule 16, Rule 18, the overriding objective, Grant v Asda and the Kwik Save factors. The fourth respondent’s application was allowed because he had a reasonable explanation for the late response, acted promptly once he understood the position, and had an arguable defence that he was not a committee member. The third respondent’s application was also allowed because she had only recently become aware of the proceedings, had attempted to engage with them, and likewise advanced an arguable defence.

The second respondent’s application was refused. The judge found that he had been engaged with the claim from the outset, had been told repeatedly what was required, and had delayed significantly in submitting a proper ET3 and extension application. The judge did not accept that ill health explained the non-compliance, and concluded that the circumstances pointed to a deliberate refusal to complete the required form. The judge also found that his proposed defence was weak on the material then available, given the evidence that he had acted as the playgroup’s only point of contact and had corresponded on the committee’s behalf. After the oral judgment, the claimant withdrew the claims against the third and fourth respondents. The case was listed for a one-day remedy hearing on 4 April 2024, and the first respondent was directed to confirm by 22 December 2023 whether any liability issues remained in dispute.