Ms M Tutin, counsel For the v Respondent — 2022

This was a preliminary hearing on 9 September 2021 before Employment Judge O Segal QC. The tribunal was not deciding the merits of the claimant's complaints, which were pleaded as direct discrimination related to sex and/or race, nationality, ethnic or national origins, harassment and/or victimisation. The only issues determined were the respondent's application to present its ET3 out of time and, after that ruling, the respondent's application for costs.

The tribunal accepted the respondent's evidence that the delay in the ET3 being seen arose from an imperfect system for dealing with correspondence during lockdown and/or human error by the security guard who opened it. The claim had been delivered to the correct address on 28 August 2020 but did not come to the attention of any relevant employee until 13 October 2020. Applying the just and equitable test, and the factors identified in Kwik Save Stores Limited v Swain and Moroak (t/a Blake Envelopes) v Cromie, the tribunal held that time should be extended. It found that the explanation amounted to an oversight or unfortunate error, that there was no prejudice to the claimant in granting the extension, and that the respondent would suffer considerable prejudice if prevented from defending serious allegations of discrimination and harassment where the claim was valued at about £800,000.

The tribunal also found that the grounds of resistance disclosed a proper arguable defence to nearly all or all of the claims. On that basis, it was not just and equitable to refuse the extension, and time was extended for the ET3. No hearing on liability followed in this judgment, so the substantive claims remained outstanding.

After giving that decision, the tribunal heard the respondent's application for some of its costs of the hearing. It refused the application. The tribunal held that the claimant's initial objection to the late ET3 application was not absurd, that she was entitled to expect an expeditious decision, and that it was not her fault that the matter was not resolved on the papers. It also noted that the respondent itself had chosen to incur the cost of a witness statement and skeleton argument because the issue was not so clear-cut that it could safely be resolved on the papers.