Ms H Khan v NCINO Global Ltd OPEN PRELIMINARY HEARING — 2020

At an open preliminary hearing by video on 3 September 2020, Employment Judge O'Rourke considered the respondent's late response and the claimant's application for Rule 21 judgment. Both parties relied on Kwik Save Stores Limited v Swain & others [1997] ICR 4 UKEAT, and the judge assessed the explanation for the delay, the length of the delay, the merits of the response, and the balance of prejudice.

The tribunal accepted the respondent's explanation that the claim had been sent to its registered office but had not been forwarded by Vistra, the corporate services provider administering that address, until 24 March 2020. The delay was found to be six days and was given little or no weight. The judge also found that the response had at least some merit because the claimant's claims were insufficiently pleaded, the burden of proof remained with the claimant, and the response set out an alternative potentially non-discriminatory reason for dismissal and limitation arguments.

On prejudice, the tribunal held that the balance fell firmly in the respondent's favour because refusal of the extension would have exposed the respondent to a default judgment for a potentially very large sum without an opportunity to defend itself, whereas the claimant could still proceed with her claim and be compensated if it succeeded. The respondent's application to extend time to 29 October 2020 was therefore granted and the claimant's Rule 21 application was refused. No substantive liability issues or remedy were determined at this hearing.