Ms A Greenley, Counsel For the v Respondent — 2022

This hearing was limited to the respondent's application dated 24 February 2022 for an extension of time to present its ET3 response, which was about 15.5 months late. The tribunal applied Rule 20 of the Employment Tribunal Rules and the approach in Kwik Save Stores Ltd v Swain and Ors, considering the explanation for delay, the balance of prejudice, and the merits of the defence.

The tribunal accepted the evidence of Marion Mitchell, Head of Administration Services, and found the respondent had received the claim and correspondence but was unaware of the proceedings because post was not being attended to during the pandemic. It found that in the context of lockdown, homeworking, furlough, and the respondent's office move, unopened post had been stored without being sorted, and that this was not intentional default or procedural abuse. The tribunal accepted that the respondent had given a satisfactory explanation for the delay.

On merit, the tribunal found the draft ET3 disclosed an arguable defence. The respondent's primary case was that nearly all of the claims were out of time, which was an issue going to jurisdiction, and it also pleaded redundancy as the reason for dismissal, which was a potentially fair reason and an arguable answer to the discrimination allegations. The tribunal accepted that refusing the extension would prejudice the respondent more than granting it would prejudice the claimant, and that any prejudice to the claimant could be mitigated by reasonable adjustments.

The tribunal therefore granted the extension of time and accepted the draft ET3 as the respondent's defence. No monetary award was made, and the substantive claims were not determined in this judgment.