In Person (assisted by his wife) For the v Respondent — 2022

At this preliminary hearing, Employment Judge Webster granted the respondent's application for its ET3 and grounds of resistance to be accepted out of time and refused the claimant's application to strike out. The tribunal found, on the balance of probabilities, that the original ET1 had not been served on the respondent; once the respondent became aware of the case it acted promptly, and the later delay in filing a full ET3 was affected by the Covid-19 period. The tribunal applied Kwik Save Stores Ltd v Swain and found that the respondent would be more prejudiced if it were prevented from defending the claim.

On timeliness, the tribunal treated the claimant's pleaded case as including an unpaid wages issue, with arrears of pay and holiday pay ticked on the ET1, and disability discrimination including reasonable adjustments. It held that the wages issue was at least arguable in time under s.23(4) ERA 1996 because the claimant said a March 2019 retrospective payment did not show what had been paid, he raised a grievance in July 2019, and the ET1 was presented on 23 November 2019 after ACAS early conciliation. For the discrimination claims, the tribunal set out the s.123 Equality Act 2010 time-limit principles and held it could not say the claims were definitely out of time or without reasonable prospect of success. The judgment records that the claimant had also referred to whistleblowing and constructive unfair dismissal in later papers, but that he confirmed he was not pursuing those claims.

The tribunal also rejected strike-out based on conduct, although it recorded that the claimant's handling of the case had at times caused delay and that some explanations changed during the hearing. It accepted that sending a document purporting to be the original ET1 was misleading in effect, but found that, on balance, the mistake was due to inexperience rather than an intention to mislead. It considered the incomplete further-information table, the email-address issue, and the failure to explain non-participation at the October 2021 hearing, but concluded that the conduct was not so unreasonable as to justify strike-out. No substantive merits finding or remedy was made.