Mrs Amy Simpson v DN Cafes Ltd — 2023

The tribunal dealt with a preliminary issue only. Mrs Amy Simpson had brought two claim forms against DN Cafes Ltd, alleging late payment of wages, failure to provide itemised payslips, unsafe working conditions and a failure to carry out risk assessments. The respondent’s ET3 was received one day late, and the tribunal treated the respondent’s later email as an application to extend time for filing its response.

Applying the guidance in Kwik Save Stores Ltd v Swain [1997] ICR 49, the tribunal accepted the respondent’s explanation for the delay. It recorded that the claim forms were contained in a plain envelope addressed to Mr Miller, that there were delays in postal delivery caused by industrial action, and that these factors affected both receipt of the claims and the tribunal’s receipt of the response.

The tribunal also considered prejudice and the merits of the response. It found that the respondent would suffer greater prejudice if relief were refused than the claimant would suffer if relief were granted, noting that the claimant said she would welcome the opportunity to respond to the defence and did not identify any specific prejudice. The tribunal further observed that the ET3 raised arguable issues that should be considered at a final hearing. It therefore extended time and accepted the respondent’s response. No substantive findings were made on the pleaded breach of contract, payslip, or counterclaim issues, and the judgment recorded case management directions for a later hearing.