Mr P Tomison, Counsel For the v Mr N Morgan, Director — 2021

The claims were presented on 18 April 2019 and the tribunal sent them to the respondent on 12 June 2019, with a response deadline of 10 July 2019. The respondent did not present its response until 8 August 2019 and later sought to have it accepted out of time. Its case was that the claimants' employment had ended in June 2017, whereas the claimants said they only learned the respondent was treating the employment as ended in 2017 from an email sent to their solicitor on 21 January 2019. The hearing before Employment Judge Manley, with lay members Mr Bhatti and Ms Hancock, was concerned first with whether the late response should be accepted.

Applying Rules 16, 18, 19 and 70 of the Employment Tribunals Rules of Procedure 2013 and referring to Kwik Save Stores Ltd v Swain [1997] ICR 49, the tribunal held that there was no satisfactory explanation for the delay. It found that the respondent had had time to send a lengthy email to the claimants' solicitor within the response period, had not applied for an extension of time, and had not given a good reason such as ill-health or a failure to understand the rules. The tribunal also took into account the prejudice caused by the delay and the respondent's conduct in the proceedings, and concluded that it was not in the interests of justice to accept the response out of time.

Because the response was not accepted, the tribunal did not determine the underlying employment claims at this hearing. The judgment refused the respondent's application and listed a further final hearing to determine the outstanding matters, with the respondent's participation limited to the extent permitted by the judge.