Mr Robert Spence v Olivia Catering Limited — 2020

The judgment did not determine the substance of Mr Spence's wage claims. It concerned a preliminary hearing on 10 September 2020 at which Employment Judge Ian McPherson substituted Olivia Catering Limited as the proper respondent, accepted the respondents' late ET3 response, and directed that the case proceed to a three-hour final hearing by CVP. The claimant had said he was owed holiday pay and arrears of pay for lying time, overtime, and unpaid wages, and had calculated his claim at £2,826.80; the respondents said that all sums due had been paid.

Applying the approach in Grant v Asda, and the factors discussed in Kwik Save Stores Ltd v Swain and Pendragon plc v Copus, the judge considered the explanation for the delay, the balance of prejudice, and the merits of the proposed defence. He also referred to the overriding objective in Rule 2. The judge accepted the respondents' explanation that they had not properly received earlier tribunal correspondence until August 2020, while noting the claimant's concern that the response had been lodged only the day before the hearing.

The judge concluded that it was in the interests of justice to allow the late ET3. He recorded that the respondents disputed liability and that there was a core of disputed facts which would need to be tested at a final hearing with evidence from both sides. No merits finding or monetary award was made in this judgment, and the case was simply allowed to continue as defended.