Mr B Deans v Represented by: Mr R Russell, Solicitor Mr F Shewan — 2022

At the preliminary hearing on 20 May 2022, Employment Judge A Kemp considered the respondent's application under Rule 20 to extend time for presenting a Response Form. The claim had been started when both parties were unrepresented. Although the claim form did not tick the unfair dismissal box, the tribunal held that the narrative and compensation section were sufficient to amount to an assertion of constructive dismissal under section 95(1)(c) and section 98(4) of the Employment Rights Act 1996, together with a claim for unpaid holiday pay.

The respondent had not filed a response in time, but his later draft response accepted that some holiday pay was due and denied that there had been a dismissal. The tribunal applied Rule 20 together with the overriding objective in Rule 2, and referred to Kwik Save Stores Ltd v Swain, Costellow v Somerset County Council and Holmes v Telemachus Ltd. It found that the claim form was not as clear as it might have been to a layperson, that the delay was largely explained by the respondent not appreciating the extent of the claim rather than by a deliberate tactical choice, and that there may be a defence with arguable merit.

Balancing the prejudice to both sides, the tribunal noted that the delay was about five weeks, that there could be disputed issues on liability and quantum, and that the claimant would suffer delay and additional expense if the response were admitted late. It concluded that the balance favoured allowing the response, so the Rule 20 application was granted and any judgment entered because of the late response would be set aside. The substantive constructive dismissal and holiday pay claims were not finally determined in this judgment, although the tribunal noted that the claimant's schedule of loss sought £21,401.44, including £2,230.40 for holiday pay, and that the respondent said £860.99 was due.