EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102410/2017 Held in Glasgow on October 2017 Employment Judge: lain F. Atack Mr D McCrindle v David Frazer — 2017

This was a preliminary hearing before Employment Judge Iain F. Atack on 25 October 2017. The claimant, Mr D McCrindle, appeared in person. The respondent, David Frazer, did not attend, but later contacted the tribunal administration and said he had been on holiday since July and had only collected his mail at the preceding weekend; he also said he had thought the matter would be dealt with on the basis of his written submission. The claimant said he was seeking notice pay, holiday pay and a redundancy payment.

The tribunal found that the ET3 had been presented on 20 September 2017 and was outside the 28-day time limit. Treating the respondent's email and the ET3 as an application under Rule 20, the judge considered the overriding objective in Rule 2 and the authorities in Kwik Save Stores v Swain and Moroak t/a Blake Envelopes v Cromie. The judge accepted that the explanation for the late response was reasonable and noted that the ET3 had been submitted fairly quickly after the respondent's email.

The judge also considered prejudice and the merits of the defence as pled. It was held that refusing the application would likely prevent the respondent from advancing his defence and could result in judgment for the claimant; if the respondent was not the claimant's employer, he could otherwise be made personally liable for matters for which he was not responsible. The application for an extension of time was therefore granted and the ET3 accepted.

The judgment did not determine the claimant's substantive claims. The judge noted the respondent's position that he was not and had not been the claimant's employer, and the claimant's assertion that Mr Frazer and Mr MacGregor were partners in the business. The tribunal said a further preliminary hearing should be arranged to decide the correct employer.