Mr M Fitzgibbon v Represented by: Mr N MacDougall Advocate Instructed by: Ms D Robertson Solicitor Norbord Europe Ltd and 1 other — 2021

This was a preliminary hearing before Employment Judge A Kemp on the respondents' application for permission to lodge a late Response Form under Rule 20. The claimant, Mr M Fitzgibbon, had brought claims for unfair dismissal, direct discrimination under section 13 of the Equality Act 2010, and notice pay / breach of contract. The tribunal heard evidence from Ms Hazel Smith, the European HR Director of the first respondent, and accepted the respondents' account that the Notices of Claim had not been received.

The tribunal found that the first respondent had systems in place for checking post, that Ms Smith had told the office to watch for expected claims, and that the claimant's letter before action had referred to a Sheriff Court claim for breach of contract rather than to a Tribunal claim. It accepted Ms Smith as a credible and reliable witness, rejected the claimant's circumstantial challenge to the explanation, and held that the missing notices could have been lost in the post or mislaid before delivery. It also noted that no acts were pled against the second respondent and that there were jurisdiction points in any event.

Applying Rule 20, the overriding objective in Rule 2, and the factors identified in Kwik Save Stores Ltd v Swain, the tribunal considered the explanation for delay, the merits of the proposed defence, and the balance of prejudice. It found that the respondents had acted promptly once they learned of the Tribunal claim, that the proposed defence had prospects on the merits and on jurisdiction, and that refusing the application would cause the greater prejudice. The tribunal therefore granted the late Response Form application and sisted the claim pending determination of the Sheriff Court action; there was no substantive determination of the underlying employment claims and no monetary award.