“We are not spending our time and effort addressing your invented bullshit.”
“We agree with the regional chairman that time limits are laid down as a matter of law, not by the tribunals themselves, and that “they are there for good reason because of the nature of industrial tribunal hearings.”
“The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious despatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.”
“The appeal tribunal cannot emphasise too strongly the importance of respondents complying with the time limits for entering an appearance in order to avoid later expense and delay in the hearing of applications by the industrial tribunal and appeals from it.”
“The Discretionary Factors” the EAT said this: “The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The tribunal is entitled to take into account the nature of the explanation and to form a view about it. The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the tribunal to decide what weight to give to this factor in the exercise of the discretion. In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest. In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour in granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying to them a rule of law not tempered by discretion. It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham M.R. in Costellow v. Somerset County Council [1993] 1 W.L.R. 256, 263: “a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.”
“The tribunal regrets that there was a delay of around 6 weeks before the claims were sent to the respondent but can only assume this was because of the high workload at the tribunal office. In any event, that is no prejudice to the respondent which still had 28 days from the date it was sent to it to respond. The respondent was told of that date, which was10 July 2019 . The tribunal takes into account that the respondent felt able to write a long e-mail to the claimants’ solicitor well within the time, which time could have been better spent filling in the response by the due date. When the response was sent on8 August 2019 , it raises the very same issues about whether the claims have been presented in time, if, as the respondent alleges, the claimants’ employments ended in June 2017.”
“14. There then appears to be an explanation of the delay as follows: “to be further specific, we could not respond to claim forms any faster because: 1. ‘When we received them it was our peak season, and our peak workload of the year. Contrary to you dilatory-public-sector-gohome-at-2-on-Fridays-23days-a-year-off-sick-8-days-paid-holidayhuge-pension-parasitical-fuckers; we actually have to work for a living. In practical terms, this means 14+ hour days and 7 days a week. Consequently, we could not attend to them any sooner.’ 15. The e-mail then goes onto criticise the claimants’ lawyer using similar language, stating that the respondent had been waiting for a reply to an email they had sent to that lawyer on26 June 2019 . 16. The e-mail of 3 September includes an application to strike-out the claims because they are “time-barred” and “because costs of previous failed claims have not been paid”
“What you have written is a highly prejudiced, far left-field, fantasy, fairy story. We are not spending our time and effort addressing your invented bullshit”.”
“When prompted again to address the issue of the response being presented out of time, Mr Morgan went on to say that the respondent was very busy at the time that the response was due. He said that it was a private business; it was a leisure park and it was the summer period and they were overwhelmed with business, working 7 days a week. He also said that, at some point, he was away for 2½ weeks on a business trip to the United States.”
“41. The tribunal considered what Mr Morgan has said, both in the application of3 September 2019 and in his oral submissions today. 42. We have tried to look beyond the vitriolic attacks on the claimants, their lawyers and the tribunal system and ascertain what there might be to suggest a reason for the response to have been presented late. The closest we can come is that it was the peak season and the respondent was busy. The tribunal does not accept that that is a good reason, particularly in light of the fact that the respondent found time to write the earlier email to the claimants’ solicitors. That email made it clear that the respondent had decided not to respond (quote above at paragraph 17). In Mr Morgan’s words, the respondent would not “spend our time and effort”. 43. There really is no reason given for non-compliance, Mr Morgan, concentrated instead on asking for a strike-out of the claims which, on his case, have been improperly accepted. The tribunal considered the application as it was made at the time in September 2019. We have formed the view, that had we been considering it then, we would not have accepted the reason provided. The respondent did not apply for an extension of time and did not provide a satisfactory explanation for the late presentation of the response.”
“8. There were some preliminary matters to deal with. The first was that the claimants’ witness statements had been sent to the respondent on12 November 2021 whereas the order had been to send those statements by29 October 2021 . Employment Judge Manley informed Mr Morgan that as the response had not been accepted, the respondent could only take part in the proceedings to the extent permitted by the Judge. Mr Morgan made it clear that he did not believe a fair trial could proceed because of the late service of the witness statements. He also made reference to some differences between the statements which he had received initially and those which were then before the tribunal. He was also concerned that the ones he had seen were not signed. 9. The claimant’s representative offered to send signed statements which were then forwarded to the tribunal and to Mr Morgan. The tribunal discussed matters and determined that the hearing could go ahead. Although it was unfortunate that the witness statements had been sent late and there were some minor alterations for the final versions, it was still the tribunal’s view that Mr Morgan had plenty of opportunity to read them and comment on them before we decided the case. Mr Morgan pointed out, on a number of occasions, that we had not accepted the response which was, he said, only about two weeks late (although as the 9 September judgment makes clear, it was 4 weeks late). In any event, it seemed to the tribunal that the delay, whilst not ideal, did not get in the way of the hearing proceeding to deal with the matters to be addressed, particularly in view of the delays which had already occurred. 10. The next preliminary matter was that the claimants sought to rely on some documents which were being presented late and were not included in the bundle. The first group of these were medical records. Some records had been sent with respect to Mr Roland Reed on 8 December and those with respect to Mr Andrew Reed were sent on the morning of the hearing. These were relatively lengthy documents but could be read fairly quickly because we only needed to read those parts which were relevant to any question about whether the claimants had a disability and references to their position at work. 11. The second group of documents was recorded delivery receipts which were relevant as the claimants said that their sick notes had been sent to the respondent by recorded delivery. Mr Tomison, for the claimants, apologised for the delay in these documents being sent through, but pointed out that they were clearly relevant to the issues to be determined. Mr Morgan was permitted to comment and he said did not believe the documents should be admitted. He accepted that they were relevant but that they should have been sent in plenty of time before the hearing. Time was allowed for everyone to look at these documents. The tribunal determined that, as they were relevant documents, they should be considered and if further time was needed to look at any parts of them, we could do allow time. It should be noted that Mr Morgan, when he made his representations later in the day, and the next day, had clearly been able to read the medical records with some care as he asked us to consider sections of them with respect to the question of whether the claimants thought they were still in employment or were going to return to employment. 12. We did have the witness statements and saw signed copies. Although Mr Morgan was concerned that he had seen a different version, it was confirmed to him that the ones the tribunal would take as evidence at this hearing were those which had been signed. Mr Morgan did not accept that the signatures were those of the claimants.”
“15. Mr Morgan wanted to ask questions of the witnesses. This was not allowed because that was not considered to be in the interests of justice. The tribunal accepted that both claimants had mental health issues and Mr Morgan’s behaviour in these proceedings has sometimes been belligerent and offensive. The tribunal was well aware of the disputes on the evidence. Mr Morgan was told that he could make representations at the end of the hearing and address the tribunal on anything which he wishes to take issue with in the statements. The respondent’s case and the differing claimants’ case is, in any event, clear. Of course, there is a disagreement between them which is to be determined by the tribunal but the tribunal did not feel there were any proper questions which could be asked of these witnesses by Mr Morgan.”
“During the 9 and10 December 2021 hearing, where Mr Morgan could only take part as far as the employment judge allowed, he was reminded several times not to be disrespectful to the claimants. I do not accept that I interrupted and harangued Mr Morgan but, as the judgments show, it is likely that I spoke firmly to him.”
“It is clear in my mind that it was a challenging case for EJ Manley to manage but at no time do I feel that she, or the panel in its decision-making, displayed anything but fairness and equal treatment to the parties.”