Mr K Younus v ICTS (UK) Ltd: 1402215/2020
JUDGMENT
ON THE RESPONDENT’S APPLICATION TO EXTEND TIME TO PRESENT ITS RESPONSE The judgment of the tribunal is that the respondent’s application for an extension of time to file its response is granted and that the claim is listed for a final hearingREASONS
[1]The Respondent sought an extension of time to file its response to the Claimant’s claim that the Respondent had unlawfully deducted wages from his pay.[2]The Claimant presented his claim on 28 April 2020. The claim was accepted on 5 May 2020 and the Respondent was required to file a response by 2 June 2020. The claim was directed to be heard with the claim of Mr Hayes case no. 1401716.2020 as they involved common issues of fact and law.[3]On 7 May 2020 the Respondent’s representative, Peninsula, filed a response in relation to Mr Hayes’ claim. (P)[4]The Respondent did not file a response in relation to Mr Younus’ claim. On 19 June 2020, the Respondent was informed that a Judgment could be issued.[5]On 24 June 2020, the Respondent filed a response and sought an extension of time. In the application the Respondent said that it had shut its offices on 23 March 2020 and at the time of making the application its offices remained shut. Any post received would be checked at most once a week. On 18 June 2020, the person responsible for Tribunal matters received the paperwork relating to the claim and sent it to their representative, Peninsula. It was asserted that the Respondent had an arguable defence and it was in the interests of justice for it to be permitted to rely on its response, otherwise the Claimant would receive a windfall.[6]The Claimant’s was asked to comment. On 7 July 2020, the Claimant’s solicitor said that whilst they could not consent to the application, they did not oppose it. The Tribunal was asked to consider the length of delay, the reasons for the delay and the potential prejudice to the Claimant. The Claimant’s solicitors did not suggest any potential prejudice. The Claimant did not request a hearing to determine the application.The Law
[7]I considered rule 20 “20 Applications for extension of time for presenting response(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application.(2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed.(3) An Employment Judge may determine the application without a hearing.(4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.” (P)[8]In Kwik Save Stores Ltd v Swain and others [1997] ICR 49, the EAT held that “… 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". The case established that an Employment Judge should always consider the following three factors. First, the explanation supporting an application for an extension of time. The more serious the delay, the more important it is that the Employment Judge is satisfied that the explanation is honest and satisfactory. Secondly, the merits of the defence. Justice will often favour an extension being granted where the defence is shown to have some merit. Thirdly, the balance of prejudice. If the employer's request for an extension of time was refused, would it suffer greater prejudice than the employee would if the request was granted?[9]I took into account the overriding objective under rule 2 to deal with cases fairly and justly, which includes as far as is practicable:(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.Conclusions
[10]In the light of the Claimant’s response to the application and that his solicitors stated that they looked forward to receiving the Tribunal’s decision as considered appropriate, it was concluded that it was appropriate to consider the application without a hearing.[11]The response was presented 22 days late, however the Respondent had already taken steps to instruct its representative before the letter dated 19 (P) June 2020 was sent to it. Although there was a delay, directions for the claim had not been given and it had not been listed for a hearing.[12]The Respondent was faced with an unusual situation and its offices were closed due to the covid-19 pandemic. I accepted the reason provided by the Respondent that it was not able to check its post more than once a week and it took some time for the claim form to reach the appropriate person. Once the Respondent was aware of the claim form it acted quickly. In the circumstances of the case the explanation was reasonable.[13]The draft response attached to the application appeared to be reasonably arguable.[14]If the application were not granted the Claimant would receive a windfall as the Respondent could not defend the claim and the decision could potentially conflict with the decision in the Hayes case. The Claimant did not identify any particular prejudice he would suffer if the application were granted.[15]Taking into account the above matters, that the Claimant did not oppose the application and the overriding objective, in particular the need to deal with cases justly and fairly, the application was granted and the response was accepted out of time.