Mrs E A MerriganClaimantMrs Patricia BoweyRespondentDate 26 April 2023
JUDGMENT
The claimant’s application dated 17 February 2023 for reconsideration of the rejection her response is allowed and the time for the presentation of the response is extended to the 13th February 2023.
REASONS
[1]This reconsideration application by the respondent was determined on the papers, at the request of the respondent and without objection from the claimant, in chambers on 26th April 2023.[2]It relates to my decision of 15th February wherein I concluded that I could not determine an application to extend the time for presentation of the respondent’s response in the absence of receipt of a reconsideration application, presented in accordance with the terms of rule 21 of the Employment Tribunal Rules of Procedure 2013. In my case management order I recorded the following: “Following receipt of the ET1, the respondent, who was then running two public houses, sought telephone advice from a solicitor; Mr Winrow (now her representative in these proceedings) and he immediately advised her to apply for an extension of time to submit her response.[4]The respondent, still acting in person, applied for an extension of time.[5]Mr Winrow was instructed to act on the respondent’s behalf on the 3rd February. Unfortunately the respondent appears not to have informed him of an email from the Employment Tribunal, dated 8th February 2023, which granted an extension to Friday 10th February.[6]In the absence of that knowledge, and the belief that a decision on the respondent’s application was still awaited, Mr Winrow submitted an ET3 on the afternoon of Monday 13th February.[7]That ET3 was rejected because it was received after the extended time for presentation of the response had expired.[8]A decision was made that it was not appropriate to give judgment on the claimant’s pleaded case as there were matters which the Tribunal needed to determine; the case was listed for three days commencing on the 14th June 2023.[9]At the outset of this preliminary hearing Mr Cowley was unaware that an ET3 had been submitted and had not seen a copy and, as noted above, Mr Winrow was still unaware that an extension had been granted and that it had expired on the 10th. 10.The notice for this hearing was sent to the parties on 4th January 2023; it is not a preliminary hearing of the sort anticipated under rule 21(2) of the Employment Tribunal’s rules of procedure. 11.Rule 21(3) states: “(3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.” 12.At the date of this preliminary hearing, and absent an existing application for reconsideration complaint with rule 19(2), I consider I have jurisdiction to permit the respondent to participate in this case management hearing and co-operate with the orders which I have made with the consent of both representatives. 13.This decision does not anticipate the success or failure of the respondent’s proposed reconsideration application; rather it provides for the necessary information and evidence that a judge will need to determine the claimant’s case with or without the participation of the respondent.[14]I record that Mr Winrow intends to submit an application for reconsideration promptly and is likely to accept a determination on the papers.” 3. I note that, for the purposes of the above hearing, I directed the respondent be fully engaged in the preparations for the liability hearing. 4. The claimant made her application for reconsideration in a document emailed to the Employment Tribunal on 16th February 2023. That application was copied to the claimant’s representative. 5. I will not rehearse the chronology she sets out; the claimant has not commented upon it. It states, in essence, that the respondent is an individual with no prior experience of employment law litigation, that she was suffering with ill health throughout the period which commenced with receipt of the ET1 and the approval of the draft of the ET3 prepared by her solicitors. That she, with the assistance of her daughter, applied in a timely fashion for an extension of time to present the response. That request was granted and communicated to her on Wednesday 8th February 2023; two days before the expiry of the period of extension; Friday 10th February 2023. 6. Unfortunately that revised date was not communicated, by the respondent’s daughter to the respondent’s solicitors who, having completed an approved response, submitted it on Monday 13th February; one working day out of time. 7. I take into account the respondent’s inexperience, substantial ill health in the relevant period and the degree that she needed to rely upon her daughter’s assistance. 8. I take into account the potential merits of the respondent’s defence; which is weak on the procedural fairness of the admitted dismissal of the claimant but of substance with respect to the claims of disability discrimination and on potential contributory fault for the purposes of remedy under section 119 to 123 of the Employment Rights Act 1996. 9. I take into account that a judge might well allow the respondent to give evidence at the final hearing even if this reconsideration application is refused and that the orders I made in my case management order of the 15th February 2023 anticipated that possibility. I also take into account that another judge decided this was not a case in which it would be just and equitable to enter a default judgment with respect to liability for any of the claims. 10. I also take into account that the respondent’s participation will likely hinder the claimant’s prospects of success but it will not materially extend the hearing; already listed for three days. I also take into account the degree of culpability for which the respondent must, through her daughter’s default, be responsible for the late presentation of her response. 11. In light of the above, I consider that the interests of justice require the tribunal to allow the respondent to defend the claim and accordingly I allow the reconsideration application and revoke the original decision. I extend the time for presentation of the response to Monday 13th February 2023. 12. The response was thereby received in time and is accepted by the Employment Tribunal.