Ms R Noon v Asda Stores Ltd and Ms K Powell: 2301200/2024
EMPLOYMENT TRIBUNALS
Case No 2301200/2024
Between
Ms R NoonClaimantAsda Stores Limited (1) Ms Kim Powell (2)Respondent
Before
Employment Judge N WilsonMr E McDonald (instructed by counsel) for claimantMs S Harty (instructed by counsel) for respondentDate 4 August 2025
JUDGMENT
[1]The claimant’s application to strike out the respondent’s response and /or to vary an earlier case management order which accepted the response is refused.
REASONS
[2]The claimant has brought claims of constructive unfair dismissal, discrimination because of her sex and/or pregnancy and maternity and a claim for unlawful deduction from wages.[3]She was employed with the first respondent from January 2015 until her resignation on 31 October 2023. Page 1 of 14[4]The ET1 was issued on 8 January 2024. ACAS EC started on 24 September 2023 and ended on 4 November 2023. The claim form was issued in time.[5]The claim form was served by the Tribunal on 6 June 2024.[6]The respondents ET3/response to the claim form was due to be filed by 4 July 2024 and it was not. The claimant’s solicitors wrote to the Tribunal on 25 July 2024 copying in a Ghanshyam Teelwah at Asda (the first respondent) saying the response had not been filed and asking for a Rule 21 (as it was under the 2013 ET rules of Procedure) Judgment.[7]On 1 August 2024 solicitors (Addleshaw Goddard) wrote to the Tribunal confirming they have been instructed by the first respondent, and they made an application for an extension under Rule 20 of the 2013 rules. They specifically state the respondent is not able to daft a response to accompany the application as the respondent is not in receipt of the claim form. They provide a detailed application in an attached letter labelled ‘application for EOT to submit response’.[8]In the accompanying letter they state: The Respondent failed to comply with Rules 16 and 20 of the ET Rules and file its Response (or apply for an extension of time to file its Response) within 28 days of the date it was sent a copy of the Claim The Respondent failed to comply with Rules 16 and 20 of the ET Rules and file its Response (or apply for an extension of time to file its Response) within 28 days of the date it was sent a copy of the Claim Form. However, by way of explanation: On 25 July 2024, the Claimant's representative, Mike Arnold, sent an email to the Tribunal, copying in Vick Teelwah, Strategic People Partner for the Respondent. Such email attached the Claimant's Schedule of Loss, and stated that 'the Respondent was obligated to file an ET3 / defence to this claim by 4th July. It has not done so or given adequate reason for not doing so… The Claimant seeks a rule 21 default judgement for the amount detailed in the schedule of loss, on the basis that the case is not being actively pursued / defended by the respondent.' That same date, Vick Teelwah forwarded the email onto Dawn Gibson, Lead Strategic People Partner for the Respondent, who forwarded it onto the Respondent's in-house legal team, who then forwarded it onto us as the Respondent's representatives. Prior to receiving this correspondence, the Respondent had no knowledge of this Claim. The Respondent has made enquiries with its head office (and its in-house legal team more generally) and there is no record of the Respondent ever receiving the Claim from the Tribunal. Furthermore, the Respondent has standing instructions with the Employment Tribunals in England and Wales to submit all Notices of Claim, ET1s and related correspondence to the Respondent via a Page 2 of 14 central email address, namely Asdaets@addleshawgoddard.com. As of the date of this Application, we can confirm that no correspondence concerning this case has been received at this email address. We enclose a copy of the Respondent's application, dated 1 December 2021, for all Notices of Claim, ET1s and related correspondence for Asda Stores Limited to be served to this central email address, for the Tribunal's consideration. For the avoidance of any doubt, the Respondent is not currently in possession of the Claim Form. The only information the Respondent has regarding this Claim is the Claimant's representatives email to the Tribunal dated 25 July 2024 and the Claimant's Schedule of Loss.[9]The claimant objected to this application on 6 August 2024. The claimant points out the following: The Respondent’s application of 1 December 2021 requesting for all Notices of Claim to be served at a central email address, was made further to the FAQs issued jointly by the Presidents of the Employment Tribunal for England and Wales and Scotland on 3 April 2020 and in particular FAQ (20). The FAQs are the ‘FAQs arising from the Covid-19 pandemic’ 5. In response to this, the Claimant makes the following observations: The FAQ’s are just that; a document of questions and answers to assist Tribunal users by sharing information about what was the current state of play in dealing with the Covid-19 pandemic. The FAQ’s dated 3 April 2020 are not intended to serve as an amendment to the ET Rules 2013 and does not amount to a procedural rule for the Tribunal to follow. Specifically question (20) of the FAQs states that: The Employment Tribunal will continue to serve claims on the address provided by the claimant on the ET1 form, in accordance with its usual practice. However, on application by a respondent, the tribunal will endeavour to copy ET1 claim forms to a dedicated inbox or to a dedicated central postal address. For those employers based in Scotland or Wales, an application for claims to be copied in this way should be sent to the tribunal offices in Glasgow and Cardiff respectively. For those employers based in England, those applications should be sent to the relevant regional office for the Employment Tribunal region where the employer employs workers. For those employers with a national presence, such applications should be sent to all relevant tribunal locations; the tribunal will try to maintain a database for this purpose. The fact that the Employment Tribunal states that they will endeavour to copy the ET1 claim form, and further on down in the answer that ‘the tribunal will try to maintain a database for this purpose’, makes it quite clear that whilst the Employment Tribunal will try to abide by the Respondent’s request, they have certainly taken on no firm obligation in doing so. The Respondent have provided no correspondence from the Tribunal in response to the December 2021 application confirming otherwise and so any suggestion that the delay is on Page 3 of 14 account of the Tribunal incorrectly serving the claim form on the Respondent should be disregarded. As is also clear from the Tribunal FAQ (20), and which is also acknowledged in the Respondent’s December 2021 application, even if the Tribunal were to serve the claim form to the central email address provided by Respondent, this is to be done alongside serving “claims on the address provided by the claimant on the ET1 form, in accordance with its usual practice”. “We request that all Notices of Claim, ET1s and related correspondence in respect of Asda Stores Limited (or any entity that the Tribunal believe to be Asda Stores Limited – for example where the Respondent is referred to as “ASDA” or similar) are to be served to Addleshaw Goddard LLP (the law firm who act on our behalf) to the following central email address:• AsdaEts@addleshawgoddard.com as well as by post to the address on the Claimant’s ET1.” Therefore, even if it is the case that the Tribunal did not serve the document to the centralised inbox, the Tribunal has still effectively served the claim form on the Respondent in ‘in accordance with its usual practice’ and in accordance with Rule 86 of the ET Rules. Therefore, the claim form is deemed delivered under Rules 85/86 of the ET Rules, and in accordance with Rule 90(a) of the ET Rules, the claim form was delivered on the day on which it would be delivered in the ordinary course of post, i.e. on or soon after 7 June 2024. The claim forms were addressed not just to Asda Stores Limited, but to an individual manager within the store and there is no reason at least one, if not both Respondents should not have been receipt of the claim form. The FAQ’s were prepared specifically for the reaction to Covid-19 and did not intend to confer any lasting ‘best practice’ beyond the pandemic. England and Wales have been out of the pandemic for a considerable amount of time, and therefore, it is not open to the Respondent to rely upon the arrangements that may have been in place during the pandemic, and which are now outdated.[10]Employment Judge Andrews refused the respondent’s application for the extension of time as it was not compliant with Rule 20(1) referring to there being ‘no draft response enclosed’.[11]The respondent’s solicitors reply to this by saying they have provided an explanation in their application that they could not draft a response as they are ‘still not in possession of the claim form’ (this would be as of the date of this email on 13 August 2024)[12]On 20 August 2024 the respondent’s representatives writes to the Tribunal saying they are now in possession of the claim from (by now provided by the Page 4 of 14 Tribunal) and they re apply for the extension of time in which they specifically ask the Tribunal to consider the application in conjunction with the email to the Tribunal dated 1 August 2024 and its attachments ie the original application plus the letter setting out reasons for the failure to file the response. They also submit reasons for the failure to file the response in time in a letter dated 20 August 2024.[13]A response is ultimately filed dated 20 August 2024 and submitted with this application on 20 August 2024. The response is filed on behalf of both the first and second respondent by the same solicitors who made the application to extend the time and therefore it is reasonable to draw an inference that at the time of making their application they were doing so for both respondents albeit they only refer to ‘the respondent’. It is clear they have been instructed to act for both given they have since filed a response for both respondents.[14]The claimant in a letter to the Tribunal dated 21 August 2024 opposed the application stating the respondent has altered the emphasis for the delay to one of neither respondent having previously received the claim form. They rely less on the issue of the central email address not being used for all ASDA cases.[15]The respondents second application was treated as an application to reconsider the original refusal of the application to extend. Employment Judge Taylor issued a decision dated 5 September 2024 stating they had reconsidered the decision to reject the response and the claimant’s objections and decided that the response could be accepted because the original defect which led to the defect (ie the failure to attach a response to the application) had been rectified. The response was treated as being presented on 20 August 2024 and the Judge extended the time limit under rule 5 to allow the response to be accepted.[16]There is a final hearing listed to take place in this matter on 15,16,17,18 December 2025.[17]Whilst today’s hearing was listed for case management the entire time was taken up with the application to strike out. I will therefore list another preliminary hearing noting that case management orders are in force and should continue to be complied with. The parties are to file a draft list of issues (agreed if possible) and case management agendas no less than 7 days prior to the next preliminary hearing. A separate hearing notice will be sent to the parties.[18]The claimant’s solicitors made an application to strike out the respondent’s defence on 25 November 2024 on the grounds that the claimant has since located evidence that the first respondent (at least) was in fact aware of the ET1 claim form because she had provided it directly to another of the respondent’s legal representatives in March 2024. This other firm of solicitors is Dryden’s. She states by virtue of this email to Dryden’s who were also Asda’s Page 5 of 14 Legal representatives the first respondent was fully aware of the claim having received the ET1 in this email from her.[19]The application is therefore made on the basis the Judgment allowing the late response was based on incorrect information provided by the respondent that they had not received the response. Claimant’s submissions[20]The claimant argues it is significant the respondent does not adduce any witness evidence to support the position set out in their earlier applications to the Tribunal that the respondent had not at the time of making those applications received the claim form and/or in response to the application to strike out. I am invited to draw an adverse inference from this. I do not. Counsel for the respondent explains Dryden’s no longer provide 3rd party support to the first respondent and therefore simply have no interest in becoming further involved in this application. I find this to be a plausible explanation and accept the respondent has simply taken taken the view that the documents before me were sufficient to respond to the application.[21]The claimant invites me to find that: i. At the point at which the respondent applied for an extension (1 August 2024) and at the point at which the respondent renewed its application (20 August 2024) the respondent was in possession of the claim form. ii. The respondent therefore misrepresented the position to the Tribunal, whether deliberately or recklessly. iii. The extension of time (granted by EJ Taylor on 5 September 2024, [102] – [103]) was granted on a false basis.[22]I am invited to either strike out the response under Rule 38 of the ET Rules of Procedure 2013 (in force at the time of making the application – now Rule 39 of the 2024 Rules) or to vary/set aside the earlier order of EJ Taylor on the grounds that there has been a material change of circumstance since the order was made or that the order was based on a material omission or misstatement or some other substantial reason necessitating the interference [Serco Ltd v Wells 2016]. The claimant argues it is in the interests of justice to do so because the order of EJ Taylor dated 5 September 2024 was made on a false basis and that was either advanced deliberately or recklessly and the application did not comply with Rule 20 of the 2013 ET Rules of procedure. Page 6 of 14 Respondents’ submissions[23]The respondent states the factors to be considered under Rule 38(1) strike out are: i. There must be a conclusion by the Tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings themselves have been conducted by or on their behalf in such a manner. ii. For a Tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible. In either case, the striking out must be a proportionate response (Blockbuster Entertainment Ltd v James 2006 IRLR 630, CA). iii. Case law indicates that deliberate and persistent disregard of required procedural steps would probably exclude mere oversight or negligence which was not the result of any intentional or deliberate failure to implement proper systems for managing case progress (Emuemukoro v Croma Vigilant (Scotland) Ltd 2022 ICR 327, EAT). iv. In considering strike out under Rule 38(1)(a) the Tribunal must consider whether a trial is still possible. This is the case even where a party deliberately misleads the Tribunal in circumstances that amount to unreasonable conduct. Case law indicates that it is only where such dishonesty is particularly egregious to the extent that it fatally undermines the party’s credibility or the veracity of its case that strike out is appropriate (e.g. Bayley v Whitbread Hotel Co Ltd t/a Marriott Worsley Park Hotel and anor EAT 0046/07). v. Even if there has been scandalous, unreasonable or vexatious conduct of proceedings and a fair trial is not considered possible, the Tribunal must still examine the proportionality of strike out.[24]The respondents’ position is that it is accepted that its People Services Department was informed by Dryden’s on 2 April 2024 that the claimant had brought a Tribunal claim in the context of the respondent pursuing a wage overpayment debt from the claimant. However, it is their position that People Services did not inform the respondents in-house legal team or its third-party legal representatives for employment Tribunal claims (Addleshaw Goddard LLP) of the existence of the claim.[25]The respondents therefore contend that neither the relevant team at the first respondent, namely its legal team, nor Addleshaw Goddard had any knowledge of the claim before 25 July 2024 (when they received correspondence form the claimant’s solicitors). They submit that even taking the claimant’s case at its highest this is simply a matter of administrative error on the part of the first respondent. It was at most an innocent and one-off mistake of the first Page 7 of 14 respondent, who did not usually receive ET1s via People Services. As such, it does not:a. Give “gratuitous insult to the court in the course of such process” (scandalous conduct); orb. Involve deliberate and persistent disregard of required procedural steps (unreasonable conduct; Emuemukoro). Findings[26]I heard sworn evidence form the claimant and had a 152-page hearing bundle with accompanying skeleton arguments/submissions from both parties.[27]It is clear that there was no requirement for the ET1 to have been served on the first respondent’s solicitors. Normal service was effected in this matter upon the address provided in the ET1 for the first respondent. This is the correct and usual manner for service and there is no evidence advanced to support that service was not effected correctly. Under Rule 15 (2) of the 2103 ET rules of procedure: If the Tribunal sends a copy of the claim form to an address for a respondent which differs from that provided on the claim form whether or not a copy of the claim form has already been sent by the Tribunal to an address provided on the claim form the Tribunal may also direct that the period for presentation of a response under rule 16(1) begins from the date that a copy of the claim form is sent to that address[28]This supports that the usual method of service will be to effect service on the address provided on the claim form for the respondent.[29]The respondents do not appear to be arguing defective service of the claim form in any event. My understanding of their position is they simply use this to support their position why the respondent would not be expecting to receive claim forms direct and they rely on the fact that the instructing solicitors having searched their inbox had also received no claim form which they would have expected to in line with standing instructions they say they had for all Asda claims to ‘submit all Notices of Claim and ETs’ to the respondents then instructed solicitors Addleshaw Goddard .[30]This instruction relates to an application the respondent made on 1 December 2021 requesting all notices of claim, ET1s and related correspondence to be sent by the Tribunal to a central email address (at Addleshaw Goddard). I take note the claimant argues this request was made specifically in relation to the Page 8 of 14 FAQs issued jointly by the Presidents of the Employment Tribunal for England and Wales and Scotland on 3 April 2020 in particular FAQ (20).[31]The FAQs are the ‘FAQs arising from the Covid-19 pandemic’[32]I accept the claimant’s position that the FAQ’s is a document of questions and answers to assist Tribunal users by sharing information about what the current state of play in was dealing with the then Covid-19 pandemic. They were not intended to serve as an amendment to the ET Rules 2013 and do not amount to a procedural rule for the Tribunal to follow.[33]Specifically question (20) of the FAQs states that: The Employment Tribunal will continue to serve claims on the address provided by the claimant on the ET1 form, in accordance with its usual practice. However, on application by a respondent, the tribunal will endeavour to copy ET1 claim forms to a dedicated inbox or to a dedicated central postal address. For those employers based in Scotland or Wales, an application for claims to be copied in this way should be sent to the tribunal offices in Glasgow and Cardiff respectively. For those employers based in England, those applications should be sent to the relevant regional office for the Employment Tribunal region where the employer employs workers. For those employers with a national presence, such applications should be sent to all relevant tribunal locations; the tribunal will try to maintain a database for this purpose.[34]I do not find by virtue of the request made in 2021 by the first respondent this substituted service on the respondent direct. Nor did the FAQ’s issued on 3 April 2020 replace the usual service rules.[35]It is notable that only the 7 April 2020 email from the first respondent shows that the respondent’s request has London South Tribunal as a recipient. London South Tribunal does not appear on the subsequent emailed requests for service on the respondent solicitors. It is also notable no renewed application is made for service to be effected in this way after 1 December 2021 (when there were clearly periodic requests being made during Covid 19 ie the email of 7 April 2020, sent again on 16 September 2021 and then again on 1 December 2021). I do not find there was any ongoing applications for service to be effected after the December 2021 email and I do not find at the time these proceedings were instituted there was any such ‘standing arrangement’ for London South Tribunal.[36]In any event I find the usual service rules in accordance with the ET Rules of Procedure 2013 remained effective throughout the relevant period and that service was indeed properly effected. Page 9 of 14[37]This then leads to the first application to extend the time for filing of a response made on 1 August 2024. The application was made by the first respondent’s then legal representatives Addleshaw Goddard.[38]It is clear this application positively asserts The Respondent is unable to file a draft Response to accompany this Application, as the Respondent is unable to file a draft Response to accompany this Application, as the Respondent is not in receipt of the Claim Form.[39]Essentially the grounds of the application say that prior to 25 July 2024 (when the claimant’s representative sent an email to the Tribunal copying in someone from the respondent’s People Service team referring to the ET3 not having been filed in time) the first respondent had no knowledge of this claim nor did they have the claim form.[40]The application goes on to say that the first respondent’s Vick Teelwah (People Services) then forwarded this to the in-house legal team who then forwards it to the solicitors who are making the application to extend time.[41]The application also states the respondent has made enquiries with its head office and its in house legal team and there is no record of the respondent ever receiving the claim form from the Tribunal.[42]They then refer to the standing instructions they say the Tribunal has for service to be on the solicitors (Addleshaw Goddard).[43]They go on to say ‘for the avoidance of any doubt the respondent is not currently in possession of the claim form’.[44]The application was refused by EJ Andrews for not having a draft response attached.[45]The respondent’s representative replies that at the time of making the application they were still not in possession of the claim form and nor was /is the respondent. This response is dated 13 August 2024.[46]The application is re-made on behalf of the respondents on 20 August 2024. At this time, they have received a copy of the claim form from the Tribunal and therefore attach an ET3 and grounds of resistance. Whilst it is not entirely clear that all applications for the extension of time were being made on behalf of both respondents, the grounds of resistance is filed for both respondents and therefore a reasonable inference can be drawn that at all material times Addleshaw Goddards had been instructed to act for both respondents and the applications for an extension therefore related to both respondents responses. Page 10 of 14[47]This time the respondent provides new information in relation to what happens when a claim form is sent to an Asda Store (this clearly supports the claimant’s proposition that the respondent was used to receiving claim forms direct).[48]The claimant also makes written submissions as to their objections.[49]It is against this background that Employment Judge Taylor reconsiders the decision to reject the response. It is notable the Judge takes into consideration the respondents’ application and the claimant’s objections (which at that time did not aver that the respondents had indeed received the claim form by the time they made their first application to extend). The Judge decides to accept the response because the defect which led to the rejection (ie no response being attached) had been rectified.[50]It is not clear whether at the time the first application was rejected originally the Judge considered the accompanying explanation provided was inadequate as this is not addressed in the reason for rejection which only rejects the application for having no response attached.[51]The claimant produces a screenshot of an email she sent to Dryden’s Solicitors who were at that time acting for the respondent (as a third-party debt recovery agency). This email is dated 21 March 2024, and I accept this was sent by her to Dryden’s to inform them that she had commenced an ET claim. Dryden’s position is they immediately informed Peoples Services and Adam Hollings at Asda. They also say in an email that Dryden’s sent 3 separate emails to Asda advising that the claimant had a Tribunal claim. I do not have copies of those emails. Dryden’s were asked by Asda if the email to them from the claimant had attachments and the response is not very clear. It could be interpreted as either there were no attachments with the claimant’s email or there were no attachments in the email chain I sent over [ ie the writer of the email is saying they sent no attachments with their email - my emphasis is underlined]. Given Dryden’s specifically refer to there being no attachments in the email chain ‘I sent over’ (as opposed to saying the claimant’s original email had no attachments which was the specific question being asked) I find on balance Dryden’s were saying their email chain had no attachments. Notably the email from Dryden’s to Asda dated 30 January 2025 says ‘please see attached the most recent email we have received’ but there are no attachments shown in the heading of the email which would be usual to see or alternatively a link embedding an attachment into the body of the email to show and attachment being sent had something indeed been attached.[52]The respondent then relies on a version of the email received from the claimant which is dated 21 March 2024 not having the ET1 claim form attached. This appears at page 119. This email from the claimant clearly refers to ‘Please find attached my court claim against Asda Stores Ltd’ but there are no attachments visible in the heading as one would expect to see nor any link in the body of the Page 11 of 14 email attaching anything. The email is not one which appears to be one which is ‘forwarded’ with an attached email. Conversely the screenshot provided by the claimant of the same email definitely shows an attachment to that email. Whilst much was made of this by the respondent it is clear no one knew how the email at page 119 had been reproduced and included in the bundle. I cannot be satisfied given it is also time stamped with a different time to the version I have the screen shot for, that the email in the bundle at page 119 genuinely reflects the email sent by the claimant at the material time. Not least because it clearly refers to an attachment in the body of the email and if there was no attachment as the respondent avers, whoever received it would have more likely than not queried a missing attachment and we would have evidence of that in the form of an email.[53]It is also clear another email from Dryden’s in the bundle (page 131) also refers to an attachment, yet the email similarly does not show an attachment. Therefore, it is clear the issue is likely the way the emails from Dryden’s have been either provided or reproduced in the bundle.[54]I find the claim form was more likely than not attached with an email the claimant sent to Dryden’s on 21 March 2024. I accept her screenshot version in this regard.[55]It is clear from Dryden’s emails that they say (when this is queried by Asda in January 2025) that they sent 3 separate emails to Asda advising them an exemployee had a Tribunal claim. Notably Dryden’s do not produce those emails for Asda and I do not have them in the bundle. However, it is clear Dryden’s knew of the Tribunal claim by virtue of the email from the claimant on 21 March 2024. I am not persuaded however that Dryden’s sent the attachments (ie the ET1) on to People Services at Asda such that they would have been in possession of the claim form as is asserted. I am certainly not persuaded that Dryden’s informed the respondent’s in house legal team nor Addleshaw Goddard of any such claim or provided them with the ET1. The emails from Dryden’s do not persuade me they did. They show no attachments and even though this is queried by Asda they adduce no evidence of emails with attachments forwarded to anyone at Asda which I find is telling. If Dryden’s had evidence of sending the ET1 to Asda in emails they should have easily been able to adduce such evidence for Asda. They have not. I am not satisfied that them having received the email from the claimant with the ET1 is evidence of Asda having received it from Dryden’s. People services may have been informed of a Tribunal claim but this is not the same as a) the respondent having sight of the claim form and/or b) the respondent having received a copy of the claim form served by the Tribunal at the material time of the application to extend having been made. Page 12 of 14[56]Did the respondent mislead either deliberately or recklessly the Tribunal when making the application to extend time?[57]There is simply insufficient evidence to persuade me of this. The application was made by legal representatives who will have based the application on instructions from the respondent. They made the application within a week of being notified of the claim by the claimant’s solicitors on 25 July 2024. There would have been the need to make the application quickly and it is plausible that they undertook the searches they say they did and did not find it. Even if Dryden’s had received it, I am not persuaded they forwarded the actual claim form to the respondent. I heard no evidence that Asda would have had any reason to check with Dryden’s about receipt of such a claim form before they made the application given they were not the solicitors who acted for the first respondent in employment tribunal claims. I have also seen or heard no evidence to persuade me the information they gave in the application that they had not received the served claim from the Tribunal was misleading or incorrect.[58]I also heard little that persuaded me the respondent or their representative acted recklessly when making the application. There is simply insufficient evidence to persuade me of this. It is plausible that whilst one firm of solicitors (instructed for the respondent on a debt recovery matter in relation to the claimant’s wages) may have emailed someone in People Services that this was not dealt with properly /overlooked given the involvement of two different solicitors for different claim types. I heard no evidence to persuade me the solicitors making the application acted recklessly or deliberately misled the Tribunal at the time of making the application. I find it likely the respondent had carried out searches as is purported and had not come across the claim form as they stated in their application. Had the claim form come to their attention sooner why would they not simply have filed an earlier application with a draft response rather than risk them not being able to defend the claim given the further delay. If they had properly realised a claim form had been sent by the claimant with her email of 21 March 2024 which had not been actioned by anyone it is more plausible, they would have simply made an earlier application.[59]On balance I find an error/oversight occurred such that the claim form the claimant sent with her email in March 2024 was not sent onto Asda and /or whilst an email may have been sent informing Asda of the claim the claim form was not with them at the time they made their application to extend time. I am not persuaded of any deliberate misleading of the position in the solicitor’s application to the Tribunal. I am satisfied as solicitors the maker of the application would have had to themselves be satisfied that the information given in that application was true to the best of their knowledge and belief as they also will have owed a professional obligation to the Tribunal. Page 13 of 14[60]I am not persuaded that the respondents conduct (in that they overlooked or failed to locate the claim form the claimant had sent to Dryden’s in March 2024) has met the bar required by section 38 of the ET 2013 rules (now Rule 39) to constitute behaviour which constitutes scandalous unreasonable or vexatious conduct of proceedings. A fair trial is still clearly possible. The application to strike out on these grounds is refused.[61]The claimant in the alternative requests me to set aside or vary the previous order of EJ Taylor relying on the test of whether variation is necessary in the interests of justice . A material change in circumstances is relied on here to vary the earlier order. However, the Order of EJ Taylor was granted because the earlier mistake which led to EJ Andrews refusing the order was rectified by the filing of a response with the application. The basis for allowing the application, and in those circumstances accepting the response, was because the earlier failure to attach the response (which was the reason EJ Andrews had refused the earlier application to extend) was rectified. In any event I have not found there was deliberate or reckless misrepresentation of the position to the Tribunal which amounts to a material change of circumstances to vary or set aside the previous Order. I am not persuaded that even if I had found this that I am able to set aside the Order insofar as accepting the response is concerned because the response is already accepted and therefore the appropriate avenue would remain strike out which I have refused.[62]The application is refused.