Mrs A Adeniran-Driver v Vocalink Ltd: 3302296/2020
EMPLOYMENT TRIBUNALS
Case No 3302296/2020
Between
Mrs A Adeniran-DriverClaimantVocalink LtdRespondent
Before
Employment Judge QuillIn person for claimantMr S Liberadzki (instructed by counsel) for respondentDate 13 January 2021
REASONS
[1]A public hearing took place. It had been listed to take place in person, and notification was sent to the Claimant and the Respondent.[2]This was a hearing in accordance with Rule 21(2). The Respondent had failed to present a response by 16 March 2020 and nor did it make any application in response to the letter dated 13 August 2020 informing it that a rule 21 judgment might be issued. The notice of hearing (for an in person hearing) was sent 6 November 2020, and as well as giving the time and location to the Respondent, explained the effect of Rule 21(3).[3]Because of the pandemic, an invitation to participate by video was sent to the Claimant. The Respondent would have been able to attend the hearing (and to participate to the extent permitted by me) had a representative attended the hearing centre in person or asked to join by video. Nobody attended the hearing centre on behalf of the Respondent or asked to join by video.[4]As a result of the documents supplied by the Claimant, and her witness statement, and her answers on oath to questions posed by me (and in reexamination by her own counsel), I am satisfied that I can properly make a determination on the claim. The Claims & Issues[5]Was the claimant a disabled person in accordance with the definitions in the Equality Act 2010 (“EQA”) at all relevant times?[6]Was the Claimant subjected to less favourable treatment as described in paragraph 5 of the Grounds of Complaint? If so, was it because of race?[7]Was the Claimant subjected to less favourable treatment on 11 September 2019 when she was told that it “was a difficult place to work in”, particularly for an “outsider” such as her? If so, was that because of 7.1. Race and/or 7.2. Disability[8]Was the Claimant subjected to less favourable treatment on 11 September 2019 when the Respondent told her for the first time that her performance was a cause for concern? If so, was that because of 8.1. Race and/or 8.2. Disability[9]Was the Claimant subjected to less favourable treatment on 11 October 2019 when she was dismissed? If so, was that because of 9.1. Race and/or 9.2. Disability[10]Was the Claimant subjected to less favourable treatment when her appeal against dismissal was rejected? If so, was that because of 10.1. Race and/or 10.2. Disability[11]The Claimant’s representative confirmed that no claim for harassment was being put forward.
The Law
[12]As per Limoine v Sharma EAT 0094/19, it is an error of law to enter judgment simply because the claim is undefended without proper consideration of the matter. Furthermore, the Presidential Guidance on the correct approach must also be taken into account.[13]Judgment should not be granted at a hearing under Rule 21 unless, taking account of the fact that the Claimant’s assertion are uncontested, I am satisfied that, in law, the factual basis for doing so is made out. In doing so, I must decide, and take into account, where the burden of proof lies. I should also take into account all of the available information.[14]As per section 6 the Equality Act 2010, a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-today activities. Schedule 1 gives additional information.[15]The definition of direct discrimination is in section 13 of the Equality Act 2010: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[16]The definition in section 13(1) incorporates two elements 16.1. Firstly, whether A has treated B “less favourably than” than others, (“the less favourable treatment question”) 16.2. Secondly, whether A has done so “because of the protected characteristic”, (“the reason why question”.)[17]For the first of these elements, (“the less favourable treatment question”) the comparison between the treatment of the claimant and the treatment of “others” can potentially require decisions to be made about the characteristics of a hypothetical comparator.[18]The two questions are intertwined and sometimes a tribunal will approach “the reason why question” first. If a tribunal decides that the protected characteristic was not the reason (even in part) for the treatment complained of it will necessarily follow that a person whose circumstances are not materially different would have been treated the same, and there will be no need to embark on the task of constructing a hypothetical comparator.[19]Section 136 of the Equality Act regulates the burden of proof in discrimination cases. It requires a two-stage process. A claimant must first prove facts from which the tribunal “could” conclude that unlawful discrimination had occurred and if she does so the burden shifts to the respondent. That means that the claim must be upheld unless the respondent proves that the treatment was in no sense whatsoever because of the protected characteristic
The Facts
[20]For the purposes of this claim, the Claimant regards her race as black African.[21]The Claimant started work for the Respondent on 3 June 2019 and was dismissed on 11 October 2019. The reason that was offered by the Respondent was that she had not passed probation.[22]Prior to being offered the job, the Claimant had been interviewed by Mr N Patel by phone. She then had an in person interview with a panel of Mr Patel and Ms S Dibbens and a third employee of the Respondent. The latter two are both Scrum Masters. Mr Patel and Ms Dibbens both knew the race of the Claimant before she was employed.[23]The evidence satisfied me that the Claimant meets the definition of a disabled person, and has met the definition since long before she started work for the Respondent. I took into account the details of the diagnosis, the treatment and medication that she has received, and the effects that the condition has on her, both generally, and on some specific, recurring occasions.[24]The Claimant did not tell the Respondent about her condition before the start of her employment. She did not tell the Respondent about her condition until 10 September 2019.[25]For whatever reason, when the Respondent issued the contract to the Claimant the job title was different to the job which she had thought she was being interviewed for (Scrum Master) and also different to the job that the Respondent later told her she had been given (Junior Scrum Master). The Claimant was content for me to proceed on the basis that the job was actually Junior Scrum Master. I have seen payslips and the salary information for the job, as per the contract was correct, notwithstanding the error in job title. The salary was £50,000 per year gross.[26]The Claimant’s contract said that she was subject to a 3 month probation period. On approximately the same day that the Claimant started, another employee of a different race to the Claimant and someone who does not - as far as the Claimant is aware - have a disability also started. On or around 15 August 2019, the Respondent told the Claimant and the other employee that each of their probation periods had been extended. They were each told that this was because the Respondent wanted longer to decide if they had passed probation. Neither of them was told that their performance was a cause for concern. The Claimant’s extended probation period was due to end on 3 December 2019.[27]During her employment, the Claimant met Ms Dibbens approximately once per week for feedback and Mr Patel also attended these meetings approximately once every two weeks. It was summer and so the pattern was disrupted when any of them was on leave. The Claimant disagreed with some of the instructions given to her by Ms Dibbens. In August, Mr Patel and Ms Dibbens set some goals for the Claimant to achieve.[28]Prior to 11 September 2019, the Claimant was not told that the Respondent was dissatisfied with her performance or that she was in danger of failing to pass the probation.[29]On 10 September 2019, the Claimant told Ms Dibbens about her medical condition (which I have judged to meet the definition of a disability under the Equality Act 2010). The Claimant mentioned that she would potentially need some time off for medical appointments, because of the disability, in the coming weeks.[30]On 11 September 2019, the Claimant was told for the first time that her performance had to improve. She was told that Vocalink could be a difficult place to work for an “outsider”. She was also told that the people she worked with were a “community”; in the context, the implication was that she was an “outsider” to that community. The Claimant’s inference was that she was being told that her colleagues were all from a particular racial group (she says that she believes that her former colleagues on the team all have South Asian heritage) and that was what was meant by “community”, whereas she was an “outsider” because she was the only member of staff (on the BACS UK Engineering team, consisting of approximately 40 people) who was black African. [Although the reference to “community” is not contained in the claim form, it does appear in the Claimant’s appeal letter and I am satisfied, based on her uncontested evidence, that the remark was made.][31]On 11 October 2019, the Claimant’s employment was terminated with immediate effect. The dismissal letter contained some inaccuracies. It wrongly stated that the Claimant had daily meetings with Ms Dibbens and falsely implied that Ms Dibbens and Mr Patel had told the Claimant on a number of occasions that her performance was viewed by the organisation as unsatisfactory. The letter also implied that the Claimant had been told that the 11 October meeting was to discuss unsatisfactory performance; however, she had not been told that and she thought it was the ordinary fortnightly catch up with Mr Patel.[32]By letter dated 18 October 2019, the Claimant appealed. An appeal hearing took place on 6 November 2019, and, in January 2020, the Claimant was told that the appeal was rejected.[33]The Claimant was very upset about the dismissal in particular, and the length of time it took to deal with the appeal, despite her chasing. She was also upset about the criticisms of her performance and to be told that she was an “outsider”. Every time the Claimant thinks about her employment with the Respondent she weeps. She has suffered from loss of confidence and has been prescribed antidepressant and has undergone counselling.[34]I accept what the Claimant says about her physical illness in November and December 2019, but I am not persuaded that the Claimant has shown that was caused by the Respondent.[35]The Claimant commenced early conciliation on 11 December 2019. The certificate was issued on 9 January 2020 and the Claimant and presented her claim on 4 February 2020. Therefore complaints about acts or omissions on or after 12 September 2019 were in time, but complaints about acts or omissions on or before 11 September 2019 were out of time (subject to the tribunal’s discretion to extend time). Analysis and conclusions[36]I do not uphold the allegations of race discrimination based on the alleged events described in paragraph 5 of the Grounds of Complaint. Although the Claimant’s assertions are uncontested, I am not satisfied by the evidence that the line manager was doing anything other than giving guidance to a new employee during probation. No facts have been proved that any other actual comparable person (being a new employee of a different race) was being treated differently, or that a hypothetical comparator would have been. I am not satisfied that the alleged treatment was because of race.[37]In relation to the allegations about being told that she was an outsider, and the references to her colleagues’ being a community, there are potential explanations that do not relate to race. Eg “outsider” could refer to her being a new employee, and the reference to “community” could simply refer to a collegiate atmosphere at work. However, the evidence did satisfy me that the burden of proof (as per section 136 of the Equality Act 2010) had shifted to the Respondent. I accept the Claimant’s uncontradicted evidence that she was told on 11 September 2019 that she was an “outsider” and that the people she worked with were a “community”. The Claimant is not aware that the same comments were made to the other new employees; she was treated less favourably. The remarks are such that they could be a reference (directly or indirectly) to the fact that the Claimant was a different race to her colleagues. I am, therefore, obliged to uphold the complaint unless the Respondent satisfies me that the comments were not less favourable treatment because of race. The Respondent has not participated in the proceedings, and has not discharged that burden.[38]In relation to those same remarks allegedly being because of disability, the Claimant has not persuaded me. She has not caused the burden to shift. I find it implausible that “community” and “outsider” were a reference (no matter how indirect or subconscious) to the Claimant having a disability and her colleagues not sharing that disability.[39]In relation to the Claimant’s being told, on 11 September 2019, her performance was a cause for concern, I do uphold the allegation of direct disability discrimination. The timing of the remarks made to the Claimant (coming more than 3 months after start of employment, but one day after informing the Respondent about her disability) is suspicious. The circumstances are such that I could infer that the treatment of the Claimant on 11 September (informing her for the first time that her performance needed to improve) was because of her disability. The burden of proof has shifted to the Respondent and the Respondent has not satisfied me that the Claimant’s treatment on 11 September 2019 was in no sense connected to her disability.[40]In relation to the Claimant’s being told, on 11 September 2019, her performance was a cause for concern, I also uphold the allegation of direct race discrimination. My finding is that the principal reason that these remarks were made is that, the previous day, the Claimant informed the Respondent that she had a disability (and one which might require time off work). However that does not, of course, mean that it is a logical impossibility for her race to have played some part (consciously or unconsciously) in the Respondent’s remarks. At the same meeting, comments were made to the Claimant which I have found were acts of discrimination (that she was an “outsider” and her colleagues formed a “community”). Those remarks were seemingly tied into the Respondent’s comments about performance (as the Respondent was stating that it was a difficult place to work for her). The burden of proof has therefore shifted to the Respondent and the Respondent has not satisfied me that the Claimant’s treatment on 11 September 2019 was in no sense connected to her race.[41]I am satisfied that the Claimant’s subsequent dismissal one month later should be treated as part of an act which started on 11 September 2019 and continued until the date of the dismissal. For that reason, the acts and omissions on 11 September 2019 are in time.[42]I am satisfied that the burden of proof in relation to whether the dismissal was because of disability has shifted to the Respondent. The Claimant was dismissed for the alleged reason of poor performance, but poor performance was only mentioned for the first time the day after the Claimant told the Respondent about her disability. The Respondent has not satisfied me that the Claimant’s dismissal was in no sense connected to her disability.[43]I do not uphold the complaint that the dismissal was less favourable treatment because of race. As I have found above, the way in which comments about her performance were expressed on 11 September 2019 were discrimination because of race. However, given that the Claimant has persuaded me that the reason that she was dismissed was because her disability, I have not found that the burden has shifted such that the Respondent is required to demonstrate that race played no part in the Respondent’s motivation to dismiss. The Claimant has not persuaded me that the Respondent dismissed her because of her race or because of any conscious or unconscious thought process connected to race.[44]Based on the evidence presented of the notes of the appeal hearing, the appeal officer seems to have been of the opinion (or of the purported opinion) that the sequence of events was(a) first, the Respondent told the Claimant about performance concerned and(b) second, the Claimant told the Respondent about disability. I do not have evidence about why that comment was made by the appeal officer, or whether he later changed his mind and accepted the Claimant’s case. The Claimant remained dismissed (ie she was not reinstated) and it took a long time to give her that outcome. As mentioned above, the dismissal was discriminatory, and compensation for dismissal can take account of the fact that she was subjected to a period of uncertainty while waiting to see if the Respondent would reverse its discriminatory decision to dismiss. However, I am not persuaded that the failure to uphold the appeal was a new act of discrimination, separate from the dismissal.
Remedy
[45]I must take care to only compensate the Claimant in relation to the complaints that I have upheld, which means that I must strive to identify any adverse effects on the Claimant of the treatment alleged in paragraph of the Grounds of Complaint, which I did not find to be a breach of the Equality Act 2010.[46]If making an award for injury to feeling, the tribunal should have regard to the guidance issued in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871, [2003] IRLR 102, [2003] ICR 318, CA, and the changes and updates to that guidance to take account of inflation, and other matters.[47]There are 3 broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury): 47.1. The top band. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. 47.2. The middle band should be used for serious cases, which do not merit an award in the highest band. 47.3. The lower band is appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.[48]In Da’Bell v NSPCC (2009) UKEAT/0227/09, [2010] IRLR 19 the Employment Appeal Tribunal revisited the bands and uprated them for inflation. In a separate development in Simmons v Castle [2012] EWCA Civ 1039 and 1288, [2013] 1 WLR 1239 the Court of Appeal in England & Wales declared that with effect from 1 April 2013 the proper level of general damages in all civil claims for pain and suffering, would be 10% higher than previously. In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 the Court of Appeal ruled that the 10% uplift provided for in Simmons v Castle should also apply to Employment Tribunal awards of compensation for injury to feelings and psychiatric injury[49]On 5 September 2017, the Presidents of the Employment Tribunals issued guidance, and the addendum applicable to this case was published in March 2019. In so far as relevant, it states: In respect of claims presented on or after 6 April 2019, the Vento bands shall be as follows: a lower band of £900 to £8,800 (less serious cases); a middle band of £8,800 to £26,300 (cases that do not merit an award in the upper band); and an upper band of £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000.[50]In this case, the discrimination was not a one off event. There were comments related both to being an outsider and to performance on 11 September 2019, and there was the subsequent dismissal one month later. That is part of the reason that an award in the lowest band is not appropriate.[51]The effect on the Claimant was significant. She has been required to take medication and undergo counselling and she weeps whenever she thinks about working for the Respondent. Even though I must discount some of that as being partially caused by events which I have decided were not a breach of the Equality Act 2010, the serious consequences for the Claimant mean that an award in the lowest band is not appropriate.[52]My decision is that an award in the upper band is not merited. All discrimination is serious and causes a degree of injury to feeling. However, the upper band is recovered for the most serious cases of all. The short durations of the acts of discrimination (one month from 11 September 2019) and the comparatively small number of separate incidents mean that this case does not cross the threshold into being at the most serious end of the range, in comparison to other cases.[53]Taking account of the fact that (on the one hand) there was discrimination in relation to two different characteristics, and the effects on the Claimant (including medication and counselling) and the fact that it took around 3 months to deal with her appeal, but (on the other hand) there were a comparatively small number of incidents over a one month period, my decision is that the award should be slightly lower than the mid-point of the middle band and the sum which I award is £16,000 (sixteen thousand pounds).[54]As per the Claimant’s schedule of loss, her loss of earnings from dismissal (11 October 2019) to the anticipated start date of her new job in March 2021 (the exact date is not fixed) is £50,735.58.[55]I am satisfied that the Claimant has done her best to mitigate her losses, and has made a reasonable attempt to find work. Due to her partner’s income, she has not been eligible for benefits.[56]The Respondent was not in attendance and– therefore – I heard no argument, and have no evidence, about whether the Respondent’s employees’ remuneration was due to the pandemic. I will therefore not make a specific reduction for that possibility.[57]The Respondent was not in attendance and has – therefore – not put forward arguments as to whether – for lawful and non-discriminatory reasons – the Claimant’s employment might have come to an end prior to March 2021. However, even in the absence of argument from the Respondent, it is appropriate for me to make some reduction. Based on her uncontested evidence, there were no performance concerns, and so I proceed on the assumption that she would have passed probation. However, possible reasons for leaving include the fact that – even before 10 September 2019 – according to the Claimant, there were things she did not like about the way she was given instructions by her line manager, and businesses sometimes reorganise and make redundancies. I therefore make a reduction of just over 10% to her net losses to reflect that, and I think the award should be to compensate the Claimant for a net loss of £45,000. This adjustment also takes account of the fact that some of the period of loss is after the date of this judgment and therefore, if paid promptly, would be a slightly accelerated payment.[58]The Claimant’s representative requested interest. The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803 give me the discretion to award interest on awards made in discrimination cases and in this case, interest is appropriate. 58.1. For the injury to feelings award, I am going to treat the entire injury as occurring on 11 October 2019, even though there were events on 11 September 2019 which formed part of a continuing act. The appropriate rate is 8% per year. The period from 11 October 2019 to today is 1 year plus 94 days. So the calculation is: 58.1.1. First year: 8% of £16000 = £1280 58.1.2. Part Year: 94/365 x 8% of £16000 = £329.65 58.1.3. Total Simple interest on injury to feelings award: £1609.65 58.2. For the financial loss, I take the mid-point of the start of the period of loss (12 October 2019) and today’s date (13 January 2021), which is 29 May 2020. The appropriate rate is 8% per year. The period from 29 May 2020 to today is 230 days. So the calculation is: 230/365 x 8% of £45000, which is £2268.50. 58.3. Therefore the total sum awarded for interest is £3878.15.[59]Therefore the award is: 59.1. Injury to Feelings: £16000.00 59.2. Interest on that: £1609.65 59.3. Financial Loss: £45000.00 59.4. Interest on that: £2268.50 59.5. Aggregate net award: £64878.15[60]This needs to be grossed up to reflect the fact that the award made will be taxable once the Claimant receives the sum.[61]I have to estimate how much of the Claimant’s taxable allowance will be used in the year 20/21. As submitted by the Claimant, and as assumed above, she is likely to start work at the start of March, approximately, on a salary no less than at the Respondent. I am therefore going to estimate that approximately £4000 of her tax free allowance will have been used by 5 April 2021.[62]The first £30000 of the award falls into the exemption for termination payments and £8500 (£12500 personal allowance less £4000) of the award will fall into the Claimant’s allowance and will not be taxed. The next £37500 of the award will be taxed at 20%. The part of the award which is above £76000 (£30000 plus £8500 plus £37500) will be taxed at 40%.[63]If I award the gross sum of £71473 then that will be taxed as follows: 63.1. First £38500, tax is £0 63.2. Next £32973, tax (at 20%) is £6594.60 63.3. Therefore, net sum = £71473- £6594.60 = £64878.40[64]Therefore the grossed up award which I make is £71473.00.
Introduction
[70]Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.[71]Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was and shall set out why reconsideration of the original decision is necessary.[72]Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked(including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. 28. The Tribunal has discretion to reconsider a judgment if it considers it in the interests of justice to do so. Rule 72(1), requires the judge to dismiss the application if the judge decides that there is no reasonable prospect of the original decision being varied or revoked. Otherwise, the application is dealt with under the remainder of Rule 72. 29. In deciding whether or not to reconsider the judgment, the tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation. 30. Under the current version of the rules, there is a single ground for reconsideration — namely, “where it is necessary in the interests of justice”. This contrasts with the position under the 2004 rules, where there were five grounds upon which a tribunal could review a judgment (not including a default judgment), which included: that a party did not receive notice of the proceedings leading to the decision; that the decision was made in the absence of a party. 31. In the case of a default judgment, the previous version of the rules required the party making the application to show good reason why the default judgment should be varied or revoked. I agree with the Claimant’s counsel that in paragraph 32 (and 33) of its decision in Bournemouth Borough Council v Ms N Leadbeater 2011 WL 722286, the Employment Appeal Tribunal was specifically addressing the requirement under old rule 33(5) that the judge may revoke or vary all or part of a default judgment if the respondent has a reasonable prospect of successfully responding to the claim or part of it (my emphasis). The comments in paragraph 35 have to be read against that background, and, in my opinion, the EAT was not seeking to say that whenever a respondent has a reasonable prospect of successfully responding to the claim then that is, itself, sufficient for a default judgment to be revoked. The EAT was merely acknowledging that the old rule 33(5) threshold had to be met (and that it was met, on the facts of that case) as well as there being consideration of old rule 33(6) and other relevant factors. 32. When deciding what is “necessary in the interests of justice”, it is important to have regard to the overriding objective to deal with cases fairly and justly, which includes: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense. 33. In Outasight VB Ltd v Brown 2015 ICR D11, the EAT explained that the revision to the rules had not been intended to make it more easy or more difficult to succeed in a reconsideration application. The specific grounds were unnecessary because an application relying on any of those arguments can still be made in reliance on the “interests of justice” grounds. 34. The situation remains, as it had been prior to the 2013 rules, that it is not necessary for the applicant to go as far as demonstrating that there were exceptional circumstances justifying reconsideration. There does, however, have to be a good enough justification to overcome the fact that, when issued, judgments are intended to be final (subject to appeal) and that there is therefore a significant difference between asking for a particular matter to be taken into account before judgment (even very late in the day) and after judgment. 35. Previous appellate decisions, even under the pre-2013 rules, can provide helpful guidance to a judge, but they are not intended as a checklist. The individual circumstances of the particular application have to be considered on their own merits. I have noted the examples cited to me, including those where an appellate court has decided that it was wrong to refuse reconsideration of a judgment given in given in the party’s absence when the argument on reconsideration was non-receipt of the claim form (or accidental oversight of claim form or notice of hearing). I also acknowledge that, when reading some of the cases cited to me, a potentially distinguishing feature is that the judgment in this case was not issued simply by default, because the relevant time limit for the response had expired. 36. Rule 90 states, in part: 90. Date of delivery Where a document has been delivered in accordance with rule 85 or 86, it shall, unless the contrary is proved, be taken to have been received by the addressee— (a) if sent by post, on the day on which it would be delivered in the ordinary course of post; … 37. Rule 86 is the rule dealing with correspondence sent by the tribunal, and post addressed to the address in the claim form is an authorised method. 38. Rule 20 states: 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. 39. The last sentence of rule 20(4) is particularly significant in the facts of this case. At the very least, it shows that there is a close connection between reconsideration application and the rule 20 application, even though the rule 20 application came significantly later. 40. The Employment Appeal Tribunal’s decision in Kwik Save Stores Ltd v Swain and ors 1997 ICR 49 sets out the correct test for granting an extension of time for a response under version of the rules which was then in force. Although the new rule is worded differently, the case remains relevant to the question of whether, having regard to the overriding objective, an application for an extension of time to submit a response should be granted. 41. In Kwik Save, the employer’s responses (in respect of claims from different claimants) had been entered between 14 and 26 days late. The employer applied for extensions of time. It submitted that its failure to comply with the time limits had been due to an oversight. The tribunal judge found the employer’s explanation to be unsatisfactory and refused to grant the extensions of time. The employer appealed to the EAT, arguing that the judge had exercised his discretion incorrectly. The EAT stated 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. In particular, the EAT held that, when exercising a discretion in respect of the time limit, a judge should always consider at least the following factors, though other factors might also be relevant: 41.1. the employer’s explanation as to why an extension of time is required; 41.2. the balance of prejudice; 41.3. the merits of the defence. 42. Commenting on these factors, the EAT’s opinion was: 42.1. the more serious the delay, the more important it is that the employer provide a satisfactory and honest explanation. A judge does not have to accept the explanation given. A judge is entitled to form a view as to the merits of the explanation. 42.2. In relation to the balance of prejudice, it is necessary to consider whether the employer, if its request for an extension of time were to be refused, would suffer greater prejudice than the Claimant would suffer if the extension of time were to be granted. 42.3. In relation to the merits of the defence, the Employment Appeal Tribunal suggested that if the employer’s defence is shown to have some merit in it, justice will often favour the granting of an extension of time, or else the employer might be held liable for a wrong which it had not committed. 43. No matter how serious the failure of the Respondent, and no matter how inadequate its explanation, it is an error of law for a judge to fail to consider the other factors as well as part of the overall decision. Analysis 44. I agree with the Claimant’s counsel that the Respondent has not proved “the contrary” as per Rule 90. However, my findings of fact were that the Respondent received the items, and opened them. It is unnecessary to rely on the burden of proof. It is not particularly significant to my decisions which exact dates in February and August respectively the notice of claim and the “No Response Received” letter were received. Even without the deeming provisions of Rule 90, the letters were received (in the case of the notice of claim) significantly before the expiry of the time limit for response and (in the case of both items) a long time before judgment was issued. 45. I do not consider the fact that the claimant's solicitors failed to contact the respondent directly until after the Judgment had been issued, and until after the 42 day period, for appealing had elapsed to be particularly significant. Had they contacted the Respondent directly to seek to alert the Respondent to the proceedings and that correspondence had also failed to elicit a response, then that might have been something which weighed against revoking the Judgment. However, the rules do not oblige a claimant (legally represented or otherwise) to take that step. 46. When the Claimant’s solicitors originally sent the hearing bundle to the tribunal (which, according to an email of 15 December 2020, they did on 4 December 2020, although I have not seen the 4 December item), it was a breach of Rule 92 to fail to send a copy to the Respondent. The same applies to the payslips which were submitted after the hearing date in response to my order. I agree with Mr Liberadzki that the fact that the tribunal’s correspondence from December (and January) was left in the cage until May 2021 implies that it is unlikely that the Claimant’s failure to supply a copy of the hearing bundle to the Respondent (around 4 December 2020) made any difference to the Respondent’s non-appearance on 15 December 2020. 47. In the circumstances, I do not regard the failure to supply the Respondent contemporaneously with copies of the documents which were sent on 15 December 2020 to be a breach of Rule 92. In any event if such copies had been sent later by post, they were no more likely to have been removed from the cage before May 2021 than the items which were sent by the tribunal. 48. The respondent was on notice of the potential claim and it ought made significant efforts to look out for the claim. Ms Saunders’ genuine belief (paragraph 2.6 of her statement) is that they actually were on the “look out”, but if they did anything different at all (and she does not mention anything) because they were on the “look out”, then they did not do enough. The notice of claim was not dealt with correctly after the envelope had been opened by the Respondent. In normal circumstances, I would not be of the opinion that a respondent, having received the ACAS certificate around 9 January 2020, needed to contact the claimant (or her solicitors) to find out whether claim had been issued. In these particular circumstances, it may well have been a sensible course of action for them given that, according to their evidence at this hearing, their staff started working from home before 17 March. If the Respondent knew that the office was significantly understaffed compared to normality and that (from 17 March) the post was not necessarily being processed, then to be “on look out” might have needed them to be a lot more proactive. Regardless of any tactical benefits from avoiding reminding the other side about the need to submit a claim, it might have been reasonable for the Respondent to have made enquiries rather than run the risk that (as turned out to be the case) a claim could have been served on them, with a deadline for a response. Ultimately, there would have been no need for the Respondent to contact the other party (or anyone else) to ask about a possible claim had it ensured that there were adequate measures in place to ensure that a Notice of Claim would go to the correct department promptly and be actioned promptly. The lack of response to either the notice of claim, or even the 13 August 2020 letter, shows that no such adequate measures were in place at the relevant times. 49. There is not a general principle that so long as the prospects of the response succeeding are greater than “no reasonable prospects”, then the reconsideration and/or the extension of time should be granted. The strength or otherwise of the proposed defence is relevant, but is not the only factor. It would perhaps be unusual to revoke a liability judgment if the Respondent had no reasonable prospects of defending the claim; however, to obtain a revocation, the Respondent potentially has to do more than showing it has a non-zero chance of success at a defended final hearing. 50. The respondent has not satisfied me that it has any good explanation for failing to deal properly with the notice of claim within the 28 days or, failing to respond to the 13 August 2020, letter by for example asking for an extension of time promptly after that. Nor has it satisfied me that it has a good explanation for failing to attend the 15 December 2020 hearing, despite having received the notice of hearing. As mentioned in the Judgment, even if the notice that the hearing was remote was only received very close to, or even after, the hearing, the Respondent could have followed the instructions on the original notice and attended the hearing centre in person. Further, it could have responded to either notice of hearing by making urgent contact with the tribunal by – for example – email. 51. The Respondent has also not satisfied me that it has a reasonable explanation for why it took until 25 August 2021 to submit an application for an extension of time. I do not think that, in isolation, the delay from 30 April, or from 14 May 2021, to 25 August 2021 has caused prejudice to the Claimant, as the reconsideration application was going to have to be dealt with regardless of whether a Rule 20 application was made or not, and the Respondent’s further delay did not affect the hearing date for the reconsideration. However, this further delay is a factor for me to take into account. 52. The prejudice to the claimant if either or both of the Respondent’s applications are granted is that she loses the benefit of a Judgment that was granted lawfully following a hearing, which took place in compliance with the rules and at which she was required to prove her case, albeit in circumstances in which her evidence was uncontested. The Judgment was issued after the Claimant had properly complied with early conciliation and presented a claim form which used a correct and valid address for the Respondent. Further, the Respondent would have known from the early conciliation which address would be used. The prejudice to the claimant includes the fact that she already had to wait 15 months between the termination date and the rule 21 hearing and now a further 12 months have elapsed since that hearing. It is already 26 months since the end of her employment and a final hearing would be around 3 years (perhaps longer) from the end of employment if both applications are granted. The prejudice to the claimant includes the fact that she may have incurred legal fees for the process to date and has certainly spent time and effort. 53. In short, the Claimant has done nothing wrong in this litigation (bar her representatives’ breach of Rule 92 which I mentioned above) but would lose the benefit of the judgment and suffer a delay. I do not agree with the respondent's position that the claimant was under a duty to disclose the appeal outcome letter, either because of the email of 1249 on 15 December 2020, or otherwise. Had I wanted to pursue the suggestion that sight of that particular letter would be useful, I could have done so and ordered her to produce it when she was ordered to produce the payslips. As claimant's counsel points out, I was already aware, on 15 December 2020, that the claimant's employer had maintained that it had raised alleged poor performance with her much earlier than 10 September. 2020. Her uncontradicted evidence on that point was as set out in the Judgment. 54. It may or may not be possible for some of the prejudice to the claimant to be alleviated by an award of costs. No application has been made and I express no opinion one way or the other as to whether such an application would succeed if made. The mere possibility of some award of costs is not a particularly weighty factor in terms of whether the judgment should stand. 55. The prejudice to the respondent is that if the Judgment is not revoked, and no extension of time is that it will have a Judgment against it for both liability and remedy which will have reputational damage and it will have a significant financial cost. It was not suggested that either of those things would put the Respondent out of business, but I accept (and the Claimant did not argue to the contrary) that neither of these things are a trivial harm to the Respondent. It is the respondent's fault and not that of the claimant or of the tribunal that the Judgment was issued without my hearing the Respondent’s arguments and evidence; however, that is, in fact, what happened. 56. The respondent's proposed defence contains certain factual claims and legal arguments which, if upheld by a tribunal would potentially be an answer to the claimant's claims. These include that it seeks to argue that there were genuine issues about the claimant's performance that were unrelated to disability or race and, importantly, that it has evidence that the performance issues had been specifically raised with the claimant before the respondent had any reason to believe that the claimant might have a disability. It is not necessary or appropriate for me to comment in detail on what I think about the respondent's chances of success, and I am aware the claimant disputes the Respondent’s version of events. Her version might be the one which prevails even if she is cross-examined on it and/or if the Respondent discloses documents from its possession. 57. However, the respondent's defence is not a fanciful one, and to some extent at least, the claimant's own evidence was that remarks had been made to her about how to do her job which she thought were inappropriate. 58. Given the wording of Rule 20, it seems that it would be appropriate for me to consider the extension of time application first, and, if granted, that would oblige me to set aside the Judgment in accordance with Rule 20(4). I note that, unlike Rule 70, Rule 20(4) does not expressly authorise me to simply issue a different judgment. (The logical reason for that is obvious; the decision under Rule 20(4) only arises after it has already been determined that the respondent’s proposed response is accepted, meaning there is no longer a basis for a Rule 21 judgment.) 59. However, in any event, even if I were taking the Rule 70 decision first, I agree with Mr Sethi, that, on the particular facts of this particular case, it would make no sense to decide that the Respondent had put forward a good enough argument for reconsideration under Rules 70-72, but not a good enough argument for extension of time under Rule 20. 60. There are strong public interest arguments for the finality of litigation and, on the particular facts of this particular case, it is necessary for me to take into account that, if I grant the Respondent’s application, there will not have been finality as a result of the Judgment issued 11 months ago (and around 4 months before the reconsideration application, and 8 months before the Rule 20 application). As mentioned, the claimant would be significantly disadvantaged. I do not regard the prejudice to her as being merely akin to removing a windfall benefit from someone to which they were not otherwise entitled; her circumstances are very different to someone who (for example) gets a rule 21 judgment in their favour by a decision made on the papers 5 or 6 weeks after the claim was presented. 61. Nonetheless, in all the circumstances, the public interest in the finality of litigation and the prejudice to the Claimant, do not outweigh the prejudice to the Respondent if the judgment stands and if it is not granted an extension of time and the chance to defend itself based on the evidence and the merits of its arguments. 62. It is in the interests of justice, and in accordance with the overriding objective, for the Respondent to be granted an extension of time for submission of the response. 63. I am making some case management orders and I am listing both a preliminary hearing and a full merits hearing those orders are being sent to the parties separately. I will not be the employment judge who sits on the panel taking account of, amongst other things, I had already made a decision both on the disability issue and on an injury to feelings award.