Mr G Rudley v Community Homes of Intensive Care and Education Ltd: 3303883/2024
JUDGMENT
[1]The response was presented out of time. The response is rejected. The respondent’s application to present a response out of time is refused.[2]The respondent has permission to participate in the remedy hearing, including by giving evidence.REASONS
[1]The approach that I have taken to this application is first of all I have asked myself how significant or serious is the fact that respondent was late in presenting the response. The reason I have done that is because whether it's a day late or as in this case almost 8 months late the effect under the rules this the same. I have then gone on to consider what the reason for the failure to present the claim the response to the claim in time was and then finally have gone on to consider what prejudice arises from either allowing the response to be entered or not allowing the response to be entered.[2]I should just make one thing clear at the outset, it has been suggested that this case might provide some sort of precent, and that's not the case, whatever decision I make in this case it doesn't provide a precedent for other cases because these applications are considered on the unique and specific facts of each individual case.[3]I think in this case that there was a very significant and serious failure to comply with the rules. This isn't a case where a respondent miss times the presentation of the response or counts the days and gets it wrong by a day or two or breaks its neck to get the response in but misses the deadline by an hour or so this is a case where the deadline was missed by months. The effect of the missed deadline is going to be that this case which should have been heard in in May will not now be heard until after today.[4]The next stage then is to consider, bearing in mind that this is a serious breach of the requirement to present their response out of time, see what reason or explanation is put forward by the respondent for that failure, in my view there is no excusable explanation provided.[5]It isn't an explanation that provides any sort of mitigation to say “I'm terribly sorry we omitted to do what we ought to have done and when we realised many months later we acted promptly”. That really doesn't provide a reason or explanation for the failure to comply with the rules. To the extent that there is an explanation to be found in this case it is in the statement of Marlene Boyd who makes it clear that the response was received, at the latest by the 10th of May. The response was due in by the 5th of June, so there would have been plenty of time to deal with the matter and put in the response in time or apply for an extension of time to file a response within the time limit.[6]There was no failure in the service of the claim on the respondent. It was seen by a person dealing with mail in the respondent’s business and passed on to somebody called Martin Prescott, who is described as a director of quality. One of the things that Martin Prescott deals with in his daily role is subject access requests, so in relation to his general role he would be familiar with the requirement to comply with deadlines and I would expect him to have some awareness of their significance in legal processes.[7]The respondent is an organisation that has a HR department, it is not an organisation that has no administrative support. When this ET1 form was received it was sent to the Martin Prescott and he did nothing because it wasn't his job to respond to ET claims and the matter was not addressed by anyone else until the respondent was informed that the case was listed for a hearing. Then, as Marlene Boyd explained, Marlene Boyd took a number of steps to make inquiries about what happened in relation to the response to this case, I note that Marlene Boyd at the relevant time wasn't an employee of the respondent. There is no exculpatory or mitigating explanation for the failure to put in a response in time to be found here.[8]The fact that the respondent’s systems have now been revised to avoid such an occurrence happening again in the future is commendable but it seems to me doesn't assist the respondent greatly in this case in considering whether in this particular case there ought to be permission to file a response out of time, the systems ought to have been in place beforehand.[9]Before I make a decision on whether or not to allow the response to be allowed in late I have to had regard to all the circumstances of the case. I have regard to the relative prejudice to the parties. Is this a case where there will be an unjustifiable bounty given to the claimant if the respondent isn't a allowed to defend the claim? Does the respondent has a strong and reasonable the defence to the claim?[10]In such circumstances there is obviously benefit to the claimant where there is no response because the jeopardy of potentially failing to establish liability is gone. On balance I think for these reasons the respondent should not be permitted to file a response. While there is a response to be put forward by the respondent I am not satisfied that there is anything about the specific circumstances of this case that make it unjust for the respondent to suffer the consequences of their breach.[11]It is an important and significant breach of the rules by the respondent, the employment tribunal rules are to be complied with. In an attempt to place the parties on an equal footing I have reflected on what might be tribunals approach be were the boot on the other foot and in this type of case it's almost certain that the claimant if he presented his claim 8 months out of time with the sort of explanation that's put forward for the failure to present the response in time, i.e. in my view no real explanation at all, that he would not be permitted to proceed with the claim. I appreciate that we are not making a like for like comparison because there is no requirement in the respondent’s case to show that it was reasonably practicable or anything of that nature but there is a requirement for the respondent to provide some explanation, it seems to me that that concept of fairness between the parties or has to be borne in mind when considering a response provided late.[12]I have considered the fact that the respondent, once it was aware of its failings has acted with reasonable promptness but ultimately when I try and balance the competing prejudice it seems to me that it's all one way. The claimant should have had his case in May ultimately that date wasn't available because no judge was available but that's when the hearing should have taken place but because of the respondent’s late presentation he wasn't going to have his hearing in May. The case was vacated so that the matter could be dealt with as a preliminary issue on whether or not the respondent be permitted to respond or whether or not the decision to accept the response should be reconsidered.[13]The case is listed today for that purpose but it seems to me whichever way you look at it the actions of the respondent have meant that the claimant’s day in court has been put back, and that is exacerbated by the appalling state of the employment tribunal lists which mean that the claimants case is put back longer than he might consider to be reasonable.[14]The claimant isn't going to get an unjustifiable bounty because under the rules, where a response has not been entered, and as a result of my decision this is a case where no response has been entered, the respondent can be given permission to participate in the proceedings and it seems to me that is the just way to deal with this case. To strike out the response or to reject the response for being out of time and to give the respondent permission to participate in the proceedings in relation to ascertaining the remedy that the claimant is entitled to recover.[15]My decision is that the response is struck out but the respondent can participate fully in the remedy hearing including being able to call evidence if necessary to address issues of remedy. Approved by: