Ms D Wasilewska v Annan Store Ltd T/a Guide Pharmacy Annan: 4100217/2025
JUDGMENT
Rule 22 of the Employment Tribunal Procedure Rules 2024 The judgment of the Employment Tribunal is that:[1]The claimant was unfairly dismissed and the respondent is ordered to pay the 20 claimant the sum of £2653.98 (Two thousand, six hundred and fifty three pounds, ninety eight pence) in compensation.[2]The respondent has made an unauthorised deduction from the claimant’s wages and is ordered to pay the claimant the sum of £5770.15 (Five thousand, seven hundred and seventy pounds, fifteen pence). 25 3. The claimant was dismissed in breach of contract in respect of notice but no award is made in respect of this claim.[4]The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay the claimant the sum of £1462.32 (One thousand, four hundred and sixty two pounds, thirty two pence). 30 REASONS 1. A copy of the claim form setting out the claimant`s complaints was sent to the respondent on 17 February 2025. 2. In accordance with the terms of rule 17 of the Employment Tribunal Procedure Rules 2024, the respondent was required to enter a response within twenty eight days of the date on which a copy of the claim was sent to it but failed to do so. 5 3. The Employment Judge decided that on the available material a determination could properly be made without a hearing as to the liability of the respondent for the claim. In particular, in the absence of any response from the respondent, there was no basis on which the Tribunal could conclude that there was a potentially fair reason for dismissal. In respect of the remaining 10 claims, there was nothing to dispute the sums sought by the claimant. 4. On the basis of the available material the Employment Judge decided he could properly determine remedy as follows.[5]In respect of unfair dismissal, the Tribunal starts with the basic award. Based on the claimant’s age and length of service she is entitled to a basic award of 15 2 weeks’ pay at £507.75 = £1015.50.[6]In respect of the loss of past wages, the claimant seeks an award from the date of dismissal (22 November 2024) to the date when she commenced a new job (9 December 2024). The claimant earns more in this new job and so her past loss ends once she commences this employment. This amounts 20 to 2 weeks. The total loss of past wages amounts to 2 x £405.39 = £810.78.[7]The claimant does not seek any future loss.[8]The claimant has sought £500 in respect of loss of statutory rights. The Tribunal considers that this sum is appropriate given her length of service, the statutory rights she would have acquired and how long it would take her to 25 acquire similar rights in a new job.[9]The claimant seeks an uplift of 25% for failure to follow the ACAS Code of Practice. The Tribunal considers that this is appropriate in the circumstances where there was no process followed and nothing from the respondent which would lead to the Tribunal to reduce this uplift.[10]The amount of the compensatory award is, therefore, £1638.48.[11]In these circumstances, the Tribunal makes a total award for unfair dismissal of £2653.98 (Two thousand, six hundred and fifty three pounds, ninety eight pence). 5 12. The claimant was dismissed without notice but no award is made in respect of this claim because the loss of wages in the notice period have already been compensated by way of the compensation for loss of wages in the unfair dismissal claim.[13]The respondent has failed to pay the claimant’s holiday entitlement and is 10 ordered to pay the claimant the sum of £1462.32.[14]The respondent has deducted £373.60 from the claimant’s wages in respect of statutory sick pay. They have also paid the claimant less bonus that she was legally entitled to be paid in the sum of £5396.55. The respondent is, therefore, ordered to pay the sum of £5770.15 in respect of wages. Date sent to parties ____06 May 2025_______ EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100217/2025 5 Held in Glasgow via Cloud Video Platform (CVP) on 6 January 2026 Employment Judge O’Donnell Ms Dorota Wasilewska Claimant 10 Represented by: Mr F Marshall - CAB Representative[15]Annan Store Ltd t/a Guide Pharmacy Annan Respondent Represented by: Mr L Anderson - Solicitor[20]The judgment of the Employment Tribunal is that the respondent’s application under Rule 22 is granted and the Tribunal grants an extension of time for the respondent to present their ET3, by a method permitted by the Practice Direction, to 28 days from the date this judgment is sent to parties.REASONS
[1]The present hearing has been listed to determine the respondent’s application under Rule 21 for an extension of time to lodge their ET3 response form.Evidence
[2]The Tribunal heard evidence from Tuskeen Ali who is one of the directors of 30 the respondent.[3]There was an agreed file of documents prepared by the parties. A reference to a page number below is a reference to a page in that file. Findings in fact[4]The Tribunal made the following relevant findings in fact.[5]The claimant presented her ET1 on 13 February 2025 raising claims for unfair dismissal and various payments she says she was due on the termination of her employment.[6]The address for the respondent on the ET1 was said to be “172c Hamilton 5 Road, Glasgow”. This was the address for the respondent provided to the claimant on her P60 for 2025 (p113) and her P45 (p102). The address was not the place where the claimant worked (that address was also given on the ET1). The P60 and P45 were prepared by the respondent’s accountant.[7]The ET1 was sent to the respondent by the Tribunal using the Hamilton Road 10 address. No returned mail was received by the Tribunal.[8]The Hamilton Road address is not the respondent’s registered office and is not an address at which the respondent carries out any business.[9]The ET3 was due to be lodged no later than 14 March 2025. No ET3 was lodged by this date and so the Tribunal considered whether a judgment could 15 be issued under Rule 22. By letter dated 18 March 2025 (p20), the Tribunal asked the claimant to provide a schedule of loss as part of the process of considering whether a Rule 22 judgment could be issued. The schedule of loss was provided on 1 April 2025.[10]A judgment under Rule 22 was issued on 2 May 2025 (pp54-59). 2011. On or around 16 March 2025, the claimant’s representative was in contact with one of the directors of the respondent, Haris Ali. There is a chain of email correspondence between them at pp106-111. The emails show that Mr Ali was aware of the Tribunal proceedings no later than 25 March 2025 and that the address used for the respondent was incorrect (p109). 2512. On 7 April 2025, the claimant’s representative sent an email to the Tribunal copied to the respondent (p116) in which it was said that the respondent had asserted that the wrong address had been used and that they had not provided an alternative address. The respondent made no direct reply to this. 3013. On 13 April 2025, the respondent emailed the claimant’s representative, copied to the Tribunal, (p118) asserting that the wrong address had been used.[14]In April 2025, Mr Ali took seriously ill and was no longer dealing with the proceedings. Tuskeen Ali took over dealing with the matter and, by email 35 dated 6 June 2025 (p133) asked the claimant’s representative for documents relating to the case. The claimant’s representative replied on 9 June 2025 (p132) stating that a judgment had been issued and that Ms Ali should contact the Tribunal.[15]On 10 June 2025, the respondent made an application for reconsideration of the judgment issued on 10 May 2025 (pp135-138).[16]The present application under Rule 21 was set out in correspondence from the respondent’s representative of 31 July 2025 which enclosed a draft ET3. 5 It is opposed by the claimant.Relevant law
[17]Rule 21 of the Employment Tribunal Rules of Procedure deals with an application for an extension of time to lodge an ET3. It provides as follows: A respondent may make a written application to the Tribunal for an extension 10 of time for presenting a response. The application must—(a) set out the reasons why the extension is sought,(b) except where the time limit has not yet expired, be accompanied by a draft response, or an explanation as to why that is not possible, and 15(c) specify if the respondent wishes to request a hearing. (3) A claimant may within 7 days of receipt of a copy of the application give reasons in writing to the Tribunal explaining why the application is opposed. (4) The Tribunal may determine the application without a hearing.[20](5) If the Tribunal refuses to grant an extension of time, any prior rejection of the response must stand. If the Tribunal grants an extension of time, any judgment issued under rule 22(2) (effect of non-presentation or rejection of response, or case not contested) must be set aside and rule 22(3) ceases to have effect. 25 18. In considering an application under Rule 21, the Tribunal is exercising a discretion to extend the time limit for complying with one of its Rules of Procedure. In doing so, the Tribunal should bear in mind the principles set out in Kwik Save Stores Ltd v Swain [1997] ICR 49. Although that decision was made under a previous version of the rules, those principles continue to 30 be the matters which the Tribunal should take into account. 19. The position is summarised in the head note of Swain as follows: “... it was incumbent on a respondent applying for an extension of time for serving a notice of appearance ... to put before the industrial tribunal all relevant documents and other factual material in order to explain ... both the non-compliance and ... the basis on which it was sought to defend the case on its merits; that an industrial tribunal chairman in exercising the discretion to grant an extension of time to enter a notice of appearance had to take account of all relevant factors, including the explanation or lack of explanation 5 for the delay and the merits of the defence, weighing and balancing them one against the other, and to reach a conclusion which was objectively justified on the grounds of reason and justice; that it was it was important when doing so to balance the possible prejudice to each party ...”[21]The Tribunal was not wholly satisfied with the respondent’s explanation for the situation. The respondent sought to blame their accountant but the 20 documents in question are official documents provided to the claimant and HMRC for which the respondent is, ultimately, responsible. There was no explanation why the particular address was used on the P60 and P45; it is highly unlikely that the accountant used some random address which they plucked out of the air and, whilst Mrs Ali stated that she did not know why the 25 address in question was used, there was no evidence that she made any effort to obtain an explanation from the respondent’s accountant which could have been provided to the Tribunal.[22]Further, the respondent was aware of the Tribunal proceedings and the fact that a wrong address may have been provided to the Tribunal from the middle 30 of March 2025, almost two months before the judgment was issued. A reasonably diligent person who became aware of legal proceedings against them which they had not received would have taken steps without delay to contact the Tribunal and raise the issue. However, the respondent did nothing until June 2025, more than three months after they were aware of the 35 Tribunal proceedings.[23]The Tribunal accepts that Mr Ali became unwell in April 2025 and could no longer deal with matters but he was in correspondence with the claimant’s representative about the case in March and made no contact with the Tribunal at all. There is nothing, on the face of the documents, which indicates that Mr Ali was, in any way, unable to contact the Tribunal to find out what was going on and alert them to the fact that the respondent had not received the claim.[24]In these circumstances, the causes of the delay in presenting the ET3 arise from the actions of the respondent in providing an inaccurate address on 5 official documents and in delaying in contacting the Tribunal once they were aware of the proceedings.[25]With all that being said, however, the Tribunal does not consider that the respondent’s failings which have caused the delay in presenting the ET3 are sufficient to refuse the application when weighed against the other factors 10 which the Tribunal has to take into account.[26]The respondent has presented a draft ET3 which sets out a statable defence to the claims being brought by the claimant. The claimant has not sought to argue otherwise.[27]There is clearly a significant prejudice to the respondent if they are not allowed 15 the opportunity to present their defence to the claim. The Tribunal considers that this more than outweighs the prejudice to the claimant in granting the application; she may no longer have the benefit of the judgment issued in May 2025 but she does have the opportunity to advance her case at a final hearing and seek a judgment in her favour. It is only right that the same opportunity 20 to present their case is given to the respondent.[28]It is, therefore, in the interests of justice for the respondent’s application under Rule 21 to be granted. As a result, the judgment of 9 May 2025 will be set aside as required by Rule 21.[29]As a result of the Practice Direction on the presentation of claims and 25 responses which came into force since the claim was lodged, the Tribunal cannot simply accept the draft ET3 which accompanied the Rule 21 application. This is because it was presented by email which is no longer a valid method of presentation under the Practice Direction.[30]As a result, the Tribunal grants an extension of time for the respondent to 30 present their ET3 by a method permitted by the Practice Direction. Time is extended to 28 days from the date this judgment is sent to parties.[31]Once the ET3 is presented then further directions will be made for the listing of a final hearing in this case. 35 Entered in register: 23 January 2026 and copied to parties