Ms T Abbam v South Lanarkshire Council: 4100446/2023
JUDGMENT
Hearing remotely late for the respondents judgment, made under Rule 20 of the Employment Employment application, and so without the need to adjourn and issue a and thereafter Case Number: 4100446/2023 2013, for an extension of time for presenting held in Glasgow having on the Cloud Video Platform OF THE EMPLOYMENT the Tribunal Tribunal is that: - stated TRIBUNALS at this Preliminary Judge Ian McPherson having heard oral submissions that on 21 March 2023, and conducted by email on 16 March 2023 to be evidence from a witness led by the orally she (SCOTLAND) granted had TRIBUNAL (V) Hearing, (CVP) no Solicitor MrS O’Neill Represented by: Respondents [NASUWT] Casework Ms C Mclnnes Represented Claimant the respondents’ objection Tribunals Rules the claimant’s Official their ET3 from both - by: to the - at 10:00am, for the purpose of case management, and then listing the case for a substantive Hearing in the listing period of September, October or discussion held with both parties’ representatives in the course of This case called before me on the morning of Tuesday, 21 March 2023, at Notice of case into this CVP Hearing to determine the following preliminary issues:(1) Rule 20 to defend the claim, and(2) if so, to determine further procedure in by her trade union, NASUWT, her, directly and indirectly, as also harassment, on the grounds of her race, Further, the Tribunal ordered the claim and response to be listed for a 2- Judge Ian McPherson, if available, whom orders for that further Hearing are issued to whether or not the respondents should be granted an extension of time under Following ACAS early conciliation between 1 1 November and 23 December Tribunal, on 19 January against being black racial group, contrary to Sections 13, 19 and 26 of the Equality remotely Judge sitting alone, at the Glasgow It converted a previously scheduled one-day Final Hearing in an undefended parties under separate cover, arising from the case management 22 August 2023, commencing 2023, complaining that the respondents had unlawfully discriminated Hearing to be conducted Hearing, further to amended Hearing issued by the Tribunal to both parties on 10 March 2022. orders and directions. an ET1 claim form to the Employment the claimant, who is represented Tribunal, on Tuesday, REASONS Preliminary the claim, by way of case management 10.00am, for a Rule 20 Preliminary any other Employment by CVP before Employment hour Case Management Case management November 2023. this Hearing. failing presented Introduction Background 2022,(3) (4) 2 3 20 25 1 5 5 io 8 7 6 5 4[9]No Response by the Respondents Preliminary date of 21 February 2023. On 27 February 2023, the listed Case Management No ET3 response was lodged by, or on behalf of, the respondents, by the due PH Agenda to the respondents February 2023 from the Tribunal, that she was to post a copy of the claimant’s claimant’s 2023. On direction completed claimant’s PH Agenda with the Tribunal, by email, on 21 February respondents’ The claimants 2023, at 1 1 :30am, and that one hour had been allocated for that purpose. Preliminary heard by an Employment parties by the Tribunal on 24 January 2023, stated that the claim would be Further, the Notice of Claim and Notice of Preliminary Hearing, sent to both extent permitted by an Employment Hearing, and they would only be allowed to participate in any Hearing to the an Employment It was further explained that, where no response was received or accepted, not be entitled to defend the claim. had been agreed by an Employment response was not received by 21 February 2023, and no extension of time In that Notice of Claim, it was explained office by 21 February 2023. in Hamilton, requiring them to lodge a ET3 response at the Glasgow Tribunal the claim was served on the respondents, The claim was accepted by the Tribunal on 24 January 2023, and a copy of probationary teacher. Act 2010, in connection (V) representative Hearing, to be held via telephone conference Hearing to be held via telephone conference by 14 March 2023. The claimant's completed PH Agenda was due by 28 February 2023, and the Judge might issue a judgment of a Legal Officer at the Tribunal (D Doherty), was advised, with her ongoing Judge sitting alone, at a Case Management and confirm that she had done so. Judge. Judge before that date, then they would under cover of a letter dated 24 on that date, at their HQ address to the respondents representative against them, without a call on 21 March call on 21 March by them as a that if their lodged a the in an undefended case to by conducted by CVP, and the hearing duration and start only, as they had not lodged a response, and so they would be entitled to attend the Final Hearing but only able to participate to the the Tribunal wrote to the I had noted that no that there was insufficient information to issue a full Rule 21 default judgment at that stage and therefore I required Ms Mclnnes *7 represent the respondent in this matter and hereby respectfully make under Rule 20, an application for an extension of time to allow the to defend the claim. An extension of 3 weeks from Order Order of 27th February 2023, which has fixed a final hearing via CVP on That amended Notice of Hearing was sent to the respondents, on 27 February Judge who hears the case. Case Management Orders for that Final Hearing were also issued to both parties acceptable response to the claim had been received. It was therefore possible to provide the additional information by 13 March 2023, in particular to provide On 7 March 2023, Mr Sean O’Neill, in-house lawyer with the respondent of Loss for the Final Hearing - when an Employment Page 4 Final Hearing for a Case Management Council, applied to the Tribunal making two applications, as follows: earlier Case Management Respondents’ Rule 20 Application for an Extension of Time from the claimant. seeking further information. into a one-day time were changed to one-day starting at 10:00am. to issue a judgment without the need for a hearing. 2023, on my instructions, today's date is respectfully requested. the following applications to the tribunal: under Rule 29, an application by the Employment by the Tribunal on 27 February 2023. Judge would hear sworn evidence setting aside the tribunal's was converted claimant’s representative Also, on 27 February However, I considered 2023, for information a detailed Schedule 2023 at 11:30am, respondent extent permitted 1. 2. 11 12 1 0 15 25 5 20 both parties were advised that: Tribunal wrote to both parties’ representatives object to a requested postponement.” Mclnnes’ Mr O’Neill’s a hearing is currently fixed in only 14 days’ time.” respondent's response not included a draft response to the claim, in terms of Rule 20. A draft the respondent It is the interest of Justice that the above applications aware of the present claim. notified of. It is not clear why the respondent The respondent passed, one in the present matter and the second in an unrelated claim. notice of two claims arrived, both response deadlines having already claim having been received by the respondent until this morning when necessary of the the Respondent's Legal Services who in turn brought it to the attention however brought the Tribunal's email to the attention of his seniors in Mr Stewart has had no prior involvement having been received by the Tribunal (see email below and attached). been scheduled for 21st of March, following no response to the ET1 received notice from the Tribunal advising that a CVP final hearing has By email of 27th February converted instead to a hearing on the present applications. should the Tribunal exchanging 21 st March, and fixes a preliminary Respondent's (V) email of 7 March 2023, stating: “/ can confirm that we do not would require detailed instructions investigation. Having done so they found no record of the application for the above orders, and we are mindful that be permitted to defend the claim. The respondent invariably responds timeously to all ET1 forms it is the usual PH agendas was referred Personnel prefer, the CVP hearing on 21st March is 2023, our Mr Gordon to me for instructions, Department Thereafter, on my instructions, on 9 March 2023. In that letter, in this matter. Mr Stewart in advance. hearing with both parties and further delay to the has only now become who undertook the Stewart, are granted and Alternatively, Page 5 as also Ms solicitor, has the provided for the respondents’ failure to lodge an ET3 response by the due date of posted by the As the Judge notes that the Council wish to defend the claim, the under Rule 20, for an extension of not include a draft ET3 response, as per Rule 20. While the Judge accepts that that it should be allegations, and explain the basis of their proposed defence, and any preliminary issues identified. Please provide that draft ET3 thereafter to give reasons in writing why any such application is for to the respondents should be granted an extension of time under Rule orders and intimated to As the Tribunal on 24 January 2023 and addressed to the Council’s HQ. receipt client can, in terms of Rule 20(1) have up to 7 days opposed that listed Hearing, but to convert it to a 2 hour open further time to do so, for 3 weeks, i.e. by 28 March 2023. He is prepared on that application at a Hearing. possible for the respondents to lodge at least a skeletal response, the claimant’s so that the claimant’s opposed, or, as the case may be, agree to an extension of time. not assigned or not pending internal 20 to defend the claim and (2), if so, to determine Agenda for the claimant. decided not procedure in the claim, by way of case management(1) whether On 21 February 2023, the claimant’s representative Mr O’Neill’s application of 7 March does, however, of the one-day CVP Final Hearing 2023, as per the Notice of Claim they answer be lodged, the has has noted the explanation has at SLC, the Judge considers from representative 21 March 2023, Judge McPherson next 7 days, to determine a full detailed response cannot the basis on which instruction to hear from their representative Judge notes their application, a completed claimant’s response within the & Judge McPherson of information postponement representative the Tribunal, 21 February department the Preliminary explaining directions. postpone While “(1)(2) (3) (4) 15 20 25 io 30[15]Skeletal ET3 Response Agenda, and he copied it to the claimant’s representative On 14 March 2023, Mr O’Neill (8) (7) (6) (5) Loss for the claimant.” to the respondents could complete and return to the Tribunal, by email, with a copy McPherson if, Schedule for additional information from the claimant, Finally, the Judge confirms that his direction of 27 February 2023, Tribunal’s letter to both parties dated 27 February 2023. orders Judge McPherson has meantime set aside the case management In light of the above, and in terms of his powers under Rule 29, employment-tribunals-scotland/ https://www.judiciarY.uk/publications/directions-for- hyperlink: relevant representative, return to the Tribunal, by email, with a copy to the claimant’s Judge McPherson on 21 March 2023, they could complete helpful if, in advance agenda would have been due by 14 March 2023. Had the respondents Claire Mclnnes, for his attention. I attach copy of the email of 21 February 2023 sent @ 14:52 by Judge McPherson has directed that I forward a copy to Mr O’Neill. their representative, respondents (V) in advance for an undefended PH Agenda of Loss, remains on 21 March 2023, the claimant’s had not entered a response, a respondent’s of the CVP Preliminary as per Rule 92. ’representative, & guidance entered a response, their completed of the CVP Preliminary attached in place, and it would be helpful Final Hearing PH Agenda (Equality a completed are accessible that detailed Schedule Hearing before Judge it was not copied to enclosed namely a detailed in compliance with respondents’ representative It would be using Act). The with the before this and PH PH of is forecast to conclude in May 2023. He added that further and better particulars would be in compliance with Rule 92. [sic] as well as a Dignity at that the pending the outcome of into her Dignity at Work complaint. And pending the in her Grievance, has been moved from Cathkin High School to continue her at The Dignity at Work complaint is in the same or similar terms as her are many individuals who are captured within the scope of the before the report of the investigation is concluded and placed before the including any disciplinary action. The complainer has a right of appeal. made against it, it is not yet in a position to respond in any real detail to the very specific incidents and allegations the claimant has raised with is being by email to the Tribunal, sent on 16 March 2023, Mr O’Neill defending the claim, into the Dignity at Work complaint is ongoing. There Nominated Manager, who will decide what action, if any should be taken, while the respondent defends the serious claims comaplaint, [sic] and several of whom still require to be interviewed Work complaint, and each fall under separate [sic] internal procedures. located is estimated to be ongoing for a further 6 weeks. outcome of further investigation, the claimant, as requested Rule 92. At section R2.6 there, he stated that an investigation The claimant agreed with the claimant's union representative required from the respondents once that process was concluded. has been and that the investigation In section 6.1 of that ET3 response, it is stated as follows: attached a skeletal ET3 response for the respondents, The claimant grievane [sic] procedure would be postponed Strathaven Academy since 31st October 2022. and he copied it to the claimant's representative “The claimant has raised both a Greivance school. by the respondents, them, and with the tribunal. at a different present tribunal claim. In the circumstances, The investigation The investigation the investigation undertaken Thereafter, training 10 15 20 25 30[19]Hearing before this Tribunal 18 17 inconvenience. reconnecting, perseverance who were dialing in from home, rather than from the Council’s offices, but with audio and/or video connectivity There were, in the course of this Hearing, a few occasions where there were progress the case in accordance with ET Presidential Guidance. determine heard it in my chambers at Glasgow T ribunal Centre. It was to discuss how to (V) hearing held entirely by video, and parties did not object to that format. I This Preliminary pre-read and considered these papers from the Tribunal’s casefile. this Preliminary application, and the claimant’s Schedule of Loss) were all available to me at response, both parties’ completed PH Agendas, the respondents’ All of these papers from the Tribunal’s in compliance with Rule 92. for injury to feelings, and she copied it to the respondents’ solicitor, Mr O’Neill, compensation to the Tribunal, Finally, on 17 March 2023, Ms Mclnnes, equitable and in the overriding objective.” circumstances, The details of the claim. and the claimant with further and better particulars in response to the conclude, and for the respondent at that point to respond to the tribunal to allow the Dignity at Work investigation The respondent would respectfully request a sist to tribunal procedures respondednt (V) the respondents’ and so the Hearing was conducted without any undue delay or and patience, these issues were resolved by disconnecting from the respondents Hearing. Before the *start of this Preliminary Hearing, I had Hearing took place remotely. It was a videoconference by email, a schedule a sist to allow the investigations [sic] believes Rule 20 application, problems with Mr O’Neill, and Ms Mclnnes, totaling £13,664.06, including £12,000 thatn of loss for the claimant, the claimant’s representative, casefile and any further procedure to [sic] and to discuss (ET1 claim form, ET3 in to conclude these in Rule 20 seeking how to is just, these sent and call was item(1) whether or not the the claim, and I enquired of Mr O’Neill whether Ms Menzies was present as a witness, to give evidence in support of the respondents’ written application of 7 March 2023, where the Tribunal would require to consider the test laid down for extension of time, in Grant v Asda [2017] UKEAT/0231/16 ; [2017] ICR In reply, Mr O’Neill stated that he had not intended to lead Ms Menzies as a but he further stated that he was not familiar with the EAT official, not a solicitor, stated that she too was not familiar with the test laid down in Grant v Asda, but she did not object to further time being granted to I decided that as I was aware of parties, that I should share its terms with them, give them an opportunity to for that purpose, after I posted in the by his respondents should be granted an extension of time under Rule 20 to defend witness, but simply to make an ex parte statement in support of his written as a trade union the judicial guidance in Grant v Asda, it was only appropriate, and fair to both CVP chatroom a Bailli website hyperlink to the EAT judgment, and I invited them both to consider specifically paragraphs 16, 17 and 18 of the judgment by the then Mrs Justice Simler, then EAT President, and now Lady Justice The claimant was not in attendance, but she was represented by Ms Mclnnes. internal client, Ms Fiona Menzies, Personnel Adviser from the respondents’ then ensued about the format and purpose of the Preliminary by the Employment Appeal Tribunal about dealing with Rule 20 applications consider it, and then further discuss with both of them how this Preliminary , Simler in the Court of Appeal of England & Wales. During the adjournment, accompanied judgment I had referred to in Grant v Asda. Ms Mclnnes, Mr O’Neill appeared as solicitor for the respondents, cameras were off, and mikes muted, for all participants. Having heard both parties’ representatives, Hearing. The principal item of business We agreed a 15 minute adjournment Hearing might best be conducted. Education Department. the respondents. application, Discussion D17. 23 25 21 22 15 20 io 25 30 27 26 29 28 found on the same day. within the Finance & Corporate Resources department, not Education) were this case, and another, which she did not identify, other than to say it was manager on receipt, given two sets of correspondence about the importance demonstrated manager, or Head of Service .Further, Ms Menzies accepted that this perhaps She was insistent that this would have been a clerical assistant, and not a dealt with it. ” actioned, other than to say that "a blatantly inexperienced when Tribunal but as it had not been date stamped by their mail room, she could not say to the Council was found, on 7 March 2023, within a tray in the Council’s HQ, became aware of the Tribunal claim when correspondence lodge a late ET3 response defending the claim, Ms Menzies stated that she On explaining Stevenson, a Personnel Officer. undertaken the claimant’s 2023, nor full details of the respondents’ of Tribunal correspondence not have the full details of the circumstances the best of her knowledge I found Ms Menzies to be a straightforward a few questions of clarification. to raise by way of cross-examination unchallenged, I do not make findings the respondents, indicated that he would now lead evidence from Ms Menzies, as a witness for When we resumed proceedings, (V) by another officer of the Council, a need for better supervision, as Ms Mclnnes stated that she had no questions of clarification why the respondents correspondence Dignity and, after being sworn, she gave her evidence. of legal documents, at Work grievance, in fact here as, in the event, her evidence and belief, although it became clear that she did was found, in the Council’s offices on 7 March had been received, in public session at 10:21am, Mr O’Neill of Ms Menzies’ evidence in chief. I asked were seeking an extension of time to ongoing internal investigations witness, speaking to matters to and them being passed to a in which the respondents’ copy or training for mail room staff, as the fact finding identified from the Tribunal (in nor why it was not from Glasgow ET member of staff as a Ms Sheila Page 1 1 is being into was had previously intimated to Ms Menzies that the claimant would be raising an investigation is still ongoing, some 6 months later, and that process has not of persons (actual number not before Ms Stevenson could complete her interviews are scheduled for April 2023, as Ms Stevenson is on annual leave to this Tribunal case, Ms Menzies was open and candid in her evidence, stating had had earlier about the claimant’s case, during the period of ACAS early Further, Ms Menzies was accepting that, while the claimant’s Dignity at Work knew that the Council would defend the claim, but conceded that it would have been process is due to the fact that Ms Stevenson only works 2.5 days per week, Ms Menzies understood that Ms Stevenson provided Ms Mclnnes with regular and that more conciliation, when Ms Innes had discussed matters about a possible informal resolution with a Ms Gale Robertson, a Personnel Adviser, and Ms Mclnnes in October 2022, the fact-finding better for the claimant had matters been fully investigated before the Tribunal too, as an experienced investigator within the Council. Further, she explained, that Ms Stevenson’s initial interviews about the claimant’s case had led to further potential witnesses being identified, so Ms Menzies In answer to Mr O’Neill’s questions to her about future timelines for completion and outcome by the nominated that Ms Stevenson Ms Menzies explained that, in part, the delay in the ongoing investigation which necessarily limits her availability, plus she is doing other investigations When asked by Mr O’Neill to give some evidence about the background yet concluded. She believed that the claimant and her representative investigation, in March, and the schools are closed for two weeks in April. Ms Mclnnes, report, and submit it to a nominated manager for review. Ms Menzies advised that, she anticipated updates about the status of the fact-finding representative, that there were still a number internal investigation, was lodged known to her) to be interviewed, that she and the claimant’s ET claim against the Council. and grievance of the respondents’ claim was heard. she understood discussions understood complaint manager, 31 32 15 25 30 10 20 38 37 36 40 39 within 14 days, however, she added, the Council has always made it clear to believed the Council’s procedures witness. In answer to my points of clarification, Ms Menzies stated that she who declined the opportunity afforded to her to cross-examine As detailed earlier, Ms Menzies’ evidence went unchallenged by Ms Mclnnes, school, and understood the claimant was enjoying working there. extended for any reason. She had received positive feedback from her new probationary She clarified that the claimant is a continuing employee of the Council, as a put on hold, pending the outcome of the Dignity at Work investigation. proceedings can appeal as well, and that the Council would ultimately prefer the Tribunal exhaust the internal procedures, complaint" She added that the Council would like the opportunity stated If the application in dealing with her Tribunal claim. Menzies) could see, the only prejudice to the claimant is the extra time delay of the Dignity at Work investigation claimant is comfortable and happy at Strathaven Academy, until the outcome received from the claimant's new Head Teacher at her new school is that the If it were to be granted, however, she commented that the feedback she had loss as well. reputational issue and damage to the Council, and that could include financial was not granted by the Tribunal, Ms Menzies stated that that would be a Asked by Mr O’Neill about the impact on the Council if the extension of time appeal. one week to review, and decide on next steps, and the claimant has a right of then, as per the Council’s internal procedures, should be able to complete her report by the middle to end of May 2023, and (V) teacher, with her probation to be put "on hold" She further stated that the grievance was everything were granted by the Tribunal at this Hearing, Ms Menzies was ‘intertwined and conclude them, and that the claimant say an investigation is known, and that, as far as she (Ms due to end in June 2023, unless with the Dignity the nominated manager has should be concluded the Council’s at Work to fully Ms On the matter of reputational damage to the Council, that she had spoken of When briefly re-examined by Mr O’Neill, Ms Menzies stated that the scope of and the that the campus police officer had conducted their own investigation, and she As neither party addressed me on the relevant law, I advised both of them that, consistent with my Rule 2 duty to deal with the case fairly and justly, I could inform them, in general paraphrased terms, of the applicable legal test by way of or lack of explanation for the delay in presenting a response to the claim, the merits of the respondents’ defence, the balance of prejudice each party would suffer should an extension be granted or refused, and so why they invited me application for an Specifically, I invited them both read to them from paragraphs 16, 17, and 18 Menzies said she understood it was a large number, but she could not clarify was “two-pronged,'' looking at how senior claimant’s allegations against staff in Cathkin High School. She also stated that the timescale involved is inevitably how many, or provide other details. After the initial interviews, other persons had been identified for interview, and the investigation has been “cascading'. in her evidence in chief, she clarified that a ruling by the Tribunal unfavourable to the Council can cause reputational damage, and impact on the perception I explained to them both that this would include me seeking the explanation of the judgment of Mrs Justice Simler DBE, then President of the Employment still to be interviewed by Ms Stevenson, raised by the claimant, of the Council, and how it deals with and looks after its employees. and then invite their comments, understood no further action had ben taken by the Police. to grant or, as the case may be, refuse the respondents’ addressing the factors identified in the EAT case law. dealt with the concerns employees and their representatives, When asked about witnesses investigation for a Rule 20 application, going to be longer. extension of time. the fact-finding (V) management 4100446/2023 Relevant Law 43 45 44 46 41 42 25 30 5 15 10 20 17. (4) (3)(2) “(1) “16. of reference: at [2017] ICR D17, the full terms of which extracts I reproduce here for ease Appeal Tribunal, in Grant v Asda [2017] UKEAT/0231/16/ BA, and reported “The discretionary factors Rules 1993. Mummery J gave guidance at pages 54 to 55: application for an extension of time under the Employment Tribunal Swain in exercising their discretion was given in Kwik Save Stores Ltd v to be exercised. Guidance on the approach to be adopted by tribunals silent as to how the discretion to extend time for presenting an ET3 is extension of time after the time limit has expired. Rule 20 is otherwise Again, unlike its predecessor, judgment issued under rule 21 shall be set aside.” response shall stand. If the decision is to allow an extension, any If the decision is to refuse an extension, any prior rejection of the hearing. An Employment reasons in writing explaining why the application is opposed. The claimant may within 7 days of receipt of the application give application. wishes to request an explanation draft of the response which the respondent wishes to present or where the time limit has not yet expired, be accompanied set out the reason why the extension is sought and shall, except shall be presented in writing and copied to the claimant. It shall An application for an extension of time for presenting a response Rule 20 of the ET Rules provides as follows: (V) [1997] ICR 49 EAT, a case concerning of why that is not possible and if the respondent Judge may determine the application without a a hearing Rule 20 permits an application for an this shall be requested a respondent’s by a explanation and to form a view about it. The tribunal may form the oversight. In each case it is for the tribunal to decide what weight to give to serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is that it is not the only factor to be considered. The process of factors, weighing and balancing them one against the other and which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the is is the extension is granted? If the likely prejudice to the applicant for an that is a factor in favour in granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this the exercise of a than the process of finding facts in by the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The of the default, in other cases it may this factor in the exercise of the discretion. In general, the more factor in the exercise of the discretion, but it is important to note exercising a discretion involves taking into account all relevant extension outweighs the likely prejudice to the other party, then view that it is a case of procedural abuse, questionable tactics, is the result of a genuine or lack of it, may be a decisive of time suffer if the extension dispute and applying them to a rule of law not tempered Page 16 has necessitated will the other party suffer the nature misunderstanding or an accidental or understandable into account renders which often for the delay even, in some cases, intentional that the delay In some cases, the explanation, to take for an extension prejudice more difficult a conclusion process of judgment full, as well as honest. tribunal is entitled explanation the view refused? What discretion. discretion reaching applicant 4100446/2023 (V) form The 15 20 25 30 5 10 18. involve some consideration be exercisedin a fair, reasonable and principled manner. That will expectation that the discretion relating to extensions of time will a hearing. The applicant for an extension has only a reasonable the basis that, if he is not granted one, he will be unjustly denied does not mean that a party has a right to an extension of time on may be held Hable for a wrong which he has not committed. not be entitled if the other side had been heard. The respondent applicant wins a case and obtains remedies to which he would decide it without hearing the other side. The result may be that an the industrial extension of time is granted for entering a notice of appearance, there will never be a full hearing of the claim on the merits. If no often favour the granting of an extension of time, since otherwise Thus, if a defence is shown to have some merit in it, justice will which an award of costs cannot compensate.” default, unless the default causes prejudice to his opponent for adjudication “a plaintiff Costellow v Somerset County Council [1993] 1 WLR 256, 263: called the merits factor identified by Sir Thomas Bingham MR in in deciding whether to grant an extension of time is what may be It is well established that another factor to be taken into account (V) party would suffer should an extension be granted or refused, of the respondent’s for the delay in presenting a response to the claim, the merits relevant factors, including the explanation or lack of explanation exercising judgment, it applies with equal force to the 2013 Rules. So, in Bramall Bradford) adopted in relation to the 2004 Rules in Pendragon pic (t/a CD The approach of his claim on its merits because of procedural should tribunal will only hear one side of the case. It will this discretion, tribunals set out by Mummery not in the ordinary defence, the balance of prejudice v Copus [2005] ICR 1671 EAT. In our of the merits of his case.” must take account J was subsequently way be denied each of all This an and must then reach a conclusion that is objectively Justified on and, we add, that is Judge may determine a Rule 20 was not clear in advance of this Hearing, as Ms Mclnnes had not written to the Tribunal to say by the claimant, in which event the matter could have been dealt with on the Consistent with the Tribunal’s overriding objective, under Rule 2, to deal with cases fairly and justly, including avoiding delay, and saving expense, it was appropriate to proceed, at this Hearing, to consider the respondents’ Rule 20 was not Ms Menzies’ evidence having concluded, I invited Mr O’Neill, solicitor for the He Mr O’Neill stated that the draft ET3 response had been lodged, but it was very that the claim be sisted to allow the investigation to be concluded, and then further and better particulars could be He submitted that it is in the interests of justice for due to the consistent with the overriding objective set out in Rule 2 of the that the respondents’ application was not opposed at this Hearing, having heard from both partis’ opposing the extension of time being granted was but one of the relevant investigation, and only when it concludes will the respondents be able to reply narrow in scope due to the procedural status of the respondents’ fact-finding to address the Tribunal first with his closing submission. invited the Tribunal to allow his application for an extension of time. the mere fact that the claimant to conclude, position and justice seriousness of the allegations made by the claimant. is allowed The claimant’s Rule 20(3) provides that an Employment factors that the Tribunal had to consider. of reason to the claim in detail. He requested that the investigation As I explained to Ms Mclnnes, without a Hearing. the grounds application to the Tribunal added by the respondents. ET Rules.” clearly and unequivocally Respondents submissions representatives. 4100446/2023 (V) respondents, both parties papers only. 47 49 50 51 15 25 30 10 20 20 15 10 30 25 53 52 56 55 54 v Fisher Jones Greenwood LLP & others 3213171/2020, identified as being by EJ Housego at East London in a case known as C Scott At this point, Mr O’Neill then referred to an unreported ET Judgment which he undefended. risk of considerable the application was not granted. There would also be, he added, significant to conclude, and that there would be reputational submitted that Tribunal proceedings if the application Mr O’Neill further submitted that there is “no real prejudice to the claimant" she expects the respondents granted, as the claimant remains an existing employee of the Council, and disproportionately of prejudice Taking the explanations provided at this Hearing into account, and on balance of reason and justice and that is consistent with the overriding objective. and must then reach a conclusion that is objectively justified on the grounds prejudice each party would suffer should an extension be granted or refused, response to the claim, the merits of the respondent’s including the explanation or lack of explanation Tribunal in exercising its discretion must take account of all relevant factors, In light of the EAT judgment in Pendragon pic, Mr O’Neill submitted that the against them. against them, had done nothing until after a Default Judgment was granted the Tribunal, and this is not a case where the respondents, then submitted a skeletal ET3 response on 16 March 2023, at the request of by a junior member of staff, one of a new batch of clerical staff.” He had attention, as the Tribunal’s correspondence to contact the Tribunal, once the Notice of Claim came to the respondents’ Further, he added, on 7 March 2023, the respondents to is granted, but for a matter of some weeks’ delay. He then against the respondents the parties, financial cost to the Council, if the claim proceeded as to defend her claim. he should be sisted to allow investigations further if the extension of time was not had been "filed inappropriately submitted for the delay in presenting a loss to the respondents, defence, the balance of sought, without delay, aware of a claim it would be if as no advance notice had been given of it, he stated that he could provide a Mr O’Neill stated that he wanted to show how matters had been dealt with by to those of the present case at this Hearing, where it was a junior clerical member of staff who had been involved in this case, as opposed to the head of department in He agreed to do so, saying that it is just and equitable for this Tribunal to exercise its discretion by allowing the application for an extension of time, and adjourned at 1 1 :07am for him to do so. He posted on the CVP not open that link, I them myself located from' the Gov.Uk website of ET decisions the Scott judgment, and I put it up on the CVP chatroom. He had emailed a copy of it from Casemine.com to my CVP clerk, at 1 1 :14am, and solicitor, and the Scott judgment having been circulated, when proceedings resumed, at 1 1:25am, I to address me, and for an stated that she had received, and and that the claimant does not When I asked if he had a copy for the Tribunal, and Ms Mclnnes, to peruse, I asked him to provide a copy, either by adding a hyperlink to the CVP but as I could Having copy, as he wished to draw reference to it, where that employer’s application the Scott case, who was a senior partner of the law firm and an employment chatroom facility, or by emailing it to my CVP clerk, with copy to Ms Mclnnes. object to the extension of time being granted to the respondents. chatroom a hyperlink to the Scott case from Casemine.com, that other Judge, and compare its facts and circumstances explain the terms for her position about the respondents’ for the claim to be dealt with on its merits in due course. representative, Having heard from Mr O’Neill, as the respondents’ read both the Grant, and Scott judgments, for an extension of time had been refused. In addressing the Tribunal, Ms Mclnnes then invited Ms Mclnnes, the claimant’s the clerk emailed it to Ms Mclnnes. extension of time. law solicitor. Proceedings Claimant’s reply 59 61 62 58 60 15 20 25 30 30 25 20 15 10 66 65 64 63 of May 2023 was realistic to conclude At my invitation, Ms Menzies was asked for comment. She stated that the end raised in October 2022. depth that it warrants, allow for a realistic date to conclude the respondents’ date from Ms Menzies, rather than leaving things open-ended. By way of reply, Mr O’Neill suggested that it might help if we could get a closer Dignity at Work complaint was known. added that if there was to be a sist, it might be only until the outcome from the length of time, and that is shown by the delay from October 2022 to date. She just this Council, that the formal internal processes observed that it is her experience, across all Scottish local authorities, and not Based on her trade union experience as a NASUWT caseworker, Ms Mclnnes an indeterminate outcome would be helpful, she commented that would be better than a sist to at Work complaint, at her new school, and they can wait until there is an outcome from the Dignity was running, and a schedule of loss has now been provided. The claimant is concerned, the Tribunal claim had been lodged on a protective basis, as time cited by me, or Mr O’Neill. She explained Further, Ms Mclnnes stated that she had nothing to say about the case law day, but she could not recall exactly what date. she tried to alert the Council, and spoke with Ms Menzies, on a non-working process, so she thought something must have gone wrong. She added that She stated that she expected the respondents nobody from the Council had been in touch, and that “set alarm bells” for her. She added that, when she had submitted the claimant’s PH Agenda, she saw trauma suffered by the claimant at Cathkin High School. claim against the Council, and that this case is about racially experienced was aware, as an NASUWT caseworker, that she would be raising a Tribunal listened to Ms Menzies’ evidence to the Tribunal, Ms Mclnnes stated that she (V) date, which is what Mr O’Neill seemed to be looking for. and move on from there. While a fixed date for the and without further delay, given the complaint the report, go to the nominated that as far as the claimant to engage in the Tribunal are taking a protracted investigation That would was is to solicitor, I stated that I was not reserving my Judgment, on the Hearing, where Ms application, I Judgment. This written Judgment commits to writing the record of that oral In so deciding to grant the respondents’ application, I was satisfied that it is in for the phrase “in the if between the parties, the case can be including any preliminary issues that might arise from the respondents’ stated grounds of defence, once further and better particulars are given, after the as between the parties, I took into account that if I would not be able to manager, and for a decision to be reached. On that basis, Mr O’Neill then and the respondents’ Rule 20 application, for an extension of time, and I gave oral (1) of my Judgment above, outcome of the Dignity at Work complaint is known, to augment the current defend the claim brought against them, and could end up with a judgment and thereafter having heard oral submissions and issue a reserved listed for a Final Hearing for full disposal, including remedy if appropriate, interests of justice” means justice to both parties, and so, in due course, a sist until the end of May 2023, to allow the investigation from Ms Menzies, from both the claimant’s representative an extension of time, and to defend the claim. In writing up this Judgment, it is appropriate that I explain my reasoning. Mclnnes stated that she had no objection to the respondents’ from both parties’ representatives, at this Preliminary refused the late ET3 response, then the respondents the need to adjourn conclude, and the fact-finding report to be produced. evidence of justice to allow their application, Judgment there and then, as per paragraph Having heard the sworn, unchallenged Ms Mclnnes had nothing further to say. the case is not resolved extra-judicially Having heard oral submissions witness led by the respondents, without allowing the respondents skeletal ET3 response. In balancing prejudice gave oral judgment the respondents’ 1 41 00446/2023 (V) the interests requested Judgment. Oral Judgment 71 72 68 70 20 25 30 10 15 76 75 74 78 77 matter and the second in an unrelated claim. mailroom, both response deadlines having already passed, one in the present notice of two Tribunal his own closing submissions to this Tribunal, it is clear that, on 7 March 2023, evidence, as foreshadowed Finally, a few closing observation for the respondents. Employment Tribunals. other unreported, Tribunals and Courts that are binding upon an Employment Tribunal, and not law authorities making closing submissions to a Tribunal, they should only cite reported case Secondly, when presenting Rule 20 applications. professional Stores Ltd v Swain [1997] ICR 49 EAT, Grant v Asda is what I expect narration of the relevant law was not up to date. While it refers to Kwik Save Firstly, it is distinguishable of no assistance Further, I wish to record that Mr O’Neill’s reference to the Scott judgment was from both parties, in due course. adjudicated upon by the Tribunal at a Merits Hearing, after hearing evidence late ET3 response, outweighs any prejudice to the claimant, and that it is appropriate to let in the oppose the application, In those circumstances, undefended judgment in her favour. that she loses, at this stage, is the loss of a windfall of being able to get an On the other hand, prejudice to the claimant will be relatively slight, and all evidence. and that without having had the opportunity against them, and an order for them to pay disputed sums to the claimant, (V) I take this opportunity agents to now cite and refer to, as have other representatives that set forth an important to me. It was an unnecessary and non-binding, and the merits of parties’ respective positions can be allied to the important fact that the claimant does not claims I decided in Mr O’Neill’s written application, and indeed in on its own facts and circumstances, were discovered to inform both representatives that the prejudice judgments legal principle from the higher to put forward their case in from other first instance distraction in the respondents’ In both Ms Menzies’ to the respondents for 2 reasons. Page 23 that when and its HQ and While it is a matter for the Grievance and / or Dignity at Work Procedure, and so I cannot benchmark it against best practice, or even the 4 CAS Code of Practice on Disciplinary handling of in terms of would be at and then listing the case for or did not become aware of the present claim, at an earlier stage, but they are now, and I trust that they have put in place an urgent review of their mail room While Ms Mclnnes gave her trade union observations on this matter, and while internal Preliminary Hearing to be conducted remotely by CVP before me, if available, for reasons of judicial continuity, Judge sitting alone, at the Glasgow responds timeously to all ET1 forms it is notified of. It is not clear why the respondents and Grievance Procedures, it does seem to me, from the limited information to have a case management October how they allocate and prioritise their staff resources, commencing Page 24 delay in addressing being dealt with up to final outcome within a reasonable period of time. with a copy of whatever is the respondent’s invariably we agreed the claim and response provided by Ms Mehzies in her evidence, that the respondents’ might be worth revisiting, of September, 2023, I have noted the statement made that the respondents concluding the claimant’s Dignity at Work complaint. on Tuesday, 22 August to the ongoing discussion about future procedure at the Tribunal. 10:00am, for the purpose of case management, period It then being 11:34am, we then proceeded delay to date in this case seems inordinate. listing and / or complaints, listed for a 2-hour Case Management whom failing any other Employment relates Arising from that discussion, The other observation Tribunal, I was not provided the respondents such grievances November 2023. Further Procedure a substantive 4100446/2023 (V) Employment procedures. 82 83 80 81 10 15 20 25 15 io 41 00446/2023 (V) their contribution. The Hearing concluded at 1 1 :46am, with my thanks to all in attendance parties’ representatives separate cover, arising from the case management Case management orders for that further Hearing are issued to parties under in the course of this Hearing. Date of Judgment 23 March 2023 Employment G.lan McPherson discussion held with both 2 7 MAR 2023 Judge Page 25 for