Ms R Spalding v Balmore Leisure Ltd: 8001603/2024
JUDGMENT
The judgment of the tribunal is that the respondent’s application for an extension of time to enter a Response is refused.REASONS
[1]This hearing was a preliminary hearing to determine the respondent’s application for an extension of time to present a Response.[2]The claimant presented a claim to the Employment Tribunal on 2 October 2024 alleging she had been unfairly dismissed and that payments in respect of holiday pay and wages were due to be paid.[3]The respondent did not enter a Response.[4]A final hearing took place on 7 January 2025. The respondent did not appear for the hearing. The tribunal decided the claims were successful and made an award of compensation, all as set out in the Judgment dated 7 January 2025.[5]The claimant obtained an Extract of the Award and instructed Sheriff Officers to enforce the award.[6]The respondent, in response to the Sheriff Officers, instructed Peninsula who wrote to the tribunal on 8 April 2025 to make an application under Rule 21 for an extension of time to present a Response and to have the Default Judgment set aside.[7]The tribunal heard evidence from Ms Kirsty Macarthur, Director of Balmore Leisure Ltd and Warrior Fitness (Scotland) Ltd. The tribunal was referred to a small number of documents. The tribunal, on the basis of the evidence before it, made the following material findings of fact.Findings of fact
[8]The claimant presented a claim to the Employment Tribunal on 2 October 2024.[9]The claim was sent to the respondent on 4 October 2024, noting that a response had to be submitted by 1 November 2024 at the latest.[10]The claim was served at the correct address and was received by the respondent.[11]Ms Macarthur, Director, had been absent from the business for a period of two years due to maternity leave, nursing her husband and bereavement leave following his death. Ms Macarthur returned to work 2 days per week in early 2024. Ms Macarthur relied heavily on the claimant and a Ms Elizabeth Glasgow during her absence and following her return to work.[12]The claimant was employed as a Manager and worked initially for Warrior Fitness (Scotland) Ltd.[13]Ms Macarthur and the claimant had discussions on 5 May 2024 regarding the future of Warrior Fitness because Ms Macarthur wanted to move in a different direction. Ms Macarthur had established Balmore Leisure Ltd and she offered the claimant a pay rise, training for her next level qualification and a contract of employment confirming that as from 5 May 2024 she was employed by Balmore Leisure Ltd. The claimant accepted the contract.[14]The claimant resigned on 8 July 2024 and brought her claim against Balmore Leisure Ltd because she understood she had been employed by them.[15]The respondent received contact from ACAS regarding the claimant’s claim. The respondent received the claimant’s claim. Ms Macarthur understood that Ms Glasgow had contacted “the tribunal” regarding the claim because the respondent’s position was that the claimant was employed by Warrior Fitness (Scotland) Ltd and not Balmore Leisure Ltd. Page 50 of the respondent’s documents was a screen shot showing a telephone number (for “the tribunal”) and confirmation that on the 29th October 2024 there had been an outgoing call made to that number.[16]The respondent relied on an email (page 50) which had been sent by Warrior Fitness to Ms Macarthur on 1 November 2024. The email attached an email which had been sent to “the tribunal”. The email was entitled “FTAO Glasgow Tribunals Centre” and referred to a call with a staff member who advised that an email be sent to clarify the claimant’s details. The email went on to say that the claimant had not ever been employed by Balmore Leisure Ltd, but had been employed by Warrior Fitness Scotland Ltd. It was stated that “for this reason we are unable to complete the ET3 which has the wrong details” and concluded with a paragraph stating “can you advise the proper steps going forward, which will allow me to complete an ET3”.[17]Ms Macarthur did not understand there to have been a response to the email.[18]Ms Macarthur acknowledged subsequent correspondence from the tribunal had been received, for example, confirming the date for the hearing, but she assumed the hearing would not proceed because the claim was against the wrong company.[19]Warrior Fitness Scotland Ltd had a registered address at 100 Auchinairn Road, Bishopbriggs, G64 1NQ, but in June 2023, it relocated to 304 Glentanar Road, G22 7XS which is the same address as Balmore Leisure Ltd.[20]Ms Macarthur intends to wind up Warrior Fitness Scotland Ltd and although the company is still active at Companies House, it has not traded for several months. Respondent’s submissions[21]Mr Ocloo noted this was an application to set aside the Judgment dated 7 January 2025 and sent to the parties on 14 January 2025. The basis of the application was that the claim had been brought against the wrong company.[22]Mr Ocloo regretted that it had not been possible to call Ms Glasgow as a witness, but she was in Spain. He invited the tribunal to find Ms Macarthur a credible witness.[23]Ms Macarthur had returned to work after an absence of two years and became aware of the claim in November 2024. The Judgment had been issued in January 2025 but the respondent had only become aware of this when Sheriff Officers tried to enforce the Judgment.[24]Mr Ocloo referred to the case of Kwik Save Stores Ltd v Swain 1997 ICR 49 and submitted the respondent had a good defence to the claim because it was not the employer. Mr Ocloo further submitted that even if there had been a TUPE transfer from Warrior Fitness Scotland Ltd to Balmore Leisure Ltd, the tribunal should still hear evidence prior to reaching a decision, particularly regarding the constructive dismissal claim. The balance of prejudice lay with the respondent. Claimant’s submissions[25]The claimant submitted that she had tried to resolve matters with the respondent, but they had continually ignored her attempts to make contact, and they had also ignored the attempts of Citizens Advice and ACAS to make contact. This had caused the claimant financial and emotional stress.[26]The respondent had not responded to anything within the time limits set. The address for correspondence was correct and there had not been any explanation why correspondence had been ignored. The respondent simply had not engaged with the process. The claimant had paid to have Sheriff Officers enforce the Judgment.[27]The claimant submitted the respondent’s application was too late. There had been a complete disregard and disrespect for the process and it would be unjust to allow the application. Discussion and decision[28]I firstly had regard to the terms of Rule 21 of the Employment Tribunals Rules 2024. Rule 21 provides that a respondent may make a written application to the tribunal for an extension of time for presenting a response. The application must set out the reasons why the extension is sought and be accompanied by a draft response, or an explanation why that is not possible.[29]The claimant objected to the respondent’s application and in the circumstances the