C Coleman v MCM Cleaning Solutions Ltd and M Maire: 8002781/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002781/2025Venue EdinburghHearing 30 April 2026
Between
C ColemanClaimantMCM Cleaning Solutions Ltd and M MaireRespondent
Before
Employment Judge M SutherlandC Lauret, Trainee Solicitor for respondentDate 19 May 2026
JUDGMENT
The judgment of the Tribunal is that the first and second respondents’ application to extend time is granted, the date for presenting the ET3 Response is extended to 2 March 2026 and the default judgment issued on 2 March 2026 is revoked.
REASONS
[1]An open preliminary hearing was arranged to determine the respondents’ application under Rule 21 for an extension of time for presenting their response and reconsideration of the default judgment which was opposed by the claimant. Both parties had professional representation. The hearing was held remotely by CVP.[2]Michelle Maire (second respondent) gave evidence. No other witnesses were called. A joint bundle of documents was lodged and each party lodged a supplementary bundle.
Findings of fact
[3]The tribunal makes the following findings in fact-[4]MCM (the first respondent) is a small business engaged in post-construction cleaning. Michelle Maire (“MM”/second respondent) is the sole owner and director of MCM. MM has ADHD and suffers from issues affecting her mental health. Her husband works in the business as the Operations Manager. There are also administration and cleaning staff.[5]On 9 July 2025 Chloe Coleman (“CC”/the claimant) was dismissed from her employment with MCM whilst pregnant.[6]CC engaged in ACAS Early Conciliation from 3 September to 15 October 2025. ACAS called MM and advised her of CC’s intention to bring an employment tribunal claim. MM was upset by that call and declined early conciliation.[7]Notices of Employment Tribunal claim were issued on 17 November which stated that a response must be received by 15 December. These notices were sent by post and at least one of these was received at MCM offices in late November. Either MM or her husband made arrangements to avoid the opening of correspondence which might contain notice of a claim until after their family holiday because of the likely effect on her mental health.[8]On 23 December CC (the claimant) was advised that no response to her claim had been received and a schedule of loss was requested to enable judgment to be issued which was provided on 5 February 2026.[9]MCM’s offices were shut for the Christmas period from 19 December 2025 until 5 January 2026. MM, her husband and children went on holiday to Thailand from 29 December to 7 February 2026.[10]On or about 9 February MM opened the correspondence containing the Notice of Claim. She attempted to draft a response but was unable to do so. She then suffered a severe decline in her mental health and was hospitalised in mid-February 2026 following a suicide attempt.[11]MM contacted an external HR provider on 10 February. With their assistance legal consultants were appointed to act on behalf of the respondents on 11 February and the claimant and tribunal were advised accordingly. In the period between 11 February and 2 March MM and the admin staff provided the legal consultants with information regarding CC’s performance and an ET3 response was prepared by the consultants including a detailed paper apart extending to 43 numbered paragraphs.[12]On 2 March 2026 at 12:30pm a “default” judgment was issued under Rule 22 on the basis that no response had been accepted. The first respondent was found to have unfairly dismissed and discriminated against the claimant and they were ordered to pay the claimant the sum of £14,410. The second respondent was found to have discriminated against the claimant and was ordered to pay the claimant the sum of £7,500.[13]On 2 March 2026 at 8pm an application for extension of time and reconsideration was submitted by the respondents on the basis that the second respondent (who is sole director of the first respondent) did not see the notice of claim until a few days after 7 February which was after the response was already due. That application included the ET3 response and a signed witness statement by MM. Observations on the evidence[14]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur.[15]MM (the second respondent) stated in evidence that CC has a very large following on social media and posted regularly about her dismissal whilst pregnant and that MM was very upset by this.[16]MM stated in evidence that she received the call from ACAS at end October/early November but that call must have taken place during Early Conciliation because the certificate is not issued by ACAS until after the employer declines conciliation. It is inferred that the MM would have been upset upon receiving the call from ACAS because she was upset by CC’s social media posts and was upset on reading the Notice of Claim. It is reasonably inferred that her husband who works alongside her as the Contracts Manager was aware she was upset.[17]MM stated in her witness statement that she believed that the tribunal papers were not received prior to the office shutting for Christmas on 19 December. MM stated in evidence the claim against her arrived after and the claim against the business never arrived.[18]There are Notices of Claim in respect of the first and second respondent dated 17 November 2025 on the Employment Tribunal digital hearing file. Both are addressed to the business address of the first respondent. It is considered likely that both Notices of Claim were sent by the Employment Tribunal by post. MM stated in evidence that the post never went missing and was rarely more than a few days late. It is considered likely that at least one of the Notices of Employment Tribunal claim were received at MCM offices in late November.[19]The office team is small and included MM as Director, her husband as Operations Manager, and two new part time administrators. MM and her husband were aware that CC had advised ACAS of her intention to raise tribunal proceedings. MM was upset by this. MM was due to go on an extended holiday to Thailand with her husband and children in December. MM has been diagnosed with ADHD which may cause inattention and/or impulsiveness. MM suffers from issues with her mental health. MM stated in evidence that she was glad she didn’t know about the claim until after her holiday because it would have made her ill. It was put to MM in cross examination that she received the notice of claim before Christmas but ignored it because of her mental health which she denied. Given the finding that MM did not open the tribunal correspondence until after their holiday (see below), it is considered likely that prior to their holiday either MM or her husband made arrangements to avoid the opening of correspondence which might contain notice of a claim because of the likely effect on her fragile mental health.[20]MM stated in evidence in chief that she, her husband and children went on a holiday to Thailand between 29 December 2025 and 7 February 2026; that they had originally intended to return 2½ weeks earlier but they changed their flights. She lodged in evidence copies of her flight tickets which showed outbound flights arriving in Thailand on 29 December and inbound flights returning to Edinburgh on 7 February. It was put to MM in cross examination that she had in fact returned home on 21 January in light of a facebook post on 20 January stating “our last sunset in Thailand you’ve been a dream and exactly what I needed.” The respondent denied this in cross examination stating that this reflected their move from a beach resort to Bangkok city. It was also put to MM in cross examination that she had tampered with the evidence lodged namely the holiday photo dates had been edited to show 26 and 29 January when the metadata (i.e. the jpg date) showed 20 January, and one of the fight coupon dates had been edited to show 7 February when one of the coupon validity dates showed 21 January. The respondent denied this stating that she would not have the technical knowhow to do this and the discrepancy in flight coupon dates probably occurred because they changed their flights. It was considered more likely than not that the respondent had returned from their holiday on 7 February rather than 21 January which was consistent with her prior evidence in chief that she had extended their holiday.[21]MM stated in her witness statement: “A few days after my return I opened the tribunal mail for the first time and saw that the deadline to submit the ET3 response had already passed”. MM stated in evidence that: when she returned she saw the correspondence on her desk and she opened the mail on Monday; she was very upset when she saw the notice of claim; she had been the victim of pregnancy related discrimination herself and had raised proceedings with the NMC when she was a nurse; she initially tried to draft a response to the claim but was unable to do so; she suffered a significant decline in her mental health which resulted in an attempted suicide for which she was hospitalised for a couple of days in mid-February 2026; she was subsequently referred to psychiatric services; she has been seen by the mental health team but is awaiting a psychiatric appointment; towards end February she was attending to her mother who had suffered a heart attack; the business has been under investigation by HMRC following admin errors made by CC; she carried on working throughout all of this (she did not take time off for her mental health other than going to Thailand). The respondent lodged in process her diagnosis of ADHD from April 2025 but this was not referred to in evidence. MM stated in evidence that she did not mention issues with her ADHD or mental health in her application for an extension of time or in her accompanying witness statement because she was concerned CC might post about this on her social media platform which has a significant following. This evidence was not challenged under cross examination. It was considered likely that MM has ADHD and suffers from issues affecting her mental health, that she suffered a severe decline in her mental health in midFebruary 2026, that this severe decline coincided with her opening the tribunal correspondence and seeing the Notice of Claim on or about 9 February, and that she had not mentioned this until after the application was opposed because of concerns about it being posted on social media.[22]MM stated in evidence that if the default judgment was not revoked this would have a serious impact on her personal finances and the business would require to fold. According to publicly available information on Companies House the first respondent liabilities outweigh their assets. It is considered likely that the judgement would have a serious financial impact on both respondents. Submissions[23]The respondents’ oral submissions were in summary as follows –a. The Tribunal is entitled to exercise a broad general discretion in the interests of justice: this is not, therefore, a case where restrictive rules are applied (Thornton v Jones UKEAT/0068/11/SM)b. A party should not be denied adjudication unless any prejudice would be unremedied by an award of costs. There would be no prejudice to the claimant.c. The respondents acted promptly on sight of the notice of claim.d. The second respondent is sole director of the first respondent which is a small business. She suffers from significant mental health issues which materially impacted upon her ability to respond to the claims within an earlier time frame.e. The drafting of the response was thorough, careful and complete.f. Advising ACAS of an intention to bring a claim does not necessarily mean a claim will be brought.g. There was no benefit and therefore motive for MM (the second respondent) to fabricate her return date when any delay was already justified by issues with her mental health.[24]The claimant’s oral submissions were in summary as follows –a. The balance of prejudice is not necessarily decisive of the application.b. The more serious the delay which has necessitated the application the more important it is for the respondent to provide a full and satisfactory explanation for it (Thorney Golf Centre Ltd v Reed [2024] EAT 96).c. There is an assumption the notice of claim was received on the day correspondence is normally delivered (Rule 88).d. Time limits exist for a good reason and the delay was substantial.e. Following ACAS conciliation MM (the second respondent) was live to the possibility of a claim arriving by post.f. There are questions over whether the photos and the plane tickets were modified and such that the return date was 21 January and not 7 February.g. No good explanation was provided as to the delay between legal consultants being appointed and the claim being lodged.h. The issuing of the default judgment prompted the application.i. The respondents have been put to prejudice by their own deliberate default.j. There is prejudice to the claimant in having the finality of a default judgment snatched away from her.k. Issues of credibility arising from the second respondent’s explanation fundamentally undermines their ability to prove their defence to the claim. Discussion and decision[25]Under Rule 21 a respondent may apply for an extension of time for presenting their response. The application must be in writing, and copied to the claimant, and must set out the reason why the extension is sought. Where the time limit has expired, the application must be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible.[26]In exercising the discretion to extend time the judge must take into account all relevant factors weighing and balancing them and reaching a conclusion which is objectively justified on the grounds of reason and justice (Kwik Save Stores Ltd v Swain [1997] ICR 49): “The explanation for the delay which has necessitated 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 tribunal is entitled to take into account the nature of the explanation and to form a view about it. The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the tribunal to decide what weight to give to this factor in the exercise of the discretion. In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest. In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. 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. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer if the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then 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 well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor…Thus, if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. .. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case”. (Kwik Save, Mummery J)[27]The delay was for a period of 2½ months (15 December to 2 March) which is not insignificant because it is more than double the 28 days ordinarily allowed for lodging a response but it is less than the 3 month period ordinarily allowed for the lodging of a claim. The claim was at an early procedural stage (the default judgment had just been issued and no other hearings had been listed).[28]The stated reason for the delay was that MM (second respondent) did not see the Notice of Claim until 9 February because of their extended family holiday to Thailand and whilst that was true it was not the whole truth. It was considered likely that either MM or her husband had made arrangements to avoid the opening of any correspondence which might contain notice of a claim until after they returned from that holiday because of the likely effect on her mental health. This was not an unreasonable course of action to take given the obviously fragile state of her mental health. However, what is not clear is whether MM (the second respondent) was aware that the tribunal correspondence arrived before their office had shut and if she was aware she was not wholly honest in her explanation.[29]A lack of candour or honesty does not necessarily render a fair hearing no longer possible. Nor does it necessarily result in a finding in favour of the other party at that hearing. What is clear is that the failure to lodge the response in time was not the result of unjustifiable procedural abuse, questionable tactics, or intentional default. The failure was a result of either negligent or wilful delay in opening tribunal correspondence pending the return from holiday which approach arose from legitimate concerns regarding the second respondent’s mental health.[30]The claimant in her claim asserts in summary that she was dismissed because of her pregnancy. Parties are in agreement that she informed MM she was pregnant in mid-January and was dismissed in July. The respondents’ response to the claim includes a detailed narrative in summary that in October 2024 her probation period was extended by 4 weeks due to probation concerns, the claimant was placed on a Performance Improvement Plan from 18 November 2024, on 8 January the claimant agreed to the contracting out of part of her work to independent book keepers and her hours were reduced, on 3 June she was given a written performance warning, and on 9 July 2025 she was dismissed for poor performance. If the respondents are able to evidence that concerns were raised with the claimant’s performance before she advised of her pregnancy then the response is not without merit. Contrary to the claimant’s submission it is not accepted that any lack of candour regarding the explanation for the delay renders the defence to be without reasonable prospects of success, particularly where there may be documentary or other witness evidence of the prior performance concerns.[31]The claimant will suffer no prejudice in the response being allowed late other than the loss of comfort she would have drawn from the failure to defend the claim until 2 March. On 11 February the claimant was advised that the respondents had appointed legal consultants who were on record and the claimant must reasonably have anticipated that a defence was likely to be lodged. It is not therefore considered likely that the claimant drew any comfort from possession of a default judgment for ½ day before the application for reconsideration and an extension of time was received on 2 March. Further the delay has not put the claimant to any material expense aside from her own opposition to the application.[32]The respondents will suffer obvious reputational and financial prejudice if they are denied the opportunity to defend the claim in circumstances where the defence which does not appear to be without merit. Allowing the application would put parties on an equal footing and allow a proper consideration of the issues.[33]Weighing and balancing all of the relevant factors including the explanation for the delay, the possible lack of candour in the explanation proffered, the period of the delay, the merits of the defence, the minimal prejudice to the claimant and the material prejudice to the respondents, and having regard to the overriding objective to deal with cases fairly and justly, it is considered objectively justifiable on the grounds of reason and justice to grant the application to extend the time period for lodging the response to 2 March 2026 (being the date on which the application was received).[34]Turning to the application for reconsideration, Rule 21(5) provides that if the Tribunal grants an extension of time, any judgment issued under Rule 22(2) must be set aside. In circumstances where the application to extend time has been granted it considered necessary in the interests of justice and compliance with the tribunal rules to revoke the default judgment which was issued under Rule 22.