EZI Floor Trading LLP v Ul-Haq & Anor (Practice and Procedure : Review)

When deciding whether to extend time for an application to reconsider an Employment Tribunal judgment, the Tribunal must consider the underlying merits as a distinct factor, alongside the respective prejudice to the parties. A decision which addresses delay but gives no consideration to substantial merits submissions is erroneous in law.

The Employment Tribunal had added EZI Floor Trading LLP as a respondent to an unfair-dismissal claim and held both respondents jointly and severally liable. The LLP later sought reconsideration, contending that it was a separate legal entity and had never employed the claimant.

An Employment Judge refused the application as out of time under Rule 71 of Schedule 1 to the 2013 Regulations. The written reasons addressed the delay but did not address the LLP's merits case. The LLP appealed, contending that the Judge had failed to consider a material factor when deciding whether to extend time.

1. Appeal allowed. The Employment Judge erred in law by refusing an extension of time without considering the underlying merits of the LLP's position.

2. In deciding an application to extend time for reconsideration, merits are a separate factor from the prejudice caused by either granting or refusing an extension. The principle was exemplified by Kwik Save Stores Ltd v Swain [1997] ICR 49. The Judge considered the length and explanation for delay, but neither the decision nor the written reasons showed that he considered the detailed case that the LLP was never the claimant's employer.

3. The refusal could not stand. The Appeal Tribunal declined to substitute a decision because the underlying position was opaque, the procedural history was complicated, oral evidence concerning the relevant circumstances had been given below, and the other parties were absent. The application for an extension of time, and, if successful, reconsideration of the original judgment, was remitted to a different Employment Judge.

• Employment Appeal Tribunal: allowed the LLP's appeal and remitted the extension-of-time and reconsideration application to a different Employment Judge.

• Employment Tribunal, Leeds: refused the LLP's reconsideration application on 7 May 2014 because it was outside the time limit under Rule 71 of Schedule 1 to the 2013 Regulations.

• Employment Tribunal, Leeds: on 3 October 2013, added the LLP as a respondent and upheld the claimant's unfair-dismissal complaint.