Grant v ASDA

An Employment Tribunal cannot restart the 28-day period for presenting an ET3 by re-sending a claim form which has already been sent. A late response must be rejected under Rule 18 unless an extension has been sought under Rule 20.

In deciding whether to extend time, the tribunal must consider the explanation for delay, the merits of the proposed defence, the prejudice to each party and the overriding objective. A procedural error will not justify appellate intervention where the underlying outcome could not realistically have been different. The EAT may itself extend time where the discretion could only properly be exercised one way.

The claimant appealed against a case management direction re-sending his ET1 to ASDA’s registered office and giving ASDA a further 28 days to present an ET3. The claimant argued that the original service was valid and that he had not been given an opportunity to oppose an extension application.

The original ET3 was presented within the second period but outside the period calculated from the first sending. The Employment Tribunal later struck out the claimant’s substantive claims as out of time. The central issues were whether the re-sending lawfully restarted time, whether the procedural irregularity undermined the later strike-out decision, and whether the EAT should extend time itself.

1. The appeal was dismissed. The Tribunal had committed a material procedural irregularity by treating the re-sending of the ET1 as restarting the 28-day period. Under Rules 15 and 16 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, time ran from the original sending.

2. Because the ET3 was late and was not accompanied by an application for an extension, it should have been rejected under Rule 18. The Tribunal should then have considered the ET1 under Rule 21.

3. Where the ET1 itself raises a real issue concerning jurisdiction or limitation, the Tribunal must list a hearing before entering judgment. The respondent is entitled to notice of that hearing and may be permitted to participate under Rule 21(3).

4. The procedural irregularity did not undermine the claimant’s later strike-out. The jurisdictional and limitation issues were apparent on the face of the ET1 and would necessarily have been considered, whether or not ASDA participated. The appeal was therefore academic.

5. Alternatively, the EAT exercised its power under section 35 of the Employment Tribunals Act 1996 to extend time. Applying Kwik Save Stores Ltd v Swain, as adopted for the 2013 Rules in Pendragon plc (t/a CD Bramall Bradford) v Copus, the explanation for delay, the strong jurisdictional defence and the balance of prejudice all made an extension inevitable. The ET3 was regularised and the appeal dismissed.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s case management direction. It held that the procedural irregularity did not undermine the subsequent strike-out and alternatively extended time for presenting the ET3.
• Employment Tribunal: re-sent the ET1 to ASDA’s registered office and allowed a further 28 days for the ET3. At the later preliminary hearing, the unfair dismissal claim was withdrawn and the discrimination and harassment claims were struck out as out of time.