The Sports PR Company Limited v Valentina Londono Cardona

A reasonable mistake by an unrepresented claimant may make timely presentation of an Employment Tribunal claim not reasonably practicable for the purposes of section 23 of the Employment Rights Act 1996. Whether the mistake was reasonable is a fact-sensitive assessment for the tribunal.

A rejection or reconsideration decision under rules 12 and 13 of the Employment Tribunals Rules of Procedure 2013 does not preclude a later extension of time under section 23. The rules and the statutory extension test serve different functions and may be applied on the same facts in different procedural contexts.

The claimant, acting without legal representation, brought a wages claim after her employment ended. Her ACAS early-conciliation certificate correctly named the corporate employer, but the respondent name entered in box 2 of the claim form was that of a director. The claim was initially rejected under rule 12 of the Employment Tribunals Rules of Procedure 2013 and, on reconsideration, accepted but treated as presented only when the corporate name was supplied.

The Employment Tribunal held that the resulting late claim satisfied the extension test in section 23 of the Employment Rights Act 1996, upheld the wages claim, and awarded £1,482.77. The employer appealed the extension of time. Its merits challenge had not survived the EAT sift, although it later sought to add a discrete challenge to the statutory sick-pay calculation.

1. The appeal was allowed in part. The challenge to the extension of time failed. The appeal succeeded only on the calculation of statutory sick pay, and the matter was remitted to recalculate the award after allowing for the first three waiting days.

2. The Employment Tribunal was entitled to find that it was not reasonably practicable for the claimant to present her claim against the correct respondent in time. The claimant was a litigant in person. The wording of the relevant claim-form box could reasonably lead her to name her boss rather than the corporate employer. She corrected the error promptly once notified. A reasonable mistake or belief can satisfy the statutory test: see [2017] ICR 382. The tribunal's finding was neither perverse nor inadequately reasoned.

3. The earlier rejection and reconsideration decisions under rules 12 and 13 of the Employment Tribunals Rules of Procedure 2013 did not make the later section 23 decision erroneous. The rule 12 process concerned whether the claim had been properly instituted. The section 23 inquiry under the Employment Rights Act 1996 was a distinct two-stage test, applied at a hearing after evidence and findings of fact. Parliament had not made a claim deemed late following rules 12 and 13 incapable of a statutory extension of time.

4. The employer could not revive its merits grounds. It had not made a timely rule 3(10) application after the sift decision, and the Registrar had refused an extension. An administrative letter sent in error did not alter that conclusion.

5. The late amendment concerning statutory sick pay was allowed because the tribunal had included SSP for the first three days of sickness, when no entitlement arose. Refusing the amendment would have produced an unjustified windfall for the claimant. The pro bono costs application was refused. The appeal had not been plainly hopeless from the outset, and the respondent's procedural defaults did not justify a costs award.

• Employment Appeal Tribunal: Allowed the appeal only on the statutory sick-pay calculation, dismissed the challenge to the extension of time, and remitted the award for recalculation.
• Employment Tribunal, London Central: On 30 June 2021, extended time under section 23 of the Employment Rights Act 1996, upheld the wages claim, and awarded £1,482.77 gross.