The Sports PR Company Limited v Valentina Londono Cardona

The claimant brought a wages claim arising from her notice period. The ACAS early conciliation certificate correctly named the corporate respondent but the ET1 form (box 2.1) named a director. A judge (EJ Clark) rejected the claim under rule 12 of the Employment Tribunals Rules of Procedure 2013 because of that discrepancy, and on reconsideration under rule 13 treated the claim as presented only when the claimant corrected the error (8 December 2020).

At the full merits hearing (EJ Burns) the tribunal treated the presentation date as 8 December 2020 and therefore out of time, but applied section 23 of the Employment Rights Act 1996 and found it was not reasonably practicable for the claimant to present the claim in time because the error was a reasonable mistake by a litigant in person; time was extended and the wages claim succeeded. The EAT dismissed the respondent’s appeal on the time point, finding no error of law or perversity in the tribunal’s factual findings and reasoning.

The EAT allowed a late amendment by the respondent that the tribunal had miscalculated statutory sick pay by failing to allow for the three-day SSP waiting period, remitting the matter for recalculation. An application for a pro bono costs award was refused.

The claimant was employed from 30 March 2020 and after termination pursued ACAS early conciliation (certificate dated 1 October 2020). On 16 October 2020 she presented an ET1 claiming unpaid wages but, while the ACAS certificate named The Sports PR Company Limited, in box 2.1 of the ET1 she named a director, Caroline McAteer. Her narrative elsewhere on the form however referred to the company, to its name (without “Limited”) and to McAteer as a director.

Procedural history and issues:

• The tribunal (EJ Clark) rejected the claim under rule 12 as the name on the ET1 did not match the ACAS certificate; on reconsideration under rule 13 accepted the claim but treated it as presented on 8 December 2020 (the date the claimant corrected the name), so the claim was out of time.
• At the full merits hearing (30 June 2021) EJ Burns proceeded on the basis the claim was presented on 8 December 2020 and therefore considered whether, under section 23 Employment Rights Act 1996, it was not reasonably practicable to have presented in time and whether it was presented within a further reasonable period. The tribunal found the claimant’s mistake was reasonable (typical of litigants in person), extended time and upheld the wages claim, awarding £1,482.77 gross.
• The respondent appealed to the EAT. The sift judge rejected the respondent’s challenge to the merits as not arguable and invited any application under rule 3(10) (which the respondent did not pursue in time and the Registrar later refused to extend). The time point was treated as arguable and listed for a full hearing.

EAT reasoning and disposition:

• The EAT concluded the respondent had not properly revived its merits challenge (no timely rule 3(10) application and no appeal against the Registrar’s refusal to extend time) so the only live issue was the time extension decision under section 23.
• The EAT held that the tribunal’s finding that the claimant’s error was a reasonable mistake and that it was not reasonably practicable for her to present in time was a factual finding open to the tribunal, supported by adequate reasons, and not legally perverse. The EAT rejected the respondent’s argument that Judge Burns impermissibly undermined Judge Clark’s rule 12/13 decisions, explaining the two judges applied different legal tests in different contexts.
• The EAT did, however, allow a late amendment by the respondent to challenge the tribunal’s calculation of the award for statutory sick pay on the basis the first three days are a waiting period; that point was well-founded and the case was remitted for recalculation to deduct the SSP waiting period. The EAT refused a pro bono costs award.

Appeal dismissed on the primary time-extension ground but allowed in part on a discrete calculation error. The EAT held that the employment tribunal was entitled to find under section 23 Employment Rights Act 1996 that it was not reasonably practicable for the claimant to present the ET1 in time because her mistake in naming a director rather than the corporate employer was a reasonable error by a litigant in person; that factual and discretionary decision was not perverse and contained adequate reasons. The EAT allowed a late amendment to challenge the award calculation and remitted the matter for recalculation to deduct the three-day statutory sick pay waiting period. An application for a pro bono costs award was refused.

Employment Tribunal (London Central) decision at full hearing 30 June 2021 (EJ Burns) — claim treated as presented 8 December 2020, time extended under section 23 ERA 1996 and wages awarded. Appeal to Employment Appeal Tribunal: sift decision 11 October 2022 (merits challenge not arguable); Registrar refused extension for rule 3(10) on 10 May 2023; full EAT hearing before HHJ Auerbach on 4 July 2023 resulting in this judgment [2023] EAT 110.