Thorney Golf Centre Limited v Andrew Reed & Anor

When deciding whether to extend time for a late response, an employment tribunal must begin with the delay in lodging the response and, where relevant, the delay in applying for an extension. It must assess the explanation and the prejudice caused by that original delay.

Later delay while the application remains undecided will usually be of limited significance, but may matter where a party’s unreasonable conduct or a later development affects prejudice. The tribunal must also weigh the respondent’s prejudice if refused an extension, including loss of the opportunity to contest the substantive merits, not merely any jurisdictional issue. Decisions under rules 19 to 21 of the Employment Tribunals Rules of Procedure 2013 must be made by an Employment Judge sitting alone.

The claimants, formerly employed by the respondent, brought claims including unfair dismissal, disability discrimination, holiday pay and notice pay. The respondent lodged a response after the prescribed time and, after its rejection, sought an extension of time.

In September 2021, a three-person employment tribunal refused the extension. It later determined the claims with the respondent’s participation restricted under rule 21, finding both claimants unfairly dismissed and awarding compensation. The respondent appealed both decisions.

The central issue was whether the tribunal had lawfully exercised its discretion to refuse an extension for the late response and, consequentially, whether the substantive judgment could stand.

1. Appeals allowed. The refusal of an extension of time for the late response was set aside. The substantive judgment, reached after that refusal had restricted the respondent’s participation, was consequentially set aside.

2. The response was correctly rejected under rule 18 because it was late and was neither accompanied nor preceded by an application for an extension. A later failure to address the extension application did not amount to a judicial acceptance of the response. The tribunal was also entitled to determine the extension issue before deciding the respondent’s contention that the claims were time-barred.

3. Applying the guidance in Kwik Save Stores Ltd v Swain, the tribunal had to start with the lateness which necessitated the application. It should have considered the impact of the delay up to the late response and the application of 3 September 2019, including the contention that it had caused no material prejudice before the first listed case-management hearing. It erred by treating the respondent as responsible, without distinction, for the entire later delay until adjudication.

4. The tribunal was entitled to reject the respondent’s explanation that it was busy during its peak season. However, it made a further error by considering only the prejudice arising from the respondent’s inability to advance its case that the claims were out of time. It failed to weigh the prejudice of being unable, save as permitted under rule 21(3), to defend the merits of the unfair-dismissal and disability-discrimination claims.

5. The freestanding challenges to the December 2021 hearing did not establish perversity or unfair case management when assessed in that hearing’s own context. Nevertheless, the second appeal succeeded because the restriction on participation resulted from the erroneous refusal of an extension.

6. A fresh extension decision and further substantive hearing or hearings were required. The EAT reserved consequential directions, including whether the extension issue should be remitted. It observed that decisions under rules 19 to 21 of the Employment Tribunals Rules of Procedure 2013 must be made by an Employment Judge alone.

• Employment Appeal Tribunal: Allowed the employer’s appeals from the September and December 2021 employment tribunal decisions: [2024] EAT 96.

• Employment Tribunal: In September 2021, refused an extension for the employer’s late response. In December 2021, determined the claims with the employer’s participation restricted and made awards to both claimants. Those decisions were set aside consequentially.