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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Grant v ASDA (Practice and Procedure : Appearance/Response) [2017] UKEAT 0231_16_1603 (16 March 2017)
URL: http://www.bailii.org/uk/cases/UKEAT/2017/0231_16_1603.html
Cite as: [2017] UKEAT 231_16_1603, [2017] UKEAT 0231_16_1603, [2017] ICR D17
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
MS V BRANNEY
MRS M V McARTHUR BA FCIPD
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(The Appellant in Person) |
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(of Counsel) Instructed by: Pinsent Masons LLP 3 Colmore Circus Birmingham B4 6BH
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SUMMARY
PRACTICE AND PROCEDURE - Appearance/response
The Employment Tribunal was wrong to re-send a claim form to the Respondent and re-start the 28 day time limit for an ET3 to be lodged. That procedural irregularity notwithstanding, the outcome would not have been different in this particular case, and the appeal was academic.
In any event, an extension of time for serving the ET3 would and should be granted and the EAT exercised power under section 35 Employment Tribunals Act 1996 to make an Order extending time and regularising the ET3.
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
Introduction
1. This is an appeal by Mr Ronald Grant against a case management direction made by Employment Judge Zuke on 22 February 2016 that the Claimant’s ET1 claim form should be re-sent to the Respondent at its registered office, giving the Respondent a further 28 days to present its response.
2. Mr Grant (referred to as “the Claimant” for ease of reference) represents himself, and has done so with care and skill, presenting his arguments in a clear, structured way that impressed us all. The appeal is resisted by Ms Barrett of counsel for the Respondent, who also appeared below. This is the unanimous Judgment of all three members of this Appeal Tribunal, and all members have contributed to it.
3. The Claimant advances two grounds of appeal challenging the grant of the extension of time of 28 days to file the Respondent’s response (or ET3). First, he contends that the Respondent did not serve upon him (as required by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”)) any application to extend time to present its response and he was therefore deprived of the opportunity to oppose the Respondent’s application. That was a material procedural irregularity. Secondly, he contends that his claim form was validly served on the Respondent at its Roehampton store address where he had worked and there was, as a consequence, no justification at all for the Employment Tribunal to re-send his claim form to the Respondent’s registered office. To do so and at the same time to start the clock running again in respect of the 28-day time limit was to pile procedural irregularity upon procedural irregularity.
Chronology
4. The chronology is as follows. The Claimant was employed as a delivery driver at Asda in Roehampton with effect from September 2014. His employment ended with his resignation that took effect on 11 July 2015. However, he did not lodge his tribunal claim form (or ET1) until 11 January 2016, having contacted ACAS to start the early conciliation process on 9 January 2016, almost six months after his employment came to an end. The claim form, as we have indicated, gave the Respondent’s address as the Roehampton store where the Claimant worked rather than the Respondent’s registered office. The claim form was accepted by the Employment Tribunal on 20 January 2016. It was sent by the Tribunal service under cover of a letter addressed to the Respondent’s Roehampton store together with further letter (also dated 20 January) notifying the Respondent (at the same time as the Tribunal notified the Claimant) of a Preliminary Hearing listed for 16 March 2016.
5. The Respondent maintains that the claim form was never received by it at the Roehampton store and as a result, the Respondent remained unaware of the need to lodge an ET3 in response to it. On 19 February 2016 the Claimant enquired with the Employment Tribunal about whether a response to the claim form had been presented. The Tribunal confirmed that a response had not been presented and that the Claimant’s file had been passed to an Employment Judge for consideration.
6. By a letter dated 22 February 2016, following a direction made by Employment Judge Zuke, the claim form was re-sent to the Respondent at its registered office, and the Respondent was directed to serve a response by 22 March 2016 “because [the Claimant’s] claim was not served on the registered office” of the Respondent.
7. On 23 February 2016 the Claimant submitted a Notice of Appeal to the EAT. The following day the EAT sent a copy of the Notice of Appeal to the Respondent at its registered office, and on receipt of that document enquiries were made by solicitors for the Respondent of the Tribunal service and they were told of the extended deadline for serving an ET3. The Respondent presented its ET3 on 21 March 2016 within the extended deadline. The ET3 was not accompanied by an application to extend time. That is not surprising, given the Tribunal’s direction that time was only to expire on 22 March.
8. Although the appeal was proceeding in the EAT, the ET3 was accepted by the Tribunal, and the Preliminary Hearing was adjourned, and relisted as a two hour Preliminary Hearing for 29 April 2016. That hearing took place before Employment Judge Emerton. However, he decided, as is recorded by him at paragraph 4 of his reconsideration refusal Judgment, that the hearing should be adjourned to enable the Claimant to collect his thoughts and better prepare for the Preliminary Hearing. The Employment Judge did not consider it fair to accept the Claimant’s purported withdrawal of his unfair dismissal claim on that date and wished to give the Claimant time to reflect. He explained to the Claimant what issues would be dealt with at the resumed hearing and made structured Orders designed to assist the Claimant to prepare for the Preliminary Hearing. He directed that the resumed hearing should be listed for one day in order to remove any time pressure from the Claimant, and it was duly listed for 10 June 2016.
9. At the resumed Preliminary Hearing the Claimant withdrew his unfair dismissal claim, recognising that he did not have the requisite two-year qualifying service for such a claim. That claim was dismissed on withdrawal. The remaining claims of unlawful direct discrimination on grounds of religion or belief and harassment on both that ground and on grounds of sexual orientation were struck out as out of time, the Tribunal having considered that it was not just and fair to extend time for those claims. The Judgment of Employment Judge Emerton was sent to the parties on 15 June 2016, and, oral reasons having been given at the hearing for his Judgment and no request for Written Reasons having been made until some time later, no Reasons were provided.
10. The Claimant did not appeal immediately. Instead, he sought reconsideration. His application was refused, and Reasons were given in the Reconsideration Judgment promulgated on 16 August 2016 by Employment Judge Emerton.
11. Subsequently, the Claimant sought to appeal the strike out decision by a Notice of Appeal dated 25 July 2016, but his appeal was ruled totally without merit and disclosing no arguable error of law that could proceed to a Full Hearing by an Order of Wilkie J on the papers dated 14 October 2016.
The relevant Rules and their application to this case
12. Schedule 1 of the ET Rules, Rule 15 provides for the Employment Tribunal to send a copy of a claim form lodged by a claimant to a respondent. By Rule 16 the respondent then has 28 days from the date of sending to present a response. As the Claimant has emphasised, the Employment Tribunal cannot restart the clock on that 28-day time limit by re-sending a claim form already sent by the Employment Tribunal to a respondent (see to that effect Bone v Fabcon Projects Ltd [2006] ICR 1421 EAT. As the EAT held in that case, the Rules (both then and currently) expressly provide for time to run from the date the claim is sent regardless of when or whether it is received. The Claimant submits that principle applies here and the Respondent concedes that it does. There is no dispute that the claim was properly sent to the Respondent and the re-sending of it to the Respondent’s registered office could not in those circumstances have the effect of restarting the clock. What should have happened (but did not) is that on re-sending the claim form to the Respondent, the Tribunal should have made clear that the time limit ran from the original sending and expired 28 days thereafter, namely on 17 February 2016.
13. Rule 18 of the ET Rules provides:
“(1) A response shall be rejected by the Tribunal if it is received outside the time limit in rule 16 (or any extension of that limit granted within the original limit) unless an application for extension has already been made under rule 20 or the response includes or is accompanied by such an application (in which case the response shall not be rejected pending the outcome of the application).
(2) The response shall be returned to the respondent together with a notice of rejection explaining that the response has been presented late. The notice shall explain how the respondent can apply for an extension of time and how to apply for a reconsideration.”
14. Unlike its predecessor Rule, rejection under Rule 18 is not automatic. If the late ET3 is accompanied by a request for an extension of time or an extension of time has been made separately, then the response is not to be rejected, pending the outcome of that application. Otherwise, the Rule requires that any late response must be rejected if received outside the time limit or outside any extension to the time limit already granted.
15. Rule 5 of the ET Rules contains a wide general power in the Tribunal to extend or shorten time and this can be done on the Tribunal’s own initiative or on the application of any party. However, this wide power cannot be used to displace the more restrictive, specific provision contained in Rule 18, as Ms Barrett herself agreed.
16. Rule 20 of the ET Rules provides as follows:
“(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application.
(2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed.
(3) An Employment Judge may determine the application without a hearing.
(4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.”
17. Again, unlike its predecessor, Rule 20 permits an application for an extension of time after the time limit has expired. Rule 20 is otherwise silent as to how the discretion to extend time for presenting an ET3 is to be exercised. Guidance on the approach to be adopted by tribunals in exercising their discretion was given in Kwik Save Stores Ltd v Swain [1997] ICR 49 EAT, a case concerning a respondent’s application for an extension of time under the Employment Tribunal Rules 1993. Mummery J gave guidance at pages 54 to 55:
“The discretionary factors
The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The tribunal is entitled to take into account the nature of the explanation and to form a view about it. The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the tribunal to decide what weight to give to this factor in the exercise of the discretion. In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest.
In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer is the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour in granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying them to a rule of law not tempered by discretion.
It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256, 263:
“a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.”
Thus, if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a notice of appearance, the industrial tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that an applicant wins a case and obtains remedies to which he would not be entitled if the other side had been heard. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case.” (Original emphasis)
18. The approach set out by Mummery J was subsequently adopted in relation to the 2004 Rules in Pendragon plc (t/a CD Bramall Bradford) v Copus [2005] ICR 1671 EAT. In our judgment, it applies with equal force to the 2013 Rules. So, in exercising this discretion, tribunals must take account of all relevant factors, including the explanation or lack of explanation for the delay in presenting a response to the claim, the merits of the respondent’s defence, the balance of prejudice each party would suffer should an extension be granted or refused, and must then reach a conclusion that is objectively justified on the grounds of reason and justice and, we add, that is consistent with the overriding objective set out in Rule 2 of the ET Rules.
19. Rule 21 provides:
“(1) Where on the expiry of the time limit in rule 16 no response has been presented, or any response received has been rejected and no application for a reconsideration is outstanding, or where the respondent has stated that no part of the claim is contested, paragraphs (2) and (3) shall apply.
(2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise, a hearing shall be fixed before a Judge alone.
(3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.”
20. The President of Employment Tribunals for England and Wales has issued guidance as to the approach that tribunals should adopt when considering Rule 21 as follows:
“Action by the Employment Judge:
1. The Employment Judge will review all the material that is then available. This will normally consist of the claim form and any response form that has been validly submitted and any other supplementary documents.
2. They will consider whether the matter requires more information. If so, they will cause a letter to be written to the party/ies specifying the further information that is required.
3. If no such information is required, or once such information has been received then the Employment Judge will consider whether it is appropriate to:-
a. issue a Judgment in full for all claims and remedy; or
b. issue a Judgment in full for all liability issues and hold a hearing for remedy or request further details of remedy matters; or
c. issue a Judgment in part for one or more of the items claimed, together with any remedy issues arising; or
d. issue a Judgment in part for one or more of the items claimed but not remedy issues and hold a hearing for remedy or request further details of remedy matters; or
e. consider any of the combinations of Judgment for liability matters or remedy matters which they consider appropriate on the facts available to them at the time of consideration; and
f. arrange for a hearing to be held for any part of the claim that has not had a judgment issued or for any remedy matters remaining outstanding as a result of such judgment having been issued and make appropriate case management orders.
4. If such a hearing is to be held then the Respondent will be entitled to receive notice
a. of any hearings and decisions but entitlement to participate in the hearing will be limited as provided by Rule 21(3); and
b. the hearing that will be held ordinarily will be a hearing as provided for under Rule 57.
5. If a judgment is issued it will be copied to all parties as soon as possible thereafter and notice sent of any hearing if an Employment Judge has considered it appropriate for such a hearing to take place.
6. Judgment will be issued as provided for under paragraph 3 above where an Employment Judge is satisfied that they have sufficient information properly so do to. For example, an Employment Judge will examine whether the claim is clearly stated and whether there are any matters which might affect whether the Tribunal has jurisdiction to hear the claim. The Employment Judge will consider all detail contained in the written matters before them; consider any obligation or burden on either of the parties in relation to proving such matters; the calculations that have been provided (if any) by the claimant; any case management orders that have previously been made; and any response. If the Employment Judge has any reasonable doubt as to the whole or any part of such matters contained in the claim then the claim will be listed for hearing. The provisions of Rules 57-59 will apply.
7. Any party who wish to ask for reconsideration of such a decision must make such application in accordance with the provision of Rules 70-72.
8. Any party who considers lodging an appeal against such a judgment must comply with the Rules of the Employment Appeal Tribunal.”
21. Accordingly, a judgment on liability will only be issued under Rule 21(2) where an Employment Judge is satisfied that the information provided by a claimant enables a determination to be made. That question inevitably requires some consideration of the nature of the claim itself and whether there are matters that might affect the jurisdiction of the tribunal to hear the claim or claims. If there is reasonable doubt as to the nature of the claim itself or, if on the face of the claim, there are matters disclosed that raise a question as to the tribunal’s jurisdiction, then the employment tribunal cannot enter judgment, notwithstanding the absence of any in-time response to the claim from the respondent. Instead, it must fix a hearing and is required to give notice to the respondent of any such hearing irrespective of whether the respondent is entitled to participate in that hearing or not. So far as that is concerned, tribunals retain discretion under the ET Rules (see Rule 21(3)) to permit respondents to participate in the proceedings. That is in contradistinction to the 2004 Rules, where no such discretion was available.
The Appeal
22. Applying the approach identified above to this case, it seems to us that in the absence of an in-time ET3 the following should have occurred:
(i) First, the Employment Tribunal was obliged to reject the ET3 presented outside the time limit required by the ET Rules, and in the absence of any application to extend time. It would then have had to consider the ET1 under Rule 21.
(ii) On the face of the ET1 it is clear that the Claimant had insufficient service to qualify for unfair dismissal protection and the primary time limit for all of his claims had expired before his claim was made. Jurisdiction was therefore a real issue and would depend on the Claimant persuading a tribunal to exercise discretion in his favour on the basis that it was not reasonably practicable for him to make his claim within the three-month time limit (for unfair dismissal) and/or that it was just and fair to extend time for his unlawful discrimination claims.
(iii) There would have to be a hearing to consider these issues before any determination could be made. That is inevitable, in our view, on any objective reading of the ET1. This is supported by the fact that the Employment Tribunal did in fact list a Preliminary Hearing immediately on receipt of the Claimant’s claim form. If at the Preliminary Hearing the Tribunal refused to extend time, then there would be no jurisdiction to hear the Claimant’s claims.
(iv) The Respondent would have been entitled to notice of such hearing irrespective of whether an ET3 was served or not.
(v) Any ET3 presented by the Respondent would have been out of time given that the re-sending occurred after the 28-day time limit had expired.
23. If the Respondent had been informed of the expiry of the time limit, we have no doubt that an application to extend time would have been made. The Respondent presented its ET3 promptly and in accordance with Employment Judge Zuke’s direction contained in the letter dated 22 February 2016, and we can think of no reason why an application to extend time would not have been made at the same time. It seems to us that the only reason it was not in fact made is because the Respondent was misinformed as to the expiry of the time limit and told that the 28-day time limit would expire on 22 March.
24. Where does that leave this appeal? First, we must address the Respondent’s contention that on the particular facts of this case the appeal is academic. It is well established that the Appeal Tribunal does not consider appeals that do not determine any issue between the parties and do not involve practical results between the parties. In Biwater Ltd v Bell UKEAT/ 218/89, the EAT (Knox J) held that it would be contrary to principle for the EAT to do what would amount to giving advice to the parties rather than carrying out its function of resolving genuine disputes between the parties. The Appeal Tribunal in that case concluded that the issues were academic and therefore declined to hear the appeal.
25. However, as Ms Barrett accepted in the course of argument, the appeal would not be academic in this case if we are satisfied that the decision to strike out the Claimant’s claims at the Preliminary Hearing is undermined in some way by the unfortunate procedural error that undoubtedly occurred. The Claimant contends forcefully, that Employment Judge Emerton’s decision is undermined and indeed vitiated by the procedural unfairness that flows from the irregularity in the Respondent having participated at the Preliminary Hearing despite there being no in-time ET3. He contends that he was prejudiced by that involvement and submits that the decision might well have been different if Employment Judge Emerton had not taken account of the arguments advanced by the Respondent at that hearing. He accepts that Rule 21(3) allows tribunals to permit participation by respondents at such hearings even if no in-time ET3 has been lodged, but submits that fairness and justice dictate that this would not have been permitted on the facts of this case.
26. We have considered that submission with care. We are sympathetic to the Claimant’s position, especially as a litigant in person seeking to pursue proceedings against a large corporation. We agree with him that the ET Rules must be applied equally to respondents as they are to claimants and that employment tribunals must behave within the ET Rules. There was, as he has argued, a procedural irregularity in this case, which was of neither party’s own making, and we have to consider what would have happened if the correct procedure had been followed. It seems to us that the ET1 would have been re-sent on the basis that time had expired. Alternatively, once the Respondent found out about the claim form it would have responded as it did, in either case promptly, with a draft ET3 and, more importantly for our purposes, an application to extend time. Such applications are routinely dealt with by employment tribunals, and decisions made by employment tribunals on such applications are case management decisions and rarely open to challenge on appeal. The EAT has a limited statutory jurisdiction to hear appeals on points of law only; it cannot engage in any review of the facts and cannot interfere with a case management decision in the absence of an error of law or any argument that the decision reached was outside the generous ambit of discretionary decision making available to the tribunal.
27. We have concluded that an application for an extension of time, made at the same time as an out-of-time ET3 was presented, would inevitably have been granted in this case. We reach that conclusion for the following reasons. First, so far as the Respondent’s explanation for delay is concerned: Frankie Bell explains in her witness statement that she is a paralegal working in the legal team at Asda House in Leeds and that part of her responsibilities involve reviewing claim forms and forwarding these to the Respondent’s solicitors to deal with them on behalf of the Respondent. She says that when she was notified of the appeal in this case she checked her Tribunal claim records and noted that she had not received a copy of the Claimant’s original claim form or the re-sent claim form referred to by the Tribunal in her letter. She forwarded a copy of the Notice of Appeal to Pinsent Masons on the day she received it. She explains that because of its size, the Respondent does have situations where claim forms are not received and the Respondent does not therefore comply with the time limits. In those situations, as soon as the Respondent receives correspondence from the Tribunal alerting them to that fact, it immediately instructs Pinsent Masons to apply to the Tribunal for any default judgment to be set aside (if that is necessary) or for an extension of time to submit a response. She says that is what would have happened had the claim form and the time limit for presenting a response been drawn to her attention. She goes on to say that she has spoken to the People Manager at Asda Roehampton who has confirmed:
“… that they do not have a recollection of having received either the Claim Form or the ACAS Early Conciliation certificate and that if they had received them they would have taken action in relation to them.”
28. We see the force of the Claimant’s criticism of that statement, but he has not, understandably, been able to produce any evidence to contradict Frankie Bell’s sworn evidence. He relies on conversations in November and December 2015 with HR at the Respondent in which he made clear his unhappiness with the Respondent and the conduct of former managers, but he accepts that in those conversations and in the correspondence that followed he made no express reference to Employment Tribunal proceedings having been issued or intended. In this regard we adopt what was said by HHJ Burke QC in Bone that:
In the absence of evidence that the Respondent did receive the claim form originally sent and simply ignored it, and in light of the evidence that we have been provided with by the Respondent, (despite the criticisms made of it) we consider that the Respondent had a complete explanation for the delay. The Respondent could not respond timeously having not received the claim form, and when it received the re-sent ET1 it responded promptly and in accordance with the Tribunal’s directions.
29. So far as the merits are concerned, we have considered the ET3 and are satisfied that the Respondent had a strong defence to the claim based on the jurisdictional arguments. The Claimant did not have continuous service to qualify for ordinary unfair dismissal protection, and the last act of alleged discrimination cannot have been after 7 June 2015, when he left work and did not return. ACAS was not notified until 8 January, and his ET1 was lodged thereafter. There were no grievances or complaints pursued by him during the course of his employment. We say that not by way of criticism of him - it is entirely understandable that he would not wish to jeopardise his position by making such complaints - but it means that there were no contemporaneous documents to evidence a contemporaneous investigation by the Respondent, and that might affect the cogency of the evidence given the delay between the acts relied on by the Claimant and the date of the ET1. This is a factor that might be relied on in arguing that it would not be just and equitable (or fair) to extend the Claimant’s time for lodging his claim.
30. Finally, the question of prejudice is a relevant factor. Here, while we fully accept the stress that the Claimant was suffering, the prejudice to the Respondent in refusing a one-month extension that would have the effect of barring the Respondent from defending serious claims pursued against it by the Claimant strongly outweighs any additional stress or distress caused to the Claimant in having the initial Preliminary Hearing adjourned and as a result of a short delay. No countervailing argument has been identified by the Claimant, and we cannot see one. In those circumstances we are satisfied that an extension of time would inevitably have been granted to the Respondent allowing it to defend the claim and accordingly to participate in the Preliminary Hearing.
31. Moreover, we are persuaded by Ms Barrett’s submission that the Employment Judge would in the circumstances of this case inevitably have considered the self-same factors in addressing questions of limitation whether the Respondent was present or not. These were obvious matters to consider, and the factors relevant to the exercise of discretion to extend time are well established. We cannot imagine that any different decision would have been reached by Employment Judge Emerton (an experienced Judge who bent over backwards to afford the Claimant an opportunity to present his case in the best possible way) even if the Respondent had not been present. The jurisdictional issue was an issue that had to be addressed by the Employment Tribunal and would have been addressed irrespective of the Respondent’s presence or involvement.
32. Against that reasoning we have concluded that there is no basis to undermine the strike out decision in this case, and for that reason therefore, this appeal is academic. This case is different and not analogous to the case of R (Nicolson) v Tottenham Magistrates and Anor [2015] EWHC 1252 (Administrative Court) relied on by the Claimant. In that case Andrews J concluded that although there had been a settlement, matters of public interest requiring a determination remained and the proceedings were therefore not academic. Here, no separate point of public importance that would be determined by the underlying proceedings has been identified. If the strike out decision cannot be undermined, as we consider it cannot, there are no live Employment Tribunal proceedings, and nothing for any determination to bite on.
33. In case we are wrong about that, however, the Respondent invites us to exercise our own discretion to extend time for presenting the ET3 in this case. If we are satisfied that the discretion invoked by the Respondent on the facts of this case could only be exercised in one way, we would substitute our decision for that of the Employment Tribunal. If, however, we have any doubt as to the way in which the discretion would be exercised by a tribunal, we would have to remit the matter to the tribunal to exercise the discretion afresh (see, if necessary, Moroak (t/a Blake Envelopes) v Cromie [2005] ICR 1226 EAT). For reasons we have already given, we are satisfied that the only and inevitable conclusion in this case is that time for lodging the ET3 would and should be extended, and we therefore exercise our discretion in the alternative on this basis.
34. Looked at from the perspective of both parties, we consider that is a fair outcome. We are satisfied that the Respondent was prejudiced in this case by a procedural irregularity, and should have been directed that the time limit had expired. If that had been done, an extension of time would have been sought and granted, and it would have participated in the Preliminary Hearing as it did. On the other hand, the Claimant has had a full hearing of the jurisdictional issues that were apparent on the face of his claim form and would have had to be addressed in any event. Those were issues of jurisdiction to be raised on the Tribunal’s own motion, and were fully considered and carefully and conclusively determined on their merits.
Conclusion
35. For all those reasons, although we accept that there was a material procedural irregularity in this case, we have concluded that the appeal is academic. Alternatively, and in any event, an extension of time would have been granted for presenting the ET3 and is hereby granted. The appeal therefore fails and is dismissed for all those reasons. We are grateful to the Claimant for the measured way in which he has conducted his appeal.