Late response acceptable
Blake Envelopes v Cromie, Employment Appeal Tribunal, 19 April 2005
Cromie lodged an employment tribunal claim against his former employer, Blake Envelopes. Blake Envelopes had until midnight on 11 November 2004 to present its response. Due to computer problems, however, its representative did not manage to fax the response form to the tribunal until 44 minutes after midnight.
A tribunal chairman refused to accept the late response. Blake Envelopes asked the tribunal to review its decision, but the chairman considered himself powerless to do so.
The respondent’s appeal to the Employment Appeal Tribunal (EAT) was allowed. The EAT held that the tribunal chairman did have the power to review the decision not to accept the response. That power is contained in rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and the test that should be applied is whether it is just and equitable to accept the late response.
This involves weighing up all relevant factors, including any explanation for the non-compliance, the reason for any delay, the merits of the defence and the possibility of prejudice to either party.
Applying the just and equitable balancing exercise to the facts of this case, the EAT held that the tribunal should have accepted the response, and made an order to that effect.