Tribunals should focus on delay for late response and for application to extend time

In Thorney Golf Centre Ltd v (1) Reed (2) Reed [2024] EAT 96 the EAT held that, when deciding whether to extend time for a late response, the starting point, in relation to delay, should be a consideration of the extent of the delay in putting in the response itself and/or (if done later) in applying for an extension. Any further time delay inevitably involved in reaching the point at which a judge determines the application will not be significant to that decision but will not necessarily be irrelevant in every case.

The EAT found that it was acceptable for the employment tribunal to refuse the respondent’s request to cross-examine the witnesses, particularly taking into account the context of the rejected response and the claimants’ vulnerable mental health. HHJ Auerbach said that:

‘the tribunal’s approach in each case to that discretion must have due regard to what participation is sought, the extent to which such participation can be accommodated without significant disruption to the process, and what the respondent stands to lose if not permitted to participate in the way sought.’

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