In a decision described by Burton P. as "a matter of some considerable importance", the EAT has given guidance on how ETs should deal with Response Forms which are lodged late.
In Blake Envelopes v Cromie, the Response Form was due to be served by midnight on 11th November (28 days after the Claim Form was sent out). It was faxed to the tribunal 44 minutes late. A letter two days later provided an explanation (apparently printing problems, which is marginally better than 'the dog ate it'!) as to why it was lodged just out of time. The letter requested a 44 minute extension of time for presenting the Response Form.
The tribunal rejected the application for an extension of time, on the grounds that the new rules (r. 4(4)) states that the request for an extension MUST be made within the 28 days.
Further, the tribunal did not actually issue default judgement (the rules say it MAY, not MUST, issue default judgment against a Respondent who does not serve a Response). Therefore the Respondent was unable to apply to set aside the default judgment.
The EAT held that it would be absurd (my word, not theirs) if an employer was left unable to defend a claim in these circumstances.
Burton P. held that it is open to a tribunal in these circumstances to review its decision not to allow the Respondent to take part in the proceedings, and as a concomitant part of that review, it can decide to admit the Response Form late (para 22).
Burton P. also gave guidance for the factors to take into account when deciding whether to admit the Response Form late (paras. 28-29) and, exercising the EAT's power to substitute a decision, ordered that the 44 minute late Response Form should be accepted.
Blake Envelopes v Cromie