Extensions of Time - What happens when there are two respondents?
A recent Employment Appeal Tribunal (EAT) case held that an Employment Tribunal (ET) must consider the position of different Respondents separately when considering extension of time.
In Harden v Wootlif, Mr Wootlif was employed by the first respondent, Smart Diner Group Limited (the company) as Chief Executive Officer until his summary dismissal. The second respondent, Mr Harden, was the company’s Chairman and a Director. Mr Wootlif bought various employment claims against the company and included a claim of harassment on the grounds of age and religious belief against both the company and Mr Haden as an individual.
The harassment claim was presented out of time but the ET, on considering whether it was just and equitable to extend time under the Equality Act 2010 and in looking at the balance of prejudice between the parties, made the decision to allow the out of time claim to proceed. In particular, the ET held that the harassment claims added little to the preparations for the remainder of the claims.
Mr Harden appealed to the EAT on the ground that the ET had failed to consider the balance of prejudice of bringing the complaint of harassment against him separately from considerations in relation to the claims against the company.
Upholding the appeal, the EAT ruled that Mr Harden's interests should have been considered separately from that of the company. In particular, the ET had failed to take into account the fact that the harassment claim was the only claim against Mr Harden.
The EAT confirmed that in cases where different considerations were relevant to each respondent, the ET should consider the balance of prejudice test in respect of each respondent separately.
Best Practice
This decision provides useful clarification that where a claimant brings a claim against more than one respondent and that claim is out of time, the ET will need to consider the position of each respondent separately. In light of this, any submissions which are made to support or resist an application for an extension of time should carefully address the position of each respondent, where applicable.