Postponement of Rule 21 hearing and application under Rule 20 to file a response late

autoplay

I have a claim in the Employment Tribunal for unlawful deduction of wages.

A Rule 21 hearing was listed because the Respondent did not file a Response within 28 days of receipt of the claim form and had not filed an application under Rule 20 for an extension of time to file his response late.

According to Rule 20 of the Employment Tribunal Regulation 2013, the Respondent can make an application for an extension of time to file his response late and if this application is granted the judgment made under Rule 21 will be set aside i.e. the decision to list a Rule 21 hearing.

The Respondent did not make any such application for an extension of time under Rule 20 before the Rule 21 hearing takes place.

However, on the day of the Rule 21 hearing this hearing was postponed because there was no judge available to conduct this hearing

The respondent did not make any application under rule 71 within 14 days for the reconsideration of the decision of the Employment Tribunal to hear this 21 Rule hearing at a future date.

I would like to know if the Respondent has the right to take advantage of the postponement of the Rule 21 hearing, which was not due to a fault of my own, to make now an application under rule 20 for an extension of time to file late his response and to ask for this Rule 21 hearing to be cancelled

mybestattempt

autoplay said:

I have a claim in the Employment Tribunal for unlawful deduction of wages.

A Rule 21 hearing was listed because the Respondent did not file a Response within 28 days of receipt of the claim form and had not filed an application under Rule 20 for an extension of time to file his response late.

According to Rule 20 of the Employment Tribunal Regulation 2013, the Respondent can make an application for an extension of time to file his response late and if this application is granted the judgment made under Rule 21 will be set aside i.e. the decision to list a Rule 21 hearing.

The Respondent did not make any such application for an extension of time under Rule 20 before the Rule 21 hearing takes place.

However, on the day of the Rule 21 hearing this hearing was postponed because there was no judge available to conduct this hearing

The respondent did not make any application under rule 71 within 14 days for the reconsideration of the decision of the Employment Tribunal to hear this 21 Rule hearing at a future date.

I would like to know if the Respondent has the right to take advantage of the postponement of the Rule 21 hearing, which was not due to a fault of my own, to make now an application under rule 20 for an extension of time to file late his response and to ask for this Rule 21 hearing to be cancelled

Rule 71 only applies if the case has been heard and a judgement has been made.

In your case there hasn't been a hearing yet so there is no judgement.

So yes, the respondent has the right to make an application under Rule 20 for an extension of time to file a late response, which you can oppose, and a Judge will decide whether to grant an extension of not.

LinLui

As a general rule,  tribunals tend to be lenient on these deadlines, whether the other party objects or not. They will tend to accept whatever excuse / reason is given, because the tribunal process is meant to be accessible. That is not always true,  so it's best not to push ones luck,  but it's "a bit flexible" more often than not. So I wouldn't assume the employer won't respond and that the response won't be accepted. 

autoplay

Under Rule 21 a judge could decide either to adjudicate on the claim or to order a hearing to which the Respondent will allow to participate only with the permission of the tribunal.

If an application under Rule 20  for an extension of time is granted the decision taken under Rule 21 will be set aside but will this set aside also the decision taken during the Rule 21 hearing itself?

Hence, the issue is to know if it is not too late for the Respondent to make an application under Rule 20 and whether or not the Respondent should have made his application under Rule 20 before the date of the initial Rule 21 hearing i.e. before this hearing was postponed?

Otherwise, the question will be there is a time limit to make an application for an extension of time under Rule 20? Can the Respondent make this application several years after the claim has been adjudicated during a hearing under Rule 21?
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The other question is also whether or not it will be fair that the Employment Tribunal allows the Respondent to take advantage of the postponement of a hearing to make an application for an extension of time under Rule 20 which should have been made a long time ago

mybestattempt

LinLui said:

As a general rule,  tribunals tend to be lenient on these deadlines, whether the other party objects or not. They will tend to accept whatever excuse / reason is given, because the tribunal process is meant to be accessible. That is not always true,  so it's best not to push ones luck,  but it's "a bit flexible" more often than not. So I wouldn't assume the employer won't respond and that the response won't be accepted. 

I'm don't how much experience you have in litigation but there are specific procedural rules not general rules around a tendency for leniency and being flexible; there is case law about breaches of time limits. 

Any application for an extension of time and an objection to it will be considered on the facts. In this case the respondent would have to give reasons for the lateness and a judge will decide if the reasons are proven and then whether an extension will be granted or refused.

I agree the OP can't assume anything as the respondent might make an application and have good reasons for the lateness.

LinLui

I have plenty of experience with employment tribunals.  I have very rarely known a tribunal to refuse a late submission in practice. What they will do in any specific individual case is impossible to predict, but based on my experience I would advise to not assume anything except that the case will go to a full contested hearing. If it then doesn't,  that is a plus.

LinLui

autoplay said:

Under Rule 21 a judge could decide either to adjudicate on the claim or to order a hearing to which the Respondent will allow to participate only with the permission of the tribunal.

If an application under Rule 20  for an extension of time is granted the decision taken under Rule 21 will be set aside but will this set aside also the decision taken during the Rule 21 hearing itself?

Hence, the issue is to know if it is not too late for the Respondent to make an application under Rule 20 and whether or not the Respondent should have made his application under Rule 20 before the date of the initial Rule 21 hearing i.e. before this hearing was postponed?

Otherwise, the question will be there is a time limit to make an application for an extension of time under Rule 20? Can the Respondent make this application several years after the claim has been adjudicated during a hearing under Rule 21?
​​​​​​​
The other question is also whether or not it will be fair that the Employment Tribunal allows the Respondent to take advantage of the postponement of a hearing to make an application for an extension of time under Rule 20 which should have been made a long time ago

You are overthinking this. If the tribunal reaches a decision, which it had not yet done,  then the only possible way to challenge that decision would be on the normal appeal grounds. It's not impossible,  but it's highly unlikely that an absent respondent could do that; and even less likely that an employer would go to that effort and expense over a relatively low value case. 

Until the time that the tribunal deliberates, it is possible that the respondent might give a response and the tribunal might allow that response despite being late. In my experience they often permit late responses because it can be hard to show that what the employer says is untrue or unreasonable. 

That said,  and this is based on my experience generally, if you have got to this point in time,  the employer submitting a response is probably the last of your problems. If they owe you money,  most employers have paid up already. If they don't,  they've responded (unless there is a genuine reason something has prevented that) because they don't want to pay you what you aren't owed. On that basis - and I emphasise this is speculation based on experience  - if they've done neither of those things,  the problem probably isn't going to be the judgement in your favour.  It's going to be getting the money. Winning a judgement isn't always the end of the fight. And many claimants never see their money. 

autoplay

The Respondent already filed a first Response several months late but it should have been rejected and the Employment Tribunal sent a correspondence to the parties saying that the Respondent has to file an application for an extension of time

I do not know the contents of this first response because the Respondent did not copy it to me

At this time the Respondent did not file any application for an extension of time under rule 20 despite the request of the Employment Tribunal

In the meantime several months later the Employment Tribunal listed a hearing under Rule 21 because no application for an extension of time was filed. Following the listing of this Rule 21 hearing the Respondent also did not file any application for an extension of time.

When the day of the Rule 21 hearing arrived the tribunal postponed this hearing at a future date. At this time also the Respondent did not file any application for an extension of time under Rules 20

It is only two months later that the Respondent finally filed an application for an extension of time under Rule 20 without putting forward any explanation for these numerous and long delays (in total the response should have been filed nearly two years ago)

In these circumstances I would like to know if the Employment Tribunal will grant this extension of time and if it does if an extension of time under Rule 20 has become an “automatic right”

These delays caused me a lot of inconvenience because I did a lot of work for this 21 hearing and I was mentally prepared to the idea to have a Rule 21 hearing which advantages me and  now to be  denied to it makes me uspset .

mybestattempt

autoplay said:

The Respondent already filed a first Response several months late but it should have been rejected and the Employment Tribunal sent a correspondence to the parties saying that the Respondent has to file an application for an extension of time

I do not know the contents of this first response because the Respondent did not copy it to me

At this time the Respondent did not file any application for an extension of time under rule 20 despite the request of the Employment Tribunal

In the meantime several months later the Employment Tribunal listed a hearing under Rule 21 because no application for an extension of time was filed. Following the listing of this Rule 21 hearing the Respondent also did not file any application for an extension of time.

When the day of the Rule 21 hearing arrived the tribunal postponed this hearing at a future date. At this time also the Respondent did not file any application for an extension of time under Rules 20

It is only two months later that the Respondent finally filed an application for an extension of time under Rule 20 without putting forward any explanation for these numerous and long delays (in total the response should have been filed nearly two years ago)

In these circumstances I would like to know if the Employment Tribunal will grant this extension of time and if it does if an extension of time under Rule 20 has become an “automatic right”

These delays caused me a lot of inconvenience because I did a lot of work for this 21 hearing and I was mentally prepared to the idea to have a Rule 21 hearing which advantages me and  now to be  denied to it makes me uspset .

I understand why you find the delays upsetting. 

The position is, however, that the Tribunal now has an application to admit the late response (which you can object to within 7 days) and it must decide whether to refuse the application or to admit the late response. 

The respondent has no automatic right to an extension, the application could be refused even without an objection from you.

(Have you made an objection setting out your reasons for opposing the application?)

The Tribunal may decide whether or not to admit the application just on the papers so it would be prudent to ensure you tell the Tribunal in writing why you think the application to admit the late response should be refused.

autoplay

In Rule 20 it is stated:

 "and if the respondent wishes to request a hearing this shall be requested in the application."

Hence, I would like to know if the Respondent has an automatic right to have his application for an extension of time to file his Response decided at an hearing 

mybestattempt

autoplay said:

In Rule 20 it is stated:

 "and if the respondent wishes to request a hearing this shall be requested in the application."

Hence, I would like to know if the Respondent has an automatic right to have his application for an extension of time to file his Response decided at an hearing 

Rule 20 does say that in 20(1) but, it goes on to say in 20(3) that a judge may determine the application without a hearing.

My own thoughts are that the respondent may request an application hearing and a Judge may decide to grant that request or not.

So, in my view there isn't an automatic right to an application hearing if requested by the respondent, I may be wrong.

However, your right as the claimant under Rule 20(2) is to oppose, with reasons, the application within 7 days.

If you want the respondent's application to be refused without a hearing you need to tell the Tribunal why you want that.