You thought that the worst had happened when the Notice of Claim and ET1 from the employment tribunal landed on your desk. You always knew that the tricky dismissal you advised on a few months ago would end up in a tribunal.
Little did you know that worse was to come though. And, with a sinking feeling in the pit of your stomach, you realise that you missed the deadline to submit the defence to the claim.
But don’t panic. Just because you missed the deadline the tribunal may not automatically issue a default judgement immediately, especially with the current delays in dealing with cases. But although you should not panic you should act very quickly. Whatever the reason for missing the deadline, the one thing a tribunal will expect and will take into consideration is how quickly you acted once you realised the deadline had been missed.
So all is not lost. You can, and should, make an application to the tribunal for an extension of time to submit your ET3 under Rule 20 of the Employment Tribunals Rules of Procedure 2013. In order to make the application you should send a letter or email to the tribunal setting out:
- That you are making such an application.
- The reason, or reasons, you were unable to lodge the claim within 28 days.
- That you have sent a copy of the application to the claimant.
- A copy of your draft ET3 and grounds of resistance.
This should all be sent as soon as possible to the tribunal. My top tips for giving you the best possible chance of a tribunal granting the application and accepting your defence are:
- Consider taking legal advice or instructing an expert to draft the application for you.
- Be honest. If you are overworked, made a genuine error, forgot about it, a colleague did not pass it to you until too late... whatever the reason be completely open and honest with the tribunal.
- Act quickly. Submit the application as quickly as you possibly can.
- Be contrite and courteous in your correspondence to the tribunal.
- Explain any prejudice that might occur to the respondent if the application is rejected.
Unfortunately not all applications will be accepted but you should always put as much effort as you can into attempting to have your defence accepted.
Sarah Dillon is a director at ESP Law, provider of the HR Legal Service