In Costco Wholesale UK Ltd v Nash, the claimant brought claims of race discrimination and harassment following the termination of his employment during probation. The tribunal claim was presented in December 2022.
Costco did not submit a response until December 2023, approximately 10 months out of time, and applied for an extension. It argued that it had been unaware of the proceedings until shortly before the response was filed when it received a record of a preliminary hearing.
The employment tribunal rejected that explanation. It found that multiple tribunal documents had been sent to the claimant's previous workplace and that several emails relating to the proceedings had been received by the warehouse's General Manager. The tribunal concluded that the correspondence had been received and ignored, and that the General Manager had actively deleted relevant emails. It refused the application for an extension of time.
The EAT dismissed Costco's appeal.
The EAT reviewed the well-established principles governing applications to extend time for presenting a response. The relevant considerations include the explanation for the delay, the prejudice to each party, and the apparent merits of the proposed defence. In reviewing these factors, the EAT confirmed that they are all a component of an overall evaluative exercise and no one factor acts as a threshold test.
The tribunal had been entitled to conclude that there was no satisfactory explanation for...
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