Grahams Garden Machinery Ltd v Warne - Discretion to refuse to extend time to file ET3 was improperly exercised [2010] EAT

The EAT (1) gives guidance on what factors are relevant when deciding whether to extend time for filing an ET3, and (2) confirms that its power to award costs relates to behaviour before the EAT, and is not a mechanism for punishing parties for their - or their representative's - behaviour before the employment tribunal.

On 23 November 2009 Mr Warne presented a claim to the employment tribunal alleging disability and age discrimination, and seeking over £100,000. Grahams Garden Machinery (GGM) instructed solicitors and by 7 December 2009 had given them the information needed to prepare an ET3 (Response). A trainee was set to draft this under a partner's supervision. Despite assurances to GGM on 15 December, the partner went on holiday on 19th December and by 23rd December, the deadline, no ET3 had been filed. When another lawyer at the firm noticed the situation on 4 January, she immediately lodged a "protective" ET3, seeking an extension of time to do so - on the basis that GGM mistakenly understood from an ACAS letter that time was extended over Christmas, which then coincided with the solicitors' office being closed over Christmas and only just reopening. 

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