Employer granted extension to defend claim despite missing deadline
A tribunal granted an employer's late application to defend a claim but ordered it to pay costs for unreasonable conduct, while dismissing a wasted costs application against its former representative.
1 min read · Last updated 19 May 2026
Case details
- #extension-of-time
- #wasted-costs
- #rule-20
- #rule-76
- #rule-80
- #costs-order
Key facts
- The respondent failed to file a response by the original deadline of 24 August 2023.
- The respondent's CEO received notice of the hearing on 31 July 2023 but did not receive the claim form until 7 September 2023.
- Mr Bharuya submitted a Rule 20 application on 11 September 2023 without a draft response.
- Employment Judge Gidney granted a Rule 21 judgment on 15 September 2023 due to no valid response.
- The respondent later submitted a valid Rule 20 application with a draft response on 28 September 2023.
- The claimant's Rule 80 wasted costs application against Mr Bharuya was dismissed.
Timeline
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Claim form presented
The claimant filed a claim form alleging disability discrimination, unfair dismissal, unauthorised deduction from wages, and breach of contract.
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Notice of claim sent
The Tribunal sent the claim form and response pack to the respondent by post.
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Respondent receives notice of hearing
The respondent's accountants scanned and emailed the notice of hearing to the CEO, Mr Oosthuizen.
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Response deadline
The respondent failed to present a response by this date.
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Tribunal emails respondent
The Tribunal emailed the respondent, ordering it to confirm whether it wished to defend the claim and to submit a response and extension application.
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Mr Bharuya instructed
The respondent agreed that Mr Bharuya would represent it in the proceedings.
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First extension application
Mr Bharuya applied for an extension of time under Rule 20, explaining the respondent had only recently received the claim form.
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Preliminary hearing
Employment Judge Gidney held a hearing; the respondent's application was not considered valid, and a Rule 21 judgment was granted.
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Valid extension application
Mr Bharuya submitted a valid Rule 20 application with a draft response.
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Substantive hearing (day 1)
The hearing to determine the extension application, costs applications, and case management began.
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Judgment given
Employment Judge Klimov granted the respondent's extension application (except counterclaim), granted the claimant's costs order against the respondent, and dismissed the wasted costs application against Mr Bharuya.
The legal issue
The tribunal had to decide whether to allow the employer to defend the claim after missing the deadline, whether to order costs against the employer for unreasonable conduct, and whether to make a wasted costs order against the employer's former representative.
The outcome
The tribunal granted the employer's extension application, allowing it to defend most of the claim, but dismissed its counterclaim as out of time. The claimant's application for costs against the employer succeeded, with the employer ordered to pay the costs of the preliminary hearing due to unreasonable conduct. However, the wasted costs application against the employer's former representative was dismissed.
- Extension granted for response (except counterclaim)
- Counterclaim dismissed as out of time
- Costs order against employer for unreasonable conduct
- Wasted costs application against representative dismissed
Lessons & takeaways
- Employers must respond to tribunal claims promptly; delays can lead to default judgments and costs orders.
- A valid extension application requires a draft response; failing to include one may result in the application being rejected.
- Tribunals can order costs against a party that acts unreasonably, even if the other side's conduct is not wholly unreasonable.
- Wasted costs orders against representatives are rare and require proof of improper, unreasonable, or negligent conduct causing wasted costs.
- Counterclaims in employment tribunals must be brought within the same limitation period as the main claim.
This case shows how procedural missteps can complicate employment tribunal claims. The employer, Zhero Limited, missed the deadline to respond to a claim for disability discrimination, unfair dismissal, and other allegations. Its CEO received notice of the hearing but not the claim form until after the deadline, leading to a delayed response. The tribunal initially granted a default judgment but later reconsidered, allowing the employer to defend most of the claim.
What the losing side could have done differently
The employer's initial extension application lacked a draft response, which the tribunal deemed invalid. Had it included one, the default judgment might have been avoided. Additionally, the employer's conduct in the proceedings was found unreasonable, resulting in a costs order. Its former representative, Mr Bharuya, faced a wasted costs application but was cleared as his actions did not meet the high threshold for such an order.
Why the result matters
This decision highlights that tribunals will balance the need for justice with procedural compliance. Employers who act quickly and provide complete applications can still be allowed to defend claims, but unreasonable conduct carries financial consequences. For claimants, it shows that costs orders are possible but wasted costs against representatives are difficult to obtain.
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