Judge accepts “overstretched” solicitor’s excuse for missing deadline

Tribunal: Prejudice to solicitor

An employment judge has granted an “overstretched solicitor” more time to respond to an unfair dismissal claim after she missed the deadline.

Employment Judge JS Burns said Rehana Hussain ran a small West London law firm specialising in personal injury claims, Charles Gregory & Co.

Solicitor Eduardo Grazioli resigned in December 2019 and made multiple claims against the firm, including unlawful constructive dismissal, detriment from whistleblowing and unlawful deduction of wages.

The judge said Ms Hussain was “extremely busy” in August 2020 when the ET1 form was sent to her by the tribunal, making it clear a response was required by the beginning of September.

“She had taken on hundreds of new cases from the claimant in late 2019 and was still struggling to manage them,” he recorded.

“She had been unable to get a suitable replacement solicitor for the claimant as his clients had all been Portuguese-speaking. Many of the cases had pending limitation dates or procedural requirements of their own that needed her urgent attention.

“She was working 12-hour days, ‘juggling and fire-fighting’ to use her own phrase.”

Judge Burns said Ms Hussain had “no knowledge of or experience of employment law or the practice of the employment tribunal and her firm does not practise in employment law”.

He said she “initially took the view” that the claim must be out of time, given that Mr Grazioli had resigned in December the previous year but in fact it was not.

The judge said further confusion was caused because the tribunal scheduled a case management hearing in September 2020 which never took place.

Ms Hussain ended up travelling to the London central employment tribunal by taxi during the pandemic to try and resolve matters but was unable to gain access to the building.

She instructed counsel and a response was sent to the tribunal at the beginning of October with a request for an extension.

Judge Burns said that, although the full reasons for the delay were unclear, there was a “reasonable arguable defence on the merits” and the value of the claim, if successful, would probably exceed £50,000.

The judge said he regarded the potential prejudice to Ms Hussain’s “modest legal practice” from denying her the opportunity to contest the claim as “greatly exceeding the prejudice caused to the defendant in having the trial delayed”.

Judge Burns added that Mr Grazioli then applied for a strike-out on the grounds of disclosure failures and delay in finalising a bundle.

The judge made an unless order to deal with disclosure but said a strike out, “which is a draconian measure”, was not justified.

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