Employment Appeal Tribunal Upholds Refusal to Extend Time for Costco Response
The Employment Appeal Tribunal has upheld a decision refusing Costco an extension of time after a manager repeatedly ignored legal correspondence.
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The Employment Appeal Tribunal (EAT) has dismissed an appeal by Costco Wholesale UK Limited, confirming that an Employment Tribunal was correct to refuse the company an extension of time to submit its response to a claim. The case, Costco Wholesale UK Limited v Mr Jaiden Nash, highlights the serious consequences of procedural defaults and the importance of professional conduct in legal matters.
Background to the Dispute
The claimant, a former Members Services Assistant, brought complaints against Costco for direct race discrimination and race-related harassment. Although the claim was correctly served at the company's warehouse, the respondent failed to file a response for ten months.
During this period, the Employment Tribunal sent four separate items of correspondence to the warehouse, and the claimant’s solicitors sent six emails directly to the General Manager. The tribunal found that the General Manager had actively received these emails, yet deliberately moved them to a deleted or trash folder. The tribunal firmly rejected the respondent's evidence, which had claimed the emails were missed or sent to a spam folder.
The Tribunal's Reasoning
In his judgment, His Honour Judge James Tayler noted that the original Employment Tribunal had correctly applied the principles set out in the landmark case Kwik Save Stores Ltd v Swain. The tribunal concluded that the respondent had provided an untruthful explanation for the delay and had effectively ignored its responsibilities.
While acknowledging that refusing the extension would prejudice Costco by preventing them from defending a serious claim, the judge determined that this prejudice was a direct result of the company's own actions. The tribunal also weighed the impact on the claimant, noting that justice delayed is often justice denied.
Legal Implications
The EAT found that the original tribunal did not err in law. It held that an Employment Tribunal is not required to provide a binary calculation of prejudice. Instead, it must perform an overall assessment of justice. Because the respondent had shown a total disregard for the legal process and provided a false explanation for the delay, the decision to deny the extension was deemed fair and principled.
Read the entire judgment here: Costco Wholesale UK Limited v Mr Jaiden Nash [2026] EAT 85
