X v Y & Ors [2025] EAT 128

[2025] EAT 128Case No EA-2022-001398-RN
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 1 September 2025
Before
HIS HONOUR JUDGE JAMES TAYLER
Between
XAppellantYRespondentZRespondentCORE Education TrustRespondent
The Appellant in person for in personRichard Powell (instructed by Trowers & Hamlins LLP) for RespondentsAppeal from Registrar’s OrderHearing Hearing date: 12 August 2025
JUDGMENT
[1]Recent judgments of the Court of Appeal emphasise that there is a significant difference between the circumstances of a person who fails to submit a Notice of Appeal in time and one who submits a Notice of Appeal in time but fails to attach all of the documents that are necessary to institute the appeal properly. Those who failed to submit the correct documents often knew what documents they were meant to submit but failed to do so by mistake. Can an honest mistake in submitting the necessary documents be a sufficient reason to obtain an extension of time in which to properly institute an appeal? That is the question raised in this appeal from the Registrar’s Order refusing an extension of time.[2]The parties are referred to as the claimant and respondent as they were before the Employment Tribunal.[3]I use the term Notice of Appeal to include the grounds of appeal that are required to be set out in the Notice of Appeal, whether they are within the document or attached to it.[4]The claimant brought complaints of race and sex discrimination, harassment, victimisation and whistle-blowing detriment. The complaints were dismissed in a judgment sent to the parties on 10 October 2022. Written reasons were not provided with the judgment.[5]On 22 November 2022, the claimant submitted a Notice of Appeal. The claimant stated in the covering email that he had submitted a request for written reasons and that he was “still patiently awaiting a response”. The claimant failed to provide the ET1 form, the ET3 forms and the grounds of resistance, all of which at the time were required to institute the appeal properly.[6]The claimant failed to submit the missing documents by mistake. He had gathered together PDF versions of the required documents in a folder. He had asked the EAT twice what documents he needed to submit with the Notice of Appeal. He says he was feeling under pressure because he wished to see the reasons before submitting the appeal, but, incorrectly, thought that the time limit ran from the date the judgment was sent to the parties. He says that he was in pain from his back. He has a diagnosis of dyslexia. He considers this may have contributed to his mistake, as he is more likely to make mistakes when under pressure. Subsequently, a different Employment Tribunal has held that the back condition and dyslexia do not constitute disabilities.[7]Despite having the necessary documents, the claimant failed to attach them to his email submitting the appeal. He forgot to do so and was only able to give his best guess about why he made this mistake.[8]The written reasons for the judgment were sent to the parties on 8 December 2022. The claimant did not immediately send the written reasons to the EAT.[9]On 28 January 2022, the EAT wrote to the claimant stating that the appeal was not properly instituted because the written reasons for the judgment, the ET1, ET3s and grounds of resistance were missing.[10]On 30 January 2023, the claimant sent a holding response to the EAT suggesting that he needed time to investigate and find any missing documents and to submit them.[11]On 12 February 2023, the claimant sent the written reasons for the judgment, the ET1, ET3s and grounds of resistance. The email was received after 4pm and so the appeal was treated as properly instituted on 13 February 2023. The Registrar found that the appeal was properly instituted 25 days out of time. This was counting from the date the written reasons were sent to the claimant, a point to which I shall return.[12]This appeal was submitted before significant revisions to the EAT Rules 1993 (“EAT Rules”) came into effect on 30 September 2023. The old version of Rule 3 of the EAT Rules, in force at the time this appeal was submitted, provided: 3(1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents–(a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules;(b) in the case of an appeal from a judgment of an employment tribunal a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included; and(c) in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included; … (3) The period within which an appeal to the Appeal Tribunal may be instituted is— (a) in the case of an appeal from a judgment of the employment tribunal– (i) where the written reasons for the judgment subject to appeal– (aa) were requested orally at the hearing before the employment tribunal or in writing within 14 days of the date on which the written record of the judgment was sent to the parties; or (bb) were reserved and given in writing by the employment tribunal 42 days from the date on which the written reasons were sent to the parties; [emphasis added][13]Because this was an appeal from a judgment, and the claimant had requested written reasons within 14 days, time for submitting the appeal did not, contrary to the claimant’s mistaken view, run from the date the judgment was sent to the parties, but from the date the written reasons were sent to the parties. Accordingly, the Notice of Appeal was submitted substantially before the deadline. Hence the Registrar found that the appeal was submitted out of time by 25 days (the number of days between the written reasons being sent to the parties and the claimant submitting the missing documents to the EAT).[14]The respondent has not taken the interesting point considered by HHJ Auerbach in Elhalabi v Avis Budget UK Limited EA-2021-000405-JOJ as to whether such an appeal is premature. HHJ Auerbach concluded, for compelling reasons, that even if such an appeal is technically premature, the EAT would almost certainly permit it to proceed:74. Was it also premature to institute the appeal before the written reasons had been provided? That depends on whether the end of the 42-day period is merely the latest date to institute the appeal, or whether the requirement is for the appeal to be instituted during the course of that period. The opening words of rule 3(3) – “the period within which” – are arguably supportive of the latter reading, if perhaps also arguably not wholly unambiguous. That said, paragraph 4.1 of the Practice Direction opens with the words ”the time within which”, which is perhaps a little less clear.75. However, rule 39(3) indicates that the tribunal may exercise its rule 39(2) power to authorise the institution of an appeal notwithstanding that ”the period prescribed in rule 3(2) may not have commenced.” At first sight the reference to rule 3(2) – which concerns the documents required in a national security case – is puzzling. But the clear explanation is that, in the rules as originally framed, rule 3(2) concerned time for appealing. The current rule 3(2) was added by amendment in 2001, and rule 3(2) then became rule 3(3) . However, plainly the drafter overlooked to make a consequential amendment to the cross-reference within rule 39(2). I note also, in this regard, that the original version of rule 3(2) itself (now rule 3(3)) used the opening words: ”[t]he period within which”.76. It does therefore appear to me, reading the opening words of rule 3(2) with the words of rule 39(3), that the drafter did envisage a window during the course of which the appeal should be instituted, and which, in a case such as the present, opens when the tribunal sends the written reasons.77. However, in my judgment, while this conclusion emerges to the legal mind from a careful consideration of the rules as a whole, the possibility that the time provisions might operate by creating a window rather than a long-stop is not an obvious one, and does not leap out starkly from a reading of rule 3 , or the Practice Direction; and rule 39 also appears at the very end of the rules, a long way from rule 3 . Further, in a case where it might be said that the appeal has been technically instituted prematurely, but otherwise compliantly, rule 39(3) does enable the rule 39(2) power to be exercised, effectively to cause rule 3(2) to be treated in that case as merely applying a longstop.78. If there has been a timely request for written reasons, but these have yet to be received at a time when it is approaching 42 days from when the written judgment was sent, it is also not hard to understand why a prospective appellant might feel that they should take all the steps that they can to institute their appeal before that date passes, in order to minimise the risk of being caught out.79. Further, it is fair to assume that, in most cases, this point will not make any actual difference. That is because, in most cases, even where the appeal has been instituted before the timely-requested reasons were received, they will be sent in to the EAT by the appellant within 42 days of the date of receipt. This, combined with the fact that, when there is a timely request, the party concerned will always have until 42 days from the date of receipt of the reasons to institute the appeal, perhaps also explains why the Practice Direction does not expressly cater for the particular scenario that arose in the present case. Further, the paradigm case (though there could be others) with which paragraph 3.4 of the Practice Direction is implicitly concerned is, it seems to me, one in which no reasons have been provided because there was no, or no timely, request for them; and so in such cases written reasons will not be provided unless the EAT is persuaded to exercise its power to request them.80. It occurs to me that it might be argued that, even in a case where there is a timely request for written reasons, the party concerned presents their appeal by providing everything else required before the reasons arrive, explains to the EAT that the reasons have not been included, because they have been requested but not yet received, and then sends them to the EAT within 42 days of receiving them, the proper course would be for them to start again, by resending everything they sent earlier. But I do not think that technocratic argument is right; and even if it is, it is hard to envisage a clearer case for the exercise of the rule 39(2) power, in order to further “the more expeditious or economical disposal of any proceedings” and/or “the interests of justice.”81. It is my understanding, and experience, as a resident EAT judge, that, in cases where an appeal is otherwise properly instituted ahead of receipt of written reasons, and there is a clear explanation, supported by evidence, that a timely request for these has been made, the usual practice of the EAT is indeed to treat the appeal as properly instituted at that point; but also to take the approach that a copy of the written reasons, once received, needs to be provided to the EAT, before consideration is given to the next appropriate step. In light of the foregoing that appears to me to be, in principle, the right approach, in such clear cases, so as to further the expeditious and economical disposal of such appeals, and in accordance with the interests of justice to both parties and the overriding objective. [emphasis added][15]The respondent has not suggested that the appeal was not properly instituted because the reasons were not attached to the Notice of Appeal. This is because Rule 3(1)(c) EAT Rules permits an appellant to provide “an explanation as to why written reasons are not included”. This accords with the approach mentioned by HJJ Auerbach at paragraph 81 of Elhalabi quoted above.[16]Rule 37(1) EAT Rules gives the EAT the power to extend time: 37(1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal. …[17]The EAT has for many years adopted a relatively strict approach to the time limit for the submission of an appeal. In United Arab Emirates v Abdelghafar and Anor [1995] ICR 65, EAT, Mummery J stated that the EAT will expect a full and honest explanation for the delay and will consider whether there are circumstances which justify granting an extension of time. Mummery J stated that the EAT should consider the explanation for the delay, whether it provides a good excuse for the default and whether there are circumstances that justify the Tribunal taking the exceptional step of granting an extension of time.[18]There is a discretion to be exercised in every case. In Ridley v HB Kirtley [2024] EWCA Civ 884, [2025] I.C.R. 441, CA the Court of Appeal stated, at paragraph 6, that previous decisions should not be treated as a fetter on the proper exercise of discretion: We of course accept the broad proposition, by which this Court is bound, that the EAT is entitled to enforce the time limit strictly. …we accept Mr Crozier and Ms Greenley’s submission that the broad power to extend time has become ‘encrusted by authority’ in a way which has led to the emergence of rigid sub-rules which are not justified by the broad terms of rule 37(1), or by the reasoning in the important relevant cases. As a result, some judges have tended to rely on those sub-rules for automatic answers, rather than to consider the exercise of the discretion afresh in each case, by looking closely at the facts of each case, and not relying on generalisations.[19]In Ridley, having reviewed the authorities, Nicola Davies LJ and Elisabeth Laing LJ held:143. The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT’s approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps “hard-hearted”, approach. But it is not inflexible. It involves the exercise of a discretion in a way which is “judicial”, “even-handed” and, above all, fair.144. We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT’s approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.145. The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar, by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3) . The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise, as Mummery J made clear in Abdelghafar and as Rimer LJ repeated in Jurkowska [2008] ICR 841 (see paras 24–28 and 53, 57 and 61–63, above).146. We consider it important to note that, before setting out the specific guidance in Abdelghafar, Mummery J was careful to identify the underlying principles. We have set them out at para 24 above. The key principles are the first two (at pp 70–71):
“(1) The grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses. “(2) As Sir Thomas Bingham MR pointed out in Costellow v Somerset County Council [1993] 1 WLR 256, 263, time problems arise at the intersection of two principles, both salutary, neither absolute: ‘The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met … The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.’”
Nothing has been said in the subsequent authorities in this court to derogate from these expressions of principle. Indeed, they have been repeated and endorsed—see for example Underhill LJ in Green v Mears Ltd [2019] ICR 771 at para 8. 147. Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1) . The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see para 152(ii), below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit. That would be to exercise the discretion in a “programmed” way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant’s explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant’s mistakes, when the EAT in due course tells the appellant that she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it, … [emphasis added][20]Nicola Davies LJ and Elisabeth Laing LJ concluded that a more generous approach is permitted where a Notice of Appeal is submitted in time, but some documents are missing, as opposed to where the Notice of Appeal is not submitted in time; and that this is not precluded by the previous EAT authority Kanapathiar v Harrow London Borough Council [2003] IRLR 571. This analysis was reiterated in Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356.[21]With effect from 30 September 2023, Rule 37 EAT Rules was amended to add sub-section 5: (5) If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent. [emphasis added][22]The requirement to submit the ET1 claim and ET3 response was removed and a specific power to extend time was added where an appellant has made a minor error in complying with the requirement under rule 3(1) EAT Rules to submit relevant documents.[23]In Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36, [2024] I.C.R. 803 the EAT held that the new Rule 37(5) EAT Rules applies to any application for an extension of time to submit an appeal determined after the new rule came into effect, even if the appeal was submitted before the rule change. However, the EAT held that a failure to submit the entire particulars of response was not a minor error. On appeal to the Court of Appeal, the issue about the applicability of the new Rule 3(5) EAT Rules to appeals submitted before the rule change was not challenged, but the decision that the omission of the particulars of response was not a minor error was overturned: Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585. Elisabeth Laing LJ held:50. ‘Minor’ is an ordinary English word. It is a comparative adjective, as the Judge observed. The opposite of ‘minor’ is ‘major’. Rule 37(5) refers to ‘a minor error in complying with the requirement under rule 3(1) to submit relevant documents’ to the EAT. Whether an error is ‘minor’, or not, therefore, is not an abstract question. It is to be answered in the context of compliance with rule 3(1). I consider that the Judge’s interpretation is wrong for three reasons. First, it ignores that criterion for testing whether the error is ‘minor’. The relevant error is a minor error in complying with rule 3(1), not a ‘minor error’ in doing something else, or a free-floating ‘minor error’. Second, it adds a gloss, which comes from the cases on the unamended Rules, that the document or part of the document which is the subject of the ‘minor error’ should have been irrelevant, or have no importance, to the ‘proper progress of the appeal’. There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of rule 37(5) is to confer a broad discretion on the EAT (in cases of a minor relevant error which has been rectified) to decide whether to give an extension of time having regard to all the circumstances. The scope for the exercise of that discretion is greatly reduced if the threshold condition for its exercise is interpreted too narrowly.51. That construction is based on the words of rule 37(5) alone. They are the best guide to its meaning. It is also supported by the court’s knowledge of the mischief at which the amendments were aimed. In deciding what that mischief was, I have taken into account the decision in Ridley, which describes the development of the relevant authorities, and the Explanatory Memorandum. The mischief, briefly (before the decision in Ridley), is, first, that an appellant who submitted his appeal in time, but with a document or part of document missing, was required by the EAT to apply for an extension of time for submitting an appeal, and was treated in exactly the same way as an appellant who missed the deadline altogether. The consequences of that approach for the EAT are the second part of that mischief. About a fifth of appeals to the EAT were being submitted within the time limit for appealing, but with missing documents or parts of documents. That was causing much extra work for the EAT’s administrative staff and using up the time of the Registrar and of the judges who sit in the EAT, because of the number of applications for extensions of time and of appeals which were a result. That was causing significant delays to all litigants. There was also a lively and more specific concern about access to justice, since the strictness of the EAT’s approach to cases in which appellants found it hard to comply with the requirements of rule 3(1), and the numbers of such cases, meant that significant numbers of appellants who had submitted their appeals in time were being denied an appeal. … 53. A further point occurred to me about the construction of rule 37(5) in this case. It could only arise in a case like this, if the EAT were to decide that, because of the date when the appeal was lodged, the unamended version of rule 3(1) applied to the appeal, but rule 37(5) also applied. The Amendment Rules made both amendments with effect from the same date. It may well be that it did not occur to the draftsman that there could be a case in which the old version of rule 3(1) and rule 37(5) would apply in the same case. But in such a case, it might be thought that the removal of the ET1 and the ET3 from the list of documents required by rule 3(1) could cast some light on the question whether their omission (in a case to which rule 37(5) nevertheless applied) could be an error at all, or, it would follow, a ‘minor error’ in complying with rule 3(1). … 55. I do not consider that it is helpful for this court to give general guidance about what is or is not a minor error in complying with rule 3(1). Some of the possibilities were canvassed in argument (see paragraphs 40 and 42, above). One of the clear messages from the authorities is that the discretion to extend time must not be exercised in a ‘pre-programmed’ way. What matters in every case is the relevant facts, which are for the Registrar at first instance, or the EAT judge, if there is an appeal, to find. It is also for the EAT, which has the day-to-day practical experience of dealing with these cases, and not for this court, to decide whether it is desirable or helpful to create guidance. 56. The approach in Ridley is, in one respect, harsher on appellants than the approach under rule 37(5), becauseit requires them to give a satisfactory explanation for their mistake. There is no such requirement in rule 37(5).As I have just said, Mr Melki would not, for that reason, have been given an extension of time if the decision in Ridley were applied to his case. For that reason I do not consider that it would be helpful for this court to decide definitively whether or not rule 37(5) has superseded the reasoning in Ridley in all cases. I would leave that question to be resolved by the EAT in a case or cases in which it might matter. [emphasis added][24]I considered the suggestion that Rule 37(1) EAT Rules may be harsher than Rule 37(5) in Wilson v Network Rail Infrastructure Limited [2025] EAT 80: 18. As to the last paragraph, I am not sure whether the term “satisfactory explanation” is intended to be different to a “good excuse”. Rimer LJ held that the latter might not be a prerequisite of an extension of time in Jurkowska. I take it that the terms are subtly different. An appellant who openly admits that they made a mistake, that they cannot explain further, such as failing to attach a document to an email submitting the appeal by oversight, might not have a “good excuse” but could possibly have a “satisfactory explanation” in that it is open and honest; and we all know that to err is to be human.[25]We all make mistakes from time to time. No rational person who has gone to the trouble of drafting a Notice of Appeal will deliberately fail to submit documents that they know are required. The mistake will often be an oversight - forgetting to submit the documents. If you forget to do something it can be very difficult to explain why you forgot. That’s the point - you can’t remember. You may only be able to give your best guess as to why you made the mistake.[26]Where a claimant fails to submit a required document because of an honest and genuine mistake, this may support the granting of an extension of time. The EAT will require transparency and candour. It remains the case that an extension is not to be granted as of right. The EAT will be very slow to grant an extension if a claimant is economical with the truth or seeks to mislead the EAT as to the reason for the default. While an honest mistake in submitting required documents may be understandable, it certainly is not the fault of the respondent, so any significant prejudice to the respondent is likely to weigh significantly against granting an extension. While the key period is generally that between the claimant having been notified of the missing documents and them being submitted, the analysis might be different if there has been extensive delay that has significantly prejudiced the respondent.[27]Mr Powell suggests that the EAT Practice Direction 2024 suggests that a mistake will not generally be a sufficient reason for granting an extension of time. I reject that submission. Firstly, if the EAT Practice Direction 2024 is inconsistent with authorities of the EAT or higher appellate Courts, the authorities take precedence. Secondly, the EAT Practice Direction 2024 deals separately with failure to submit a Notice of Appeal in time as opposed to failing to submit all necessary documents with a Notice of Appeal that was submitted in time: 3.5.5. You must provide a full and honest explanation for the delay. The Registrar, or Judge on appeal from the Registrar, will consider the explanation, whether it is a good excuse for the delay and whether there are circumstances which justify the tribunal taking the exceptional step of granting an extension of time. 3.5.6. The following are generally not good excuses that explain submitting a Notice of Appeal late: a you did not know the time limit b you missed the time limit by mistake c you are seeking help from a legal advisor or some other organisation d you are waiting for the result of an application for reconsideration of a judgment or for an order, direction or other decision to be varied or revoked e you are in negotiations with the other party or parties about resolving your dispute 3.5.7. If you make a minor error in complying with the requirement under Rule 3(1) of the EAT Rules to submit relevant documents to the EAT, and rectify that error (on a request from the EAT or otherwise), the time prescribed for the institution of an appeal under Rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to the respondent.[28]Sections 3.5.5 to 3.5.6 deal with failure to submit a Notice of Appeal in time; in which context the reference is made to it generally not being “a good excuse that explains submitting a Notice of Appeal late” that “you missed the time limit by mistake”. Section 3.5.7 is the only part that deals with failure to submit documents.[29]I shall first consider whether an extension of time should be granted by application of Rule 37(5) EAT Rules. The claimant made an error in failing to submit the ET1, ET3s and grounds of resistance with his Notice of Appeal. I accept that it was a genuine mistake. The claimant has given an honest explanation. The claimant thinks that his dyslexia and back pain may have been factors but he can only give his best conjecture as to why he forgot to attach the documents to the email. The claimant has not made any attempt to mislead but has tried to explain what went wrong as best he can. I have taken into account the fact that the claimant sought to institute the appeal early and the secondary importance particularly of the ET1 and ET3s, but also of the grounds of resistance, all of which are no longer required to institute an appeal properly. I accept that the error was minor. I have next considered the manner in which, and the timeliness with which, the error has been rectified. I consider that the approach in Ridley in considering an extension under Rule 37(1) EAT Rules applies equally to application of Rule 37(5) EAT Rules and that the key period is generally that between the claimant having been notified of the missing documents and them being submitted. The EAT wrote to the claimant stating that the appeal was not properly instituted on 28 January 2022. The claimant sent a holding response on 30 January 2023. The claimant then sent the missing documents on 12 February 2023. Although the claimant could have acted a little faster, I consider he acted with reasonable dispatch. The respondent has not asserted any significant prejudice. I consider it is appropriate and just to grant an extension of time pursuant to Rule 37(5) EAT Rules.[30]I also grant an extension pursuant to Rule 37(1) EAT Rules. The claimant has given an honest explanation that he made a mistake. The factors that I relied on in granting the Rule 37(5) extension also support an extension under the general provision.[31]Accordingly, time is extended so that the appeal has been submitted within time. The appeal will now be considered at the sift stage.[32]I previously suggested in Wilson in relation to outstanding appeals from Registrar’s Orders in missing documents cases where the documents are no longer required: 54. There are probably only a limited number of appeals that were submitted before the rule change that are still awaiting an appeal from a Registrar’s Order refusing an extension of time. However, now the dust is settling, respondents in such appeals should consider with care whether to maintain their objections to an extension of time.

Cited in 1 later judgment