H Rogers v Secretary of State for Justice [2026] EAT 78
[2026] EAT 78Case No EA-2024-000739-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, LondonDate 29 May 2026
EC4A 1NL
Before
HIS HONOUR JUDGE JAMES TAYLER
Between
Ms H RogersAppellantSecretary of State for JusticeRespondentRaoul Downey (instructed by Lexpert Solicitors LLP) for AppellantLaith Dilaimi (instructed by Mills & Reeve LLP) for RespondentAppeal from Registrar’s OrderHearing Hearing date: 19 May 2026JUDGMENT
[1]This is an appeal from a Registrar’s order refusing an extension of time within which to properly institute the appeal. The appeal is by way of rehearing and I have determined the matter afresh.[2]The parties are referred to as the claimant and respondent as they were before the Employment Tribunal.[3]The facts are straightforward. A reserved judgment with reasons was sent to the parties on 19 April 2024. The Employment Tribunal sent the judgment and reasons by email with two attachments: a covering letter and the judgment and reasons. The claimant’s solicitors saved the covering letter with the file name “judgment” and the judgment and reasons with the file name “reserved judgment”.[4]The time limit for instituting an appeal expired on 31 May 2024.[5]On the day before the expiry of the time limit, the claimant’s solicitors submitted a Notice of Appeal via CE-File. The grounds of appeal were compliant with the EAT Practice Direction. However, the claimant’s solicitor uploaded the document labelled “judgment”, which was in fact the covering letter, rather than the judgment and reasons.[6]On 17 June 2024, the EAT notified the claimant’s solicitor of the error, which was rectified that day. The appeal was properly instituted 17 days out of time.[7]It is submitted on behalf of the claimant that the failure to upload the judgment and reasons constituted a minor error for the purposes of rule 37(5) of the Employment Appeal Tribunal Rules 1993 (“EAT Rules”).[8]In Melki v Bouygues E & S Contracting UK Ltd [2025] EWCA Civ 585, [2025] ICR 1384, the Court of Appeal held that the question of whether an error is minor must be addressed in the context of compliance with Rule 3(1) EAT Rules and the documents required to institute an appeal.[9]I have concluded that the failure to submit the judgment and reasons did not constitute a minor error. The required documents for instituting an appeal are the Notice of Appeal, the judgment and, where provided, the reasons. The judgment with reasons was a core document. It was necessary for the Appeal Tribunal to understand the decision under challenge and to assess whether there is an arguable error of law. Its omission cannot properly be characterised as minor in the context of this appeal.[10]I consider that conclusion is consistent with the approach in Hewer v HCT Group [2024] EAT 133, AB v University of East London [2024] EAT 157 and Mulumba v Partners Group (UK) Ltd [2026] EWCA Civ 30, albeit that each case must be considered on its merits.[11]I therefore conclude that rule 37(5) EAT Rules does not apply.[12]I turn to whether an extension of time should be granted under rule 37(1) EAT Rules. The principles are well established by United Arab Emirates v Abdelghafar [1995] ICR 65, as affirmed in Ridley v HB Kirtley [2024] EWCA Civ 884, [2025] ICR 441. The grant of an extension of time is a matter of judicial discretion, to be exercised in accordance with reason and justice, weighing all relevant factors. An extension is an indulgence and not a right. 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. In Abdelghafar 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 EAT taking the exceptional step of granting an extension of time. The EAT adopts a relatively strict approach to time limits. That said, the absence of a good excuse for the default is not necessarily fatal to the grant of an extension: Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, [2008] ICR 841.[13]In Ridley, the Court of Appeal held that there is a material distinction between a case in which an appellant lodges a Notice of Appeal together with nearly all the required documents within time, and a case in which nothing is lodged within time. I do not consider that too much should be read into the words “nearly all”. The core distinction is between not appealing in time and submitting an appeal within time but failing to provide all of the required documents.[14]I have been provided with a full and candid explanation for the failure properly to institute the appeal. The claimant had instructed solicitors. The solicitors prepared grounds of appeal and had all the necessary documents ready to submit. Through what can fairly be characterised as a single error with three components: the covering letter was mislabelled as the judgment, that document was uploaded, and no adequate check was undertaken.[15]This was a genuine mistake. It is clear that the intention was to upload the judgment and reasons. As soon as the error was identified, the solicitors promptly rectified it and applied for an extension of time, accepting that an error had been made and explaining frankly how it had occurred.[16]I accept that this is not a case in which a “good reason” for the default has been established. However, that is not an absolute requirement in every case.[17]This is a case in which the Notice of Appeal and grounds were lodged within time, and the failure consisted of the omission of a required document. It falls within the category identified in Ridley, where there is scope for a little more leniency.[18]I am satisfied that the balance of justice favours the granting of an extension of time. The claimant would be denied the opportunity to pursue her appeal if an extension were refused. The respondent will suffer no specific prejudice beyond that inherent in facing an appeal which would otherwise have been barred, including, as is unfortunately common at the moment, delay.[19]The delay before the error was corrected was brief. The error was rectified promptly once identified by the EAT staff. There is no suggestion that the respondent’s ability to respond to the appeal has been impaired.[20]Weighing all matters in the balance, and applying the guidance in Abdelghafar as explained in Ridley, I conclude that this is a case in which it is just to grant an extension of time.[21]Accordingly, the extension of time is granted. The appeal will proceed to be sifted in the usual way.