Reza Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585

[2025] EWCA Civ 585Case No CA-2024-000718
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EAT 36
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Andrew Burns KC,
(sitting as a Deputy High Court Judge)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 May 2025
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))LORD JUSTICE BAKERLADY JUSTICE ELISABETH LAING
Between
REZA MELKIClaimant/BOUYGUES E AND S CONTRACTING UK LTDRespondent
James Goudie KC, George Spence-Jones and Oliver Mills (instructed through Advocate) for AppellantColm Kelly (instructed by Pinsent Masons) for RespondentHearing Hearing date: 27 March 2025
Approved JudgmentThis judgment was handed down remotely at 11.00 am on 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The issue in this appeal is whether the Employment Appeal Tribunal (‘the EAT’) erred in law in refusing to exercise its power to extend the time for an appeal to it from the Employment Tribunal (‘the ET’). This is the first case in which this court has considered amendments to the Employment Appeal Tribunal Rules 1993 (1993 SI No 2854) (‘the Rules’) which were evidently made to correct an approach in the decided cases which was seen as too strict. This appeal also raises a question about the interaction of that amendment with the reasoning in a recent decision of this court, Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 884; [2024] ICR 441 (‘Ridley’). Ridley was decided after the decision of the EAT which is the subject of this appeal.[2]On this appeal, Mr Melki was represented by counsel, all of whom acted pro bono: Mr Goudie KC, Mr George Spence-Jones and Mr Mills. The Respondent was represented by Mr Kelly. I thank all counsel for their written and oral submissions, which were very helpful.[3]For the reasons given in this judgment, I would allow the appeal. I consider that the EAT’s interpretation of the phrase ‘a minor error’ in the Rules as amended was wrong in law in its legislative context and failed to give effect to the manifest purpose of the amendments.

The facts

[4]It is unnecessary for me to describe Mr Melki’s claim in the ET, other than to say that the ET dismissed it. Mr Melki then sought to appeal to the EAT from the ET’s judgment. Time for appealing expired on 24 May 2022. He emailed his notice of appeal and various attachments to the EAT on 22 May 2022. His notice of appeal was deemed to have been received by the EAT on 23 May 2022. A lay person might therefore think that the appeal was lodged in time. Rule 3 of the Rules, however, requires now, and then required, other documents to be included with the notice of appeal. Mr Melki included the ET1 (that is the claim form) and the ET3 (that is, the form on which the Respondent replied to his claim). He failed also to include, however, the grounds of resistance which had been attached to the ET3, and which had been amended in the course of the ET proceedings. He included all the other documents required by rule 3.[5]Mr Melki accepted at the EAT that his appeal was not properly instituted. His case was that he did not realise that he had to include the grounds of resistance with his notice of appeal. He rang the EAT 6 days after the deadline, was told that he had to send in the grounds of resistance, and did so immediately (EAT’s judgment, paragraph 4). The EAT explained (judgment, paragraph 9) that there were three versions of the grounds of resistance. Mr Melki sent two of those to the EAT (paragraph 10).[6]At the EAT, the Respondent accepted that Mr Melki had lodged the missing document with the EAT on 30 May 2022, some 6 days late (EAT’s judgment, paragraph 3). On 10 August 2023, the Registrar of the EAT refused to give Mr Melki an extension of time for appealing. He then appealed to a judge of the EAT against that decision. Mr Andrew Burns KC, sitting as a Deputy Judge of the High Court (‘the Judge’), dismissed that appeal after an oral hearing. Mr Melki then also had the advantage of being represented by three counsel, all acting pro bono.[7]Mr Melki appealed to this court against the order of the EAT dismissing his appeal from the Registrar’s refusal to give him an extension of time for appealing to the EAT. His two grounds of appeal were drafted by different counsel, again acting pro bono. I gave Mr Melki permission to appeal. I later also gave him permission to amend those grounds on his application to do so; an application which the Respondent did not oppose. The amendment added a third ground of appeal. The legal framework The Rules

The legal framework

[8]The EAT’s procedures are governed by the Rules. The Rules are made in the discharge by the Lord Chancellor of the duty imposed by section 30(1) of the Employment Tribunals Act 1996. Such rules may include provision for ‘the manner in which, and the time within which, an appeal may be brought’ (section 39(2)(a)).[9]Rule 3 is headed ‘Institution of Appeal’. Rule 3(1) lists the documents which must be served on the EAT in order to institute an appeal. At the relevant time, those documents included ‘(b) a copy of any claim and response in the proceedings before [the ET] or an explanation as to why either is not included’. Paragraph 3.1 of the EAT’s Practice Direction which was in force then explained that any grounds attached to the ET1 or to the ET3 must also be included with an appeal (or an explanation why they were missing, if they were). A notice of appeal missing any of the relevant documents would ‘not be validly presented’. As explained in paragraph 14 of Ridley, rule 3(1) was amended with effect from 30 September 2023 (see further, paragraph 11, below).[10]Rule 3(3) of the Rules provides for a 42-day time limit for appealing which runs from the date when written reasons for the ET’s decision are sent to the parties. Rule 3(3) itself confers no power to extend that time limit. Rule 37 is headed ‘Time’. Rule 37(1) gives the EAT ‘a very wide power to change time limits’. It is ‘clearly intended to apply to the time limits in rule 3(3)’ (Ridley, paragraph 15).

The amendments to rules 3 and 37

[11]On 30 September 2023, the Employment Appeal Tribunal (Amendment) Rules 2023 (2023 SI No 967) (‘the Amendment Rules’) came into force. Rule 2(2) amended rule 3(1) of the Rules by the deletion of rule 3(1)(b) (the requirement to include the ET1 and the ET3). Article 2(3) amended rule 37 by the insertion of rule 37(5).[12]Rule 37(5) of the Rules now provides:
‘(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.’
[13]The Amendment Rules also introduced changes to the EAT’s standard forms 1, 1A, 2, 3, 4B, 4, 5, 7, 5A and 6. Each form was amended by the insertion of a standard paragraph which tells an appellant, either before submitting an appeal, or, in relation to the relevant step during the appeal, to read the relevant part of EAT’s Practice Direction.

The Explanatory Notes and Explanatory Memorandum to the Amendment Rules

[14]The Explanatory Notes which are appended to a draft statutory instrument when it is laid before Parliament are not part of the instrument but are ‘of use in identifying the mischief which the Regulations were attempting to remedy’ (per Lord Oliver in Pickstone v Freemans PLC [1989] AC 66 at p 127). The Explanatory Notes to the Amendment Rules briefly summarise the Amendment Rules. The Explanatory Notes were referred to by the Judge, summarising Mr Kelly’s submissions (see paragraph 25, below), but do not, in my judgment, help with the issue of construction in this case. An Explanatory Memorandum to the Amendment Rules was also laid before Parliament with the Rules. By contrast with the Explanatory Notes, it describes the policy background to the Amendment Rules in some detail. It explained that the rule-making function was to be transferred from the Lord Chancellor to the Tribunal Procedure Committee. This amendment was being made before that transfer in order to ‘address the significant amount of time and resource that is at present, being spent on applications for an extension of time as a consequence of minor errors in the submission of an appeal, and that is materially adding to the existing outstanding cases with [the EAT]. The changes to Rule 3 and Rule 37 ….aims [sic] to simplify the documents that are required to be lodged in order to institute the appeal, this will reduce the number of invalid appeals due to minor errors and decrease delays in [the EAT] dealing with cases’ (paragraph 6.3).[15]Section 7 is headed ‘Policy background’. Paragraph7.1 added that any failure to meet the requirements of rule 3, ‘including failing to include every single page of a document even a blank page’ will mean that an appeal was not valid. An appellant who wanted to ‘rectify the issue’ had to apply to the EAT for an extension of time. Paragraph7.2 said that the effect of the authorities was that the EAT did not have power to treat an appeal as properly instituted if ‘the putative appellant has not fully complied with the requirements of’ rule 3. The power to extend time can only be exercised ‘in rare and exceptional cases where [the EAT] is satisfied that there has been a full, honest and acceptable reason for the delay’.[16]The strict application of the rules ‘generates increased workload’ for the EAT ‘creating inefficiency in the use of judicial and administrative resource as well as increasing delays with cases being dealt with’ (paragraph 7.3). The proposed amendments were designed to make appeals ‘less complex and more accessible, supporting access to justice for individuals. This is particularly important for those who may struggle with the current requirements, such as individuals with disabilities or those whose first language is not English’ (paragraph 7.4).[17]Paragraphs 7.7-7.9 are headed ‘Why is it being changed?’. The EAT had ‘advised’ that there had been a ‘noticeable increase’ in invalid appeals, in which documents were ‘missing or incomplete’ (my emphasis). On average, four out of the 23 appeals lodged in each week were ‘invalid’. The extra work meant that there was an average delay of 24 weeks before cases were dealt with (paragraph 7.7). The EAT believed that the ‘high number’ of invalid appeals was likely to be due to the facts that more appellants were filing documents from the digital bundles which had been used in the ET, which might themselves have been defective, and that the administrative staff had so much work to do that they were not able to spot mistakes as quickly as they had been, with the result that the appeals were still ‘invalid’ at the end of the time limit (paragraph 7.8).[18]The EAT had asked the Lord Chancellor to amend rules 3 and 37 and the ET forms ‘in order to reduce the number of appeals that are invalidly lodged. It is intended that these rule amendments will ensure that [the EAT] continues to fulfil the overriding objective to deal with cases justly’ (paragraph 7.9). Paragraph 7.10 records the EAT’s view that the amendment to rule 3 would ‘reduce the likelihood of appellants failing to include the prescribed documents by the statutory deadline for lodging an appeal’. Paragraph 7.11 says that the word ‘minor’ in rule 37(5) had ‘purposefully not been defined’ as the EAT anticipated that it would ‘lay down early guidance in case law with appeals from Registrar’s orders being heard before the President [of the EAT] (with the possibility of onward appeals…’[19]Paragraph 10.2 describes informal consultation of the EAT’s ‘National User Group’ by the President of the EAT in June and July of 2023. It gives a link to it. There were 15 responses. 11 respondents agreed with the proposed change to rule 3, although there were concerns about increased flexibility and the potential for a rise in work. Nine respondents agreed with the proposed change to rule 37, although reservations were expressed about ‘the potential weakening of [the EAT] time limits…’. Respondents ‘also emphasised the need for a clear definition of “minor error” providing examples as well as ensuring timely rectification and the need for judicial guidance to be provided through test cases’ (paragraph 10.4). Paragraph 11 referred to the proposed publication by the EAT of a revised Practice Direction.

The relevant cases

[20]In Ridley, this court to some extent revised the strict approach to which I referred in paragraph 1, above. Ridley gives a reasonably full account of the development of the case law about extending time for appeals to the EAT. In a more recent decision of this court, Davies v BMW (UK) Manufacturing Limited [2025] EWCA Civ 356 paragraphs 13-30, I summarised the main points from that account, and the decision in Ridley. Rather than re-inventing that wheel, I will quote those paragraphs. ‘The relevant authorities 13. As is also explained in Ridley, the EAT and this court have considered the scope of the discretion conferred by rule 37(1) many times (paragraphs 23-97). 14.The first such authority is United Arab Emirates v Abdelghafar [1995] ICR 65. On page 70, Mummery J (as he then was) explained that there were four relevant principles. They included, first, that the discretion was 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’. All the relevant factors were to be weighed and balanced. The outcome was not ‘dictated by any set factor. Discretions are not packaged, programmed responses’. Second, courts are stricter about enforcing the time limits for an appeal than they are about enforcing the time limits for interlocutory steps. A person who is dissatisfied with a decision on the merits should act promptly. Third, an extension of time is an indulgence, not a right. An appellant must give a ‘full honest and acceptable explanation of the reasons for the delay’. 15.He explained that the EAT followed ‘guidelines’ which did not fetter the exercise of the discretion. They were designed to achieve, as far as possible, consistency, predictability, and ‘the attainment of justice’. There is no excuse for ignorance of the time limit, or of the importance of complying with it, even if an appellant is not represented. The time limit would only be relaxed in ‘rare and exceptional cases’ when the EAT is satisfied that there is ‘a reason which justifies departure from the time limit’. If there is an explanation, ‘other factors may come into play’. Extensions had been refused even where the delay was only a day long. Appellants were advised not to leave lodging a notice of appeal until the last few days of the time limit, because of the risk of postal problems. The merits of an appeal are usually of ‘little weight’, because it is not appropriate to investigate the merits on an application for an extension of time. Lack of prejudice to the respondent is ‘of little or no significance’. 16.There are three questions (p 72C). 1.What is the explanation for the default? 2.Is it a good excuse? 3.Are there circumstances which justify the exceptional step of giving an extension of time? 17.The respondent in that case was represented. Mummery J was not impressed by the respondent’s explanation for the delay (of 52 days). He referred to the respondent’s ‘neglect and mismanagement’ of the case. The exceptional feature of the case which persuaded him to give an extension of time was the positive duty imposed on the EAT by section 1(2) of the State Immunity Act 1978. 18.The approach in Abdelghafar has been approved by this court more than once, and, significantly, at least once after a full appeal at which both the parties were represented by counsel (Jurkowska v Hlmad Limited [2008] ICR 841). In that case, both the Registrar of the EAT, and Underhill J (as he then was), on an appeal from the order of the Registrar, had extended the time for appealing. 19. The appellant employer in that case was represented by counsel and solicitors. The solicitors lodged an appeal on the last day of the 42-day period. The ET’s judgment was missing. It was filed by fax, after the EAT pointed that out, and after close of business that day, so that it was officially lodged after the expiry of the time limit. Underhill J held that the mistake of the solicitors in failing to appreciate that lodging the ET’s written reasons did not also amount to lodging the judgment was ‘pardonable’, even though, if the reasons were read carefully, it would have been clear that they were only the reasons for the decision. He was not surprised that experienced solicitors might expect the judgment and the reasons to be in one document. It was ‘the sort of exceptional circumstance which ought to attract the exercise of the discretion where it was promptly rectified as soon as it was brought to their attention’. That was so even though the solicitors had left it until the last day to lodge the appeal (paragraph 34).20. Rimer LJ rejected an argument that the introduction of an overriding objective in the Rules required a different approach from the approach described in Abdelghafar. He noted that the strict view was that the solicitors should have known better (see paragraph 44). The solicitors had not considered the express requirements of the Rules or other materials which would have shown them that ‘the judgment is one thing and the reasons are another’. Underhill J had explained why he considered the explanation was acceptable and why the mistake was ‘venial’, given that the solicitors had promptly corrected it.21. With some hesitation, this court dismissed the employee’s appeal against the decision of the EAT to extend the time for the employer’s appeal. Rimer LJ had ‘some reservations’ about Underhill J’s conclusion (as he explained in paragraph 47). To take a ‘strict view’ was ‘probably’ to rely too much on hindsight. Whether or not to extend time was ‘pre-eminently’ for the judge. Underhill J was an experienced judge of the EAT and fully aware of the principles in Abdelghafar. Rimer LJ rejected a submission that Underhill J should have found out why the solicitors left the appeal until the last moment. He said that an appellant is fully entitled to wait until the last day, although he would run the risk that something could go wrong at the last minute. Underhill J had been entitled to decide to give an extension of time, even though everything had been left until the last minute (paragraph 48). He had not misdirected himself (paragraph 49).22. Hooper LJ agreed, for essentially the same reasons (paragraph 50). Sedley LJ said if the discretion had been his to exercise, he would not have exercised it in the employer’s favour (paragraph 70). With ‘the very greatest of hesitation’ he accepted that Underhill J had been entitled to extend time (paragraph 71).23. Rimer LJ added two qualifications to the guidelines in Abdelghafar. 1.It is not, in every case, a precondition of success for an appellant to show a good excuse for any delay, ‘although in the ordinary run of cases, absent some such exceptional circumstance as…in Abdelghafar, it will be’. The principles in Abdelghafar were guidelines and ‘every case will turn on its own facts’ (paragraph 16; see also paragraph 19). Underhill LJ referred to this statement with apparent approval in paragraph 36 of his judgment in Green v Mears Limited [2018] EWCA Civ 751; [2019] ICR 771. 2.An appellant did not have to show that his case was ‘rare and exceptional’. What was meant, rather, was that it was only in rare and exceptional cases that it would be appropriate to extend time (paragraph 20). 24. In paragraph 152 of Ridley, this court took four points from Jurkowska. Two are worth repeating here. 1.There is no rule of law which prevents an extension of time for a person who is professionally advised and who leaves it until the very last moment to appeal. Those circumstances may be relevant to the exercise of the discretion, but that is a different point. 2.There is no rule of law which prevents an extension of time for such a person, whose adviser makes a ‘venial mistake’, when he should have known better. In other words, it is not always necessary to show that an appellant has shown that he has a good excuse for the delay. 25. In J v K [2019] EWCA Civ 5; [2019] ICR 815 the appellant tried to email the documents for his appeal to the EAT at 3.55pm on the last day of the time limit. The EAT’s server could only accept an attachment of 10MB. The attachment to the appellant’s email was bigger than that. His appeal was not delivered in time. He then sent a number of smaller attachments. They were all received by 5pm that day. The EAT treated the appeal as being out of time. The judge in the EAT found that the appellant had not received a hard copy of the ET’s decision or of the covering letter on how to appeal. Those would have directed him to guidance about appealing to the EAT on a government website (T440) which warned potential appellants about the limitations of the EAT’s server. The registrar and the judge in the EAT refused his application for an extension of time. On the limited evidence provided by the appellant, the judge and this court were prepared to accept that the appellant suffered from a ‘degree of mental ill-health’. 26.One of the two issues on which Lewison LJ gave permission to appeal to this court was whether the very modest delay, coupled with the limitations of the EAT’s server, amounted to exceptional circumstances such as to require an extension of time in order to comply with overriding objective. Underhill LJ, giving a judgment with which the other members of this court agreed, referred to two cases in which the EAT had given extensions of time in similar cases. The appellants had appealed very late, and should have known about the limitations of the server because of the information in T440. Other things being equal, a person might expect a server to be able to accept a large attachment. Underhill LJ disagreed with the judge that the information about the server was freely available. The appellant had not received the letter with its ‘somewhat indirect pointer’ to T440. It was relevant, but not decisive, that the appellant had left it to the last moment. The limitations of the EAT server were also a relevant factor. It was ‘inconceivable’ that an extension of time could be justly refused if an appellant had tried to lodge an appeal in person at 3.55pm on the last day and had found the EAT’s doors were locked (paragraph 28). The judge had been wrong to refuse an extension of time. The correct analysis was probably that the appellant had given a good explanation for missing the deadline, that is, his reasonable ignorance of the limitations of the server. But if, contrary to that view, he should have found T440 for himself, ‘any failing in that regard seems to me to have been venial’. The real problem was the EAT’s server. Service was correctly completed within the hour. It was an exceptional case in which ‘an extension of time was required as a matter of justice’ (paragraph 29). The decision in Ridley 27.In paragraph 143, this court said that the guidance in Abdelghafar has been approved by this court several times. The approach is seen as ‘strict’, but ‘it is not inflexible. It involves the exercise of a discretion in a way which is “judicial”, “even-handed” and, above all, fair’. 28. The exercise of the discretion involves recognising a legally significant distinction between a case in which an appellant misses the deadline altogether, and a case in which an appellant has lodged nearly all the necessary documents within the time limit. In the latter case, the appellant, while not fully meeting the requirements of rule 3(1), has substantially complied with them. How substantially he has complied will depend on what is missing, how much of it is missing, and how important it is to the appeal. Such an appellant has also met the time limit in rule 3(3). The relevant authorities do not refer to, or recognise this distinction, or consider whether or not it is relevant to the exercise of the discretion (paragraph 144). 29. The express recognition of such a distinction does not conflict with the guidance in Abdelghafar. Nothing in the later authorities conflicts with the principles described by Mummery J in pp 70-71 of his judgment (see paragraph 16, above). 30. Three further points followed (paragraph 147). 1.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 an appellant has made a mistake. The mistake is the reason for invoking the discretion. It cannot, therefore, be used as a reason for refusing to extend time (see also paragraph 152(ii)). Such a mistake cannot necessarily be discounted simply because, had the appellant filed the appeal earlier, the mistake would have been picked up. That would be to exercise the discretion in a ‘programmed way’. 2.Before it considers the exercise of the discretion, the EAT must clearly understand the appellant’s explanation. Unless it does so, it cannot decide whether that explanation is satisfactory or not. 3.While the EAT has no duty to correct mistakes, the delay which is relevant to the exercise of the discretion is the delay between the time when the EAT tells the appellant of her mistake and when she corrects it.’ 1.What is the explanation for the default? 2.Is it a good excuse? 3.Are there circumstances which justify the exceptional step of giving an extension of time? 1.It is not, in every case, a precondition of success for an appellant to show a good excuse for any delay, ‘although in the ordinary run of cases, absent some such exceptional circumstance as…in Abdelghafar, it will be’. The principles in Abdelghafar were guidelines and ‘every case will turn on its own facts’ (paragraph 16; see also paragraph 19). Underhill LJ referred to this statement with apparent approval in paragraph 36 of his judgment in Green v Mears Limited [2018] EWCA Civ 751; [2019] ICR 771. 2.An appellant did not have to show that his case was ‘rare and exceptional’. What was meant, rather, was that it was only in rare and exceptional cases that it would be appropriate to extend time (paragraph 20). 1.There is no rule of law which prevents an extension of time for a person who is professionally advised and who leaves it until the very last moment to appeal. Those circumstances may be relevant to the exercise of the discretion, but that is a different point. 2.There is no rule of law which prevents an extension of time for such a person, whose adviser makes a ‘venial mistake’, when he should have known better. In other words, it is not always necessary to show that an appellant has shown that he has a good excuse for the delay. The decision in Ridley 1.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 an appellant has made a mistake. The mistake is the reason for invoking the discretion. It cannot, therefore, be used as a reason for refusing to extend time (see also paragraph 152(ii)). Such a mistake cannot necessarily be discounted simply because, had the appellant filed the appeal earlier, the mistake would have been picked up. That would be to exercise the discretion in a ‘programmed way’. 2.Before it considers the exercise of the discretion, the EAT must clearly understand the appellant’s explanation. Unless it does so, it cannot decide whether that explanation is satisfactory or not. 3.While the EAT has no duty to correct mistakes, the delay which is relevant to the exercise of the discretion is the delay between the time when the EAT tells the appellant of her mistake and when she corrects it.’

The decision in Ridley

[21]All four points referred to in paragraph 152 of Ridley, and summarised in paragraph 24 of Davies (see above), are relevant in this case. The first of the two other points is that an appellant does not have to show that her case is ‘rare and exceptional’; rather, it is only in a rare and exceptional case that an extension of time will be given. The second is that the guidelines in Abdelghafar are exactly that. They do not lay down rules of law, as Mummery J himself acknowledged.

The judgment of the EAT

[22]The Judge explained that the Rules had been amended after a statutory consultation in 2023, and that a new EAT Practice Direction had been issued. The changes meant that, in broad terms, there was no longer a requirement to file, with the appeal, the ET1 claim form (including, where these were separate, the grounds of the complaint) and the ET3 response form (including, where those were separate, the grounds of resistance). The EAT was also given a power to extend time if a ‘minor error’ made in submitting the documents with the appeal ‘had been rectified’. Time could be extended if it was ‘just to do so having regard to all the circumstances’ (paragraph 1).[23]The relevant statutory instrument was the Amendment Rules. There were no transitional provisions. The first issue which the Judge had to decide was whether the new rule 37(5) applied to all appeals, whenever instituted, or only to those appeals instituted after 30 September 2023. The next issue was whether the error was ‘a minor error’. If it was, the Judge had a broad discretion to extend time. If not, he could only extend time ‘applying the strict test under rule 37(1)’ (paragraph 2).[24]In paragraph 3 the Judge commented that the grounds of resistance ‘formed an important part of’ the Respondent’s response to the claim. In paragraph 12 he quoted the version of rule 3 of the Rules and paragraph 3.1 of the EAT’s Practice Direction which were in force at the date of the Registrar’s decision. He then quoted rule 37(1) of the Rules, which has not been amended, and rule 37(5), which came into force on 30 September 2023 (see paragraph 12, above).[25]Mr Kelly, who also represented the Respondent in the EAT, submitted to the Judge that rule 37(5) did not apply to Mr Melki’s appeal, and that the Judge therefore had to apply ‘the strict guidance’ in the authorities (paragraph 16). The Respondent submitted that the amendments were a package ‘intended to rebalance the obligations which appellants owe in respect of filing documents … and the approach which the EAT will take to non-compliance with that obligation’. He relied on the ‘Explanatory Note’ to the Amendment Rules. I think, since the Explanatory Note says nothing about the context of the Amendment Rules (see paragraph 14, above), that this might be a reference to ‘the Explanatory Memorandum’, which is more informative (see paragraphs 14-19): but I might be wrong. Mr Kelly argued that the EAT could not apply one part of the amendments (rule 37(5)) to an appeal if the other part of the amendments (to rule 3(1)) could not apply as their effect post-dated the submission of the appeal. That would be unfair to the Respondent. Mr Kelly also referred to the Report of the EAT’s consultation as a permissible aid to construction (paragraph 22).[26]The Judge decided, for the reasons he gave in paragraphs 23-32, that while the amendment to rule 3(1) did not apply to Mr Melki’s appeal, the amendment to rule 37 did apply. He reminded himself that an appeal against a decision of the Registrar is a rehearing of the application, not a review of that decision (paragraph 24). That suggested that he should apply the Rules as they stood at the date of the hearing of the appeal, rather than the Rules as they applied at the date of hearing by the Registrar. Changes in procedure usually applied to pending proceedings. He took into account that the Rules were amended ‘to improve the fairness and justice of consideration of incomplete notices of appeal’. Under ‘the previous rules the EAT took the same approach to missing documents as if the Notice of Appeal had not been lodged in time at all’. He cited some of the cases, including one in which an appellant had filed the grounds of claim one day late (paragraph 27).[27]He agreed with the parties that it was right to take the Consultation Report into account to inform the interpretation of the Amendment Rules. Paragraph 24 of Annex A to the Consultation Report said, ‘In proposing a possible amendment to rule 37…it is not intended to change the approach in Abdelghafar. Mindful, however, of the issues identified at paragraphs 9-10, above, the EAT is also proposing to ask the Lord Chancellor to consider amending this rule [to add rule 37(5)]’. Those issues were that about a fifth of appeals were not properly instituted (paragraph 28, which also refers to the issues identified in section 7 of the Explanatory Memorandum: see paragraph 17, above).[28]That did not create any absurdity. In paragraph 30, the Judge decided that although rule 37(5) was introduced with other amendments, that did not mean that it applied to all appeals. The amendment to rule 3(1) necessarily applied to all appeals instituted after its commencement date. Rule 37(5), by contrast, could be applied, and did apply, to all pending appeals.[29]Parliament intended ‘this slightly problematic system to be brought to an end…The previous rules were amended because they were too rigid in the case of minor errors and led to potential unfairness’. The new rule includes a safety valve against causing unfairness or prejudice to the Respondent in this case and other respondents who might seek to hold an appellant to the strict consequences of a minor error in submitting documents’. The Judge then referred to the threshold test in rule 37(5) and the two safeguards for respondents (paragraph 31). The new rule was intended to balance the interests of the parties better than the old Rules. Parliament was to be taken to have been willing to ‘tolerate any modest hardship [to] a respondent who is denied the opportunity to rely on the strictness of the former rules’ (paragraph 32).[30]In paragraphs 32-42 the Judge considered whether the error was ‘minor’. Mr Melki accepted that he had made a mistake in submitting only part of the ET3. He submitted that that was a ‘minor error’, which he had quickly put right. The Respondent submitted that grounds of resistance were an ‘integral’ part of the ET3, and ‘this was an essential document’. It was not a ‘trivial’ error. The Practice Direction and the relevant leaflet made clear that the entire ET3 was necessary (paragraph 34).[31]The Judge said, ‘The ordinary meaning of “minor” is something that is comparatively unimportant. In the context of this rule it can be contrasted with a serious or substantial error. Rule 37(5) is designed to forgive errors which are negligible or of no real importance to the proper progress of an appeal’[my emphasis].[32]The Rules ‘did and still do require an appellant to serve a Notice of Appeal substantially in accordance with the standard forms’. The Judge listed those requirements. The judgment and written reasons were ‘core documents’. Without the notice of appeal the EAT could not understand the complaint. Without the judgment or reasons, the EAT could not normally assess whether there had been an arguable error of law. ‘It would be a rare case in which it could be said that the omission of one of these documents was a minor error. Such an error would normally be serious and of real importance to the progress of the appeal’.[33]At the other end of the spectrum was a case in which the necessary documents were attached but with ‘just one or two pages missing. It is likely to be a minor error to omit a single page of a document that is otherwise intelligible. Indeed even under the existing stricter test extensions were granted where a single irrelevant page was omitted (Sud v London Borough of Ealing [2011] EWCA Civ 995) and HHJ Auerbach mentioned further examples of omission of isolated pages in Fincham v Alpha Grove Community Trust UKEATPA/0993/18 (2 March 2020)…’ (paragraph 37).[34]In paragraph 38, the Judge referred to another decision of HHJ Auerbach (Anghel v Middlesex University [2022] EAT 176 at paragraph 38). HHJ Auerbach had said that the grounds of claim or resistance were ‘essential documents’ as they set out the parties’ cases ‘which are likely to be essential in understanding the decision appealed’. The EAT is more likely to be interested in those than in the formal parts of the ET1 and ET3. In some appeals, the Judge continued, the ACAS Early Conciliation information or earnings information might be important, but in many much of the information in the ET1 and ET3 which is relevant to the appeal will also be elsewhere (for example in the notice of appeal) and the parties’ positions would be set out in their respective grounds.[35]It might be a ‘minor error’ to ‘omit one or even more pages of a document required by rule 3(1) but that it is unlikely [sic] to be a minor error to omit the whole document or a substantial or important part of the document unless there are circumstances in which it can be said the document is irrelevant to the appeal’. Shah v Home Office [2024] EAT 21 was an example (paragraph 39).[36]The error had to be judged at the time when it was made. When the appeal was lodged, the grounds of resistance were ‘an essential document’ (Anghel) ‘which it was mandatory to serve with the appeal’. The Practice Direction which was available on-line was clear that the grounds must be included and that without the grounds of resistance the appeal ‘would not be validly presented. It cannot be a minor error to omit the whole of a document which was “essential” to the appeal’ (paragraph 40). Without the grounds of resistance, the EAT could not fully understand the appeal. The EAT had to assess Mr Melki’s grounds of appeal that the ET was unfairly biased against him in accepting the Respondent’s case. The EAT needed the ET’s reasons to do that, but also an understanding of the Respondent’s case in the grounds of resistance, one section of which explained the detailed background to the claim, and the Respondent’s defences to Mr Melki’s claims of direct race discrimination and harassment ‘which is important context’ (paragraph 41). The Judge did not see the error as a ‘minor error’. He could not therefore exercise the power conferred by rule 37(5).[37]The EAT also considered whether there were grounds for an extension of time under rule 37(1) alone, and concluded that there were not (paragraphs 43-45). Mr Melki’s explanation that he did not know that he had to include the grounds of resistance was not ‘a sufficient or good excuse’. There were some similarities with Anghel. There were no exceptional circumstances. Mr Melki left it until the end of the 42-day period to submit his appeal, failed to follow the Practice Direction and left out an important document.

The grounds of appeal

[38]Neither party appealed against the EAT’s decision that while the unamended version of rule 3(1) applied to the appeal, the amended version of rule 37 also applied to it, rather than the original version of rule 37. There are three grounds of appeal. i. Did the EAT correctly construe rule 37(5) of the Rules? ii. Did the EAT err in holding that A’s failure to submit the grounds of resistance with his notice of appeal was a minor error? iii. Did the EAT err in its application of rule 37(1) in the light of the decision in Ridley?

The submissions

[39]Mr Melki argued that the Judge’s construction of rule 37(5) was wrong for three reasons. i. It is not based on the words of that rule, which indicate that the scale of the error is to be assessed by reference to the degree to which rule 3(1) has been complied with, rather than to the significance of the error for the progress of the appeal. Rule 37(5) refers to ‘a minor error in complying with the requirement under rule 3(1) to submit relevant documents…’. ii. It is inconsistent with significant features of rule 37(5). iii. Its consequence is that rule 37(5) fails to remedy the mischief at which it was aimed.[40]Mr Melki accepts that there is a spectrum of possible errors, ranging from a complete failure to submit any of the documents to substantial compliance with the requirements of rule 3(1). Mr Goudie in effect accepted that a failure to submit the notice of appeal would not be a minor error. There is no appeal without a notice of appeal. To submit a notice of appeal with no grounds of appeal would not be a ‘minor error’, either. The other documents required by rule 3(1), by contrast, exist whether or not there is an appeal. It might nevertheless also be a major error to submit a notice of appeal with no supporting documents. But if the notice of appeal was submitted with most of the supporting documents, and part of one was missing, that would be a ‘minor error’.[41]The words of rule 37(5) do not support, further, an approach based on the significance of the document to the appeal. Rule 37(5) only applies where a document listed in rule 3(1) has been left out. Any such error (unless put right) will by definition affect the progress of the appeal, as the documents are required by rule 3(1). Such an approach is circular. Mr Goudie added that the EAT did not have power to extend in relation to any error which could be rectified.[42]The purpose of this threshold (‘minor error’) was to promote substantial compliance with rule 3(1) and to give the EAT flexibility where an appellant had not complied with rule 3(1) completely. The question was how substantially an appellant had complied with rule 3(1). The Vice-President asked Mr Goudie about a case in which an appellant submitted all the necessary documents, but had mistakenly copied only the odd pages of the ET’s reasons, or left out the last five pages, so that they were unintelligible. He agreed with the Vice-President that those would be ‘minor’ errors in complying with rule 3(1).[43]Rule 37(5) is only ‘engaged’ when the appellant has corrected the error. If it only applies to ‘negligible errors’ it is difficult to see why the appellant would have to correct the error before the EAT can extend time. This feature of the rule suggests that an error which can affect the progress of the appeal can also be a ‘minor error’ within the scope of rule 37(5). If a ‘minor error’ is a negligible error which has no impact on the progress of the appeal, it is hard to see how it could cause any prejudice to a respondent.[44]Rule 37(5) was intended to change the approach of the EAT in ‘missing document’ cases, as the Judge appears to have accepted in paragraph 27: and see paragraph 24 of the EAT’s Consultation Report, quoted by the Judge in paragraph 28 (see paragraph 27, above). The EAT’s construction is too narrow to address that mischief. It is no more than the approach which the EAT applied before the amendment to rule 37: as the cases referred to by the EAT, such as Sud, and Fincham show (see paragraph 33, above). Further, if the EAT’s approach is right, few documents, if any, will be of little importance to the future progress of the appeal. The paradoxical result of this construction is that this court’s construction of rule 37(1) in Ridley is more forgiving than is rule 37(5), which was introduced in order to remedy the perceived strictness of rule 37(1).[45]The EAT should have held that Mr Melki’s mistake was a ‘minor error’ within the meaning of rule 37(5). He substantially complied with the requirements of rule 3(1).[46]If that was wrong, Mr Melki submitted that his appeal should succeed under the reasoning in Ridley. Counsel made clear in Mr Melki’s skeleton argument that this ground of appeal intended no criticism of the Judge, as Ridley was decided after the EAT hearing in this case. The EAT did not recognise the distinction between an appeal which was late, and an appeal which was submitted in time, but from which a document was missing. Ridley applies to this kind of mistake; the mistake is not itself a reason for refusing to extend time. The EAT was wrong not to take into account that Mr Melki had corrected the mistake as soon as it was brought to his attention. Nor did he have to show that his circumstances were exceptional, but, rather, that the circumstances, as a whole, meant that the EAT should exercise its exceptional discretion to extend time.[47]Mr Kelly argued that the EAT’s construction of rule 37(5) was right, for the reasons which it gave. A ‘minor error’ is an error which is ‘negligible or of no real importance to the proper progress of the appeal’. The wrong focus of Mr Melki’s construction was on the ‘proportion’ of missing documents rather than on the purpose for which those documents are required. He referred to five other EAT decisions about rule 37(5) in which other judges of the EAT had taken the same or a similar approach to that taken by the Judge. He further submitted that the purposes of rules 3(1) and 37(5) are linked. This court should be cautious about interfering with the EAT’s development of procedural case law (see paragraph 88 of Ridley). Mr Kelly told us that the EAT now has access electronically to all the documents which the ET has on its file. It does not now have to rely on the parties for the relevant documents (see paragraph 69 of Akhigbe v St Edwards Homes [2024] EAT 142). As the EAT (Eady P) there explained, that was part of the reason why rule 3(1) was amended in 2023.[48]The Judge’s approach was, in any event, consistent with the approach in Ridley. Paragraph 144 refers to the importance of the missing document to the appeal. The decision in Ridley is not relevant to the interpretation of rule 37(5). On any view, the failure to attach the grounds of resistance amounted to ‘non-minor non-compliance with rule 3(1)’. Mr Melki’s argument that the error here was ‘minor’ and ‘rectified quickly’ elided two of the three stages in the application of rule 37(5). He accepted that the word ‘negligible’ in paragraph 35 was unfortunate.[49]If the EAT had had the benefit of Ridley, its decision would have been the same. First, Ridley was decided after the amendments and was not relevant to the interpretation of the amended rules. Second, the mistake in this case is neither ‘understandable’ nor ‘reasonable’ (cf paragraph 147 of Ridley). The EAT Practice Direction as in force at the relevant time told appellants that they needed to submit the ET1 and ET3 and ‘any attached grounds’. The judgment was sent to Mr Melki under cover of a letter dated 7 March 2022 which referred, and gave a link, to a booklet T440 which explains how to appeal, and said that it should be read ‘in conjunction with’ the EAT’s Practice Direction, to which it also gave a link. As Mr Melki had not explained his mistake, the EAT would not have exercised its discretion in his favour.

Discussion

[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.[52]The Judge’s approach is the same as, or barely different from, the approach which the EAT took to compliance with rule 3(1) and with rule 3(3) before the amendments to rule 3(1) and rule 37(5) and before Ridley. As well as being wrong in law, that approach fails to address the mischief which the amendments were designed to remedy. The consequence of the Judge’s construction and of the Respondent’s argument is that the amendment to rule 37 has had little effect, if any.[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).[54]I would therefore allow Mr Melki’s appeal on grounds 1 and 2. On any view, the error which Mr Melki made was ‘a minor error’ in complying with rule 3(1). I would dismiss Mr Melki’s appeal on ground 3. I accept Mr Kelly’s submission that Mr Melki’s explanation for his mistake (that he did not know that he had to provide the grounds of resistance as well as the ET3) was not a satisfactory explanation. Part of the material which would be relevant to the exercise by the EAT of its discretion is therefore missing.[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), because it 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.

Conclusion

[57]I would allow Mr Melki’s appeal on grounds 1 and 2, but dismiss it on ground 3.[58]I agree with both judgments.[59]Despite Mr Kelly’s well-argued and concise submissions for the Respondent, I agree that this appeal should be allowed. My reasons are essentially the same as Elisabeth Laing LJ’s, but I will state them briefly in my own words.[60]The starting-point is that it was common ground before us that the Judge was obliged to apply the amended rule 37 (5) even though it had come into force since the date of the institution of the appeal. It was also common ground that the Appellant’s omission to serve the grounds of resistance attached to the Respondent’s ET3 constituted an “error in complying with the requirement under rule 3 (1) to submit relevant documents”. That is obviously correct because the grounds of resistance are an integral part of the “response in the [ET] proceedings”, service of which was at the material time required by rule 3 (1) (b), even if they were set out in a separate document; and indeed, as Elisabeth Laing LJ says at para. 9 of her judgment, that was spelt out in the Practice Direction.[61]The structure of the amended rule 37 (5) is that the EAT has a discretion (distinct from the general discretion in rule 37 (1)) to extend time in such a case if two conditions are satisfied – first, that the error is minor; and second, that it has been rectified.[62]The first question is thus whether the error was “minor”. The Judge thought that it was not, because the grounds of resistance are of their nature central to the issues in the case. I see the argument, but I agree with Elisabeth Laing LJ that that does not represent the right approach to assessing whether an error is minor for the purpose of this rule. For the reasons given by her, such an approach would undermine the evident purpose of the amendment, by greatly limiting the scope for the exercise of the discretion for which it provides. In my view the error in this case was minor because it did not involve any wholesale non-compliance with rule 3 (1) (b), even as regards the response. What the Appellant failed to serve was not the ET3 itself but only a part of it. If, as often happens, the Respondent had stated its grounds of resistance in the body of the response form itself and not in an attachment, but the Appellant had failed to copy that particular page, that would be just the kind of minor error that the amendment is directed to; and I cannot see what difference it makes that the omitted grounds were for convenience contained on a separate sheet or sheets.[63]There is no dispute that the second condition is satisfied, since the error has been rectified. It follows that the Judge was wrong not to consider the exercise of the discretion conferred by rule 37 (5). I am satisfied that if he had done so he would have been bound, in the circumstances of this case, to exercise the discretion in the Appellant’s favour. This was a case of a failure to serve only part of one of the documents (then) required by the Rules. The failure was promptly remedied and gave rise to no prejudice. It is true that the only explanation offered by the Appellant was that he had not realised that the pages containing the grounds of resistance needed to be included. It is possible to see how a litigant in person might make such an error in a case where the respondent has included their grounds of resistance in a separate document. I accept that it remains careless, because if he had read the Practice Direction (as he was enjoined to do – see para. 49 above), and done so with sufficient attention, the position should have been clear to him. But it is on no view a case of deliberate or reckless disregard for the rules or of pursuit of some tactical advantage, and it seems to me that justice plainly required an extension.[64]Finally, I agree with Elisabeth Laing LJ that we should not on this appeal offer any general guidance on the meaning of “minor”. In that regard, I take into account not only the points that she makes at para. 55 but the fact that the situation in the present case, where the non-compliance reflected the requirements of the unamended rule 3 (1) whereas the appeal to the Judge was governed by the amended rule 37 (5), is highly specific and unlikely to arise again.

Cited in 9 later judgments