M Hewer & Anor v HCT Group & Ors

An appellant who omits the Employment Tribunal’s written judgment does not properly institute an appeal under rule 3(1). The omission cannot be explained away, although an extension of time remains discretionary.

When exercising that discretion, the EAT must distinguish between an appellant who has lodged an appeal and nearly all required documents in time, and one who has lodged nothing. It must understand the explanation for the error and consider prompt correction after notification, the importance of the missing document, substantial compliance, and prejudice. The error itself does not determine the application.

Rule 37(5) of the Employment Appeal Tribunal Rules 1993 does not ordinarily treat omission of the whole written judgment as a minor error. Nevertheless, an extension may be granted under the general discretion where the circumstances justly favour it.

Five claimants brought Employment Tribunal proceedings concerning the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Tribunal determined preliminary issues by a written judgment sent on 16 September 2022, with written reasons sent on 11 October 2022.

Two claimants appealed. They lodged the notice of appeal, the written reasons, and various other documents, but omitted the Tribunal’s written judgment. After the EAT notified them of that omission, they supplied it on the same day. The Registrar refused an extension of time.

The claimants appealed from the Registrar’s order. The central issue was whether the omission could be treated as a minor error or otherwise justified an extension of time so that the appeal was properly instituted.

1. Appeal allowed. The Registrar’s refusal was overturned and an extension of time was granted. The appeal was to be treated as properly instituted in time and passed for sift.

2. Rule 3(1) of the Employment Appeal Tribunal Rules 1993 required the appellants to provide both the written record of the Employment Tribunal judgment under appeal and the written reasons. Unlike the ET1, ET3 and written reasons, the rule allowed no explanation for failure to provide the written judgment. The appeal was therefore improperly instituted when filed, despite the lodging of the reasons. The appellants did not need to lodge the ET1s and ET3s of non-appellant claimants.

3. The discretion to extend time remained governed by the strict but flexible guidance in United Arab Emirates v Abdelghafar and Anor, as clarified by Ridley. A material distinction exists between an appellant who files nothing in time and one who files a notice of appeal and nearly all required documents. The EAT had to understand the explanation for the mistake and treat the material delay as the interval between notification of the error and its correction.

4. Rule 37(5), inserted after the appeal was filed, could be considered. However, the omission of the whole written judgment was not a minor error. The judgment was a core document, was the subject of the appeal, and would normally be needed to assess the grounds. An extension could not therefore be granted under that provision.

5. Under the general discretion, the balance narrowly favoured an extension. The omission was entirely the solicitors’ error, but the reasons supplied in time contained the material needed to understand the appeal. The written judgment was supplied immediately after notification, no specific prejudice was identified, and the respondents accepted that the appeal should proceed if time were extended. The possible fault of legal advisers was of limited relevance, consistently with Carroll and Phipps.

• Employment Appeal Tribunal: Allowed the appeal from the Registrar’s order, granted an extension of time, and directed that the appeal proceed to sift: [2024] EAT 133.
• Employment Tribunal: Determined preliminary issues concerning the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006 in a written judgment sent on 16 September 2022, with reasons sent on 11 October 2022. The citation was not stated in the judgment.