Akhigbe v St Edward Thomas Homes Ltd (SEH)

Under the former rule 3(1) of the Employment Appeal Tribunal Rules 1993, an appellant who omitted required ET pleadings had to give an honest and satisfactory explanation which assisted the EAT to manage the appeal justly. A conscious decision to omit pleadings material to the orders challenged, without a sensible explanation, did not comply with that requirement.

When considering an extension of time, the EAT must apply the Abdelghafar guidance flexibly and in light of Ridley. Timely lodgement of a notice of appeal and most documents is material, but it does not justify an extension where an essential omitted pleading remains material to the live appeal and the omission was deliberate. Whether an error is minor under rule 37(5) is fact-specific.

The claimant appealed against an Employment Tribunal judgment sent to the parties on 28 March 2023. The Tribunal had made a costs order of £20,000 in favour of SEH in relation to two 2018 claims and a preparation time order in relation to two claims against Niblock.

The claimant lodged his notice of appeal within 42 days, but filed pleadings only for the second 2018 claim. He gave an explanation for some omissions. At a rule 3(10) hearing the EAT allowed amended grounds to proceed, which ultimately challenged only the SEH costs order. The respondents then sought review of that order under rule 33(1)(a).

The central issue was whether the appeal had been properly instituted under the pre-amendment rule 3(1) and, if not, whether time should be extended under rule 37(1).

1. The respondents’ review application was allowed and the claimant’s application for an extension of time was refused. The order of 2 February 2024 permitting the appeal to proceed to a full hearing was wrongly made because the appeal had not been properly instituted within time.

2. Rule 3(1) of the Employment Appeal Tribunal Rules 1993, as it then stood, permitted an explanation for missing pleadings. The explanation had to be genuine, satisfactory and consistent with the appellant’s duty under rule 2A(3) to assist the EAT in dealing with the case justly. It could not knowingly or recklessly mislead the EAT.

3. The claimant had supplied the grounds of resistance for the first 2018 claim as an appendix to the response in the second 2018 claim. The later claim’s particulars also substantially repeated the earlier particulars. An explanation for omitting pleadings in the 2021 and 2022 claims could be implied from the notice and grounds of appeal. Nevertheless, the claimant omitted the ET1 in the first 2018 claim and all pleadings in the two 2019 Niblock claims. Those documents were material to the costs and preparation time orders challenged. There was no sensible explanation for those omissions.

4. Applying United Arab Emirates v Abdelghafar, as clarified by Ridley v HB Kirtley and related appeals, the EAT recognised that the notice and grounds had been lodged within 42 days and that the claimant promptly complied when later directed to file all pleadings. Withdrawal of the challenge to the Niblock preparation time order justified relief for the omission concerning the 2019 claims. It did not justify relief for the missing ET1 in the first 2018 claim, which remained central to the live costs appeal.

5. The omission was a conscious and material choice, not a minor error under rule 37(5). It was not just to extend time. The appeal could not continue.

• Employment Appeal Tribunal: On review under rule 33(1)(a), the EAT revoked its order of 2 February 2024 which had permitted amended grounds to proceed to a full hearing. It refused an extension of time under rule 37(1).
• Employment Tribunal, Watford: In a judgment sent on 28 March 2023, following a hearing on 2 December 2022, the Tribunal struck out later claims, made a £20,000 costs order in favour of SEH concerning the 2018 claims, and made a £1,786 preparation time order concerning the Niblock claims.