F Amedzo v Bidvest Noonan (UK) Limited

Where an appellant lodges a notice of appeal within time but omits documents required by the former Rule 3(1), the omission must be assessed by its practical significance to the particular appeal. The distinction between an untimely appeal and a substantially compliant appeal with missing documents is material to the discretion to extend time.

A genuine minor error, corrected promptly after notification, which causes no significant prejudice may justify an extension under the EAT Rules 1993. A mistake is ordinarily the reason for invoking the discretion and is not, by itself, a reason to refuse it. The discretion must be exercised fairly and by reference to the balance of justice.

The Employment Tribunal dismissed the claimant's claim for constructive unfair dismissal. He lodged an appeal one day before the 42-day deadline, with the grounds of claim and resistance but without the ET1 and ET3 forms. After the EAT notified him of the omission, he supplied both forms the following day.

The Registrar refused an extension of time to institute the appeal properly. The claimant appealed from that order, which required a rehearing. The central issue was whether the omission was a minor error and, if so, whether time should be extended under Rule 37(5) or Rule 37(1) of the EAT Rules 1993.

1. Appeal allowed. The Registrar's refusal was overturned and time was extended for the appeal to be properly instituted.

2. Rule 37(5) of the EAT Rules 1993 applied, notwithstanding that the appeal had been submitted before the rule came into force. Whether an omission is minor depends on the significance of the omitted material for the particular appeal. Here, the respondent accepted that the missing ET1 and ET3 forms amounted to a minor error. The forms contained no information necessary to understand the appeal because the substantive grounds of claim and resistance had been provided.

3. The claimant corrected the error swiftly after being told of it. The seven-day period was objectively short and caused the respondent no significant prejudice. His explanation consistently accepted that the omission was a mistake. Difficulty obtaining advice over Christmas explained why he filed late in the available period, rather than why the forms were omitted.

4. The Court of Appeal's reasoning in Ridley required recognition of the material distinction between filing nothing within time and filing a substantially compliant appeal with documents missing. The latter situation calls for a fair, non-programmed exercise of discretion. A mistake in a substantially compliant filing cannot itself bar relief; the relevant corrective delay runs from notification of the error to its rectification.

5. The claimant's reliance on extensions previously granted to the respondent at first instance was legally unsound, but it was understandable for a litigant in person and did not count against him. It would also have been unfair to entertain the respondent's late assertion that the prospective appeal was obviously hopeless. The balance of justice favoured allowing the appeal to proceed to the ordinary consideration of arguability.

6. For substantially the same reasons, the Tribunal would also have granted an extension under Rule 37(1).

• Employment Appeal Tribunal: the claimant's rehearing appeal from the Registrar's order was allowed. Time to institute the substantive appeal properly was extended.
• Employment Tribunal: the claimant's constructive unfair dismissal claim was dismissed by a judgment sent to the parties on 16 December 2022.