AB v The University of East London

Where an EAT appeal is lodged within 42 days but required documents are omitted, the omission is materially different from a failure to lodge any appeal in time. The EAT must apply its extension-of-time discretion judicially and case-sensitively, weighing justice to both parties and the public interest in finality.

A missing document may engage rule 37(5) only if the default was an error that was minor; omission of an entire important document will usually not qualify. Even then, or where rule 37(5) does not apply, rule 37(1) remains available. The EAT must understand the explanation, assess promptness after the omission was identified, and avoid a rigid requirement for a good excuse or an individually rare case.

Five claimants appealed orders of the EAT Registrar refusing extensions of time to institute appeals from Employment Tribunal decisions. Each had sent a notice of appeal within the 42-day period but had failed to include one or more documents then required by rule 3(1) of the Employment Appeal Tribunal Rules 1993.

The missing material principally comprised ET1 forms, ET3 forms, or attached grounds of resistance. The omissions were rectified outside the time limit. The appeals required the EAT to reconsider the extension applications afresh under rules 37(1) and 37(5), in light of the Court of Appeal’s clarification of the Abdelghafar guidance in [2024] EWCA Civ 875.

1. Appeals allowed in part. Extensions of time were granted to AB, Mr Shina and Mr Adams. The applications by Miss Rehman and Mr Samuels were dismissed.

2. The 42-day limit and the document requirements in rule 3(1) of the Employment Appeal Tribunal Rules 1993 serve finality and enable the EAT to identify an arguable question of law. They are limits rather than targets. Nevertheless, the Rules must be applied consistently with the overriding objective and the interests of justice.

3. Following Ridley, an in-time appeal with missing documents is materially different from a complete failure to lodge an appeal in time. Under rule 37(1), the EAT must identify the reason for the omission, assess it in context, and weigh all relevant factors even-handedly. The relevant delay ordinarily runs from notification of the error to its rectification. A mistake does not itself bar relief, and neither a good excuse nor proof that the individual case is rare and exceptional is an absolute precondition.

4. Rule 37(5) first requires an error that is properly characterised as minor. The significance of the omitted material to the proposed appeal is central. An entire substantive document, particularly grounds of resistance needed for the sift, will usually not be minor. If the threshold is met and the error is rectified, justice is assessed by reference to all circumstances, including the manner and timeliness of rectification and prejudice.

5. AB had a good explanation arising from exceptional personal circumstances, promptly cured the omission once notified, and caused no material prejudice. Mr Shina’s omissions were not minor and his oversight was not a good explanation, but his stress, efforts to obtain representation, prompt correction and lack of specific prejudice justified relief. Mr Adams’ omission was minor and substantively remedied promptly; administrative confusion and the absence of substantive prejudice supported an extension.

6. Miss Rehman and Mr Samuels omitted substantive grounds of resistance, did not provide good or reliable explanations, and failed to rectify their defaults promptly or accurately. The resulting delays and prejudice to finality meant that justice did not favour extensions.

• Employment Appeal Tribunal: Appeals from the Registrar’s orders refusing extensions of time. This court reconsidered the applications afresh, allowed three appeals and dismissed two.
• Employment Tribunal: Each proposed appeal arose from an ET decision. The individual ET judgments are not separately cited in this judgment.