R Melki v Bouygues E and S Contracting UK Ltd

The power introduced by rule 37(5) of the Employment Appeal Tribunal Rules 1993 applies from its commencement to pending appeals, including appeals instituted before 30 September 2023. Procedural amendments ordinarily apply to existing proceedings unless that result would cause unfairness or the instrument provides otherwise.

A minor error is one negligible or of no real importance to the proper progress of an appeal. Omitting the whole of an essential document, or a substantial and important part of it, will ordinarily not be minor unless the document is irrelevant to the appeal. Where rule 37(5) is unavailable, an extension under rule 37(1) remains subject to the strict, exceptional-circumstances approach.

The claimant appealed the Registrar’s refusal to extend time for instituting an Employment Appeal Tribunal appeal against the dismissal of his employment tribunal claims for direct race discrimination and harassment.

His notice of appeal was sent within the 42-day period, but the respondent’s ET3 form was attached without its Grounds of Resistance. He supplied the omitted grounds six days later. The appeal raised whether the subsequently inserted rule 37(5) applied to this pending appeal and, if so, whether the omission was a minor error. It also raised whether an extension should alternatively be granted under rule 37(1).

1. Appeal dismissed. Rule 37(5) of the Employment Appeal Tribunal Rules 1993, inserted with effect from 30 September 2023, applied to this pending appeal. An appeal from a Registrar’s extension-of-time decision is a rehearing. Procedural changes ordinarily apply to pending proceedings unless transitional language or unfairness requires another result. The new rule was intended to remedy the disproportionate consequences of the former strict approach to incomplete notices of appeal. Its requirements that the error be rectified and that an extension be just in all the circumstances protect respondents against unfairness.

2. The claimant’s omission was not a minor error. In rule 37(5), “minor” means comparatively unimportant, rather than serious or substantial. A missing page from an otherwise intelligible document may be minor. However, the complete Grounds of Resistance were an essential and important part of the ET3 response. They set out the respondent’s factual case and defences, which were necessary to assess the challenge to the tribunal’s acceptance of that case. The omission therefore prevented a complete understanding of the appeal.

3. As the error was not minor, rule 37(5) gave the EAT no discretion to extend time. The court also considered rule 37(1). The claimant’s lack of awareness that the Grounds of Resistance had to accompany the ET3 was not a good excuse. He had left filing until the end of the appeal period, failed to follow the applicable guidance and omitted an important document. Those circumstances were not exceptional and did not justify an extension under the strict rule 37(1) jurisdiction.

• Employment Appeal Tribunal: appeal from the Registrar’s order dismissed.
• Employment Appeal Tribunal Registrar: on 10 August 2023, refused an extension of time to institute the appeal.
• Manchester Employment Tribunal: dismissed the claimant’s claims of direct race discrimination and harassment after a five-day hearing; its judgment and reasons were sent on 12 April 2022.