M Jasim v LHR Airports Limited

Where two employment tribunal claims remain separate, an appeal can be properly instituted in time for one claim even though required documents for the other claim were omitted. Claims merely heard together do not thereby merge.

Under EAT Rules, Rule 37(5), whether an error is minor depends upon the significance of the omitted material to the particular appeal. If a minor error has been rectified, the EAT must decide whether an extension is just by balancing justice to both parties. It must consider the manner and timeliness of rectification and prejudice, but their weight is fact-sensitive. Rule 37(5) permits a more forgiving approach to genuine minor mistakes than Rule 37(1).

The claimant brought two separate employment tribunal claims. They were heard together and both were dismissed in May 2021. He sought to appeal the decision.

His notice of appeal was lodged within time with complete documents for one claim, but without the ET1 and ET3 for the other. The Registrar held that the appeal had been properly instituted only when the missing forms were supplied about 95 days later, and refused an extension.

On an appeal from the Registrar’s order, heard afresh, the central issues were whether the appeal had been instituted in time for either claim and whether time should be extended for the other under Rule 37(5) of the EAT Rules.

1. Appeal allowed. The appeal relating to Claim No. 3320062 of 2019 was instituted in time. The claim and response documents required for that separate claim had accompanied the notice of appeal. The appeal relating to Claim No. 3335322 of 2018 was not instituted in time, because its ET1 and ET3 were absent.
2. Sud v London Borough of Ealing [2011] EWCA Civ 995 applied. Separate claims do not become one merely because they are heard together or their issues overlap. The EAT declined to accept the contrary reading of the former Rule 3(1)(b) adopted in Carroll v The Mayor’s Office for Policing and Crime [2015] ICR 835 (EAT). In this context, “any claim and response” meant the relevant claim and response, if any, rather than every pleading in wider proceedings. The formal consolidation point considered in Shah v The Home Office [2024] EAT 21 did not alter that conclusion under the employment tribunal procedural rules.
3. Rule 37(5) was available despite the later amendment removing the former requirement to attach claim and response forms: Melki v Bouygues E & S Contracting UK Limited [2024] EAT 36. A minor error is one comparatively unimportant to the proper progress of the particular appeal. The omitted ET1 and ET3 were minor here because all material information, including the substance of the claim and defence, appeared in the documents supplied.
4. The omission was a genuine mistake and was rectified promptly after notification. In deciding whether it was just to extend time, the EAT balanced the prejudice of refusing an extension against the respondent’s interest in finality and avoiding the costs of an appeal. It considered the manner and timing of rectification, the 95-day delay, and prejudice to the respondent. The claimant’s prejudice outweighed the respondent’s, particularly as the respondent would not face greater difficulty defending the appeal.
5. Time was extended under Rule 37(5). It was unnecessary to consider Rule 37(1), under which the explanation would not have amounted to a sufficient excuse.

• Employment Appeal Tribunal: Appeal from the Registrar’s order allowed. The appeal was held timely for one separate claim, and time was extended for the other under Rule 37(5) of the EAT Rules.
• Employment Tribunal: Following a hearing in May 2021, dismissed all complaints in two claims. No citation is stated.