Adrian Ikeji v Office of Rail and Road & Ors

Under rule 3(1)(b) of the EAT Rules 1993, an appeal from a tribunal judgment is properly instituted where the appellant files the ET1 claim and ET3 response relevant to the claim under appeal. Separate tribunal claims do not merge merely because they were directed to be considered together. The appellant need not file pleadings from a separate claim which is not the subject of the appeal.

An appeal from an order is governed by rule 3(1)(e), which does not require the ET1 claim or ET3 response. A refusal of permission to amend, recorded as an order, may therefore be appealed without those pleadings.

The claimant had brought two separate Employment Tribunal claims. The first included contract and race-discrimination complaints. The second included protected-disclosure dismissal, disability-discrimination and wages complaints.

At a preliminary hearing, the tribunal refused interim relief in the second claim and refused permission to amend that claim. The claimant appealed both decisions, filing the second claim's ET1 and ET3 but not the pleadings in the first claim. The Registrar held that the appeal had not been properly instituted in time and refused an extension.

The appeal concerned whether rule 3 of the EAT Rules 1993 required pleadings for both claims because they had been directed to be considered together.

1. Appeal allowed. The appeal had been properly instituted within time. The Registrar's contrary order was therefore wrong.

2. Rule 3(1)(b) of the EAT Rules 1993 required, for an appeal from the judgment refusing interim relief, the ET1 claim and ET3 response relevant to the claim under appeal. It did not require the pleadings in every separate claim considered at the same hearing. The two claims remained separate. A direction that they be considered together did not consolidate or merge them.

3. The court followed Sud v London Borough of Ealing [2011] EWCA Civ 995 and agreed with the analysis in Jasim v LHR Airports Limited [2024] EAT 59. The binding effect of Sud meant that an appeal concerning a claim for which the relevant paperwork was complete could be instituted in time, notwithstanding missing documents for another claim.

4. The refusal of permission to amend was an order, not a judgment. Rule 3(1)(e) required the written record of that order and any available reasons, but not an ET1 claim or ET3 response. That aspect of the appeal was accordingly also properly instituted.

5. The judge observed that an explanation under rule 3(1)(b) could explain why a document was unnecessary, rather than only why it could not be supplied. The point did not require determination because the appeal was properly instituted on the principal construction of the rule.

• Employment Appeal Tribunal: Allowed the claimant's appeal from the Registrar's order refusing an extension of time and held that the underlying appeal had been properly instituted within time: [2024] EAT 87.
• Employment Appeal Tribunal Registrar: Refused an extension of time by an order sealed on 21 August 2023.
• Employment Tribunal: At a preliminary hearing on 24 October 2022, refused interim relief and refused permission to amend the second claim. The decisions were sent to the parties on 4 January 2023.