Shirley Ridley v HB Kirtley t/a Queen's Court Business Centre & Ors

When deciding whether to extend time for an appeal to the Employment Appeal Tribunal, the tribunal must weigh all relevant circumstances under the broad discretion in rule 37(1) of the Employment Appeal Tribunal Rules 1993. A notice filed in time with nearly all required documents is materially different from an appeal first lodged after the deadline. The degree of substantial compliance depends on the nature, extent and importance of the omitted material.

A mistake is not automatically incapable of justifying an extension. The tribunal must understand the appellant’s particular explanation and must avoid converting flexible guidance into rigid sub-rules. Leaving filing until the last day, lacking a conventionally “good” excuse, or failing to establish that the case itself is exceptional does not conclusively determine the application.

Three appellants filed notices of appeal against Employment Tribunal decisions within the applicable 42-day period. Each omitted an attachment forming part of the respondent’s Employment Tribunal response. Each supplied the missing material after notification by the Employment Appeal Tribunal, but the tribunal treated the appeals as instituted out of time and refused extensions under rule 37(1) of the Employment Appeal Tribunal Rules 1993.

Different Employment Appeal Tribunal judges upheld those refusals on rehearing. Their reasoning relied on the established strict approach to appeal deadlines, the appellants’ mistakes and, where relevant, medical evidence or stress.

The common issue was whether the tribunal erred by treating missing-document cases too rigidly and by failing to recognise substantial compliance with the requirements for instituting an appeal.

1. All three appeals were allowed. Each case was remitted to the Employment Appeal Tribunal for the application to extend time to be reconsidered afresh.

2. The discretion under rule 37(1) of the Employment Appeal Tribunal Rules 1993 is very wide. The strict guidance derived from United Arab Emirates v Abdelghafar remains applicable, but it consists of guidelines rather than rigid rules. The tribunal must exercise its discretion judicially, even-handedly and fairly by weighing all relevant circumstances: paras [143]–[147], [157].

3. There is a legally significant distinction between an appellant who files nothing before the deadline and one who files a notice and nearly all required documents in time. The latter has substantially complied with rule 3(1). The degree of compliance depends upon what is missing, how much is missing and its importance to the proposed appeal. That distinction is a mandatory relevant consideration: paras [144]–[145], [157].

4. A mistake is ordinarily the reason why the rule 37(1) discretion is invoked in a missing-document case. Its occurrence cannot itself bar an extension. An understandable mistake cannot automatically be discounted because earlier filing might have permitted correction. The tribunal must first understand the appellant’s particular explanation. Once the tribunal identifies the omission, the relevant corrective delay is ordinarily the period between notification and rectification: para [147].

5. No rule prevents an extension merely because an appellant filed on the last day, was professionally represented, made a venial mistake, or lacked a conventionally good excuse. Nor must an applicant prove that the case itself is rare and exceptional. These matters may remain relevant factors, but none dictates the outcome: para [152].

6. In each appeal, the judge failed to recognise the substantial-compliance distinction and treated the applicable guidance too rigidly. The judges also failed adequately to understand the particular mistake or to evaluate whether stress or medical difficulties contributed to it. Those errors were material because the discretion might otherwise have been exercised differently: paras [159]–[167].

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 884, allowed all three appeals and remitted each extension application to the Employment Appeal Tribunal for reconsideration.

2. Employment Appeal Tribunal: HHJ Beard, HHJ Shanks and HHJ Auerbach separately upheld refusals by the Registrar to extend time, each reconsidering the relevant application afresh. The proceedings were EA-2021-001088-RN, EA-2021-000918-AT and EA-2022-000779-DXA respectively.

3. Employment Tribunal: Each appellant sought to challenge an adverse Employment Tribunal decision. The citations of those decisions are not stated in the judgment.