X v Y & Ors

Where an appeal is lodged in time but required documents are omitted through an honest mistake, an extension of time may be just. The discretion under rule 37 of the Employment Appeal Tribunal Rules 1993 requires an assessment of all the circumstances, not a rigid rule that a mistake prevents relief.

Under rule 37(5), whether an error is minor is assessed in the context of compliance with rule 3(1). Relevant considerations include the appellant’s candid explanation, the nature of the omitted documents, the promptness of rectification after notification, and prejudice to the respondent. The material period will generally run from notification of the omission to its correction.

The claimant’s Employment Tribunal complaints of discrimination, harassment, victimisation and whistleblowing detriment were dismissed. He submitted a Notice of Appeal before the deadline calculated from the later provision of written reasons, but omitted the ET1, ET3 forms and grounds of resistance. The Registrar refused an extension of time after the omitted documents were supplied.

On appeal from that order, the claimant said that the omission was an honest mistake made under pressure and affected by back pain and dyslexia. The central issue was whether the omission and subsequent delay justified an extension under rules 37(1) and 37(5) of the Employment Appeal Tribunal Rules 1993.

1. Appeal allowed. Time was extended so that the appeal was treated as instituted in time, and it was to proceed to the sift stage.

2. The claimant’s Notice of Appeal was submitted before the applicable deadline. Where written reasons had been requested in time, the 42-day period under rule 3(3) ran from the date on which those reasons were sent. The omission of the written reasons from the initial filing did not prevent proper institution because the claimant had explained that they had been requested but not received.

3. The claimant made a genuine and candid mistake in omitting the ET1, ET3 forms and grounds of resistance. An inability to explain precisely why documents were forgotten did not undermine the honesty of that explanation. The error was minor for rule 37(5): it concerned compliance with rule 3(1), the appeal had been lodged early, and the omitted documents were of secondary importance, particularly as they were no longer required by the amended rules.

4. The claimant rectified the error with reasonable dispatch after notification by the EAT. The relevant delay generally runs from notification of the omission to correction. Although he could have acted faster, the respondent identified no significant prejudice. It was therefore just to grant an extension under rule 37(5).

5. The same matters justified relief under the general discretion in rule 37(1). The discretion must be exercised fairly and on the particular facts. An honest mistake in filing documents can support an extension, although it does not confer one as of right.

• Employment Appeal Tribunal: Appeal from the Registrar’s order allowed. Time was extended and the appeal was directed to proceed to the sift stage.
• Employment Tribunal: The claimant’s discrimination, harassment, victimisation and whistleblowing-detriment complaints were dismissed in a judgment sent on 10 October 2022. Written reasons were sent on 8 December 2022.