AR Wilson v Network Rail Infrastructure Limited

An Employment Appeal Tribunal appeal lodged within time but lacking required documents is materially different from an appeal lodged after the time limit. The discretion to extend time must be exercised judicially, fairly and on the facts of the individual case. It must not be controlled by rigid sub-rules derived from earlier authorities.

Under rule 37(5) of the Employment Appeal Tribunal Rules 1993, whether an error is minor is assessed in the context of compliance with rule 3(1). Where the error is rectified, the Tribunal must consider all the circumstances, including promptness and prejudice. An honest and explicable misunderstanding about consolidated claims may also justify an extension under the general discretion in rule 37(1).

The claimant appealed from a Registrar’s order, sealed on 4 March 2024, refusing an extension of time to institute an appeal against an Employment Tribunal judgment dismissing his complaints of unfair dismissal and disability discrimination.

He had lodged a notice of appeal within the 42-day period. It omitted the grounds of resistance to his first claim and documents concerning a second claim. The claims had been consolidated, and he genuinely believed that they amounted to one claim with two case numbers. He supplied the missing grounds of resistance shortly after the EAT identified that omission. His later explanation concerning the second claim was inaccurate in part, but honestly reflected his misunderstanding.

The central issue was whether time should be extended for the missing documents, having regard to the amended rules and recent appellate guidance.

1. Appeal allowed. The Registrar’s refusal was reconsidered afresh. An extension of time was granted so that the appeal against the Employment Tribunal judgment could proceed to sift.

2. The discretion under rules 37(1) and 37(5) of the Employment Appeal Tribunal Rules 1993 must be exercised on a principled, fact-sensitive basis. An appeal lodged within time with documents missing involves substantial compliance and is materially distinct from lodging no notice of appeal before the deadline. Earlier guidance does not create automatic sub-rules which prevent a fresh exercise of discretion.

3. Rule 37(5) applied to the first claim. The failure to attach the grounds of resistance was a minor error in complying with rule 3(1). The claimant rectified it reasonably promptly after the EAT’s letter of 3 December 2022. The short relevant delay caused no significant prejudice to the respondent. It was therefore just to extend time, notwithstanding the separate issues about the second claim.

4. The same result was available under the general discretion in rule 37(1), which permits greater flexibility where a notice of appeal was filed in time but supporting documents were absent.

5. An extension was also granted, if required, in respect of the second claim under rule 37(1). The claimant’s explanation that it was a duplicate was not wholly accurate. However, it was honest and explicable in light of the consolidation and the claim’s lack of substantive addition to the complaints determined by the Employment Tribunal.

The appeal was directed to be sifted on an expedited basis.

• Employment Appeal Tribunal: On 6 June 2025, the appeal from the Registrar’s order was allowed. Extensions of time were granted and the substantive appeal was directed to sift.
• Registrar, Employment Appeal Tribunal: By an order sealed on 4 March 2024, an extension of time to institute the appeal was refused.
• Employment Tribunal: By a judgment sent to the parties on 28 September 2022, the claimant’s complaints of unfair dismissal and disability discrimination were dismissed. His reconsideration application was refused on 21 November 2022.