Claudia Davies v BMW (UK) Manufacturing Ltd

When an appeal to the Employment Appeal Tribunal is lodged within time but a required document is missing, the case must be distinguished from one in which the deadline itself was missed. The tribunal must assess the extent of substantial compliance, the importance of what is missing, the appellant’s explanation, and the delay after the omission is notified. A filing mistake is not, by itself, a reason to refuse an extension. The discretion under rule 37(1) must be exercised judicially and fairly, rather than by rigid formula. Server limitations and other relevant circumstances may make an extension appropriate. On allowing an appeal, the Court of Appeal may exercise the EAT’s power where that is just and efficient.

The Employment Tribunal dismissed Mrs Davies’s claims in a judgment sent on 13 July 2021. Written reasons were subsequently sent, and the parties treated 2 November 2021 as the deadline for appealing to the Employment Appeal Tribunal. Mrs Davies lodged an appeal on that date, including the written reasons but omitting the ET’s judgment. She supplied the judgment on 22 March 2022, when the appeal was properly instituted. The EAT Registrar refused an extension of time, and HHJ Tucker dismissed her appeal from that decision in case EA-2021-001290-OO.

Mrs Davies appealed to the Court of Appeal. The central issues were whether the EAT had applied the discretion under rule 37(1) correctly, how an in-time appeal with a missing document should be treated, and whether the Court of Appeal should exercise the EAT’s discretion itself.

1. Disposition. Lady Justice Elisabeth Laing, with whom Lord Justice Phillips and Lord Justice Moylan agreed, allowed the appeal. The Court of Appeal substituted a decision extending time for Mrs Davies’s appeal to the EAT.
2. Applicable approach. The court accepted that the discretion under rule 37(1) of the Employment Appeal Tribunal Rules 1993 must be exercised judicially, even-handedly and fairly. The guidance in United Arab Emirates v Abdelghafar [1995] ICR 65 remains relevant, but is not a rigid formula. The later decision in Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 884 established a legally significant distinction between an appeal lodged in time with a missing document and an appeal lodged after the deadline.
3. Errors by the EAT. The EAT failed to recognise that distinction. It treated the relevant delay as running from expiry of the deadline rather than from notification of the omission to its correction. It treated the filing mistake as a reason against an extension, although such a mistake may be venial. It failed to recognise that the case was a fortiori J v K [2019] EWCA Civ 5, given the limitations of the EAT’s server. It also failed to recognise the substantial compliance achieved by filing the written reasons and making it apparent that the ET decision had been adverse.
4. Application of the discretion. The missing judgment had to be assessed in context. Its importance was reduced because the written reasons had been filed and the appeal itself showed that Mrs Davies had lost before the ET. The EAT’s errors were material and made its exercise of discretion wrong in principle.
5. Substitution. Under CPR52.20(1), the Court of Appeal had the powers of the court below. It was appropriate to exercise the EAT’s discretion itself, to save party and judicial resources and avoid further delay. The court did not need to decide whether the facts left the EAT with no option but to extend time.

1. Court of Appeal (Civil Division): Allowed the appeal and extended time for Mrs Davies’s appeal to the EAT: [2025] EWCA Civ 356.
2. Employment Appeal Tribunal: HHJ Tucker dismissed Mrs Davies’s appeal from the Registrar’s refusal to extend time in case EA-2021-001290-OO.
3. Employment Tribunal: Dismissed Mrs Davies’s claims in a judgment sent on 13 July 2021.