Reza Melki v Bouygues E and S Contracting UK Ltd

Under rule 37(5) of the Employment Appeal Tribunal Rules 1993, whether an appellant has made a “minor error” is assessed by reference to the extent of compliance with rule 3(1). The importance of an omitted document to the progress of the appeal is not the governing criterion.

Where a minor error has been rectified, the EAT has a broad discretion to extend time if justice requires, having regard to all the circumstances. Unlike the approach under rule 37(1) described in [2024] EWCA Civ 884, rule 37(5) does not require a satisfactory explanation for the error. The discretion must be exercised on the particular facts and not through pre-programmed rules.

The appellant lodged an appeal to the Employment Appeal Tribunal within the 42-day period, together with nearly all the documents then required by rule 3(1) of the Employment Appeal Tribunal Rules 1993. He omitted grounds of resistance attached to the respondent’s ET3, but supplied them six days after the deadline when the omission was identified.

The EAT Registrar refused an extension of time. On a rehearing, the EAT held in [2024] EAT 36 that amended rule 37(5) applied, but that the omission was not a “minor error” because the grounds of resistance were important to understanding the appeal. It also refused relief under rule 37(1).

The central issues were the correct meaning of “a minor error” in rule 37(5), whether this omission met that threshold, and whether the reasoning in Ridley required relief under rule 37(1).

1. Appeal allowed on grounds 1 and 2 and dismissed on ground 3. The EAT had misconstrued rule 37(5) of the Employment Appeal Tribunal Rules 1993. Elisabeth Laing LJ gave the principal judgment. Underhill LJ agreed for substantially the same reasons and gave additional reasons. Baker LJ agreed with both judgments.

2. The expression “a minor error” is comparative and must be assessed in its stated context: compliance with the requirement under rule 3(1) to submit relevant documents. The EAT wrongly added a gloss that the omitted material must be irrelevant, negligible or of no importance to the proper progress of the appeal. The language of rule 37(5) did not support that restriction.

3. The restrictive construction also defeated the amendment’s evident purpose. The amendment addressed the former practice of treating an appeal lodged in time with missing material in the same way as an appeal lodged after the deadline. It was intended to reduce invalid appeals, administrative work and delays, while improving access to justice. A narrow threshold would leave little room for the broad discretion expressly conferred by rule 37(5).

4. The appellant’s omission was a minor error. He had submitted the ET3 and all other required documents but omitted an attachment forming part of the response. Underhill LJ considered that the location of the grounds on separate sheets, rather than within the response form, could not alter the character of the error.

5. The error had been rectified. Underhill LJ concluded that the discretion had to be exercised in the appellant’s favour because only part of one document was omitted, the omission was promptly corrected, and no prejudice resulted. Although the mistake was careless, it involved no deliberate or reckless disregard of the rules and no tactical advantage.

6. Ground 3, based on Ridley, failed because the appellant had not provided a satisfactory explanation for his mistake. Rule 37(5), by contrast, contains no requirement for such an explanation. The court left open whether rule 37(5) has superseded the reasoning in Ridley in every case and declined to give general guidance defining all minor errors.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 585, allowed the appeal on the construction and application of rule 37(5), dismissed the ground based on rule 37(1), and held that justice required an extension of time.
2. Employment Appeal Tribunal: In [2024] EAT 36, dismissed the appeal from the Registrar. It held that amended rule 37(5) applied, but that omission of the grounds of resistance was not a minor error, and refused an extension under rule 37(1).
3. Employment Appeal Tribunal Registrar: Refused the appellant an extension of time on 10 August 2023.
4. Employment Tribunal: Dismissed the appellant’s underlying claim.