H Rogers v Secretary of State for Justice

For an appeal to the Employment Appeal Tribunal, failure to provide the judgment and reasons is not ordinarily a minor error where those documents are required to understand the decision and assess whether an arguable error of law exists. An extension of time remains discretionary. The Tribunal must weigh the explanation for the default and all circumstances in the interests of reason and justice. A good excuse is not an absolute requirement. Greater leniency may be appropriate where a Notice of Appeal and grounds were lodged in time, but a required document was omitted, particularly where the omission resulted from a genuine, promptly corrected error and caused no specific prejudice.

The appellant appealed from a Registrar’s order refusing an extension of time to properly institute an appeal. The Employment Tribunal’s reserved judgment and reasons had been sent to the parties by email. The appellant’s solicitors lodged the Notice of Appeal and compliant grounds before the expiry of the time limit, but uploaded the covering letter instead of the judgment and reasons.

The error was identified and corrected 17 days after the time limit expired. The issues were whether the omission was a minor error under rule 37(5) of the Employment Appeal Tribunal Rules 1993 and, if not, whether an extension should be granted under rule 37(1).

1. Minor error. The appeal was a rehearing and the matter was determined afresh. The documents required to institute an appeal included the Notice of Appeal, the judgment and, where provided, the reasons. The judgment with reasons was a core document because it enabled the EAT to understand the decision under challenge and assess whether there was an arguable error of law. Its omission was therefore not a minor error for rule 37(5) purposes.
2. Extension of time. The discretion under rule 37(1) was governed by United Arab Emirates v Abdelghafar [1995] ICR 65, as affirmed in Ridley v HB Kirtley [2024] EWCA Civ 884; [2025] ICR 441. The EAT must weigh all relevant factors in accordance with reason and justice. An extension is an indulgence rather than a right, and the EAT takes a relatively strict approach to time limits. A good excuse is not an absolute requirement in every case, as recognised in Jurkowska v Hlmad Ltd [2008] EWCA Civ 231; [2008] ICR 841.
3. Relevant distinction. The material distinction identified in Ridley v HB Kirtley was between failing to appeal within time and lodging an appeal within time while failing to provide all required documents. The latter category allowed scope for somewhat greater leniency.
4. The solicitors had prepared the grounds and all necessary documents. The failure arose from a genuine single error involving mislabelling, uploading the wrong document and failing to check the upload. The error was promptly corrected, and there was a full and candid explanation. Refusal would deprive the appellant of the opportunity to pursue the appeal, while the respondent suffered no specific prejudice beyond that inherent in facing an otherwise time-barred appeal. The extension was granted and the appeal was directed to proceed to sift.

• Employment Appeal Tribunal: The appeal from the Registrar’s order was reheard. The Registrar’s refusal of an extension of time was replaced by an order granting the extension, and the appeal was to proceed to sift.