M Mulumba v Partners Group (UK) Limited & Anor

For an appeal to the Employment Appeal Tribunal, the time limit and documentary requirements operate together. The distinction between a wholly late appeal and an in-time appeal with substantial documentary compliance assists only where substantial compliance occurred within time. A notice accompanied only by the form and, at most, grounds, while omitting the judgment, reasons and pleadings, does not qualify.

Where the judgment and reasons are one document, rule 3(1) requires the judgment itself. An explanation cannot replace it. Under rule 37(5), whether an error is minor is a threshold issue, separate from the discretionary factors. Under rule 37(1), the tribunal must assess the explanation and whether exceptional circumstances justify an extension. Litigant-in-person status and mental health matter only where they explain the default.

Ms Mulumba appealed after the Registrar of the Employment Appeal Tribunal refused to extend time for two appeals from Employment Tribunal decisions. Appeal 1 was received at 23.49 on the final day and was treated as lodged the following day. Appeal 2 was submitted before 4pm on its final day, but without the Employment Tribunal judgment, written reasons or pleadings; those documents followed after the deadline.

The EAT dismissed her appeals. The Court of Appeal considered whether the underlying decisions were separate, whether appeal 2 was properly instituted, and whether time should be extended under rules 37(1) or 37(5), including in light of the distinction identified in [2024] EWCA Civ 884.

The appeal was dismissed unanimously. Lady Justice Elisabeth Laing gave the principal judgment. Baker LJ agreed. Lewison LJ agreed, although with some reluctance.

1. Separate decisions. The Employment Tribunal’s judgment 2 and judgment 3 were separate decisions under the Employment Tribunal Rules of Procedure 2013. They therefore carried different appeal deadlines. The evidence supported the inference that Ms Mulumba knew the deadline for appeal 2 was 15 February 2022.
2. Institution of appeal 2. Appeal 1 was wholly late because nothing was lodged before the deadline. In appeal 2, at most, the notice of appeal and grounds were lodged in time. The judgment, written reasons and pleadings were not. The substantial-compliance distinction in Ridley v HSBC Kirtley (t/a Queen’s Court Business Centre) [2024] EWCA Civ 884 therefore did not apply.
3. Documentary requirements. Under the Employment Appeal Tribunal Rules 1993, where the judgment and written reasons are contained in one document, the judgment itself must be lodged. The Rules do not allow an appellant to omit the judgment and substitute an explanation. EAT Form 1 gave a potentially misleading impression, which might matter in an appropriate case, but not on these facts.
4. Explanation for missing documents. Following Richardson v Extreme Roofing [2023] ICR 328, a contemporaneous explanation had to be a good explanation. The explanation based on document size, software and IT difficulties was inadequate because the documents were supplied in suitable form only a few days later, without explaining why the difficulty had suddenly been overcome.
5. Rule 37(5). Following Melki v Bouygues E & S Contracting UK Limited [2025] EWCA Civ 585, whether an error was minor was a threshold question concerned solely with compliance with rule 3(1). The discretionary factors could not convert a substantial omission into a minor error. Ms Mulumba knowingly failed to comply; in any event, failure to lodge the judgment where it and the reasons were one document was not minor.
6. Rule 37(1). The Judge had considered all the explanations and circumstances relied upon, including mental health, litigant-in-person status, IT difficulties and prejudice. The weight given to those matters was for him. There was no error of law. Lewison LJ additionally noted that Green v Mears Limited [2018] EWCA Civ 751 remained binding and that the appeals fell outside the safety valves identified in Ridley and rule 37(5).

1. Court of Appeal (Civil Division) — dismissed the appeal from the EAT.
2. Employment Appeal Tribunal — dismissed appeals from the Registrar’s refusals to extend time for appeals 1 and 2.
3. Registrar of the Employment Appeal Tribunal — refused extensions of time, treating appeal 1 and appeal 2 as out of time.
4. Employment Tribunal — issued the separate decisions giving rise to the two appeals.