Lloyd Parker v West Midlands Trains Limited

The amended rule 37(5) of the Employment Appeal Tribunal Rules 1993 applies to pending appeals, including appeals instituted before the amendment took effect. An omission is a minor error if it is minor in the context of compliance with rule 3(1); the importance of the missing document to the substantive appeal is not the test. Once the error has been rectified, the tribunal must decide whether an extension is just in all the circumstances. That discretion must be exercised judicially, even-handedly and fairly, without a pre-programmed approach. A misleading communication from the EAT, followed by prompt responses when the defect was identified, may mean that subsequent delay is not attributable to the appellant. The appeal was allowed and an extension of time granted.

The appellant, a litigant in person, appealed against the dismissal of his disability discrimination claims by an employment tribunal. His notice of appeal to the EAT was lodged within time, but he omitted the particulars of claim attached to the ET1. After the EAT requested the missing document, he supplied further and better particulars instead. He supplied the correct document promptly after a further EAT request in March 2023.

The EAT treated the appeal as out of time and refused an extension. HHJ Beard dismissed the appellant’s rehearing appeal on 13 March 2025, applying the approach in Abdelghafar and considering that the omission was not a minor error and that the delay caused prejudice. The central issues before the Court of Appeal were whether rule 37(5) applied and whether the omission was a minor error such that an extension was just.

1. Appeal allowed. The respondent properly conceded, in light of Melki v Bouygues E&S Contracting UK Ltd, that omission of the particulars of claim was a minor error for the purposes of rule 37(5). The test is the degree of compliance with rule 3(1), not the importance of the omitted document to the appeal. Rule 37(5) was applicable although the notice of appeal was lodged before the amendment, because the extension application was considered after the amendment came into force.
2. The Court of Appeal reviewed the discretion for itself because the principal basis of HHJ Beard’s decision was his understandable, but legally mistaken, view that the error was not minor. The discretion had to be exercised judicially, even-handedly and fairly, consistently with United Arab Emirates v Abdelghafar and Ridley v HB Kirtley t/a Queen’s Court Business Centre.
3. The appellant was not responsible for the three-month period between the EAT’s letters of 13 December 2022 and 28 March 2023. The 11 January 2023 letter said that preliminary checks indicated that the appeal had been properly instituted. Read with the earlier letter, that communication was misleading and reasonably conveyed that the identified defect had been overcome. The appellant responded within eight days to the first request and within three hours to the later request.
4. The later delay in the EAT and appellate process, including the postponement of the substantive hearing, could not fairly be attributed to the appellant. In those circumstances, it was just to extend time. The decisions of Ms Lewenstein and HHJ Beard were set aside, and an extension was granted, technically until 29 March 2023, for presenting a valid notice of appeal to the EAT. The EAT was directed to consider the underlying appeal on its merits through its ordinary sifting procedures.

• Court of Appeal (Civil Division): appeal allowed; the decisions refusing an extension of time were set aside, an extension was granted until 29 March 2023, and the appeal was to proceed before the EAT on its merits.
• Employment Appeal Tribunal: HHJ Beard dismissed the appellant’s rehearing appeal on 13 March 2025.
• Employment Appeal Tribunal Registrar: on 27 March 2024, Ms A Lewenstein refused the application to extend time.
• Employment Tribunal: the disability discrimination claims were dismissed at an open preliminary hearing, with written reasons provided on 14 November 2022.