Appeal allowed regarding time limits when the claimant, in error, was told that the appeal had been properly instituted and was then told that the appeal was out of time when the office found that a required document had not been included.

The claimant brought claims for unfair dismissal and disability discrimination.   These claims were dismissed by the Tribunal and the claimant, as a litigant in person, sought to appeal to the EAT. The claimant had enclosed the ET1 but did not include the particulars of claim.  The EAT informed the claimant that the appeal had not been properly instituted, the 42-day time limit for appeal was still running. The claimant, mistakenly, then sent the further and better particulars rather than the particulars of claim. The time limit expired but the claimant received notification that his appeal had been properly instituted, and a case manager would check that it was received on time.

Three months later the EAT informed the claimant that the appeal was not properly instituted due to the missing document. The claimant immediately sent the documentation and apologised for the oversight. The EAT then required the claimant to seek an extension of time but this was refused as it was deemed that there was insufficient evidence to explain the failure to file the valid notice in time. 

The claimant appealed to the Court of Appeal.

The Employment Appeal Tribunal Rules 1993, Rule 37, as amended, allows for time to be extended where the appellant has made a minor error in complying with the requirement to submit the relevant documents and then rectifies it. The Court of Appeal stated that the claimant could not be criticised for the delay of 3 months as he was told that it had been properly instituted but it was only on second review that the one document was noted as missing.   As a result, the Court held that the ordinary reader would have concluded that the appeal had been properly instituted.  Accordingly, the Court followed the recent decision of Melki v Bouygues E &S Contracting [2025] when it was held that a minor error is assessed by reference to the degree of compliance with the Rules rather than the importance of the missing document.  As a result, the appeal was allowed.

Another case relating to time limits – this time relating to appeals. The allowance of ‘minor errors’ in relation to allowing an extension for the EAT appeals demonstrates some flexibility but it was not exercised here. Considering the claimant was told by the EAT staff that it was properly instituted it was then not appropriate to find that the claimant had not met the time limits and could not have an extension. This is likely to be frustrating for the respondent as it was out of their control but those going into the Tribunal or Courts should be mindful of the overall picture including the detail received from the offices of the Court.

You can read the case in full here.