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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wilson v Network Rail Infrastructure Ltd (Practice and Procedure) [2025] EAT 80 (06 June 2025)
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Cite as: [2025] EAT 80

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Neutral Citation Number: [2025] EAT 80
Case No: EA-2022-001245-DXA

EMPLOYMENT APPEAL TRIBUNAL

Rolls Building
Fetter Lane, London, EC4A 1NL
6 June 2025

B e f o r e :

HIS HONOUR JUDGE JAMES TAYLER
____________________

Between:
Mr A R Wilson
Appellant
- and -

Network Rail Infrastructure Limited
Respondent

____________________

Mr A R Wilson, the Appellant in person
Lucinda Harris (instructed by Addleshaw Goddard) for the Respondent
Appeal from the Registrar's Order

Hearing date: 13 May 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    SUMMARY

    Practice and procedure

    Recent developments in the law concerning applications for extensions of time to institute appeals considered. Respondents awaiting hearings of appeals from Registrar's Orders refusing an extension of time in missing documents cases should consider whether to maintain their objections to an extension of time.

    HIS HONOUR JUDGE JAMES TAYLER:
  1. The resources of the Employment Appeal Tribunal are limited. They are best expended determining appeals that raise substantive issues of law, rather than resolving procedural disputes, such as whether an extension of time should be granted to allow an appeal to proceed. The EAT Practice Direction is designed to be accessible and guidance on how to institute an appeal is readily available, so people who wish to appeal should be able to comply. But where an appellant makes an honest mistake, despite having complied with the spirit of the rules, recent developments allow the EAT greater flexibility to waive the error than hitherto, avoiding time being taken up with arid procedural disputes.
  2. The EAT has for many years adopted a relatively strict approach to the time limit for the submission of an appeal. In United Arab Emirates v Abdelghafar and Anor [1995] ICR 65, EAT, Mummery J stated that the EAT will expect a full and honest explanation for the delay and will consider whether there are circumstances which justify granting an extension of time. Mummery J stated that the EAT should consider the explanation for the delay, whether it provides a good excuse for the default and whether there are circumstances that justify the Tribunal taking the exceptional step of granting an extension of time.
  3. That said, there is a discretion to be exercised in every case. In Ridley v HB Kirtley [2024] EWCA Civ 884, [2025] ICR 441, CA the Court of Appeal stated, at paragraph 6, that previous decisions should not be treated as a fetter on the proper exercise of discretion:
  4. We of course accept the broad proposition, by which this Court is bound, that the EAT is entitled to enforce the time limit strictly. …we accept Mr Crozier and Ms Greenley's submission that the broad power to extend time has become 'encrusted by authority' in a way which has led to the emergence of rigid sub-rules which are not justified by the broad terms of rule 37(1), or by the reasoning in the important relevant cases. As a result, some judges have tended to rely on those sub-rules for automatic answers, rather than to consider the exercise of the discretion afresh in each case, by looking closely at the facts of each case, and not relying on generalisations.
  5. In Kanapathiar v Harrow London Borough Council [2003] IRLR 571, the EAT considered the approach to be adopted where an appeal is submitted within time but some of the documents that the rules then required be submitted with the Notice of Appeal were missing. The judgment was seen by judges of the EAT as requiring that a similarly strict approach be adopted where there is a missing document, or part of a document, as applies where no Notice of Appeal is submitted.
  6. The old version of rule 3 of the Employment Appeal Tribunal Rules 1993 ("EAT Rules"), in force at the time this appeal was submitted, provided:
  7. 3(1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents–
    (a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules;
    (b) in the case of an appeal from a judgment of an employment tribunal a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included; and
    (c) in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included; …
    (e) in the case of an appeal from an order of an employment tribunal a copy of the written record of the order of the employment tribunal which is subject to appeal and (if available) the written reasons for the order; [emphasis added].
  8. It might be thought requiring the judgment, claim and response to be submitted with a Notice of Appeal was not particularly onerous. However, the requirement often proved problematic.
  9. A claim to the Employment Tribunal is commenced by submitting an ET1, which is a standard form to which particulars of claim are often attached. I will refer to the ET1 and any attached particulars of claim as the ET1 claim. A respondent replies to the claim on form ET3 and often attaches particulars of response. I will refer to the ET3 and any attached particulars as the ET3 response.
  10. The rule was interpreted as requiring that every page of the ET1 claim and ET3 response must be submitted before an appeal was properly instituted. Issues often arose where a judgment determined proceedings in which there was more than one ET1 claim and/or ET3 response; because one claimant had submitted more than one claim or there were more than one claimant or respondent. As the authorities developed it was held that only the ET1 claim and ET3 response was required for the claim subject of the appeal: Ikeji v Office of Rail and Road [2024] EAT 87, [2024] ICR D41; and only in respect of the claimant bringing the appeal (where there was more than one claimant): Hewer and another v HCT Group and another [2024] EAT 133. Even so there were a large number of appeals that were not properly instituted within time because a litigant in person failed to read or understand the available guidance, did not realise that a document should be submitted, or made a genuine error in failing to submit a document, or part of a document, despite appreciating that it was necessary to do so. This resulted in appeals being dismissed where a Notice of Appeal had been submitted in time with missing documents. Considering applications to extend time took up a considerable amount of the limited resources of the EAT.
  11. In Jurkowska v Hlmad Ltd [2008] ICR 841 Rimer LJ held that notwithstanding the strict approach adopted in Abdelghafar that:
  12. it may not in every case be a pre-condition of success for the appellant to show a good excuse for his delay, although, in the ordinary run of cases, it probably will be.
  13. Rule 3(1)(b) EAT Rules provided that if either the ET1 claim or ET3 response were not submitted the appellant could provide "an explanation as to why either is not included". In Ikeji  I considered what may constitute a sufficient explanation:
  14. 19. Another linked question is what will be sufficient to constitute "an explanation as to why either is not included".
    20. In Richardson v Extreme Roofing Ltd [2022] EAT 173, [2023] ICR 328 I held:
    19. I consider that any explanation for a failure to provide required documents, where permitted, must be a genuine explanation of why the documents cannot be provided. It could not be sufficient to comply with Rule 3.1 to state that the document has not been provided because an appellant could not be bothered to do so and/or considered that the EAT should obtain the documents itself, or some similar reason that would not prevent compliance.
    21. HHJ Auerbach adopted a similar approach in MTN-1 Ltd v O'Daly [2022] EAT 130; in which he accepted an explanation, which while not entirely satisfactory, was not misleading. The explanation must be genuine but the rule does not require that it results from exceptional circumstances, or the like.
    22. In this matter the claimant could have provided a written explanation with the Notice of Appeal stating why the ET1 claim and ET3 response for the first claim were not served. He could have explained that they were not served because they are not necessary for consideration of the appeal which relates only to the second claim.
    23. I may have been a little too proscriptive in Richardson in referring to a genuine explanation as to why the document "cannot be provided". It may be sufficient to explain why it was not necessary for a ET1 claim or ET3 response to be served, because they relate to some other claim than that which is the subject of the appeal. I also consider that it is at least arguable that in some circumstances the explanation might be implicit in the grounds of appeal.
  15. Since this appeal was submitted there have been two significant developments, amendment of Rules 3 and 37 EAT Rules and decisions of the Court of Appeal in which it has been held that there is a material distinction between a case in which a Notice of Appeal was submitted out of time and one where a Notice of Appeal was submitted within time, but without all the required documents.
  16. With effect from 30 September 2023, Rule 3 EAT Rules was amended:
  17. 3(1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents—
    (a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules; and …
    (c) in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included;
  18. Rule 37 EAT Rules was amended to add sub-section 5:
  19. 37(1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal. …
    (5) If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent.
  20. The requirement to submit the ET1 claim and ET3 response was removed and a specific power to extend time was added where an appellant made a minor error in complying with the requirement under rule 3(1) EAT Rules to submit relevant documents.
  21. Subsequently the Court of Appeal revisited the application of the old version of Rule 37(1) EAT Rules in circumstances in which required documents were not submitted with a Notice of Appeal that was submitted in time. In Ridley, having reviewed the authorities, Nicola Davies LJ and Elisabeth Laing LJ held:
  22. 143. The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT's approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps "hard-hearted", approach. But it is not inflexible. It involves the exercise of a discretion in a way which is "judicial", "even-handed" and, above all, fair.
    144. We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT's approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.
    145. The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar, by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3) . The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise, as Mummery J made clear in Abdelghafar and as Rimer LJ repeated in Jurkowska [2008] ICR 841 (see paras 24–28 and 53, 57 and 61–63, above).
    146. We consider it important to note that, before setting out the specific guidance in Abdelghafar, Mummery J was careful to identify the underlying principles. We have set them out at para 24 above. The key principles are the first two (at pp 70–71):
    "(1) The grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.
    "(2) As Sir Thomas Bingham MR pointed out in Costellow v Somerset County Council [1993] 1 WLR 256, 263 , time problems arise at the intersection of two principles, both salutary, neither absolute: 'The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met … The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.'"
    Nothing has been said in the subsequent authorities in this court to derogate from these expressions of principle. Indeed, they have been repeated and endorsed—see for example Underhill LJ in Green v Mears Ltd [2019] ICR 771 at para 8.
    147. Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1) . The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see para 152(ii), below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit. That would be to exercise the discretion in a "programmed" way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant's explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant's mistakes, when the EAT in due course tells the appellant that she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it, … [emphasis added]
  23. Nicola Davies LJ and Elisabeth Laing LJ concluded that a more generous approach where a Notice of Appeal is submitted in time, but some documents are missing, is not precluded by Kanapathiar. This approach was reiterated in Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356.
  24. In Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36, [2024] ICR 803 the EAT held that the new Rule 37(5) EAT Rules applies to any application for an extension of time to submit an appeal determined after the new rule came into effect, even if the appeal was submitted before the rule change. However, the EAT held that a failure to submit the entire particulars of response was not a minor error. On appeal to the Court of Appeal, the issue about the applicability of the new Rule 3(5) EAT Rules to appeals submitted before the rule change was not challenged, but the decision that the omission of the particulars of response was not a minor error was overturned: Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585. Elisabeth Laing LJ held:
  25. 50. 'Minor' is an ordinary English word. It is a comparative adjective, as the Judge observed. The opposite of 'minor' is 'major'. Rule 37(5) refers to 'a minor error in complying with the requirement under rule 3(1) to submit relevant documents' to the EAT. Whether an error is 'minor', or not, therefore, is not an abstract question. It is to be answered in the context of compliance with rule 3(1). I consider that the Judge's interpretation is wrong for three reasons. First, it ignores that criterion for testing whether the error is 'minor'. The relevant error is a minor error in complying with rule 3(1), not a 'minor error' in doing something else, or a free-floating 'minor error'. Second, it adds a gloss, which comes from the cases on the unamended Rules, that the document or part of the document which is the subject of the 'minor error' should have been irrelevant, or have no importance, to the 'proper progress of the appeal'. There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of rule 37(5) is to confer a broad discretion on the EAT (in cases of a minor relevant error which has been rectified) to decide whether to give an extension of time having regard to all the circumstances. The scope for the exercise of that discretion is greatly reduced if the threshold condition for its exercise is interpreted too narrowly.
    51. That construction is based on the words of rule 37(5) alone. They are the best guide to its meaning. It is also supported by the court's knowledge of the mischief at which the amendments were aimed. In deciding what that mischief was, I have taken into account the decision in Ridley, which describes the development of the relevant authorities, and the Explanatory Memorandum. The mischief, briefly (before the decision in Ridley), is, first, that an appellant who submitted his appeal in time, but with a document or part of document missing, was required by the EAT to apply for an extension of time for submitting an appeal, and was treated in exactly the same way as an appellant who missed the deadline altogether. The consequences of that approach for the EAT are the second part of that mischief. About a fifth of appeals to the EAT were being submitted within the time limit for appealing, but with missing documents or parts of documents. That was causing much extra work for the EAT's administrative staff, and using up the time of the Registrar and of the judges who sit in the EAT, because of the number of applications for extensions of time and of appeals which were a result. That was causing significant delays to all litigants. There was also a lively and more specific concern about access to justice, since the strictness of the EAT's approach to cases in which appellants found it hard to comply with the requirements of rule 3(1), and the numbers of such cases, meant that significant numbers of appellants who had submitted their appeals in time were being denied an appeal. …
    53. A further point occurred to me about the construction of rule 37(5) in this case. It could only arise in a case like this, if the EAT were to decide that, because of the date when the appeal was lodged, the unamended version of rule 3(1) applied to the appeal, but rule 37(5) also applied. The Amendment Rules made both amendments with effect from the same date. It may well be that it did not occur to the draftsman that there could be a case in which the old version of rule 3(1) and rule 37(5) would apply in the same case. But in such a case, it might be thought that the removal of the ET1 and the ET3 from the list of documents required by rule 3(1) could cast some light on the question whether their omission (in a case to which rule 37(5) nevertheless applied) could be an error at all, or, it would follow, a 'minor error' in complying with rule 3(1). …
    55. I do not consider that it is helpful for this court to give general guidance about what is or is not a minor error in complying with rule 3(1). Some of the possibilities were canvassed in argument (see paragraphs 40 and 42, above). One of the clear messages from the authorities is that the discretion to extend time must not be exercised in a 'pre-programmed' way. What matters in every case is the relevant facts, which are for the Registrar at first instance, or the EAT judge, if there is an appeal, to find. It is also for the EAT, which has the day-to-day practical experience of dealing with these cases, and not for this court, to decide whether it is desirable or helpful to create guidance.
    56. The approach in Ridley is, in one respect, harsher on appellants than the approach under rule 37(5), because it requires them to give a satisfactory explanation for their mistake. There is no such requirement in rule 37(5). As I have just said, Mr Melki would not, for that reason, have been given an extension of time if the decision in Ridley were applied to his case. For that reason I do not consider that it would be helpful for this court to decide definitively whether or not rule 37(5) has superseded the reasoning in Ridley in all cases. I would leave that question to be resolved by the EAT in a case or cases in which it might matter. [emphasis added]
  26. As to the last paragraph, I am not sure whether the term "satisfactory explanation" is intended to be different to a "good excuse". Rimer LJ held that the latter might not be a prerequisite of an extension of time in Jurkowska. I take it that the terms are subtly different. An appellant who openly admits that they made a mistake, that they cannot explain further, such as failing to attach a document to an email submitting the appeal by oversight, might not have a "good excuse" but could possibly have a "satisfactory explanation" in that it is open and honest; and we all know that to err is to be human.
  27. The facts of the appeal that I am determining illustrate the problems that arose because of the requirement in the original version of Rule 3(1)(b) EAT Rules to submit "any claim and response in the proceedings".
  28. On 16 September 2021, the claimant submitted an ET1 to which was attached a 34-page document in which he sought to explain his complaints of unfair dismissal and disability discrimination: claim 1804897/2021 ("the first claim"). The claimant misnamed the respondent as "Network Rail HR". Such errors are commonly made by litigants in person. The claimant was, no doubt, in communication with the respondent's HR department.
  29. On 19 October 2021, the respondent filed its ET3 in which it was stated "Please see Grounds of Resistance attached". The respondent attached detailed grounds of resistance. The respondent pointed out that its correct name was Network Rail Infrastructure Limited, but did not seek to challenge the validity of the claim on that basis. In the grounds of resistance, the respondent stated:
  30. 3 Network Rail submits that the Claimant has not provided sufficient information and medical evidence to satisfy it that he is, or was at the material times, disabled …
    6 The Claimant has failed to properly particularise his claims, including but not limited to the type of discrimination alleged. It is submitted that the Claimant's claim cannot be properly responded to without further and better particulars.
  31. At least in significant part because of the error in misnaming the respondent and because it was asserted that he had provided insufficient information, on 8 November 2021, the claimant presented a further ET1 to which he attached a further 7-page document headed "background": claim 805752/2021 ("the second claim"). At section 8.1 the claimant again ticked the boxes to state that he was claiming unfair dismissal and disability discrimination, and went on to list further complaints he was pursuing, including breach of contract and some complaints outside of the jurisdiction of the EAT.
  32. A preliminary hearing for case management was held on 23 November 2021 before Employment Judge Knowles. I assume that Employment Judge Knowles had seen the second claim because reference was made to "his claim form (as amended and updated)". The record of the preliminary hearing for case management only referred to the case number for the first claim and the reference to "his claim form (as amended and updated)" could easily be taken to mean that there was a single amended claim. Employment Judge Knowles explained that some of the complaints that the claimant sought to assert were outside the jurisdiction of the Employment Tribunal. A further preliminary hearing for case management was listed for 15 February 2022. The claimant withdrew a complaint seeking notice pay.
  33. The Employment Tribunal wrote to the claimant on a date that is not apparent from the extract included in the bundle. The email letter must have been sent shortly before or after the preliminary hearing for case management on 23 November 2021. The letter stated:
  34. The Claimant's further claim form 1805752/2021 received on 8 November 2021 has been received by the Tribunal and accepted and shall be consolidated with the Claimant's existing claim under number 1804897/2021. Employment Judge Knowles has stated that the respondent does not need to file a defence to the new claim at this stage. Instead, on or before 31 December 2021 the Claimant is to write to the tribunal explaining why he has submitted this second claim because it appears identical to the first claim other than the compensation claimed section. The attachment "background" document is identical to the first claim. If the Claimant is trying to add additional matters, what is it that he is trying to add? [emphasis added]
  35. I accept that the claimant understood that there was one claim, albeit a claim that had two case numbers. The claimant responded on 17 December 2021, stating:
  36. I submitted the second claim as the respondent stated I had not supplied enough information on my previous ET1.
    I apologise for any confusion i may have caused, this was due to me been a lay person and not understanding the procedures. In my ignorance i did not put enough information on the form in case I supplied to much information to the respondent.
    I hopefully submitted a new ET1 form with more information but when I attempted to send by e mail it created a new reference number.
    I hope this has explained the reason for my mistake.
  37. This email demonstrates the claimant's understandable confusion and is consistent with his contention that he believed that there was one claim with two case numbers.
  38. The next preliminary hearing for case management was held on 4 March 2022 before Employment Judge R S Drake who stated:
  39. 44. I noted today that there are in effect two separate actions but concluded that because they relate to the same train of events, it is appropriate for them to be heard together. [emphasis added]
  40. This also suggested that while there were "in effect two separate actions" that was no more than a technicality.
  41. The full hearing took place before Employment Judge A James sitting with members at Leeds on 11, 12, 13 and 14 July 2022. By a judgment sent to the parties on 28 September 2022 the complaints of unfair dismissal and disability discrimination were dismissed.
  42. The Claimant applied for reconsideration of the judgment of the Employment Tribunal on 11 October 2022.
  43. The claimant submitted his Notice of Appeal to the EAT on 7 November 2022. The claimant attached the ET1 and particulars of claim for the first claim and the ET3 for the first claim. He did not provide the grounds of resistance for the first claim. The claimant did not provide the ET1 and attached particulars of claim for the second claim. There was no ET3 response for the second claim because the Employment Tribunal had not required the respondent to submit one. The claimant did not provide an explanation why the missing documents were not attached. It is apparent from the EAT1 Notice of Appeal form that the claimant thought he had submitted the required documents:
  44. 5.(a) Copies of the employment tribunal's judgment, decision or order Judgment attached
    (b) the claim (ET1);
    ET1 attached
    (c) the response (ET3);
    ET3 attached
    (d) an explanation as to why any of these documents are not included;
    are attached to this notice.
    Not applicable all attached
  45. The 42-day time limit for properly instituting an appeal expired at 4 pm on 9 November 2022.
  46. The claimant's application to the Employment Tribunal for reconsideration of its judgment was refused on 21 November 2022.
  47. On 3 December 2022, the EAT wrote to the claimant. The claimant was informed that the ET1 and particulars of claim had been submitted in the first claim. The letter suggested that two ET3s had been provided. If that is correct, they must have been duplicates of the ET3 from the first claim because there was no ET3 in the second claim. The letter stated that the particulars of response were missing for the first claim. The letter stated that the ET1 claim was missing for the second claim. Attached to the letter was an extract from Rule 3 EAT Rules and a fact sheet about how to properly institute an appeal.
  48. On 15 December 2022, the Claimant resubmitted the documents originally attached to his Notice of Appeal together with the grounds of resistance for the first claim. Insofar as the two claims can be considered separately, an appeal in respect of the first claim was properly instituted that day. The claimant did not submit the ET1 complaint in the second claim or explain why he could not provide an ET3 response, the Employment Tribunal having informed the respondent that it was not required to submit one.
  49. The claimant received an automated response from the EAT stating that the EAT was:
  50. experiencing particular difficulties in processing or responding to correspondence at this time and your email will be responded to within 30 working days
  51. Having received the email explaining the difficulties EAT was facing it is not surprising that the claimant delayed before contacting the EAT on 9 February 2023, when he sent an email asking: "Could I possibly get an update please on my appeal?"
  52. The claimant chased again on 28 February 2023 when he sent an email in which he said that he had "submitted the information you requested" and asked whether he would "be able to get an update please, as this has been 3 months please"
  53. The claimant made a telephone call to the EAT in March 2023. As a result of a discussion he had with a member of the EAT staff, he wrote again on 10 March 2023 stating that the reason he had not submitted an ET1 claim and ET3 response in the second claim was because it was a "duplicate". Because the email was sent at 17.11 on a Friday it was deemed as having been received by the EAT the following Monday, on 13 March 2023. That was treated as being the date on which the appeal was properly instituted, albeit that unbeknown to the EAT the claimant's letter was not correct because the ET1 claim in the second claim was not simply a duplicate of that in the first claim.
  54. On 14 April 2023, the EAT wrote to the claimant and informed him that his appeal was deemed to have been received at the EAT on 13 March 2023, 124 days out of time. The claimant was informed that he could apply for an extension of time to properly institute his appeal.
  55. On 19 April 2023, the claimant wrote to the EAT seeking an extension of time. He set out his understanding of the timeline and stated:
  56. I believe I have done everything asked of me in order to lodge my EAT appeal in time
  57. On 15 May 2023, the respondent wrote objecting to the claimant being granted an extension of time on the basis that he had not properly explained his default for which there was no good excuse. Their response was understandable because of the approach that had generally been adopted to the pre-amendment provisions concerning the proper institution of an appeal.
  58. That day the EAT wrote to the claimant offering an opportunity to provide any final submissions. The claimant did so in an email dated 25 May 2023, in which he again set out his understanding of the timeline, and concluded:
  59. I have tried to the best of my ability to create a timeline with the details and reasons why I believe my appeal to the Employment Appeal Tribunal for an extension to my appeal time.
    This case has been ongoing since 2021, I believe I have done everything I have been asked to do throughout this stressful time of my life since 2018. This has at times has tried my mentality to the limits due to my mental health disability of severe depression and anxiety related to my case.
  60. By an order sealed on 4 March 2024 Julia Smailes, acting on behalf of the Registrar, refused an extension of time for reasons that were consistent with the understanding of the law at the time.
  61. The claimant appealed. An appeal from an Order of the Registrar is considered afresh. I have the benefit of the recent authorities that have clarified the law and refocussed on an exercise of discretion on a principled basis without excessive focus on previous authorities that appeared to set out sub-rules limiting the exercise of the discretion; including that it is not clear that a failure to submit the entirety of every document that was required to properly institute an appeal is different to a failure to submit any appeal within the time limit.
  62. Stepping back from the minutiae and taking an overview. I accept that the claimant has genuinely been confused by the fact that his two claims were "consolidated" in the Employment Tribunal. Thereafter he thought that there was one claim, albeit with two case numbers. He has struggled to follow the guidance provided by the EAT. As he put it, perhaps being a little excessively self-deprecating, "I can talk railways, I've got 42 years, I would tie you in knots" but "I don't know how to dot every i or cross every t, I'm a litigant in person". The guidance that the EAT provides is reasonably clear and should be comprehensible to most litigants in person. But people are less likely to peruse the guidance with care if they genuinely believe that they have done all that is required of them.
  63. The judgment dismissing the complaints of unfair dismissal and disability discrimination was sent to the parties on 28 September 2022. The claimant submitted an appeal to the EAT on 7 November 2022. In respect of the first claim the appeal was not properly instituted because the grounds of resistance were not attached along with the ET3.
  64. If it is permissible to consider the first claim alone, Ms Harris for the respondent, conceded that failure to provide the particulars of response could properly be treated as a minor error for the purposes of Rule 37(5) EAT Rules. However, she asserted that is not the position when that mistake is considered alongside the errors in providing the necessary documents for claim 2; and that the errors were not promptly rectified.
  65. In the first claim the claimant brought complaints of unfair dismissal and disability discrimination. It is the dismissal of these complaints against which the claimant seeks to appeal. The principal reason the claimant submitted the second complaint was because the respondent stated it was misnamed and that the claim was insufficiently particularised. The claimant might have sought to rectify these errors by amendment rather than by submitting the second claim. The Employment Tribunal clarified the complaints and set out the issues it had to determine during case management. The second claim is subsidiary and the fact that it was submitted is of little relevance to the proceedings.
  66. The time limit for properly instituting an appeal expired on 9 November 2022. The EAT wrote explaining the error in respect of the first claim on 3 December 2022. The error in submitting the appeal in respect of the first claim was rectified on 15 December 2022. Applying Rule 37(5) EAT Rules I consider that this is to be treated as a minor error. I have considered all the circumstances including the issues in respect of the second claim. The claimant dealt with the failure to supply the particulars of response with the ET3 for the first claim reasonably promptly. The delay from 9 November 2022, the last date on which an appeal could be properly instituted, and from 3 December 2022, the date that the EAT explained the error to the claimant (a period that the Court of Appeal in Melki considered should be focussed upon), to when the appeal in respect of the first claim was properly instituted on 15 December 2022, has not caused any significant prejudice to the respondent. It is just to grant an extension of time. The issues in respect of the second claim do not alter that conclusion. That determination would be sufficient to allow the appeal to proceed against this single judgment dismissing complaints of unfair dismissal and disability discrimination, both of which were asserted in the first claim.
  67. I would also grant such an extension of time by application of the general discretion in Rule 37(1) EAT Rules, having regard to the greater flexibility that applies to the failure to submit documents with a Notice of Appeal as opposed to a failure to submit an appeal at all.
  68. I have also concluded that an extension of time is appropriate, if required, in respect of the second claim. The claimant has not submitted the ET1 claim, although it has been provided in the bundle by the respondent. The claimant provided an explanation on 10 March 2023 stating that the reason he had not submitted an ET1 claim and ET3 response in the second claim was because it was a duplicate. The delay in providing that explanation was in large part the result of delays in communications with the EAT until the claimant was able to get through on the telephone in March 2023. The explanation is not accurate because the ET1 claim in the second claim was not a duplicate of the first claim, it had different documents attached and purported to assert additional complaints; and there was no ET3 response. However, I accept that the claimant understood that the consequence of the claims being consolidated was that there was one claim. I accept that the explanation was honest and explicable, particularly as the second claim did not add anything of real substance to the complaints of unfair dismissal and disability discrimination; the complaints that the Employment Tribunal determined. I grant an extension of time in respect of the second claim pursuant to Rule 37(1) EAT Rules.
  69. So, here we are. An appeal against a judgment sent to the parties on 28 September 2022 will now proceed to be sifted. I will direct that the sift be expedited, but the appeal may well be sifted more than three years after it was submitted, because of the substantial number of appeals awaiting sift. Determining the application for an extension of time has taken up an inordinate amount of the limited resources of the EAT which would much better have been spent determining substantive appeals. It has also taken up the time of the claimant and respondent. I do not criticise the respondent because the approach that the EAT takes to applications for extensions of time, especially in missing document cases, has been in a state of flux. This area of law has developed very swiftly in the last few months. In Ikeji I suggested that the approach that the EAT adopts to applications for extensions of time was moving "back into the mainstream of appellate courts and tribunals". That continues to be the direction of travel.
  70. There are probably only a limited number of appeals that were submitted before the rule change that are still awaiting an appeal from a Registrar's Order refusing an extension of time. However, now the dust is settling, respondents in such appeals should consider with care whether to maintain their objections to an extension of time.

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