Claimant's failure to attach 'grounds of resistance' leads to dismissal of appeal
The Employment Appeal Tribunal (EAT) has confirmed the narrow scope of rule which allows the extension of time if an appellant makes a 'minor error' in complying with service requirements.
Submitting an EAT appeal
Following a Tribunal decision, parties have 42 days to present an appeal to the EAT. In limited circumstances this time limit may be extended.
In September 2023, a number of amendments were made to the Employment Appeal Tribunal rules (EAT Rules). One amendment was the introduction of rule 37(5), which states that the EAT can extend time if an appellant makes a 'minor error' in submitting relevant documents. In other words, where a minor error is made in the submission of an appeal, the appellant may sometimes be given an opportunity to rectify their error, namely by submitting the missing document(s) by an extended appeal deadline.
What are the facts of the case?
In Melki v Bouygues E&S Contracting UK Ltd, the claimant (who was unrepresented), failed to attach the grounds of resistance to his Notice of Appeal, as required by the EAT Rules at the time. Upon discovering his error, the claimant submitted the grounds of resistance but did so 6 days out of time. He subsequently applied for an extension of time but this was refused by the Registrar. He then appealed to the EAT against the Registrar's order, arguing that failing to include the grounds of resistance amounted to a "minor error" under rule 37(5). By the time of the EAT hearing, the EAT Rules had been updated and no longer require the grounds of resistance to be submitted as part of an EAT appeal.
What did the EAT decide?
Two issues were considered at the EAT. The first was whether rule 37(5) applied to the appeal in question given that it was introduced in September 2023, the year following the claimant's attempt to submit an appeal. The EAT held that rule 37(5) did apply, based on the general rule that changes to procedure apply to pending as well as future proceedings. However, the removal of the requirement to submit the grounds of resistance did not apply to the claimant's case, as it was only relevant to appeals lodged from 30 September 2023. The claimant was therefore required to submit the grounds of resistance, despite the subsequent change to the EAT Rules.
The second issue considered by the EAT was whether the failure to submit the grounds of resistance amounted to a "minor error" under rule 37(5). The EAT held that at the time of the claimant's appeal, the grounds of resistance were considered essential to the understanding of the appeal, hence they were required under that iteration of the EAT Rules. It could not therefore be a 'minor error' to omit them. The EAT held that the provision for extension of time under rule 37(5) did not apply and the appeal was dismissed.
Learning points
The EAT's analysis of what is likely to amount to a 'minor error' suggests that rule 37(5) is likely to be construed narrowly and will only provide relief to those who fail to include a document or part of a document which has no or very little bearing on the EAT's understanding of the appeal.
This case highlights the importance of paying close attention to the relevant Tribunal or EAT Rules when submitting a claim or appeal. Litigants ensuring that they follow the appropriate Tribunal rules accurately when bringing or defending an appeal as an error which may seem trivial may result in significant consequences.