F Amedzo v Bidvest Noonan (UK) Limited
[2024] EAT 148
R Melki v Bouygues E and S Contracting UK Ltd
13 March 2024
[2024] EAT 36
Employment Appeal Tribunal
Someone missed a deadline to file important paperwork with their appeal. New rules allow for leniency if the mistake was small and quickly fixed. The court decided the mistake was big, not small, so they couldn't extend the deadline. The appeal failed.
Key Facts
- •Mr Melki (Claimant/Appellant) appealed the Registrar's refusal to extend time for filing his Notice of Appeal to the EAT.
- •The Notice of Appeal was filed but omitted the Respondent's Grounds of Resistance from the ET3 Response form.
- •The Claimant rectified the error 6 days late.
- •The EAT Rules were amended on 30 September 2023, introducing rule 37(5) allowing time extensions for rectified minor errors.
- •The Claimant argued the error was minor and the new rule should apply retrospectively.
- •The Respondent argued the error was not minor and the new rule did not apply retrospectively.
Legal Principles
The 2023 amendment to EAT Rules introduced rule 37(5), allowing time extensions for rectified minor errors in submitting documents with the Notice of Appeal.
Employment Appeal Tribunal (Amendment) Rules 2023 SI 2023/967
Appeals from the Registrar's order are rehearings, not reviews; the EAT applies the rules in force at the time of the appeal.
United Arab Emirates v Abdelghafar [1995] ICR 65
Procedural changes generally apply to pending and future proceedings unless causing unfairness.
L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd, The Boucraa [1994] 1 AC 486
Under rule 37(1), extensions of time are granted only in rare and exceptional circumstances.
Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111; Jurkowska v Hlmad Ltd [2008] ICR 841
Omitting essential documents, such as Grounds of Resistance, is not a minor error under rule 37(5).
Anghel v Middlesex University [2022] EAT 176
Outcomes
The EAT dismissed the appeal.
The omitted Grounds of Resistance were considered a substantial, not minor, error. The Claimant’s explanation for the omission did not justify an extension under rule 37(1). There were no exceptional circumstances.
Rule 37(5) applies to appeals instituted before 30 September 2023.
The EAT found that applying rule 37(5) to pending appeals did not cause unfairness and was in line with the purpose of the amendment, which was to improve the fairness and justice of considering incomplete Notices of Appeal.