Employment Appeal Tribunal Clarifies Definition of 'Minor Error' in Filing Process

Citation: [2024] EAT 36
Judgment on


The case of R Melki v Bouygues E&S Contracting UK Ltd [2024] EAT 36 provides essential jurisprudence on the procedural aspects concerning the proper institution of an appeal in the Employment Appeal Tribunal (EAT) and the discretion to extend time limits in the event of a minor error in the filing process. The judgment centres around the application of the amended EAT Rules that came into force on 30 September 2023, specifically focusing on the interpretation and application of Rule 37(5).

Key Facts

The appellant, Mr. R Melki, sought to appeal a decision by the Manchester Employment Tribunal (ET), which dismissed his claims of direct race discrimination and harassment. When Mr. Melki filed his Notice of Appeal, he mistakenly omitted the Grounds of Resistance from the ET3 Response form. This omission was rectified six days after the deadline. The Registrar refused to extend the time to present the Notice of Appeal, and the appellant appealed this decision to the EAT.

The EAT deliberated on two pertinent issues:

  1. Whether the new Rule 37(5) applies to all appeals, including those instituted before 30 September 2023.
  2. Whether the omission of the Grounds of Resistance amounted to a “minor error” under Rule 37(5).

The judgment addresses the following legal principles:

Application of Amended Rules to Existing Proceedings

The judgment discusses the principle that unless stated otherwise, procedural amendments are presumed to apply retrospectively to both ongoing and future cases, based on common law precedent found in L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd - The Boucraa [1994] 1 AC 486. This presumption is premised on the understanding that such changes are made for the betterment of legal administration and should apply unless they cause unfairness or injustice.

Interpretation of “Minor Error”

Rule 37(5) provides discretion to extend time limits if the appellant makes a “minor error” in submitting required documents associated with the Notice of Appeal. The EAT analyzed the scope of what constitutes a “minor error,” differentiating between a negligible error and an omission of significance or substance.

Extension of Time Limits

The judgment reiterates the established approach under Rule 37(1) for extensions of time limits, referencing case law such as United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, and Jurkowska v Hlmad Ltd [2008] ICR 841. This approach is described as “unforgiving,” with extensions granted only in rare and exceptional cases where justifiable reasons exist for departing from the prescribed time limit.


The EAT concluded that Rule 37(5) does apply to all appeals, regardless of when they were instituted, in the absence of express transitional provisions or demonstrated unfairness to relevant parties. However, the EAT determined that Mr. Melki’s error was not “minor” as the Grounds of Resistance form an integral part of the ET3 Response and are crucial for the EAT to fully comprehend the issues on appeal. Consequently, the discretion to extend time under Rule 37(5) was not applied. Under Rule 37(1), the EAT found no “exceptional circumstances” or a good excuse for failure to submit the Grounds of Resistance within the prescribed time limit, and the appeal against the Registrar’s order was dismissed.


The case of R Melki v Bouygues E&S Contracting UK Ltd clarifies the Employment Appeal Tribunal’s position on procedural amendments and provides guidance on what constitutes a “minor error” for the purpose of extending time limits for filing appeals. The Employment Appeal Tribunal has shown a willingness to apply procedural rule changes retrospectively. However, the strict interpretation of what constitutes a minor error underscores the expectation that parties adhere closely to the procedural requirements in appealing to the EAT. The judgment affirms the need for litigants, especially those representing themselves, to meticulously meet filing deadlines and include all necessary documentation to avoid the risk of their appeals being dismissed on procedural grounds.