If you’re using a lawyer an Employment Tribunal is rarely going to accept any error of procedure. This is because there is an understandable perception that your lawyer should know what they are doing and if they make a mistake there is always professional indemnity insurance to step into the breach. When a claimant is a litigant in person however the temperature changes somewhat. A recent Court of Appeal decision on what constitutes a “minor error” deals with this point.
This is the first case in which the Court of Appeal has considered the Employment Appeal Tribunal Rules 1993 (1993 SI No 2854) which were amended to correct the fact that the rules were seen as being too strict.
In Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585 Mr Melki sought to appeal an ET decision which had been dismissed. On lodging his appeal to the Employment Appeal Tribunal (EAT) he sent the notice of appeal and various attachments but failed to include the Grounds of Resistance which were attached to the ET3 form (the Response). All other documents which were required under rule 3 were submitted.
Mr Melki did not realise he had to include the Grounds of Resistance. He rang the ET 6 days after the deadline for the appeal and was told that he needed to send this. He did so immediately. The Registrar of the EAT refused to give a time extension. Mr Melki appealed that decision to an EAT judge. The judge dismissed his appeal so he appealed to the Court of Appeal. He was supported by Advocate with all counsel acting pro bono.
Rule 37(5) of the EAT Rules 1993 gives the EAT discretion to grant a time extension where the appellant has submitted the appeal in time but has made a “minor error” in relation to the accompanying documents which has subsequently been rectified.
The Court of Appeal emphasised that rule 37(5) gives a broad discretion to correct minor errors. It was noted that the error did not involve wholesale non-compliance with the appeal rules in 3(1) and has been promptly rectified. Since there was no prejudice to the respondent the EAT should have extended time. The Court declined to offer general guidance on what constitutes a minor error. Each case will be considered on its specific facts.
To note also that the requirement in rule 3(1) to include a copy of the claim form (ET1) and response (ET3) with the notice of appeal was removed on 30 September 2023. Only the judgment or order being appealed, together with any written reasons, now need to be included.
The moral of the story is to ensure all documents are filed with the notice of appeal however the new EAT rules and this decision appear to signal perhaps a more lenient approach when the litigant is acting in person.
You can read a more detailed version of this update on the Devereux Chambers website here.
