Amended Rule 37(5) EAT: Flexible Extension of Time for ‘Minor Errors’ in Instituting Appeals

Introduction

Melki v Bouygues E and S Contracting UK Ltd ([2025] EWCA Civ 585) is the first Court of Appeal decision to interpret the 2023 amendments to the Employment Appeal Tribunal Rules 1993 (“the Rules”), in particular rule 37(5). These amendments were prompted by concerns that the previous strict approach to validating notices of appeal imposed unnecessary burdens on appellants and the Tribunal’s resources.

The appellant, Mr Melki, lost his unfair dismissal and discrimination claim in the Employment Tribunal (ET) and sought to appeal to the Employment Appeal Tribunal (EAT). Although he submitted his notice of appeal in time, he omitted the ET3 grounds of resistance. When told of the omission, he rectified it six days late. The EAT refused his application for an extension of time; his appeal to the Court of Appeal challenges that refusal and the modern meaning of “minor error.”

Mr Melki was represented pro bono by Mr Goudie KC, Mr George Spence-Jones and Mr Mills; the respondent by Mr Kelly. The court allowed the appeal under rule 37(5) but dismissed the alternate ground under the unamended discretion in rule 37(1), which requires an acceptable explanation for delay.

Summary of the Judgment

The Court of Appeal, led by Elisabeth Laing LJ (with Underhill LJ and Baker LJ concurring), held:

The power conferred by amended rule 37(5) applies to pending appeals even if instituted before 30 September 2023.
An error is “minor” if it constitutes a partial or insubstantial non-compliance with rule 3(1), not by reference to the document’s intrinsic importance to the appeal’s merits.
Failure to attach the grounds of resistance was a minor error because Mr Melki had otherwise substantially complied with rule 3(1) and promptly rectified the mistake.
Accordingly, the EAT should have considered (and would have granted) an extension under rule 37(5). The appeal on this basis was allowed.
On the separate ground under rule 37(1), the court found Mr Melki’s explanation—ignorance of the requirement—was insufficiently satisfactory to justify an extension under the stricter unamended test; that ground failed.

Analysis

Precedents Cited

United Arab Emirates v Abdelghafar [1995] ICR 65 – established the four-stage “judicial” discretion test under rule 37(1): prompt explanation, serious reason for delay, balancing of factors, and rarity of extensions.
Jurkowska v Hlmad Ltd [2008] ICR 841 – confirmed that professional advisers are not barred from extensions where a “venial mistake” is promptly corrected.
Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 884 – introduced the distinction between wholly late appeals and those in time but incompletely presented, and emphasised substantial compliance and prompt correction.
Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356 – summarized the development of time-extension jurisprudence, adopting and quoting Ridley in full.
J v K [2019] EWCA Civ 5 – held that technical server failures and mental health may justify an extension where an e-mail bounce is rectified on the same day.

Legal Reasoning

The 2023 Amendment Rules deleted the requirement to lodge the ET1/ET3 from rule 3(1), but inserted rule 37(5), which provides that if an appellant makes a minor error in submitting relevant documents and rectifies it, the time limit may be extended “if it is considered just having regard to all the circumstances.”

The EAT judge had construed “minor error” as a mistake concerning documents or parts that are of negligible or no real importance to the proper progress of the appeal. The Court of Appeal rejected this approach for three reasons:

Rule 37(5) requires assessing the error by reference to compliance with rule 3(1), not by weighing the document’s substantive importance.
The judge’s gloss—requiring irrelevance to the appeal’s progress—has no textual basis and replicates the pre-amendment strict approach it was meant to cure.
The legislative purpose of reducing invalid appeals and administrative burden demands a generous threshold for “minor error,” one that recognizes partial or technical non-compliance.

The court applied contextual aids—especially the detailed Explanatory Memorandum and Ridley’s jurisprudential analysis—to confirm that Parliament intended a broad discretion under rule 37(5). Finally, the Court considered whether the EAT would have exercised that discretion here: having rectified the omission promptly and with no respondent prejudice, justice required an extension.

Impact

This decision sets a clear standard for interpreting the key threshold of “minor error”:

It signals to litigants and practitioners that partial non-compliance need not be fatal, provided correction is prompt.
It relieves the EAT of unnecessary registrar and judicial workloads arising from technical defects.
It balances access to justice against respondent prejudice, emboldening the Tribunal to focus on merits.
It leaves open the interplay between rule 37(5) and the overriding objective as stated in Ridley, to be refined in future EAT guidance or case law.

Complex Concepts Simplified

Rule 3(1) Institution of Appeal: Lists documents that must accompany a notice of appeal (claim form, response form, grounds); non-compliance renders the appeal invalid.
Rule 37(1) General Time Discretion: Gives the EAT wide power to extend time, subject to a strict, principle-based test requiring a satisfactory explanation and rare exceptional circumstances.
Rule 37(5) “Minor Error” Discretion: New power to extend time where a partial, technical defect in compliance with rule 3(1) is promptly rectified; requires a “just” outcome considering all circumstances, including prejudice.
Substantial Compliance: Where an appellant meets the essence of the requirements (e.g. lodges nearly all documents in time) but omits a part; invites a flexible remedy under rule 37(5).
Mischief Rule: Interpreting statutes by reference to the problem they seek to remedy—in this case, the high rate of invalid appeals and backlog caused by hyper-technical non-compliance.

Conclusion

Melki v Bouygues establishes that the EAT’s new rule 37(5) discretion must be interpreted generously to achieve Parliament’s aim of reducing unnecessary invalid appeals and delays. A “minor error” is any insubstantial failure to comply with rule 3(1) that is corrected promptly, without requiring the omitted material be irrelevant to the merits. This ruling enhances access to justice by allowing technical mistakes to be cured and reserves the Tribunal’s resources for substantive issues. Going forward, practitioners should ensure substantial compliance at lodgment, but need not fear that an isolated, promptly rectified defect will be fatal.