“Minor Error” Under EAT Rule 37(5) Does Not Secure an Extension Where the Appeal Is (Practically) Academic: The Court’s Power to Refuse on Futility Grounds

1. Introduction

In Daramy v The London Borough of Tower Hamlets & Ors [2025] EWCA Civ 1789, the Court of Appeal considered the interaction between:

  • the procedural requirements for instituting an Employment Appeal Tribunal (“EAT”) appeal under rule 3 of the EAT Rules 1993;
  • the EAT’s discretion to extend time, particularly the post-September 2023 amendment rule 37(5) (extensions where a “minor error” in filing required documents is later rectified); and
  • the principle that courts may refuse procedural indulgence where the underlying appeal is academic (i.e., would be futile even if permission to appeal were later granted).

The immediate dispute arose from Ms Daramy’s attempt (as a litigant in person at the time) to appeal a case management order of EJ Jones refusing permission to add additional respondents to her Employment Tribunal (“ET”) claims. Ms Daramy lodged her EAT notice of appeal within the 42-day limit, attaching written reasons but not the written record of the order itself. Months later she supplied the order and sought an extension of time. The EAT refused to extend time, and she appealed.

By the time the extension question reached the Court of Appeal, the underlying ET claims had been dismissed for nonattendance under ET rule 47, creating a central issue: even if the extension were granted, would anything practical follow?

2. Summary of the Judgment

The Court of Appeal (Lewison LJ giving the lead judgment; Bean LJ concurring) held, in substance, that:

  • In light of the Court of Appeal’s decision in Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585; [2025] ICR 1384, the omission of the case management order (despite filing the notice and written reasons in time) should be treated as a “minor error” for the purposes of rule 37(5). Ms Daramy was therefore, in principle, entitled to rely on rule 37(5), and permission to appeal was granted on that ground.
  • However, the Court refused relief because the underlying appeal was academic/futile: the ET claims to which additional respondents would have been added had already been dismissed, and reinstatement depended on a chain of speculative contingencies with no real prospect of materialising.
  • Accordingly, despite recognising the error as “minor” under rule 37(5), the Court dismissed the appeal in the end because extending time would serve no practical purpose.

3. Analysis

3.1 Precedents Cited

United Arab Emirates v Abdelghafar [1995] ICR 65

This long-standing authority provided the EAT’s traditional framework for extension-of-time decisions, expressed through three questions (explanation for default, adequacy of excuse, and whether exceptional circumstances justify an extension). The judgment treats Abdelghafar as historically influential but not determinative in the post-amendment landscape, especially where rule 37(5) applies.

Ridley v HB Kirtley [2024] EWCA Civ 884; [2025] ICR 441

In Ridley v HB Kirtley, the Court of Appeal affirmed the Abdelghafar guidelines while introducing an important qualification: a “material distinction” exists between (i) filing a notice of appeal and nearly all required documents within time (substantial compliance), and (ii) filing nothing until time has expired. The court also identified the practical significance of what is missing (including its “importance”) as part of evaluating substantial compliance.

In Daramy, this distinction supports the conclusion that Ms Daramy had substantially complied with rule 3(1) by filing in time with reasons, even though the written record of the order was missing.

Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36; [2024] ICR 803

The EAT in Melki adopted a restrictive approach: core documents (judgment/order, reasons, etc.) were rarely capable of being omitted as a “minor error,” focusing on whether the missing material was “negligible” or unimportant to the proper progress of the appeal.

That restrictive approach was reflected in later EAT decisions (including those relied on by Judge Walker KC in this case), which treated omission of the judgment/order as inherently non-minor.

AB v University of East London [2024] EAT 157

The President of the EAT endorsed and applied the EAT’s restrictive Melki-based approach to rule 37(5), consolidating the line of EAT authority that treated omission of the judgment/order as generally outside “minor error” territory. Daramy notes this as part of the background explaining why Judge Walker’s reasoning followed that approach.

Hewer v HCT Group Ltd [2024] EAT 133

In Hewer v HCT Group Ltd, HHJ Tayler held that failure to provide the written judgment was not a minor mistake, emphasising that the judgment is the required document against which the appeal is brought and typically necessary to assess grounds of appeal. This authority directly underpinned the EAT’s stance in Daramy that omission of the order was “fundamental” and therefore not “minor.”

Melki v Bouygues E and S Contracting UK Ltd [2025] EWCA Civ 585; [2025] ICR 1384

This is the pivotal authority reshaping the case. The Court of Appeal (Elisabeth Laing LJ, with Underhill LJ concurring) disapproved the EAT’s “gloss” which had required the missing document to be of little or no importance to the proper progress of an appeal. Instead, the inquiry must be:

  • whether there was a “minor error in complying with the requirement under rule 3(1)” (context-specific); and
  • if rectified, whether it is “just” to extend time, considering all the circumstances.

Daramy applies that reframed approach: the “importance” of the missing order (as a free-standing threshold test) was treated as the wrong lens after Melki in this Court.

Fertre v Vale of White Horse District Council [2024] EWCA Civ 1616

Ms Daramy relied on Fertre v Vale of White Horse District Council to argue that an appeal should not be treated as academic if success might yield a contingent benefit. The Court accepted that contingent benefit may, in principle, avoid “automatic” academicity, but held that the court may still assess the realistic prospect of the contingency occurring. In Daramy, the chain of contingencies was found to be fanciful.

3.2 Legal Reasoning

(a) Rule 3 compliance and what was missing

Rule 3(1)(e) requires, for appeals from ET orders, a copy of the written record of the order and, if available, the written reasons. Ms Daramy filed reasons but not the order. The EAT’s correspondence referred to a missing “judgment,” creating confusion for a litigant in person about the distinction between an ET “judgment” and a case management “order.”

(b) The shift from rule 37(1) to rule 37(5)

Judge Walker held rule 37(5) did not apply because the order was “fundamental,” and instead considered extension under the general discretion in rule 37(1), while weighing (among other things) academicity. The Court of Appeal held that, after Melki [2025] EWCA Civ 585, the omission here was “minor” because there was substantial compliance with rule 3(1), the omission was promptly corrected once understood, and the decision could be understood from the reasons even without the order.

(c) Exercising discretion afresh

Because the EAT approached the matter through rule 37(1) rather than rule 37(5), the Court of Appeal considered it necessary to exercise the discretion anew. Importantly, it framed the immediate decision as a gateway issue: whether Ms Daramy should be allowed to ask the EAT to consider her request at all (leading to sift and possible rule 3(10) hearing).

(d) Academic appeals and the futility principle in an extension-of-time context

The Court confirmed that academicity can properly affect whether procedural steps (including permission and, in the relevant exceptional sense, extension decisions) should be allowed to proceed.

  • As a general rule, the merits are not relevant to an extension of time.
  • But an exception exists where merits are so strong/weak that a summary test is met (provided fair notice is given).
  • The Court treated academicity/futility as analogous: there is “no point” extending time for an application for permission to appeal which, even if successful, will be futile.

On the facts, the ET claims had been dismissed under rule 47. Reinstatement depended on a multi-stage sequence (overturning registrar decisions, obtaining a rule 3(10) hearing, establishing arguable error of law, obtaining permission to amend to add a very late appeal against the rule 47 dismissal despite an express choice not to appeal it at the time, and then succeeding on the substantive appeal). The Court held the prospect of surmounting all these hurdles was fanciful. Therefore, the appeal was academic, and the Court dismissed it.

3.3 Impact

(a) Clarifying the scope of “minor error” after Melki

Although not laying down a rigid definition, Daramy illustrates that omissions previously treated by the EAT as effectively disqualifying (e.g., missing the order while supplying reasons) may qualify as “minor” where there is substantial, timely compliance and prompt rectification—especially where the missing document does not meaningfully add to what is already intelligible from other filed documents.

(b) Academicity as a decisive filter even where rule 37(5) is engaged

The more durable practical lesson is that rule 37(5) is not an automatic cure. Even if an error is “minor” and rectified, an extension can be refused where the underlying appeal is (in reality) futile. This promotes finality and proportionality in appellate process.

(c) Courts may evaluate contingent pathways, not merely label them “contingent”

The Court rejected an “institutional competence” argument that it should not assess what the EAT might do in future. It held it is entitled to evaluate the realistic prospects of the contingencies maturing. This is likely to influence how parties argue “not academic because contingent benefit” in future procedural applications.

4. Complex Concepts Simplified

  • “Instituting” an appeal (EAT rule 3): You must file the notice of appeal and the specific required documents within the time limit. Filing on time but missing a required document may mean the appeal is not “properly instituted.”
  • Rule 37(1) vs rule 37(5): Rule 37(1) is the general power to extend time. Rule 37(5) (added in 2023) specifically targets cases where there is a minor filing error which is later rectified; it then allows time to be extended if just, considering all circumstances.
  • “Minor error”: After Melki [2025] EWCA Civ 585, the question is not whether the missing document is “important” in some general sense; it is whether, in the context of compliance with rule 3(1), the error is minor and has been rectified, leaving the tribunal to decide what is just overall.
  • “Academic” appeal: An appeal is academic if, even if you win, it will not produce any real-world effect—because the underlying dispute has gone away or cannot realistically be revived. Courts are slow to spend resources on such appeals.
  • Rule 47 ET dismissal (nonattendance): If a party does not attend, the ET can dismiss claims. If the claims are dismissed and not reinstated on appeal, procedural steps about adding respondents to those claims may become pointless.

5. Conclusion

Daramy is significant for two linked propositions. First, it demonstrates the post-Melki [2025] EWCA Civ 585 approach to rule 37(5): substantial compliance with rule 3(1), coupled with prompt correction, can render an omission a “minor error” even where earlier EAT authority treated such omissions as inherently serious. Second, and more decisively on outcome, it confirms that courts may refuse extensions (and related procedural relief) where the underlying appeal is practically academic, including by evaluating whether purported “contingent benefits” have any realistic prospect of materialising. The result is a balanced message: procedural rules should not be applied with unnecessary rigidity, but appellate indulgence will not be granted where it would be futile.