Melki v Bouygues E and S Contracting UK Ltd

Factual and Procedural Background

The Plaintiff's claim was dismissed by the Employment Tribunal ('the ET'). The Plaintiff sought to appeal to the Employment Appeal Tribunal ('the EAT') within the prescribed time limit, submitting his notice of appeal and some required documents before the deadline. However, he failed to include the grounds of resistance attached to the Respondent's ET3 form, an essential document amended during the ET proceedings. Upon realizing the omission, the Plaintiff promptly submitted the missing documents six days late. The Registrar of the EAT refused to extend the time for lodging the appeal, a decision upheld by a Deputy High Court Judge sitting in the EAT. The Plaintiff then appealed to the Court of Appeal against the refusal to grant an extension of time, represented by pro bono counsel, and was granted permission to amend grounds of appeal. The appeal raised issues concerning the interpretation and application of amendments to the Employment Appeal Tribunal Rules 1993 ('the Rules'), particularly rule 37(5) introduced in 2023, and the interaction of these amendments with recent case law including Ridley v HB Kirtley.

Legal Issues Presented

1. Whether the EAT correctly construed rule 37(5) of the Employment Appeal Tribunal Rules 1993 as amended.
2. Whether the EAT erred in holding that the Plaintiff's failure to submit the grounds of resistance with his notice of appeal was not a 'minor error' under rule 37(5).
3. Whether the EAT erred in its application of rule 37(1) in light of the decision in Ridley v HB Kirtley.

Arguments of the Parties

Appellant's Arguments

• The Judge's interpretation of rule 37(5) was incorrect because it focused on the significance of the missing document to the progress of the appeal rather than on the degree of compliance with rule 3(1).
• Rule 37(5) was intended to promote substantial compliance with rule 3(1) and provide flexibility where minor errors occur, regardless of the importance of the omitted document.
• The omission of part of one document, when most required documents were submitted in time, constituted a 'minor error' which was promptly rectified.
• The EAT's narrow interpretation failed to address the mischief behind the amendments, which aimed to reduce the number of invalid appeals due to minor errors and ease administrative burdens.
• In the alternative, the Plaintiff relied on the reasoning in Ridley, arguing that the EAT should have exercised its discretion to extend time since the mistake was corrected promptly and no exceptional circumstances were required.

Respondent's Arguments

• The EAT correctly interpreted 'minor error' as an error that is negligible or of no real importance to the proper progress of the appeal.
• The grounds of resistance are an integral and essential part of the Respondent's case, and omission of the entire document was not a minor or trivial error.
• The EAT's construction aligns with the purpose of rules 3(1) and 37(5) and is supported by other recent EAT decisions.
• The EAT now has electronic access to all ET documents, reducing reliance on parties to provide complete bundles, which justified the amendment to rule 3(1).
• The Plaintiff's explanation for the omission was unsatisfactory, and the decision in Ridley was not applicable since it was decided after the EAT hearing and concerned different procedural contexts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ridley v HB Kirtley t/a Queen's Court Business Centre [2024] EWCA Civ 884	Revised approach to extension of time; distinction between late appeals and appeals with missing documents lodged in time.	Used to inform the understanding of discretion in rule 37(5) and to contrast with the EAT's strict approach; the court declined to apply Ridley fully to the case but acknowledged its relevance.
Davies v BMW (UK) Manufacturing Limited [2025] EWCA Civ 356	Summarizes principles from Abdelghafar regarding discretion to extend time.	Quoted to explain the established principles governing extensions of time and discretion exercise.
United Arab Emirates v Abdelghafar [1995] ICR 65	Principles for exercising discretion on extension of time, including requirement for full, honest explanation and that extensions are exceptions.	Guided the court's understanding of discretion and confirmed that extensions are indulgences, not rights.
Jurkowska v Hlmad Limited [2008] ICR 841	Application of discretion to extend time where procedural mistakes were promptly rectified.	Supported the view that venial mistakes promptly corrected can justify extensions.
J v K [2019] EWCA Civ 5	Extension of time justified due to technical server limitations and reasonable ignorance.	Illustrated exceptional circumstances where extension was required in the interests of justice.
Sud v London Borough of Ealing [2011] EWCA Civ 995	Examples of extensions granted for omission of isolated pages.	Referenced to show prior acceptance of minor errors warranting extensions.
Fincham v Alpha Grove Community Trust UKEATPA/0993/18 (2020)	Further examples of minor omissions justifying extensions.	Used to illustrate the range of minor errors considered acceptable for extension.
Anghel v Middlesex University [2022] EAT 176	Essential nature of grounds of claim or resistance to understanding the appeal.	Supported the EAT's view that omission of grounds of resistance was a serious error.
Shah v Home Office [2024] EAT 21	Example of non-minor error involving omission of substantial document parts.	Referenced to support the position that omission of essential documents is not minor.
Akhigbe v St Edwards Homes [2024] EAT 142	Electronic access to ET documents reduces reliance on parties.	Used to justify amendments to rule 3(1) and the EAT's procedural stance.

Court's Reasoning and Analysis

The court examined the interpretation of rule 37(5), which permits the EAT to extend time for appealing where an appellant has made a 'minor error' in complying with rule 3(1) and rectified it. The court found that the Judge's interpretation was flawed because it equated 'minor error' with errors that are negligible or unimportant to the appeal's progress, rather than considering the degree of compliance with rule 3(1) itself. The court emphasized that the error must be assessed in the context of compliance with rule 3(1), not by the importance of the omitted document.

The court acknowledged the legislative purpose behind the 2023 amendments: to reduce the number of invalid appeals due to minor errors and to alleviate the EAT's administrative burden, thereby improving access to justice. The strict approach previously applied by the EAT, treating missing documents as fatal, led to inefficiency and significant delays.

The court determined that the Plaintiff's omission—failing to include part of the ET3 (the grounds of resistance)—constituted a minor error under rule 37(5), especially as it was promptly rectified with no prejudice to the Respondent. The court rejected the Respondent's argument that the omission was too substantial to be minor, reasoning that the error was partial and remediable. However, the Plaintiff's explanation for the omission was unsatisfactory, which affected the exercise of discretion under rule 37(5).

The court declined to definitively decide whether rule 37(5) supersedes the reasoning in Ridley, noting that Ridley requires a satisfactory explanation for the error, which rule 37(5) does not. The court allowed the appeal on the interpretation of rule 37(5) and the classification of the error as minor but dismissed the appeal on the ground relating to application of Ridley.

Lord Justice Underhill concurred, adding that the error was minor because it involved omission of part of a required document rather than wholesale non-compliance. He further noted that the discretion under rule 37(5) should have been exercised in the Plaintiff's favor given the prompt rectification and lack of prejudice, despite the Plaintiff's careless oversight.

Holding and Implications

The Court of Appeal allowed the appeal on the first two grounds and dismissed it on the third.

Holding: The EAT erred in law by narrowly interpreting 'minor error' under rule 37(5) and by holding that the omission of the grounds of resistance was not a minor error. The appeal was allowed on these grounds, and the Plaintiff's omission was properly classified as a minor error, warranting the exercise of discretion to extend time.

Implications: This decision clarifies that the assessment of 'minor error' under rule 37(5) focuses on the degree of compliance with rule 3(1), not on the importance of the omitted document to the appeal's progress. The ruling supports a more flexible and just approach to procedural compliance in appeals to the EAT, consistent with the legislative intent behind the 2023 amendments. However, the court did not resolve the full relationship between rule 37(5) and the principles in Ridley, leaving that to future cases. The direct effect is that appellants who make and promptly rectify minor errors in document submission may be granted extensions of time more readily, potentially reducing invalid appeals and delays. No new binding precedent beyond the interpretation of rule 37(5) was established.