Summary of Court of Appeal Opinion

Factual and Procedural Background

On 23 January 2025 Judge Lewison (delivering the first judgment) reviewed an appeal from the Employment Appeal Tribunal (EAT) decision of Judge Walker dismissing the Appellant's challenge to the registrar's refusal to extend time to appeal a case management order made by Judge Jones. The order refused the Appellant permission to add additional respondents to Employment Tribunal (ET) claims numbered 3203309/2021, 3203398/2021 and 3204151/2022.

The case management order was sent to parties on 4 October 2022, with written reasons dated 25 October 2022. The 42-day time limit for appeal expired on 6 December 2022. The Appellant lodged a notice of appeal on 6 December 2022 accompanied by ten documents that included the written reasons but omitted the case management order itself. The EAT notified the Appellant on 22 December 2022 that the appeal was not properly instituted for failure to provide the ET "judgment" (in fact the case management order). The order was supplied on 24 March 2023; an email attaching it was treated as an application for an extension of time, which the registrar refused on 22 December 2023. The Appellant's appeal against that refusal was heard by the EAT on 23 January 2025.

Between those dates, after hearings on 1–2 July 2024, Judge Allen dismissed the underlying ET claims under rule 47 (dismissal for non-attendance); that judgment was sent on 12 July 2024. No timely appeal against that dismissal has been shown to this court at the time of the judgment under review.

Legal Issues Presented

1. Whether the omission of a copy of the ET case management order from the documents served with the notice of appeal constituted a "minor error" within the meaning of rule 37(5) of the EAT Rules 1993 (as amended 30 September 2023), thereby permitting the EAT to extend time.
2. If rule 37(5) is engaged, whether the EAT should exercise its discretion to grant an extension of time in all the circumstances.
3. Whether the proposed appeal was academic (because the underlying ET claims had been dismissed) and, if so, whether that rendered an extension of time or permission to appeal inappropriate.

Arguments of the Parties

Appellant's Arguments (Attorney Folkard)

• The omission was a genuine mistake by a litigant in person caused by confusion between a "judgment" and an "order" and was promptly rectified once understood.
• The case should not be treated as academic because contingent procedural steps (including possible future EAT rulings) could, if successful, provide a benefit to the Appellant; thus contingency does not automatically render an appeal academic.
• The court should respect institutional competence and not pre-judge what the EAT might decide on the sequential applications.

Respondents' Arguments (Attorney Macdonald)

• The EAT was entitled to regard the appeal as academic because the underlying ET proceedings had been dismissed and no timely appeal against that dismissal had been shown.
• The EAT's description of the missing document as "fundamental" was, the respondents submitted, a proper application of the pre-existing approach to missing documents (though the court noted the point was made in the context of now-discredited tests).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United Arab Emirates v Abdelghafar [1995] ICR 65	Guidelines for exercise of discretion in extending time: (1) explanation for default; (2) whether explanation is good enough; (3) whether circumstances justify granting extension.	The court noted these long-standing guidelines historically guided the EAT's approach to extensions of time.
Ridley v HB Kirtley [2024] EWCA Civ 884; [2025] ICR 441	Affirmed Abdelghafar guidelines but qualified them by drawing a material distinction between substantial compliance with rule 3(1) and cases where nothing was lodged within time.	The court relied on the Ridley qualification that the extent of compliance with rule 3(1) is material to the discretion to extend time.
Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36; [2024] ICR 803	Interpretation of "minor error" under rule 37(5): a "minor" error is comparatively unimportant; omission of core documents (Notice, Judgment/Order, Reasons) will rarely be minor.	The court recorded that Melki (as decided in the EAT) had been followed by subsequent EAT decisions but was later reversed by this court; that reversal affected the present analysis of whether the omission was "minor".
AB v University of East London [2024] EAT 157	Consideration of Melki and subsequent EAT authority; support for treating omission of written judgment as not minor.	The EAT had followed Melki and related EAT authorities (including Hewer); Judge Walker applied those cases when concluding rule 37(5) did not apply.
Hewer v HCT Group Ltd [2024] EAT 133	Failure to provide the written judgment was treated as not a minor mistake under rule 37(5).	Referenced as an EAT decision consistent with Melki which Judge Walker followed in concluding the omission was not minor.
Melki [2025] EWCA Civ 585; [2025] ICR 1384	The Court of Appeal disapproved the EAT's earlier test in Melki and clarified that whether an error is "minor" must be answered in the context of compliance with rule 3(1); the amendment confers a broad discretion to the EAT.	This Court of Appeal decision was pivotal: it led this court to treat the omission of the order as, in principle, a minor error and to permit the Appellant to rely on rule 37(5), requiring the Court to exercise the discretion afresh.
Fertre v Vale of White Horse District Council [2024] EWCA Civ 1616	Permitting an appeal where contingent benefit might accrue to an appellant; used as an example of considering contingent benefits when assessing whether an appeal is academic.	The Appellant relied on this decision to argue that contingent benefits do not automatically render an appeal academic; the court considered but distinguished it on the facts.

Court's Reasoning and Analysis

The court set out the governing procedural provisions: rule 3(1) of the EAT Rules 1993 lists documents required to institute an appeal (including "the written record of the order" and, if available, the written reasons). The EAT practice statement emphasises timely service of required documents and that extensions are only exceptionally granted.

The court reviewed rule 37(5) (added 30 September 2023), which permits extension where the appellant makes a "minor error" in complying with rule 3(1) and rectifies it, and noted that even where rule 37(5) applies the tribunal retains a discretion.

The court summarised prior authorities: historical application of the Abdelghafar guidelines; Ridley's qualification that substantial compliance with rule 3(1) is legally significant; EAT decisions (Melki, AB, Hewer) which treated omissions of core documents as rarely minor; and finally the Court of Appeal's decision in Melki [2025] which disapproved the stricter EAT approach and emphasized answering whether an error is "minor" in the context of the extent of compliance with rule 3(1).

Applying those principles to the present factual matrix, the court found:

• There was substantial compliance with rule 3(1): the notice of appeal and the written reasons were filed within time, and the omission was limited to the case management order.
• The omission was promptly rectified once the Appellant understood the requirement; the EAT's communications had contributed to confusion by referring to a "judgment" rather than an "order".
• In light of the Court of Appeal's decision in Melki, the omission of the order in the circumstances of this case amounted, in principle, to a minor error under rule 37(5), entitling the Appellant in principle to rely on that provision.
• Because the EAT had approached the matter under rule 37(1) rather than rule 37(5), the court concluded it must exercise the discretion afresh to decide whether to allow the Appellant to seek the EAT's reconsideration.
• However, the court also considered whether the proposed appeal was academic given the dismissal of the underlying ET claims by Judge Allen and the absence of a timely appeal against that dismissal. The court concluded the sequence of procedural hurdles the Appellant faced (including the need to secure several discretionary decisions in her favour) made successful reinstatement of the underlying claims highly improbable—no more than fanciful.

Holding and Implications

DISMISSED

Holding: The Court concluded that, although the omission of the case management order was, in principle, a minor error under rule 37(5) (and the Appellant could in principle rely on rule 37(5)), the appeal as a whole was academic because the underlying ET claims had been dismissed and the prospect of overcoming the multiple procedural hurdles to reinstate them was fanciful. The court therefore refused permission to appeal on the critical ground and dismissed the appeal.

Implications: The direct effect is that the Appellant's challenge fails and the EAT's refusal to grant the extension (and the related procedural outcome) stands for these parties. The opinion applied and relied upon the Court of Appeal's recent guidance on rule 37(5) (Melki [2025]), but it did not purport to create a new general precedent beyond its application to the facts before the court.