Parker v West Midlands Trains Ltd - Disability Discrimination Appeal

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # England and Wales Court of Appeal (Civil Division) Decisions | | |
| You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >>

  Parker   v West Midlands Trains Ltd [2026] EWCA Civ 357 (25 March 2026)

URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/357.html
Cite as:
[2026] EWCA Civ 357 | | |
[New search ]

[Printable PDF version ]

[Help ]

| | | Neutral Citation Number: [2026] EWCA Civ 357 |
| | | Case No: CA-2025-000798 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE BEARD
AC-2022-LON-001883

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 25 March 2026 |
B e f o r e :

LORD JUSTICE BEAN
(Vice-President, Court of Appeal, Civil Division)
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE DOVE

Between:
| | LLOYD PARKER | Appellant |
| | - and - | |
| | WEST MIDLANDS TRAINS LIMITED | Respondent |

**The Appellant appeared in person
Bayo Randle (instructed by Lewis Silkin) for the Respondent

Hearing date: 17 March 2026**

HTML VERSION OF JUDGMENT APPROVED BY THE COURT ____________________

Crown Copyright ©

1. Lord Justice Bean (Vice-President, Court of Appeal, Civil Division)
3. Mr Parker was employed by West Midlands Trains Ltd as a duty station manager from 28 October 2019 until 11 September 2021 when he was dismissed with pay in lieu of notice. He brought a claim for disability discrimination. At an Open Preliminary Hearing held before EJ Professor AC Neal by CVP on 23 August 2022 the claims were dismissed. Mr Parker requested written reasons which were provided on 14 November 2022.
5. On 10 December 2022 the Appellant submitted a notice of appeal to the Employment Appeal Tribunal (the document in our papers is dated 4 October 2022, by which time the ET had given its decision orally and confirmed in short form in writing, but had not given its reasons). He enclosed with the notice of appeal his form ET1 with which the employment tribunal claim had been launched, but omitted what had been an accompanying document of two pages headed "Particulars of Claim for ET1 in a claim for disability discrimination and automatic unfair dismissal".
7. By letter of 13 December 2022 the EAT replied, stating as follows (emphasis in original):-
9. "I refer to the above matter and a potential Notice of Appeal received at the Employment Appeal Tribunal on 10-12-2022. Initial checks show that certain key documents are missing and so the appeal is deemed to be not properly instituted.
10. Not Properly Instituted
11. The appeal has not been properly lodged in accordance with Rule 3(1) of the Employment Appeal Tribunal Rules (as amended) and paragraphs 3.1 to 3.5 of the Employment Appeal Tribunal Practice Direction 2018 in that you have not supplied the following information/document(s):
12. In the case of an appeal from a Judgment of an Employment Tribunal a copy of the claim (the form ET1 and any attached grounds) in the proceedings. You submitted your ET1 without the particulars of claim. Please supply this.
13. If you provide these document, consideration will need to be given as to whether this appeal has been properly instituted in time.
14. Please refer to the enclosed "Your Appeal is Not Properly Instituted" fact sheet which gives a description and information concerning each of the above mentioned documents.
15. Written Explanation
16. No written explanation will be accepted for the absence of the Grounds of Appeal or the Employment Tribunal Judgment, Decision or Order you are seeking to appeal.
17. If you are unable to supply copies of the Written Reasons, the ET1(s) or the ET3(s) we require a written explanation for why they are unavailable.
18. 42 Day Time Limit
19. Please be aware that the 42-day time limit for lodging an appeal still applies and the "clock" will not stop running until the appeal is considered to be validly lodged. If the appeal is deemed to be properly instituted outside of the stipulated 42 day time limit, then your case manager (once one has been allocated) will advise you of this in due course and you will be invited to make a formal application for an extension of time.
20. Please note we will not send any further reminder letter to you. If we do not hear from you by (enter date) the potential Notice of Appeal we have received will be archived and no further action will be taken.
21. Helpful Information
22. Please find enclosed the following additional information that you may find helpful:
23. ? Employment Appeal Tribunal Rule 1993 ? Rule 3 extract
24. ? "Your Appeal is Not Properly Instituted" fact sheet."
25. On 21 December 2022, Mr Parker wrote to the EAT attaching what he described as "the requested document 14/12/2022." The document he sent, however, was not the Particulars of Claim which had been attached to the ET1, but a different, more extensive document headed "Further and better particulars", apparently served pursuant to a request from the Respondent for particularisation of the claim.
27. The 42-day period for service of the documents required to institute the appeal to the EAT expired on 28 December 2022.
29. On 11 January 2023 the EAT wrote to the Appellant as follows (emphasis added):-
31. "I acknowledge receipt of a Notice of Appeal in the above matter. ? Enclosed for your information is a fact sheet entitled "new appeals, general rules and principles". This explains some general procedures, as well as roles and responsibilities that will assist parties throughout the appeals process. You may find it useful to retain this fact sheet along with your copy of the Practice Directions.
32. Our preliminary checks indicate that this appeal has been lodged properly instituted. It will now be referred to your case manager who will ensure it has been lodged in accordance with Rule 3 of the Employment Appeal Tribunal Rules 1993 (as amended). This includes checking to ensure that all necessary supporting documents have been received and whether the appeal has been received within 42 days. You will be advised of the outcome of this stage in due course.
33. The next communication Mr Parker received from the EAT was an email of 28 March 2023 as follows:-
35. "It appears that your appeal is still not properly instituted. The Particulars of Claim is still outstanding. The document lodged by e-file on 14/12/22 in response to our 1st letter appears to be created in response to the Respondent's request for "further particulars of claim".
36. Could you please provide the Grounds of Claim (see paragraph 8.2 of the Claim Form) or a written explanation for why they are unavailable. If you provide this document consideration will need to be given as to whether this potential appeal has been lodged in time."
37. Within three hours Mr Parker replied, attaching the correct document and writing as follows:-
39. "I have attached the requested document to e-filing this evening.
40. I apologise that as a lay person, my lack of knowledge and understanding has caused this delay
41. I offer no other reasons for my error other than my lack of knowledge.
42. I understand that this will now mean that the Appeal is out of time.
43. I would request that the Tribunal looks upon my case favourably and allows the Appeal to go forward. I have tried to act diligently at all times, was forced to wait over 3 months before I was able to lodge my Appeal due to an error by the original tribunal and it is now over 7 months since the Preliminary Hearing. I would ask the Tribunal to look favourably upon my case in line with the Overriding Objective. This delay would not have happened if I was on an equal footing with the other side, I am a litigant in person. I believe that it would be proportionate to continue with the case given the complexity and importance of the issues and I would request flexibility in the decision to continue with the Appeal in order for the case to be dealt with fairly and justly.
44. This is a case about whether the claimant was a disabled person at the time of the alleged complaints and whether discrimination took place and I believe I have a very strong case and the tribunal erred in its decision and justice may not be done if the Appeal is refused. I have attached the requested document to this email also?."
45. On 6 June 2023 the EAT wrote by email to Mr Parker as follows:-
47. "I refer to your Notice of Appeal from the decision of the Employment Tribunal held at London, Central and sent to the parties on the 14 November 2022.
48. It was received at the EAT on 29 March 2023 and is deemed to be 91 days out of time for the following reasons:
49. The last day for submitting an appeal was the 28th day of December 2022. The appeal was received on the 10th day of December 2022. However it did not comply with Rule 3(1) of the Employment Appeal Tribunal Rules in that the following documents were missing:
50. ? Particulars of Claim
51. You have provided us a copy of the Particulars of Claim on the 28th day of March 2023 after 4 pm. The appeal was deemed properly constituted on the 29th of March 2023. Therefore the appeal is considered to be 91 days out of time.
52. Accordingly section 4 of the EAT Practice Direction 2018 is being applied. If you wish to pursue the matter you must let me have your application to extend time within which to lodge your Notice of Appeal together with your reason(s) for the lateness. These reasons should address the points as set out in italics above.
53. Your application and any supporting evidence will be copied to the Respondent for comment. On receipt of the Respondent's comments you will be given the opportunity to provide any final submissions that you may wish to make. The submissions of both parties will then be put to the Registrar for consideration.
54. Please let me have your application and reasons within 14 days of the date of this letter. You are reminded that the EAT business day ends at 4.00pm. All communications received after that time will be treated, for time purposes, as lodged on the next working day."
55. Mr Parker replied with a four-page "application to extend time". He referred to his personal circumstances and to the reasons why he contended that the ET decision was wrong. He also referred to alleged non-compliance by the Respondent with orders for disclosure. His application included the following paragraph:-
57. "The Appellant believes that it is a reasonable mistake to make to send Further and Better Particulars of Claim instead of those submitted with the Appellant's ET1 as the Tribunal and [the] Respondent had made such a big deal of these in the Preliminary Hearings."
58. He also wrote:-
60. "Further, the Appellant would argue that the Overriding Objective aims to place the Claimant on an equal footing as the Respondent. The Appellant would argue that if he had experienced and expensive legal representation as the Respondent does, these errors would not have happened and there would be no need for this Application for an Extension. The Appellant understands that the Appeal Tribunal must take into account when permitting any time extension the Balance of Prejudice and the effect on the other party. Here, the Respondent is a very large employer with significant financial resources. Disclosure has not yet been completed and no Bundle has been produced. Witness Statements have not been exchanged so the Appellant would argue that any prejudice against the Respondent would be minimal."
61. The EAT, in accordance with its usual practice, invited submissions from the Respondent on the application for an extension of time for appeal. the response was contained in a five-page document in which the Respondent objected to the application. It was contended that:-
63. "A properly constituted appeal was not submitted until over 130 days after the Judgment and 91 days [over three months] after the time limit; there is no good explanation for the default and there are no circumstances justifying the extension of time."
64. The document referred to the principles established in United Arab Emirates v Abdelghafar [1995] ICR 65, reaffirmed by Underhill LJ in Green v Mears Ltd [2019] ICR 771. Paragraph 3.1 of the EAT Practice Statement makes it clear that a properly constituted appeal requires the documents provided with the notice of appeal to include the Form ET1 "and any attached grounds" [sic]. The Claimant, it was said, had not provided any compelling explanation as to why he was unable to comply with this requirement. It was argued that the late application had already caused considerable prejudice to the Respondent and had already resulted in the wasting of tribunal resources as the five-day hearing listed to start on 19 June 2023 was postponed due to the Claimant's outstanding appeal.
66. "The appeal process has only taken so long because of the Claimant's failure to properly constitute the appeal and his failure to expeditiously provide his Particulars of Claim and apply to extend time for submission of an appeal to the EAT."
67. On 30 September 2023 the EAT Rules were amended in two material respects. Rule 3(1) was amended by deleting the requirement that the ET1 and ET3 must be included when lodging a notice of appeal. Rule 37 was amended by the insertion of a new subparagraph as Rule 37(5):-
69. "(5) If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent."
70. On 27 March 2024, an EAT lawyer (Ms A Lewenstein), on behalf of the Registrar, refused Mr Parker's application to extend the time in which to present his appeal. She ruled that because of the omission of the Particulars originally attached to the ET1, the appeal had been lodged out of time and had not been properly instituted until 29 March 2023 when the correct Particulars had been provided. Paragraph 3 of her decision states:-
72. "It is the Appellant's duty to be aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT is satisfied that there is a full, honest and acceptable explanation for the reasons for the delay: Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111."
73. She found that there was insufficient evidence to conclude that the Appellant's illness (he had been struggling with stress, anxiety and depression) explained or excused his failure to file a valid Notice of Appeal in time. She did not consider this to be a "rare and exceptional" case in which the strict laws on time limits should be relaxed.
75. The Appellant exercised his right of appeal to this decision to a judge of the EAT. Such appeal is by way of rehearing, not by way of review.
77. Ridley v HB Kirtley
78. While that appeal was pending, on 25 July 2024, this court handed down judgment in Ridley v HB Kirtley t/a Queen's Court Business Centre [2024] IRLR 845. The court said:
80. "143. The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT's approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps 'hard-hearted', approach. But it is not inflexible. It involves the exercise of a discretion in a way which is 'judicial', 'even-handed' and, above all, fair."
81. 144. We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT's approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider it whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.
82. 145. The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar, by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3). The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise, as Mummery J made clear in Abdelghafar??"
83. 147. Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1). The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see paragraph 152.ii., below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit. That would be to exercise the discretion in a 'programmed' way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant's explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant's mistakes, when the EAT in due course tells the appellant the she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it, a point recognised by Judge 1?."
84. The EAT decision in the present case
85. On 13 March 2025, HHJ Beard dismissed Mr Parker's appeal against the decision refusing an extension of time. He said:-
87. "12. In dealing with the approach I am required to take, both parties have drawn my attention to the relevant legal authorities that the Employment Appeal Tribunal must adhere to, beginning with the case of Abdelghafar. In the recent case of Ridley in the Court of Appeal, the position of Abdelghafar was upheld, although perhaps refined, but it makes it clear that an extension of time is an indulgence, requested from the court by the party in default. There is no entitlement to an extension and no legitimate expectation that there will be an extension. That case sets out the three main questions that a judge should consider upon an appeal of this nature. Those are, what is the explanation for the default, does that explanation provide a good excuse for the default and are there circumstances that justify the tribunal taking the step of granting an extension of time? It is made clear in all the cases that such a step is exceptional. The case of Melki, a decision of Andrew Burns KC sitting as a Deputy High Court Judge, considering the new rules, approaches matters in this way; that a minor error now can be considered and if there is a minor error then that ought to be taken account of. However, it is unlikely to be a minor error to omit the whole document required, or a substantial or important part of the document, unless there are circumstances in which it can be said that the document is irrelevant to the appeal. In terms Melki also sets out that although the changes to the rules mean the ET1 is no longer required to begin an appeal, that does not apply to appeals which began under the earlier rules. In essence, the failure to provide those documents, when those rules apply, cannot be considered a minor error."
88. 13. J v K & Anor [2019] EWCA Civ 5 deals with circumstances where there are matters of ill health. Underhill LJ at paragraph 39 of that judgment set out the principles which apply when considering the impact of mental health on the exercise of discretion to extend time to appeal. First it is necessary to inquire whether the condition explains or excuses the failure to institute the appeal in time. That can be, possibly in combination with other matters, a good reason to extend time. The case indicates that issues of mental health illness comprise significant variety of illnesses with different kinds and degrees of effect. I am to consider if the claimant's ability to take or implement decisions is seriously impaired, if so that should be taken into account. However, where there is evidence that an applicant is able to take effective action and decisions, during the period which is under consideration, that is in principle, entirely acceptable.
89. 14. The leading authority now in respect of these matters is the case of Ridley. In Ridley, the Abdelghafar approach was upheld setting out that the principles and guidance set out in Abdelghafar had been approved by the court on several occasions; it is a strict approach. However Ridley explains that it is not to be considered inflexible. What needs to be approached is this; a mistake can be a good reason for a delay, that is a question which will need to be addressed. In Ridley, in particular, there is a recognition that there is a need to use the principles and guidance set out in Abdelghafar when approaching applications to extend the time limit. It must not be inflexible but involve the exercise of discretion in a way which is judicial, even-handed and, above all, fair. That means that a mistake can be a good reason for delay. An honest account can mean that an explanation for a mistake is important.
90. 15. The facts in Ridley 's case were that a relevant document had no particular heading at all. The claimant in that case did not understand that the untitled document was the "grounds of resistance" or "additional reasons" discussed in the practice direction. The case decided that the weight given to that fact by the Judge was inappropriate. In addition in that case the health condition was relevant because, a stress-related disorder, in that case, meant that there was illogicality in decision making. The Judge needed to give consideration as to what effect that illogicality had in her failure to ask for advice. Giving determinative weight to any one of the factors is wrong and it is a matter of looking in the round.
91. 16. In the circumstances of this case, it seems to me that there is an important element in the way in which the claimant approached matters, by setting time aside in order to prepare the appeal. In the expectation that if there turned out to be a problem he would be informed and there would still be time to rectify that. That is an approach which is to be commended because, as in this case, there was a problem. The early provision did give the Employment Appeal Tribunal the opportunity, within the time limit, to inform the claimant of that problem. That, it seems to me, is where the real difficulty for the claimant in this appeal arises because, on 13 December, the claimant was informed, in specific terms, that he was required to provide the ET1 and attached grounds and that he had submitted the ET1 without the particulars of claim. It seems to me that, at that stage, someone as careful as the claimant, and I can see from his preparation that he is careful, would be expected to examine in some detail what was required and to provide it. The fact that he did not do so has to be explored in the round with all the circumstances that he has described.
92. 17. I take the view that the claimant has provided an honest explanation of the problems that were in place at that time. Those problems were that he was in work, in a new role under training, that there were ongoing family issues which he was dealing with and that, at the same time, he was suffering from ill health; a depression and an anxiety illness. What I see however from the evidence is that by 21 December, the claimant had provided the further and better particulars. That clearly was a mistake and, as a mistake, it provides an explanation. Despite the fact that there were these ongoing issues and difficulties the claimant was able to respond to the EAT prompt within just over a week.
93. 18. The claimant had specifically set aside the time so that any mistake could be rectified. Given that, it does not appear to me to be a good explanation at that stage, the issue of exhaustion does not seem to apply. The claimant was under notice at that point, that the appeal was not properly instituted and it would be expected that he would take the appropriate steps to ensure that he was dealing with it correctly. Despite therefore an honest explanation, I do not consider that in the circumstances it is a good excuse.
94. 19. However, I will go on to consider all the circumstances which must include the delay. Even if I take the claimant's point that there was still time until 29 December to lodge the appeal, it was not until the end of March, some three months' later, that he was able to rectify matters. It must be said that when he was informed by the EAT he rectified matters promptly and quickly. I do not count that delay as being part of his failings, but it is, nonetheless, amongst the circumstances which I have to consider. It means that a case which in reality begins the outset of 2022, dealing with events from 2021, is considerably old by the time it would reach trial if this matter were allowed to proceed further even if an appeal were successful. That, in my judgment, is a matter of prejudice, in the legal sense, in respect of the respondent; the respondent's witnesses would be giving evidence at a time quite remote from the events and, as time passes, memories fade and that causes problems in the reliability of recollected evidence.
95. 20. It seems to me that, in those circumstances it is not appropriate to take the exceptional step of extending time. Having considered Abdelghafar and what might be considered the hard-hearted approach, I am nonetheless of the view that the explanation has been given does not provide a good excuse and that, in all the circumstances, it is not a case where exceptionally I could allow this appeal and on that basis, the appeal is dismissed."
96. Melki v Bouygues
97. On 9 May 2025, this court (Underhill, Baker and Elisabeth Laing LJJ) handed down judgment in Melki v Bouygues E&S Contracting UK Ltd [2025] EWCA Civ 585; [2025] ICR 1384. In that case, an application for an extension of time in which to lodge a notice of appeal with the EAT had been refused by the Registrar on 10 August 2023, that is to say, before the amendments to Rules 3 and 37 came into effect. By the time an appeal against that decision was heard by Deputy Judge Andrew Burns KC in the EAT in March 2024, the rule change had come into effect. Mr Burns held ([2024] EAT 26; [2024] ICR 803) that Rule 37(5) applied to the appeal. He said at paragraphs 30-32:-
99. "30. Although it is right that rule 37(5) was introduced together with other amendments, that does not mean that it does not apply to all appeals. The amendment to rule 3(1) applied to all appeals from the commencement date. As that specifies what is required to start an appeal it necessarily applies only to appeals instituted after that date. Rule 37(5) is a power that can be exercised to pending appeals. It can therefore apply to all appeals whenever they were instituted. There is no absurdity about the test being different before and after 30 September 2023. Rules, whether it be the EAT Rules or the Civil Procedure Rules change from time to time. Unless a transitional provision is included stating the opposite (or unless there is unfairness) the new provision applies to all litigation from the date it comes into force. The parties helpfully investigated whether there were any relevant decided cases or principles arising from changes to the CPR over the years since they were introduced, but found none that assisted.
100. 31. I apply the approach of Lord Mustill in? The Boucraa? that Parliament intended this slightly problematic system to be brought to an end for prospective appeals in the future and also pending appeals. The previous rules were amended as they were too rigid in cases of minor errors and led to potential unfairness. The new rule includes a safety valve against causing unfairness or prejudice to the Respondent in this case and other respondents who might seek to hold an appellant to the strict consequences of a minor error in submitting documents. If the appellant makes such a minor error:
101. a. first it must have rectified that error so there is no continuing unfairness or prejudice to the other party; and
102. b. secondly, an extension will only be granted if it is considered "just to do so having regard to all the circumstances". This caters for an appeal where there is substantial injustice in applying the new rule to the circumstances that pertained at the time when the Notice of Appeal was submitted.
103. 32. In these circumstances Parliament intended to apply rule 37(5) to all appeals including those appeals which were instituted before 30 September 2023. The new rule is proposed to draw a better balance between parties to appeals than the old rules. The rules were changed because of the difficulties noted in the Consultation Report. In the interests of reform Parliament is taken to be willing to tolerate any modest hardship befalling a respondent who is denied the opportunity to rely on the strictness of the former rules."
104. When Melki reached this court there was no challenge to Mr Burns' conclusion that Rule 37(5) was applicable. The argument was as to what was or was not a "minor error" within the terms of the new rule. Mr Burns, following a previous decision of the EAT (Anghel v Middlesex University [2022] EAT 176, Judge Auerbach), had decided that the error in Melki was not minor. In a judgment handed down on 9 May 2025 this court disagreed. Elisabeth Laing LJ, giving the leading judgment, said:-
106. "50. 'Minor' is an ordinary English word. It is a comparative adjective, as the Judge observed. The opposite of 'minor' is 'major'. Rule 37(5) refers to 'a minor error in complying with the requirement under rule 3(1) to submit relevant documents' to the EAT. Whether an error is 'minor', or not, therefore, is not an abstract question. It is to be answered in the context of compliance with rule 3(1). I consider that the Judge's interpretation is wrong for three reasons. First, it ignores that criterion for testing whether the error is 'minor'. The relevant error is a minor error in complying with rule 3(1), not a 'minor error' in doing something else, or a free-floating 'minor error'. Second, it adds a gloss, which comes from the cases on the unamended Rules, that the document or part of the document which is the subject of the 'minor error' should have been irrelevant, or have no importance, to the 'proper progress of the appeal'. There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of rule 37(5) is to confer a broad discretion on the EAT (in cases of a minor relevant error which has been rectified) to decide whether to give an extension of time having regard to all the circumstances. The scope for the exercise of that discretion is greatly reduced if the threshold condition for its exercise is interpreted too narrowly.
107. ?
108. 55. I do not consider that it is helpful for this court to give general guidance about what is or is not a minor error in complying with rule 3(1). Some of the possibilities were canvassed in argument (see paragraphs 40 and 42, above). One of the clear messages from the authorities is that the discretion to extend time must not be exercised in a 'pre-programmed' way. What matters in every case is the relevant facts, which are for the Registrar at first instance, or the EAT judge, if there is an appeal, to find. It is also for the EAT, which has the day-to-day practical experience of dealing with these cases, and not for this court, to decide whether it is desirable or helpful to create guidance."
109. Underhill LJ, concurring, said:
111. "61. The structure of the amended rule 37 (5) is that the EAT has a discretion (distinct from the general discretion in rule 37 (1)) to extend time in such a case if two conditions are satisfied ? first, that the error is minor; and second, that it has been rectified.
112. 62. The first question is thus whether the error was "minor". The Judge thought that it was not, because the grounds of resistance are of their nature central to the issues in the case. I see the argument, but I agree with Elisabeth Laing LJ that that does not represent the right approach to assessing whether an error is minor for the purpose of this rule. For the reasons given by her, such an approach would undermine the evident purpose of the amendment, by greatly limiting the scope for the exercise of the discretion for which it provides. In my view the error in this case was minor because it did not involve any wholesale non-compliance with rule 3 (1) (b), even as regards the response. What the Appellant failed to serve was not the ET3 itself but only a part of it. If, as often happens, the Respondent had stated its grounds of resistance in the body of the response form itself and not in an attachment, but the Appellant had failed to copy that particular page, that would be just the kind of minor error that the amendment is directed to; and I cannot see what difference it makes that the omitted grounds were for convenience contained on a separate sheet or sheets.
113. 63. There is no dispute that the second condition is satisfied, since the error has been rectified. It follows that the Judge was wrong not to consider the exercise of the discretion conferred by rule 37 (5). I am satisfied that if he had done so he would have been bound, in the circumstances of this case, to exercise the discretion in the Appellant's favour. This was a case of a failure to serve only part of one of the documents (then) required by the Rules. The failure was promptly remedied and gave rise to no prejudice. It is true that the only explanation offered by the Appellant was that he had not realised that the pages containing the grounds of resistance needed to be included. It is possible to see how a litigant in person might make such an error in a case where the respondent has included their grounds of resistance in a separate document. I accept that it remains careless, because if he had read the Practice Direction (as he was enjoined to do ? see para. 49 above), and done so with sufficient attention, the position should have been clear to him. But it is on no view a case of deliberate or reckless disregard for the rules or of pursuit of some tactical advantage, and it seems to me that justice plainly required an extension."
114. Respondent's submissions
115. The Skeleton Argument originally filed on behalf of the Respondent sought to support the finding by Judge Beard in the EAT that the Claimant's omission of the Particulars of Claim from the original ET1 followed by his mistake, when prompted by the ET letter of 13 December to send in that document, in sending instead the Further and Better Particulars of Claim written pursuant to a request from the Respondent, was not to be regarded as a "minor error" under Rule 37(5) of the EAT Rules. But, in a supplementary skeleton argument written by Mr Randle, the Respondent "acknowledges that the decision of this court in Melki has clarified the correct approach, holding that whether an error is "minor" is to be assessed by reference to the degree of compliance with the procedural requirements of Rule 3(1), not by the importance of the missing document to the appeal itself". The supplementary skeleton argument continues:-
117. "In the light of the binding authority of the Court of Appeal in Melki, the Respondent accepts the Claimant's initial failure to include the Particulars of Claim with his Notice of Appeal constituted a "minor error" for the purposes of Rule 37(5). The arguments in the Respondent's skeleton argument to the contrary are therefore no longer pursued. Accordingly, the appeal ... now turns exclusively on the second, discretionary limb of the Rule 37(5) test: the error having been rectified, is it just to grant an extension of time "having regard to all the circumstances?"
118. Mr Randle submits that it would not be just to grant an extension in this case, principally due to what he characterises as the Appellant's "significant delay" in rectifying the error after the expiry of the time limits. He points out that in contrast with Melki, where the appellant rectified the error immediately upon being asked and the total delay was only six days, the Claimant was sent a "clear and specific" email from the EAT on 13 December 2022, supplied the wrong document in response on 21 December 2022; and only rectified the position after the further email on 28 March 2023. There was thus a "period of inactivity" of approximately three months after the expiry of the time limit, during which the appeal remained defectively instituted, and despite the identification by the EAT (in its letter of 13 December) of a "specific and easily remediable defect". It was argued that this significant delay of three months was not a mere procedural technicality but causes real prejudice to the Respondent, "allowing the appeal to proceed now would require the Respondent witnesses to give evidence on events that are over four years old", and to do so in relation to a distinct and fact-sensitive disability discrimination claim, causing inevitable prejudice through the fading of memories and difficulties in assembling reliable evidence.
120. Discussion
121. I consider that the Respondent is right to concede that Mr Parker's error is a "minor error", in the terms of Rule 37(5). I also consider that the Respondent is right not to challenge the applicability of Rule 37(5) to a case such as the present where the defective notice of appeal was lodged before the amendments to the Rules, but the request to extend time only came to be considered by the EAT after the new rule came into effect.
123. Since the most important factor in Judge Beard's decision dismissing the appeal against the refusal to extend time was his view (understandable before the decision of this court in Melki) that the error was not minor, we have to review the exercise of his discretion for ourselves.
125. I cannot agree with the submissions for the Respondent that the Claimant is to be criticised for the delay of three months between the EAT letter of 13 December and the submission of the correct document on 28 March. Such an analysis fails to give any weight to the sentence in the letter of 11 January 2023 from the EAT stating that "our preliminary checks indicate that this appeal has been lodged properly instituted". That sentence is to be contrasted with the earlier letter of 13 December 2022 which stated that "the appeal has not been properly lodged in accordance with Rule 3(1) of the EAT Rules" and that "the appeal is deemed to be not properly instituted". It is true that the 11 January letter goes on to mention that the appeal will be referred to a case manager who will check to ensure that all necessary supporting documents have been received. But, as Dove LJ suggested to counsel in oral argument in this court, the ordinary reader of the 11 January letter, noting the contrast with the 13 December letter, would conclude that the appeal was now properly instituted and that any further checks would be concerned with matters of detail.
127. Mr Randle was understandably reluctant to accept that the 11 January letter was misleading, but in my judgment it clearly was, particularly when read in the context of the letter of 13 December. Any reasonable reader would understand the 11 January letter as saying that the problem identified in the December letter had now been overcome; the appeal was now properly instituted; and that the case manager would in due course be checking points of detail. As Elisabeth Laing LJ put it to counsel, it was a letter which gave reassurance that matters were now on course. I note that Judge Beard at paragraph [2] of his judgment accepted that the Appellant "took that [letter] to mean that his appeal had been properly instituted by the provision of the further and better particulars"; which seems to me to equate to a finding that the Appellant, at least, had been misled.
129. We were told that the substantive hearing of the ET claim had been fixed for 5 days in June 2023 and that the hearing had to be vacated in order for this appeal process to run its course. It is very unfortunate ? indeed ironic - that the result of this procedural mishap has been to delay the litigation for three years or more. But the Appellant cannot be blamed for that. He responded within eight days to the 13 December 2022 letter and within three hours to the letter of 28 March 2023; and in between those two events, the letter of 11 January 2023 was one to which he reasonably thought that no response was required. The written submissions of each party on his formal application for an extension of time were complete by 11 July 2023; the decision on behalf of the Registrar refusing the application followed more than eight months later, on 27 March 2024; and the hearing of the appeal before Judge Beard was almost a year after that, on 14 March 2025. The provision of full written reasons by the EAT (28 May 2025), the application to this court for permission to appeal (granted by me on 14 August 2025) and the listing of the appeal for hearing have occupied another year. All this because Mr Parker confused the particulars of his claim with the further and better particulars of his claim.
131. Notwithstanding the submissions of Mr Randle, who defended the decisions below as skilfully as anyone could in the light of the developing case law, I consider that the appeal should be allowed. We informed the parties that this was the court's view at the conclusion of oral argument. Mr Randle accepted that this is not a case in which it is necessary to remit the extension of time question for yet further consideration by the EAT. I would accordingly set aside the decisions of Ms Lewenstein and Judge Beard and substitute an order granting Mr Parker the necessary extension of time (technically until 29 March 2023) for presenting a valid Notice of Appeal to the EAT against the decision of the ET dismissing his claims for disability discrimination.
133. The EAT should now consider that appeal on its merits in accordance with its usual sifting procedures. In the light of the history I hope that such consideration will take place without undue delay.
135. Lady Justice Elisabeth Laing
136. I agree.
138. Lord Justice Dove
139. I also agree.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/357.html