March 13
The claimant was dismissed by the respondent. His claims for race discrimination and harassment were dismissed by an employment tribunal and his application for reconsideration refused. He submitted a notice of appeal to the Employment Appeal Tribunal. After the deadline for instituting the appeal, the appeal tribunal informed the claimant that the appeal was not properly instituted because the respondent’s ET3 response form was attached without the grounds of resistance, which was a document required by rule 3(1) of the Employment Appeal Tribunal Rules 1993. The claimant rectified the error and applied to extend time, on the grounds that he was not legally represented, only had access to the appeal tribunal website at a late stage and had provided the grounds of resistance immediately when asked for them. The Registrar concluded that the grounds of resistance were provided three months late and she refused to extend time. The Registrar’s decision was made in August 2023, based on the rules in force at the time. In September 2023 the Employment Appeal Tribunal (Amendment) Rules 2023 came into force, inserting a new rule 37(5) into the 1993 Rules, providing that, if the appellant made a minor error which was rectified, the time prescribed for the institution of an appeal could be extended if it was just to do so. The claimant appealed the order of the Registrar, contending that he had made a minor error and that it was just to extend time. The respondent contended that the appeal tribunal could not exercise a discretion under rule 37(5) to extend time, since the error in question occurred and was resolved prior to rule 37(5) taking effect, and/or that the claimant’s error was not minor and it would not be just to extend time, and that time should also not be extended under rule 37(1), since there was no good explanation or excuse for the failure to submit the grounds of resistance.
On the appeal—
Held, the appeal was dismissed. The general presumption was that changes to procedure applied to pending as well as future proceedings, since a procedural change was expected to improve matters and support the better administration of justice, and a litigant had no right to complain that procedure was changed during the course of litigation unless it caused unfairness or injustice. The Employment Appeal Tribunal Rules 1993 had been amended as they were too rigid in cases of minor errors and led to potential unfairness. The new rule 37(5) included a safety valve against causing unfairness or prejudice to a respondent, in that a claimant who had made a minor error had to have rectified that error and it had to be just to grant an extension. In those circumstances, it was to be inferred that Parliament had intended to apply rule 37(5) to all appeals, including those appeals which were instituted before the new rules came into force. The question, therefore, was whether the claimant’s error in failing to submit the relevant document was minor. The ordinary meaning of “minor” was something that was comparatively unimportant. In the context of rule 37(5) it could be contrasted with a serious or substantial error. Rule 37(5) was designed to forgive errors which were negligible or of no real importance to the proper progress of an appeal. Whilst it might amount to a minor error to omit one or even more pages of a document required by rule 3(1) it was unlikely to be a minor error to omit the whole document, or a substantial or important part of the document, unless the document was irrelevant to the appeal. It was necessary to judge the error at the date when it was made. At that date it was a requirement that the notice of appeal included the respondent’s grounds of resistance. It was not a minor error to omit the whole of a document that was essential to an appeal. In those circumstances, there was no discretion to extend time under rule 37(5). Further, this was not a case which involved exceptional circumstances justifying an extension of time under rule 37(1) (paras 25–27, 31–33, 35, 39, 40, 42, 45–46).
James Goudie KC, Oliver Mills and Aliya Al-Yassin (instructed directly through Advocate) for the claimant.
Colm Kelly (instructed by Pinsent Masons) for the respondent.