ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MS SUSAN WALKER KC)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE BEAN
LORD JUSTICE LEWISON
Between:
SIA DARAMY | Applicant |
- and - | |
THE LONDON BOROUGH OF TOWER HAMLETS AND OTHERS | Respondents |
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MR J FOLKARD appeared on behalf of the Applicant
MR E MACDONALD appeared on behalf of the Respondent
Judgment
Crown Copyright©
LORD JUSTICE BEAN: I will ask Lord Justice Lewison to give the first judgment.
LORD JUSTICE LEWISON: On 23 January 2025, Judge Susan Walker KC sitting in the EAT dismissed Ms Daramy's appeal against the refusal by the registrar to extend time for an appeal against a case management order made by EJ Jones. The substance of the order was the refusal to allow Ms Daramy to add additional respondents to claims that at that time were pending in the ET. Those claims were claims 3203309/2021, 3203398/2021, and 3204151/2022.
The decision in the form of a case management order was sent to the parties on 4 October 2022. That was followed by written reasons set out on 25 October 2022. The time limit for an appeal expired on 6 December 2022. Ms Daramy lodged a notice of appeal with the EAT on 6 December 2022. It was accompanied by 10 documents. The copy of the written reasons was one of the documents, but not the case management order itself.
The procedure for instituting an appeal from the ET to the EAT is contained in rule 3 of the EAT Rules 1993, which lists the documents that must be served on the EAT. Rule 3(1)(e) provides that in a case of an appeal from an order of the ET, those documents include a copy of "the written record of the order" which is subject to appeal, and "if available, the written reasons for the order."
The EAT practice statement on 3 February 2005 emphasises the importance of serving all the required documents in time and says in terms in paragraph 5:
"… that an appeal not lodged within the 42 days validly constituted, i.e. accompanied by the required documents, will be out of time, and extensions of time are only exceptionally granted …"
Thus, Ms Daramy's document pack was deficient because, although it contained the written reasons for the order, it did not contain a copy of the written record of the order itself. On 22 December 2022, the EAT wrote to Ms Daramy to tell her that the appeal as lodged was not properly instituted because she had not provided a copy of the ET "judgment" under appeal. Judge Walker recorded that there was then some communication between Ms Daramy and the EAT. She recorded at paragraph 32 that there was clearly some confusion caused by the EAT referring to a "judgment" whereas what was required was a copy of the case management order. The order itself was supplied to the EAT on 24 March 2023. An email attaching the order was treated as an application for an extension of time to appeal. The registrar refused an extension of time on 22 December 2023. Ms Daramy appealed against that refusal, but her appeal was not heard until 23 January 2025.
In the meantime, however, following a hearing on 1 and 2 July 2024, EJ Allen KC dismissed the relevant claims under rule 47 of the ET Rules (dismissal for nonattendance). The judgment to that effect was sent to the parties on 12 July 2024.
The EAT's power to extend time is contained in rule 37. Rule 37(1) contains the general power to extend time, but an important amendment to the rule was made as from 30 September 2023 by adding rule 37(5) which provides:
"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 that 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."
It was common ground before the EAT this rule applied to the application to extend time, but even where rule 37(5) applies, and any error in compliance is minor, the EAT still has a discretion to exercise in deciding whether or not to grant an extension of time. For many years, the EAT has approached the question of extending time by reference to the guidelines formulated by Mummery J in United Arab Emirates v Abdelghafar [1995] ICR 65. That approach essentially consisted of answering three questions:
What is the explanation for the default?
Does it provide a good enough excuse for the default?
Are there circumstances which justify the exceptional step of granting the extension of time?
Those guidelines have been approved by this court many times. The Abdelghafar guidelines were fully considered by this court in Ridley v HB Kirtley [2024] EWCA Civ 884; [2025] ICR 441. At [143] the guidelines were affirmed. But at [144], the court qualified those guidelines in a significant way:
"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. The appellant has also, on the face of it, complied with the time limit of 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 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."
It is to be noted that one of the factors that the court identified was how important the missing document was to the appeal. Rule 37(5) was not engaged in that case.
The first case to consider rule 37(5) was a decision of the EAT in Melki v Bouygues E and S Contracting UK Ltd [2024] EAT 36; [2024] ICR 803. That was a case in which the appeal had been launched in time, but it was not properly constituted because the documents it served omitted part of the ET3 form.
Mr Andrew Burns KC held:
"The ordinary meaning of 'minor' is something that is comparatively unimportant. In the context of this rule it can be contrasted with a serious or substantive error. Rule 37(5) is designed to forgive errors which are negligible or of no real importance to the proper progress of an appeal.
The EAT Rules did and still do require the appellant to serve a Notice of Appeal substantially in accordance with the standard forms. It requires a written record of the ET's Judgment or Order and Written Reasons for it (or an explanation why they are not included). These are core documents in an appeal. Without the Notice the EAT cannot understand the complaint. Without the Judgment and/or Reasons the EAT cannot normally assess whether there has been an arguable error of law. It would be a rare case in which it could be said that the omission of one of these documents was a minor error. Such an error would normally be serious and of real importance to the proper progress of the appeal.
The other end of the spectrum is where all the required documents have been attached but just one or two pages are missing. It is likely to be a minor error to omit a single page of a document that is otherwise intelligible."
The scope of rule 37(5) was considered again by the President of the EAT in AB v University of East London [2024] EAT 157. The President considered the decision of the EAT in Melki and other cases in the EAT which had followed it. Among those which should be mentioned are Hewer v HCT Group Ltd [2024] EAT 133, in which the appellant had filed the EAT's written reasons in time but not the record of the judgment. HHJ Tayler said:
"I do not accept that the failure to provide the written judgment was a minor mistake. The written judgment is a required document that must be provided. The EAT Rules do not permit an explanation to be given for failing to submit the written judgment. It is the judgment against which an appeal is brought. It is generally necessary to consider the precise terms of the judgment when considering the grounds of appeal. Accordingly, I do not consider it appropriate to grant an extension of time pursuant to Rule 37(5) EAT Rules."
It was these cases which the EAT followed and applied in AB, where the President noted that Melki was on its way to this court. In our case, Judge Walker likewise applied those cases, as it is clear from her self-direction at [51]. She said at [52]:
"I consider that the judgment or order that is under appeal is a fundamental document for any appeal. Although the reasons were attached to the notice of appeal, the case management order containing the decisions was not. The rules and the practice direction merely identify that the judgment or order under appeal, as well as the reasons, are required to accompany the notice of appeal. I do not consider this to be a minor error. I do not consider this is a case where rule 37(5) applies."
She then turned to consider whether to exercise the general power to extend time under rule 37(1). To summarise the points under this head she held:
Ms Daramy had made a genuine mistake. The importance of the copy of the order rather than the reasons would not have been easily identifiable by a litigant in person. The confusion between a judgment and an order had infected much of what followed.
Once Ms Daramy understood that she needed to provide the order, she did so promptly.
The decision under appeal could properly be understood from the reasons document, without the order itself.
She noted the submission by the respondents that the appeal was academic and said that that was a factor that weighed against the grant of an extension. The reason why it was said to be academic was that the underlying proceedings had already been dismissed by the ET, so there was nothing in existence to which an additional respondent could be added. Although Ms Daramy said that she was intending to appeal the dismissal, no appeal had actually been instituted. The appeal against EJ Jones' order was therefore academic, it is not now disputed that at the time when the EAT gave its decision that the appeal was indeed academic.
Since the decision of the EAT, however, this court has reversed the decision in Melki, which previous cases in the EAT had followed and applied. It was for that reason that I adjourned the application for permission to appeal to an oral hearing with the appeal to follow if permission is granted.
Mr Folkard has stepped in at short notice to present Ms Daramy's case and has done so pro bono, and I am very grateful for his well-focused submissions.
Mr Macdonald, who did not appear below, appeared for the respondents.
The decision of this court in Melki is at [2025] EWCA Civ 585; [2025] ICR 1384. At [50] Elisabeth Laing LJ disapproved the test that had been adopted by the EAT. She said:
"'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 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 process of the appeal'. There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of the Rule 37(5) is to confer a broad discretion on the rule of 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."
Underhill LJ said in his concurring judgment:
"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."
But the court refrained from giving any general guidance on what would or would not be minor, leaving it to the EAT to decide on a case-by-case basis. Thus, the test of what is or is not a minor error is not whether the failure comply with rule 3(1) impedes the progress of an appeal, but the extent of compliance with rule 3(1) itself.
In the present case, there was substantial compliance with rule 3(1). Moreover, even without the omitted document, the decision under appeal could properly be understood from the reasons document, without the order itself. The omission was promptly rectified once Ms Daramy understood the difference between a judgment and an order, which the EAT had not made clear in its communications to her. Mr Macdonald submitted that in saying that the order was fundamental, the EAT was not applying the now-discredited test of the relative importance of the missing document to the appeal, but that statement came immediately after the EAT had directed itself by reference to the pre-Melki test. I cannot read the EAT's description of the missing document as being fundamental in any other way. I cannot see how, in the light of Melki in this court, the omission to supply the order in time is anything other than a minor error. I would, therefore, hold Ms Daramy is in principle entitled to rely on rule 37(5). Accordingly, I would grant permission to appeal on this ground.
Because the EAT approached the question of extending time through the lens of rule 37(1) rather than through the lens of rule 37(5), I consider that this court must exercise the discretion afresh. The narrow question at this stage is not whether Ms Daramy's proposed appeal would succeed or even whether she should have permission to appeal against EJ Jones' order, it is limited to the question of whether she should be able to ask the EAT to consider her request at all. If so, her application for permission will proceed to the sift, and if refused on the sift, she may be entitled to a hearing under rule 3(10). The successful application for an extension of time would not short-circuit either of those stages.
The judge in the EAT rightly said that in considering whether to extend time under rule 37(1) she would make no comments about the merits of the appeal. As she said, that would be a matter for the sift. Nevertheless, what seems to me to have tipped the balance in her decision to refuse the extension was her perception that the appeal was academic, which she made clear at [62].
It is well established that in considering whether to grant permission to appeal, the court is entitled to take into account the fact that an appeal is academic. If it is, then permission will only rarely be given. But consideration of the question whether an appeal is academic will normally arise at the same time as the court considers the underlying merits of the appeal itself. It is undoubtedly the case that in general the merits of an appeal are not relevant to an application for an extension of time. But there is an exception where the merits of a claim are so strong or so weak that the summary judgment test would be satisfied, and the party seeking the extension has been notified by the party opposing it sufficiently in advance that the point will be taken. In my view, the same considerations apply to the question whether an appeal is academic, because there is no point in extending time for an application for permission to appeal which, even if successful, will be futile.
In my order adjourning the application into court, I said in terms that Ms Daramy would have to explain why this appeal is not academic. Mr Folkard took up that challenge.
As I have said, the underlying claims to which this appeal relate were dismissed by EJ Allen in July 2024. We have not been shown any appeal against that decision which was lodged in time. The nearest we have is an application made in February 2025 to amend the grounds of appeal in appeal EA-2024-000153-AS ("Appeal 153") so as to include an appeal against EJ Allen's decision. But as Ms Daramy herself says in that application:
"I clarified that I chose not to appeal or seek reconsideration from the Employment Tribunal (ET) concerning EJ Allen's refusal of my postponement application and the rule 47 decision. I lack confidence in the ET's ability to review their findings, including their refusal to remove my confidential medical information from EJ Allen's rule 47 decision published online."
Appeal 153 is in fact an appeal against the decision of EJ Beyzade on 15 January 2024 dismissing Ms Daramy’s application to strike out the response to her claims. We have not been provided with the decision itself. Reasons for the decision were sent to the parties on 17 April 2024. According to the application to amend, Ms Daramy submitted grounds of appeal against that decision on 20 September 2024. That appeal was rejected on the sift, and Ms Daramy's application for the rule 3(10) hearing was lodged out of time. On 6 December 2024, the registrar refused to extend time. The application to amend the grounds of appeal was thus made in relation to an appeal which had already been disposed of. Ms Daramy has appealed against the refusal of the extension of time to request the rule 3(10) hearing. That appeal we are told is due to be heard on 16 March 2026.
The position at the moment, therefore, is that Appeal 153 cannot proceed and the underlying claims remain dismissed. They will not be reinstated unless:
The EAT allows the appeal against the registrar's refusal to extend time for asking for a rule 3(10) hearing.
On any rule 3(10) hearing, the EAT decides that there is an arguable question of law on which the ET went wrong.
The EAT permits Ms Daramy to amend her grounds of appeal to include an appeal against EJ Allen's decision to dismiss her claims, despite it now being some 18 months after that decision, and despite Ms Daramy's choice not to appeal against it at the time.
The EAT decides that there is an arguable question of law which would undermine EJ Allen's decision to dismiss.
On any substantive appeal against the dismissal, the appeal succeeds.
These are all substantial hurdles for Ms Daramy to surmount. Mr Folkard argues that, despite these hurdles, the appeal is not academic. He distinguishes between an appeal which is academic on the one hand, and an appeal which is of benefit to the appellant, even if the benefit is contingent on the other. He relies in that connection on a decision of mine in granting permission to appeal in Fertre v Vale ofWhite Horse District Council [2024] EWCA Civ 1616. Assuming that an appeal which, if successful, may bring a contingent benefit to an appellant, it is not automatically disqualified as being academic, the court considering the grant of permission must, in my judgment, be entitled to evaluate the possibility of the contingency maturing.
Mr Folkard submits that, respecting institutional competence, this court should not second-guess what future decisions the EAT might make. I reject that submission, especially since, as Mr Folkard argued, the contingencies are effectively legal contingencies.
In my judgment, we should therefore consider whether the prospect of surmounting all these hurdles has any real prospect of success. In my judgment it does not. It is no more than fanciful. In those circumstances, I consider that the appeal is indeed academic. I would therefore refuse permission to appeal on ground three and, although I would grant permission to appeal on ground one, the refusal of permission on ground three means that the substantive appeal on ground one must also fail because the underlying appeal is itself academic.
I would therefore dismiss the appeal.
LORD JUSTICE BEAN: I agree.
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