Court of Appeal Permits Late Disability Discrimination Appeal

The Court of Appeal has ruled that a failure by a litigant in person to include his Particulars of Claim when making an appeal to the Employment Appeal Tribunal (EAT) was a minor error, overturning the EAT's decision that he should not be granted an extension of time (Parker v West Midlands Trains Ltd).

The man had been employed by a railway company as a duty station manager for nearly two years before being dismissed. He brought a claim of disability discrimination, which was rejected by the Employment Tribunal. He submitted a notice of appeal to the EAT on 10 December 2022, enclosing his form ET1 but omitting the Particulars of Claim.

The EAT replied on 13 December, saying that the appeal was deemed not to be properly instituted and requesting the Particulars of Claim. He attempted to send them on 21 December but instead sent Further and Better Particulars of Claim which had been prepared in response to a request from his former employer. The 42-day time limit for bringing the appeal expired on 28 December.

The EAT contacted him on 13 January 2023, stating that its preliminary checks indicated that the appeal has been properly instituted. It did not inform him that the Particulars of Claim were still outstanding until 28 March. He then sent them within three hours and the EAT received them the following day, 91 days after the time limit. After the EAT refused his application to extend time, he appealed that decision to the Court of Appeal.

The Court noted that, on 30 September 2023, the Employment Appeal Tribunal Rules 1993 had been amended to remove the requirement that the form ET1 must be included when lodging a notice of appeal, and to allow time to be extended, where it is considered just to do so, if an applicant makes a minor error in submitting documents. The Court also considered its earlier decision in Melki v Bouygues E and S Contracting UK Ltd, which dealt with what constitutes a minor error.

In the Court's view, the man could not be criticised for the delay between the EAT's letter of 13 December 2022 and the submission of the Particulars of Claim on 28 March 2023. The letter of 11 January 2023, stating that the EAT's preliminary checks indicated that the appeal had been properly instituted, had to be contrasted with the December letter. Any reasonable reader would understand the January letter as saying that the problem identified in the December letter had now been overcome. The man had responded to the December letter within eight days and to the letter of 28 March 2023 within three hours. In between those two events, the letter of 11 January 2023 was one to which he reasonably thought no response was required.

The appeal was allowed. The man's appeal against the ET's dismissal of his disability discrimination claim will now be considered by the EAT on its merits.