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• Speaker #0

  Today, in the Lefèbvre HR and Employment Law podcast, we're discussing the Court of Appeal judgment in the case of Melki and Bouygues, Contracting UK Ltd, in which the Court was asked to consider the meaning of the phrase minor error in the context of an appellant failing to include the employer's grounds of resistance when making an appeal application to the Employment Appeal Tribunal. Specific documents must be filed alongside any notice of appeal, without which the appeal will be automatically rejected. However, since September 2023, the Employment Appeal Tribunal has a discretion to extend the time limit, where it considers that the nature of the appellant's error is minor, the error has been rectified, and that having regard to all the circumstances, it is in the interest of justice to grant an extension of time. In this case, the employee applied to appeal the rejection of his claims by an Employment Tribunal. Although his notice of appeal was submitted in time, he failed to include the employer's grounds of resistance in the bundle of supporting documents, a requirement of the Employment Appeal Tribunal practice direction at the relevant time. A week later, the employee rectified his error, but this was six days after his time limit to appeal had expired. The Employment Appeal Tribunal later notified the employee that this delay meant that his appeal was not properly instituted, so he sought an extension of time, which was refused by the Employment Appeal Tribunal Registrar. the employee appealed that decision to an Employment Appeal Tribunal judge. In the meantime, from 30 September 2023, the Employment Appeal Tribunal rules were amended to remove the requirement to include the claim judge response with any notice of appeal and to give the Employment Appeal Tribunal a discretion to extend time where an appellant has made a minor error in complying with the requirement to submit relevant documents with the appeal notice and has since rectified that error. Although those amendments applied to all existing and new appeals, the Employment Appeal Tribunal nevertheless dismissed the appeal on the basis that the error in failing to include the grounds of resistance was not a minor error. The Court of Appeal partially allowed the employee's appeal and held that the Employment Appeal Tribunal had erred in assessing whether the error was minor. The Court noted that the word minor is the opposite of major, and assessing whether an error is minor or not must be answered by considering the degree of compliance with the rules. The Employment Appeal Tribunal had wrongly added a gloss to the amended rules, to the effect that the documents subject to the minor error must be irrelevant or unimportant, and there is no support for that gloss in the words of the amended rules. The amended rules should be construed based on the words it uses, because that is the best guide to its meaning. The rules were amended to remedy a mischief, whereby under the old rules an appellant who failed to include a document was treated in exactly the same way as someone who had missed the appeal deadline entirely, and given around 20% of all appeals fell into this category. This increased the administrative burden on the Employment Appeal Tribunal and lead to increased delays. It also caused concerns that the strict application of old Employment Appeal Tribunal rules was causing problems with access to justice. Against that backdrop, it was wrong that the approach taken by the Employment Appeal Tribunal was barely different from the approach taken before the rules were amended. Further, the amended rules were designed to confer a broad discretion on the Employment Appeal Tribunal and, if the new rules are interpreted too narrowly, this would greatly reduce the scope for the exercise of that discretion. The court held that the employee had committed a minor error by failing to include the grounds of resistance with his appeal notice and that the Employment Appeal Tribunal had been wrong to refuse to exercise its power to extend time. However, The court declined to give any general guidance about what is or is not a minor error, as this is a fact-specific question which is best decided by the Employment Appeal Tribunal on a case-by-case basis. Look out for further episodes in this series to stay up to date on all things HR and employment law related.