M Mulumba v Partners Group (UK) Limited & Anor

Lady Justice Elisabeth Laing: Introduction

1. This is an appeal from a judgment of the Employment Appeal Tribunal (‘the EAT’). The EAT dismissed an appeal from two decisions of the Registrar of the EAT. The Registrar had refused the applications of the Appellant (‘Ms Mulumba’) for an extension of time in which to bring two different appeals (appeal 1 and appeal 2).

2. Warby LJ gave Ms Mulumba permission to appeal on the ground, in short, that the EAT’s decision was before this court’s judgment in Ridley v HSBC Kirtley (t/a Queen’s Court Business Centre) [2024] EWCA Civ 884 ; [2025] ICR 441 (‘ Ridley ’). Ridley decides that there is a legally relevant distinction between a case in which an appellant lodges a notice of appeal outside the relevant time limit and one in which the notice of appeal is lodged in time, but without all the documents which are required by the relevant rules. He said that it was arguable that the EAT’s approach in this case was wrong in law because the EAT had (understandably) not recognised that distinction.

3. Ms Mulumba was represented by counsel in the ET. She represented herself in the EAT. On this appeal, she had the advantage of being represented by Ms Banton, who appears to have been instructed at the last moment, and who prepared a supplementary skeleton argument for her. We are very grateful to Ms Banton for the help which she gave Ms Mulumba and this court. The Respondents were represented in the ET and in this court by Mr Craig KC and Ms Onslow. Ms Onslow represented the Respondents in the EAT. We also thank the Respondents’ counsel for their oral and written arguments.

4. The relevant rules are the Employment Appeal Tribunal Rules 1993, 1993 SI No 2854. I will refer to them as ‘the Rules’. The relevant practice direction is the Practice Direction (Employment Appeal Tribunal – Procedure) 2018. I will refer to that as ‘the Practice Direction’. For the reasons given in this judgment, I would dismiss this appeal. Although the EAT did not, for obvious reasons, follow the approach in Ridley , it did not, in my judgment, on the facts of this case, materially err in law in not doing so. Nor did it err in law in any other way. On analysis, as I explain below, Ridley did not apply either to appeal 1 or to appeal 2. The facts

5. I take the facts from the reasons for the Registrar’s orders and the transcript of the ex tempore judgment of HHJ Wayne Beard sitting as a judge of the EAT (‘the Judge’). I have supplemented those where necessary by referring to the documents which were before the Registrar and the Judge.

6. The background to appeal 1 and appeal 2 is that the Respondents are part of a ‘global private markets investment management business’: see paragraph 89 of a judgment of the ET sent to the parties on 4 January 2022 (‘judgment 2’). Ms Mulumba is a citizen of the Democratic Republic of the Congo. She has a BSc from the London School of Economics, and an MBA from the University of Virginia. Before working for the Respondents, she had worked for Goldman Sachs, eBay and The World Bank. In 2015, she was first employed as a member of the Associate Program (‘the AP’) by the business of which the Respondents were a part. The purpose of the AP is to identify the best Associates and to recruit them for permanent posts (paragraph 127 of judgment 2). She was dismissed by a letter dated 5 July 2018, with effect from 31 August 2018. She brought her ET claims (for direct discrimination on the grounds of disability, race and sex, for discriminatory dismissal, harassment, victimisation, whistleblowing detriment, automatic unfair dismissal and ordinary unfair dismissal) in January 2019. There was a long dispute about whether the ET had jurisdiction over her claims. That was partly resolved in her favour in August 2021. The ET then heard her claims (remotely) between 29 November and 15 December 2021. In judgment 2 the ET dismissed all the claims, except her claim for ordinary unfair dismissal. Appeal 1 (EA-2021-001326-NLD)

7. Appeal 1 was against a judgment sent to the parties on 18 October 2021 (‘judgment 1’). Judgment 1 related to preliminary issues in Ms Mulumba’s claim against the Respondents. The last day for lodging an appeal against judgment 1 was 29 November 2021. As it happens, 29 November 2021 was also the first day of the hearing of her claim against the Respondents.

8. Ms Mulumba’s appeal was received by the EAT at 23.49 on 29 November 2021. Paragraphs 13 and 14 of the Registrar’s order in appeal 1 explained that as a result of a combination of rule 37(A1) of the Rules and paragraph 1.8.2 of the Practice Direction, the EAT was entitled to, and did, treat appeal 1 as having been received the following day, that is, on 30 November 2021.

9. On 23 January 2023, the EAT told Ms Mulumba that it considered that appeal 1 was out of time. The EAT invited her to explain, if she wished to pursue it, why she had lodged appeal 1 out of time. Ms Mulumba’s application to the Registrar and the decision of the Registrar in appeal 1

10. Ms Mulumba explained that she was a litigant in person. Her barrister had effectively refused to advise her on the judgment. She also relied on the fact that the Respondents were no longer supporting her with IT hardware and software, on various applications by the Respondents to delay the ET proceedings, and on ‘the toll on my mental health’. In further submissions she noted that the Respondents’ reply to her application to the Registrar had, itself, been provided late. She provided ‘medical evidence in the form of a referral to the Community Mental Health team as a result of stress’ (paragraph 11 of the Registrar’s order in appeal 1). The Respondent’s skeleton argument for the EAT hearing explained that the evidence consisted of a report from a GP dated 20 January 2022 (paragraph 21(2)).

11. Ms Kerr, who was authorised to act for the Registrar, referred to the relevant authorities in paragraphs 20-36 of her order dated 18 July 2023 and sealed on 25 July 2023. Ms Mulumba’s explanation did not amount ‘to a good excuse for the default’ (paragraph 34). Ms Kerr refused the application to extend the time for bringing the appeal (paragraph 37). Appeal 2 (EA-2022-000418- NLD)

12. Appeal 2 was against judgment 2. Judgment 2 was the ET’s judgment on Ms Mulumba’s claims against the Respondents, heard remotely. The last date for lodging an appeal against judgment 2 was 15 February 2022.

13. Ms Mulumba lodged her notice of appeal at 15.29 on 15 February 2022. The notice of appeal was on EAT Form 1. Paragraph 5 of the form referred to ‘Copies of…’. In sub-paragraphs (a)-(c) it listed the documents which should accompany the notice of appeal. Paragraph 5(d) required the appellant to give ‘an explanation as to why any of these documents are not included’. Paragraph 5 ends with the phrase ‘are attached to this notice’. Paragraph 7 of the form invites an appellant to set out the grounds of appeal in numbered paragraphs. In that space, Ms Mulumba typed, ‘Please see the attached letter dated 15 February 2022 and detailing the grounds on which this appeal is brought’. She added a further paragraph, ‘I have struggled to appropriately size down the many (and in some cases very large) supporting files (Reserved judgment, Written Reasons, ET1, ET3 and my 2 reconsideration applications). Accordingly they must follow’. She also added that she was waiting for the judgments on her two applications for reconsideration.

14. Her email to the EAT sent with the notice of appeal was in similar terms. She said, ‘Please find my notice of appeal attached. Please see the attached letter dated 15 February 2022 and detailing the grounds on which the appeal is brought. I have struggled to appropriately size down the many (and in some cases very large supporting files (Reserved Judgment, Written Reasons, ET1, ET3 and my 2 reconsideration applications).’

15. As I explain in paragraph 40, below, there is a dispute about whether Ms Mulumba provided the letter of 15 February 2022 in a file format which was readily accessible and/or which accorded with the Practice Direction. I will only make two points about the grounds of appeal set out in the letter of 15 February 2022. First, in hard copy, they are 16 pages long. Second, in those grounds of appeal, she also appealed against a further decision, recorded in a judgment of the ET sent to the parties on 24 January 2022 (‘judgment 3’). In the light of that fact, the EAT assigned two separate appeal numbers to the complaints made in the grounds of appeal in appeal 2. I will refer to Ms Mulumba’s appeal against the judgment 3 as ‘appeal 3’.

16. After 4pm on 17 February 2022 Ms Mulumba provided the ET judgment which was the subject of appeal 2, the ET1 and ET3 forms and other documents. As before, the EAT did treat and was entitled to treat these as having been received the following day, 18 February 2022 (see paragraph 8, above).

17. On 23 January 2023 the EAT told Ms Mulumba that it considered that appeal 2 was out of time. The EAT invited her to explain, if she wished to pursue it, why she had lodged appeal 2 out of time. Ms Mulumba lodged appeal 3 in time. Ms Mulumba’s application to the Registrar and the decision of the Registrar in appeal 2

18. Ms Mulumba relied on her mental health, and on the fact that she was a litigant in person. Despite the success of her unfair dismissal claim, she had been ‘targeted by mocking journalists and anonymous citizens intent on ridiculing me and my case on popular and nationally and internationally read news platforms’. This was ‘very distressing’. She referred to her qualifications and to her various professional roles (see paragraph 6, above). She had suffered ‘an untold loss of confidence, crippling anxiety and decreased resolve’.

19. She added that she had emailed her appeal in time. She acknowledged that the last day for lodging the appeal was 15 February 2022, and that it had to be lodged before 4pm. She quoted the note on her notice of appeal (see paragraph 13, above). She said that she needed to size down the supporting attachments because they were so big that ‘basic word processing/ office tools did not suffice, the level of resizing required access to unbudgeted for office tools software’. She had had no support with computer hardware and software since her unfair dismissal in 2018. Even relatively basic word processing software was expensive, and she was not earning an income.

20. In her response to the Respondents’ reply to her application, she answered the Respondents’ argument that because she was able to do some things in time, she should have been able to do everything in time. She said, ‘That is simply not the reality of struggling with mental health. Especially for a litigant in person struggling with mental health, these submissions are things that one can go around in circles ruminating on without ever feeling done and confident to “pull the trigger”, this is when one has the strength and capability even to take them on. With great hesitation I am submitting mental health “evidence” that the Respondent labelled lacking…’

21. That evidence was a referral to the Community Mental Health team. She referred to poor sleep, variable appetite, low concentration and anxiety.

22. Ms Kerr, who was again authorised to act for the Registrar, noted that there was no dispute that appeal 2 was out of time. The deadline was 15 February 2022. While the notice of appeal was received by the EAT on that date, it was ‘not in accordance with the rules’. She quoted rule 3(1) of the Rules. Ms Mulumba had not provided ‘the ET judgment, the ET1 Claim or ET3 Response’ until after the expiry of the time limit. They had been provided after 4pm and were to be treated as having been lodged the next day (paragraphs 15-18 of the Order dated 18 July 2023 and sealed on 24 July 2023). Even if it could be said that Ms Mulumba had explained why she had not attached the ET1 and the ET3, the absence of the judgment ‘cannot be explained away’ (paragraph 19). Appeal 2 was not properly instituted within the time limit (paragraph 20).

23. Ms Kerr then considered whether to extend the time limit. The exercise of the discretion to extend time was ‘an exceptional step’ (paragraph 21). Ms Kerr referred to some of the relevant cases. There was no medical evidence which showed that Ms Mulumba’s mental health had prevented her from lodging her appeal ‘at an earlier stage’ (paragraphs 27 and 28).

24. There was no suggestion that Ms Mulumba did not know about the deadline. She had simply left things until it was too late. She had run the risk that she would not be able to correct any mistakes in time (paragraph 30). Ms Kerr referred to the ‘Judgment’ booklet, the rules and the Practice Direction, and ‘other materials available on the internet and elsewhere’ which made clear what was required and when (paragraph 32).

25. Ms Kerr refused Ms Mulumba’s application for an extension of time (paragraph 36). Ms Mulumba’s appeals to a judge of the EAT

26. Ms Mulumba appealed to a judge of the EAT against the decisions of the Registrar about appeals 1 and 2. The appeals were heard by the Judge on 9 April 2024. Ms Mulumba represented herself, and, as I have said, the Respondents were represented by Ms Onslow. I have read the written summary of the reasons for his decision, and the transcript of his ex tempore judgment. The Judge’s judgment

27. The Judge described appeal 1 and appeal 2. He noted that appeal 3 was a ‘further complication’ (paragraph 2). A judge of the EAT had made a decision in appeal 3 under rule 3(7) of the Rules. He noted that he should not make any decisions about appeal 3, as it might be the subject of a further hearing in the EAT (paragraph 3 of his judgment).

28. Ms Mulumba had relied on judgment 3 and argued that ‘it involves an issue which should have drawn [appeal 2] into its ambit’. Appeal 3 related to issues which were decided in by the ET at the start of the hearing of Ms Mulumba’s claim. She argued that judgment 2 could not be properly understood without judgment 3, and that the two judgments should be considered together. The issues which were the subject of judgment 3 were only summarised in judgment 2. She could not understand judgment 2 because it was confusing. For that reason, she had appealed against judgment 2 and judgment 3 in the same document (paragraph 4).

29. The Respondents pointed out that paragraph 51 of judgment 3 showed that it recorded what had happened at the time of a decision in November 2021. The judgment indicated what steps Ms Mulumba should take before the start of the hearing of her claim (paragraph 5).

30. The Judge quoted rule 3 of the Rules (paragraph 6; and see paragraph 49, below), and rules 61 and 62 of the Employment Tribunal Rules of Procedure 2013 (paragraphs 7 and 8). It was clear from those rules that decisions made by the ET were to be recorded orally or in writing, and that either side could ask for written reasons. The rules related both to final judgments and to orders of the ET, which control the conduct of proceedings (paragraph 9).

31. Ms Mulumba received judgment 2 with written reasons. She asked the ET to reconsider judgment 2. She also asked for written reasons for case management and other decisions which were referred to in judgment 2. The ET’s response was to send judgment 3 to Ms Mulumba. Judgment 2 and judgment 3 were ‘separate decisions’. Judgment 3 was the written reasons for decisions made at the start of the hearing about case management and other issues. The reasons in judgment 2 related ‘specifically, to conclusions about [Ms Mulumba’s] case, excluding, perhaps, some of the list of issues/matters which she raises’. Judgment 2 and judgment 3 were separate decisions and each was properly recorded under the rules. It was unfortunate that they had been recorded and provided ‘the wrong way round’, but they were, ‘nonetheless separate decisions’ (paragraph 10).

32. Appeal 2 was lodged late (paragraph 11).

33. The Judge considered appeal 1 first. He recorded Ms Mulumba’s criticisms of the decision of the Registrar (paragraphs 13-15). She had perhaps misunderstood his role. He indicated (rightly) that the decision was his to make. He had to approach ‘all matters directly and anew’ (paragraph 16).

34. Ms Mulumba argued, in relation to appeal 2, that she had provided the documents to begin the appeal in time. She had also explained that she would send other documents later. The documents had to be reduced in size to be sent electronically, and she had technical difficulties (paragraph 17). The Judge also summarised her other arguments in paragraph 17.

35. Appeal 1 was lodged late, at 23.49 on 29 November 2021. It should have been lodged by 4pm that day. The time limit was not a target, and it would only be relaxed in ‘rare and exceptional cases’. There had to be ‘a full, honest and acceptable explanation of the reasons for the delay’. The Judge listed the questions which, on the authorities, he had to ask (paragraph 20).

36. Litigants in person did not get a special dispensation: Anghel v Middlesex University [2022] EAT 176 . J v K [2019] EWCA Civ 5 ; [2019] ICR 815 showed that mental health issues could be relevant, but ‘the particular disability should relate to the reason why the appeal is not presented in time’ (paragraph 21).

37. The Judge described the medical evidence in paragraph 24. Ms Mulumba’s GP referred her to the Community Mental Health team on 22 January 2022. She had had a stressful time because of the litigation. The stress covered the period of the litigation. There had been further stress because of a report in a national newspaper. Her symptoms included poor sleep, poor appetite, and lack of motivation. She was a litigant in person. A merits hearing was about to start, and she was also preparing appeal 1. She argued that the medical evidence related back to the whole period of the litigation although there was no evidence that she had seen the GP before. She also relied on her basic IT facilities (paragraph 24).

38. The Judge considered that there was ‘nothing which actually explains why the appeal was not lodged prior to 29 November’, or why Ms Mulumba could not have lodged the appeal on 28 November, for example. The difficulty with the mental health argument was that it did not prevent Ms Mulumba from lodging the appeal on 29 November (paragraph 25). The start of the hearing on 29 November was not an explanation, either. It did not explain why she had not lodged the appeal earlier, ‘because it would be necessary to clear the decks for the merits hearing itself’ (paragraph 26).

39. Next, the Judge considered whether, nevertheless, he should give Ms Mulumba an extension of time. She relied on the conduct of the Respondents in the run up to the hearing of the claim, the ‘so-called balance of prejudice’; but that was not a good excuse or an exceptional reason (paragraph 27). Ms Mulumba’s reliance on IT issues was ‘answered in a sentence’. She had been able to ‘present close to midnight on the 29 th ’. There was nothing to stop her doing that before 4pm. He refused an extension of time.

40. The Respondents submitted in its skeleton argument for the hearing before the Judge that appeal 2 was not properly constituted for two reasons. One of those was that the file format in which the grounds of appeal were submitted to the EAT on 15 February 2022 was not readable by the EAT or by the Respondents, and that that was not put right until 17 February 2022, when the grounds of appeal were sent to the EAT as a PDF (Respondents’ skeleton argument, paragraphs 8(2) and 13). The Registrar did not refer to this. Nor did the Judge. In an email after the hearing, Ms Banton objected to reliance on the point in this court. In those circumstances I have resisted the Respondents’ invitation to take this point into account, and will not make any further comment, or any finding, about it.

41. The Judge then considered appeal 2. He referred to the decision of HHJ Tayler in Richardson v Extreme Roofing [2023] ICR 328 (‘ Richardson ’). The appellant in Richardson had explained that he had had problems downloading the judgment document. He had copied it and turned it into a Word document. He had had difficulty opening the files which the respondent had sent him, including the ET3. He had suggested that he would try to send it to the ET later, or that the EAT ask the ET for it.

42. HHJ Tayler had said in paragraph 19 of his judgment in Richardson that an explanation why documents had not been provided ‘must be a genuine explanation’. It would not be enough for the appellant to say he had not attached a document because he could not be bothered to, or because he thought that the EAT should do so. Paragraph 3.4 of the Practice Direction was drafted on the assumption that an appellant had not provided documents because he did not have them; and must ask the EAT to consider the appeal without the reasons or direct the ET to provide them (paragraph 29).

43. The Judge referred to rule 3. Rule 3 enabled an appellant who had not attached the written reasons of the ET, and/or the ET1 and/or the ET3 to explain why he had not supplied them. He noted that Form EAT 1 (see paragraph 13, above) did not make a clear distinction between those documents and the judgment (paragraph 29).

44. Ms Mulumba had explained why the merits judgment was not attached. The Judge quoted from what she had said in notice of appeal and accompanying email (see paragraphs 13 and 14, above) (paragraph 30).

45. Ms Mulumba relied on the size of the documents as the explanation. The failure to provide the judgment was a failure to comply with the Rules. Whether it was a ‘minor error’ must depend on the ‘specific circumstances’. If a judgment simply said ‘Claim dismissed’ and appealed issues were ‘only dealt with in the reasons’, the reasons, not the judgment, would ‘have the important information’. In that situation not providing the judgment could be a ‘minor error’ (paragraph 31).

46. In this case, the judgment and the reasons were in one document, ‘so neither the judgment nor the reasons were lodged on time. On that basis, whatever the explanation, the judgment not being provided was not a minor error and, therefore, the appeal was out of time’. If he was wrong about that, there must be ‘a good reason’ ( Richardson ). Ms Mulumba had been able to provide ‘that documentation’ by 18 February ‘in a suitable electronic form’. He considered that ‘the size of the documents was a problem that could have been overcome within the time limits’. Ms Mulumba’s explanation was ‘not a good explanation’ and was therefore ‘not an explanation within the meaning of the rules’ (paragraph 32).

47. The Judge considered whether he should extend time in paragraph 33. The explanation was the size of the files ‘that were, in the event, provided three days later’. That was not a good excuse. He also dismissed Ms Mulumba’s further argument that the reasons were over 100 pages, and she needed to take care to prepare the grounds of appeal. She had been able to do that within the time limit; ‘it is the other documents which were not sent’. The law The Rules

48. The EAT's procedures are governed by the Rules. The Rules are made in the discharge by the Lord Chancellor of the duty imposed by section 30(1) of the Employment Tribunals Act 1996 . Such rules may include provision for ‘the manner in which, and the time within which, an appeal may be brought’ (section 39(2)(a)).

49. Rule 3 is headed ‘Institution of Appeal’. Rule 3(1) as in force when Ms Mulumba lodged her notice of appeal provided: ‘Every appeal to [the EAT] shall, subject to paragraphs (2) and (4), be instituted by serving on the [EAT] the following documents - (a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules; (b) in the case of an appeal from a judgment of an employment tribunal a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included; and (c) in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included;… (e) in the case of an appeal from an order of an employment tribunal a copy of the written record of the order of the employment tribunal which is subject to appeal and (if available) the written reasons for the order’.

50. The Employment Appeal Tribunal (Amendment) Rules 2023 (2023 SI No 967) (‘the Amendment Rules’) came into force on 30 September 2023. Rule 2(2) amended rule 3(1) of the Rules by deleting rule 3(1)(b).

51. Rule 3(3) of the Rules provides for a 42-day time limit for appealing which runs from the date when written reasons for the ET's decision are sent to the parties. Rule 3(3) itself confers no power to extend that time limit.

52. Rule 37 is headed ‘Time’. Rule 37(1) gives the EAT ‘a very wide power to change time limits’. It is ‘clearly intended to apply to the time limits in rule 3(3)’ ( Ridley , paragraph 15). Article 2(3) of the Amendment Rules amended rule 37 by adding rule 37(5). Rule 37(5) provides: ‘(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.’

53. The Amendment Rules also introduced changes to the EAT’s standard forms 1, 1A, 2, 3, 4B, 4, 5, 7, 5A and 6. Each form was amended by the insertion of a standard paragraph which tells an appellant, either before submitting an appeal, or, in relation to the relevant step during the appeal, to read the relevant part of EAT’s Practice Direction.

54. In Melki v Bouygues E & S Contracting UK Limited [2025] EWCA Civ 585 ; [2025] ICR 1348 ( Melki ) this court considered, on an appeal from the EAT, what rule 37(5) means. It decided that whether an error is ‘minor’ is to be considered in the context of compliance with the requirements of rule 3(1) and not by reference to any other criterion.

55. The notice of appeal in that case had been lodged with the EAT before the Amendment Rules came into force. The EAT had applied the unamended version of rule 3(1) to the appeal, but considered that it was nevertheless open to it to exercise the discretion conferred by rule 37(5) when considering an application for an extension of time after the coming into force of the Amendment Rules. There was no appeal against that part of the EAT’s decision. This court therefore approached the appeal in Melki on that basis. No issue was raised in this case in the EAT about the correctness of that approach; nor was it questioned in this court. I therefore assume that the EAT was right in this case to apply the unamended version of rule 3(1) to this case, but nevertheless to apply rule 37(5) as well.

56. The appellant in Melki had substantially complied with the unamended version of rule 3(1). The only document which he had not provided was the grounds of resistance which had been attached to form ET3, but he had provided form ET3. On the facts, this court held that, on any view, that was a ‘minor error’ in complying with rule 3(1), and that the EAT had erred in law in holding otherwise. The cases on rule 37(1)

57. In Ridley this court considered the authorities in detail in paragraphs 23-97. I refer the interested reader to that summary and do not repeat it here. In paragraphs 13-30 of my judgment in Davies v BMW (UK) Manufacturing Limited [2025] EWCA Civ 356 ; [2025] IRLR 515 , I summarised the authorities considered in Ridley and the main conclusions in that case. I repeat that summary here. ‘THE RELEVANT AUTHORITIES …14. The first such authority is United Arab Emirates v Abdelghafar [1995] ICR 65 . On page 70, Mummery J (as he then was) explained that there were four relevant principles. They included, first, that the discretion was to be exercised ‘not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice’. All the relevant factors were to be weighed and balanced. The outcome was not ‘dictated by any set factor. Discretions are not packaged, programmed responses’. Second, courts are stricter about enforcing the time limits for an appeal than they are about enforcing the time limits for interlocutory steps. A person who is dissatisfied with a decision on the merits should act promptly. Third, an extension of time is an indulgence, not a right. An appellant must give a ‘full honest and acceptable explanation of the reasons for the delay’.

15. He explained that the EAT followed ‘guidelines’ which did not fetter the exercise of the discretion. They were designed to achieve, as far as possible, consistency, predictability, and ‘the attainment of justice’. There is no excuse for ignorance of the time limit, or of the importance of complying with it, even if an appellant is not represented. The time limit would only be relaxed in ‘rare and exceptional cases’ when the EAT is satisfied that there is ‘a reason which justifies departure from the time limit’. If there is an explanation, ‘other factors may come into play’. Extensions had been refused even where the delay was only a day long. Appellants were advised not to leave lodging a notice of appeal until the last few days of the time limit, because of the risk of postal problems. The merits of an appeal are usually of ‘little weight’, because it is not appropriate to investigate the merits on an application for an extension of time. Lack of prejudice to the respondent is ‘of little or no significance’.

16. There are three questions (p 72C).

1. What is the explanation for the default?

2. Is it a good excuse?

3. Are there circumstances which justify the exceptional step of giving an extension of time?

17. The respondent in that case was represented. Mummery J was not impressed by the respondent’s explanation for the delay (of 52 days). He referred to the respondent’s ‘neglect and mismanagement’ of the case. The exceptional feature of the case which persuaded him to give an extension of time was the positive duty imposed on the EAT by section 1(2) of the State Immunity Act 1978 .

18. The approach in Abdelghafar has been approved by this court more than once, and, significantly, at least once after a full appeal at which both the parties were represented by counsel ( Jurkowska v Hlmad Limited [2008] ICR 841 ). In that case, both the Registrar of the EAT, and Underhill J (as he then was), on an appeal from the order of the Registrar, had extended the time for appealing.

19. The appellant employer in that case was represented by counsel and solicitors. The solicitors lodged an appeal on the last day of the 42-day period. The ET’s judgment was missing. It was filed by fax, after the EAT pointed that out, and after close of business that day, so that it was officially lodged after the expiry of the time limit. Underhill J held that the mistake of the solicitors in failing to appreciate that lodging the ET’s written reasons did not also amount to lodging the judgment was ‘pardonable’, even though, if the reasons were read carefully, it would have been clear that they were only the reasons for the decision. He was not surprised that experienced solicitors might expect the judgment and the reasons to be in one document. It was ‘the sort of exceptional circumstance which ought to attract the exercise of the discretion where it was promptly rectified as soon as it was brought to their attention’. That was so even though the solicitors had left it until the last day to lodge the appeal (paragraph 34).

20. Rimer LJ rejected an argument that the introduction of an overriding objective in the Rules required a different approach from the approach described in Abdelghafar . He noted that the strict view was that the solicitors should have known better (see paragraph 44). The solicitors had not considered the express requirements of the Rules or other materials which would have shown them that ‘the judgment is one thing and the reasons are another’. Underhill J had explained why he considered the explanation was acceptable and why the mistake was ‘venial’, given that the solicitors had promptly corrected it.

21. With some hesitation, this court dismissed the employee’s appeal against the decision of the EAT to extend the time for the employer’s appeal. Rimer LJ had ‘some reservations’ about Underhill J’s conclusion (as he explained in paragraph 47). To take a ‘strict view’ was ‘probably’ to rely too much on hindsight. Whether or not to extend time was ‘pre-eminently’ for the judge. Underhill J was an experienced judge of the EAT and fully aware of the principles in Abdelghafar . Rimer LJ rejected a submission that Underhill J should have found out why the solicitors left the appeal until the last moment. He said that an appellant is fully entitled to wait until the last day, although he would run the risk that something could go wrong at the last minute. Underhill J had been entitled to decide to give an extension of time, even though everything had been left until the last minute (paragraph 48). He had not misdirected himself (paragraph 49).

22. Hooper LJ agreed, for essentially the same reasons (paragraph 50). Sedley LJ said if the discretion had been his to exercise, he would not have exercised it in the employer’s favour (paragraph 70). With ‘the very greatest of hesitation’ he accepted that Underhill J had been entitled to extend time (paragraph 71).

23. Rimer LJ added two qualifications to the guidelines in Abdelghafar .

1. It is not, in every case, a precondition of success for an appellant to show a good excuse for any delay, ‘although in the ordinary run of cases, absent some such exceptional circumstance as…in Abdelghafar , it will be’. The principles in Abdelghafar were guidelines and ‘every case will turn on its own facts’ (paragraph 16; see also paragraph 19). Underhill LJ referred to this statement with apparent approval in paragraph 36 of his judgment in Green v Mears Limited [2018] EWCA Civ 751 ; [2019] ICR 771 .

2. An appellant did not have to show that his case was ‘rare and exceptional’. What was meant, rather, was that it was only in rare and exceptional cases that it would be appropriate to extend time (paragraph 20).

24. In paragraph 152 of Ridley, this court took four points from Jurkowska . Two are worth repeating here.

1. There is no rule of law which prevents an extension of time for a person who is professionally advised and who leaves it until the very last moment to appeal. Those circumstances may be relevant to the exercise of the discretion, but that is a different point.

2. There is no rule of law which prevents an extension of time for such a person, whose adviser makes a ‘venial mistake’, when he should have known better. In other words, it is not always necessary to show that an appellant has shown that he has a good excuse for the delay.

25. In J v K [2019] EWCA Civ 5 ; [2019] ICR 815 the appellant tried to email the documents for his appeal to the EAT at 3.55pm on the last day of the time limit. The EAT’s server could only accept an attachment of 10MB. The attachment to the appellant’s email was bigger than that. His appeal was not delivered in time. He then sent a number of smaller attachments. They were all received by 5pm that day. The EAT treated the appeal as being out of time. The judge in the EAT found that the appellant had not received a hard copy of the ET’s decision or of the covering letter on how to appeal. Those would have directed him to guidance about appealing to the EAT on a government website (T440) which warned potential appellants about the limitations of the EAT’s server. The registrar and the judge in the EAT refused his application for an extension of time. On the limited evidence provided by the appellant, the judge and this court were prepared to accept that the appellant suffered from a ‘degree of mental ill-health’.

26. One of the two issues on which Lewison LJ gave permission to appeal to this court was whether the very modest delay, coupled with the limitations of the EAT’s server, amounted to exceptional circumstances such as to require an extension of time in order to comply with overriding objective. Underhill LJ, giving a judgment with which the other members of this court agreed, referred to two cases in which the EAT had given extensions of time in similar cases. The appellants had appealed very late, and should have known about the limitations of the server because of the information in T440. Other things being equal, a person might expect a server to be able to accept a large attachment. Underhill LJ disagreed with the judge that the information about the server was freely available. The appellant had not received the letter with its ‘somewhat indirect pointer’ to T440. It was relevant, but not decisive, that the appellant had left it to the last moment. The limitations of the EAT server were also a relevant factor. It was ‘inconceivable’ that an extension of time could be justly refused if an appellant had tried to lodge an appeal in person at 3.55pm on the last day and had found the EAT’s doors were locked (paragraph 28). The judge had been wrong to refuse an extension of time. The correct analysis was probably that the appellant had given a good explanation for missing the deadline, that is, his reasonable ignorance of the limitations of the server. But if, contrary to that view, he should have found T440 for himself, ‘any failing in that regard seems to me to have been venial’. The real problem was the EAT’s server. Service was correctly completed within the hour. It was an exceptional case in which ‘an extension of time was required as a matter of justice’ (paragraph 29). THE DECISION IN RIDLEY

27. In paragraph 143, this court said that the guidance in Abdelghafar has been approved by this court several times. The approach is seen as ‘strict’, but ‘it is not inflexible. It involves the exercise of a discretion in a way which is “judicial”, “even-handed” and, above all, fair’.

28. The exercise of the discretion involves recognising a legally significant distinction between a case in which an appellant misses the deadline altogether, and a case in which an appellant has lodged nearly all the necessary documents within the time limit. In the latter case, the appellant, while not fully meeting the requirements of rule 3(1), has substantially complied with them. How substantially he has complied will depend on what is missing, how much of it is missing, and how important it is to the appeal. Such an appellant has also met the time limit in rule 3(3). The relevant authorities do not refer to, or recognise this distinction, or consider whether or not it is relevant to the exercise of the discretion (paragraph 144).

29. The express recognition of such a distinction does not conflict with the guidance in Abdelghafar . Nothing in the later authorities conflicts with the principles described by Mummery J in pp 70-71 of his judgment …

30. Three further points followed (paragraph 147).

1. 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 an appellant has made a mistake. The mistake is the reason for invoking the discretion. It cannot, therefore, be used as a reason for refusing to extend time (see also paragraph 152(ii)). Such a mistake cannot necessarily be discounted simply because, had the appellant filed the appeal earlier, the mistake would have been picked up. That would be to exercise the discretion in a ‘programmed way’.

2. Before it considers the exercise of the discretion, the EAT must clearly understand the appellant’s explanation. Unless it does so, it cannot decide whether that explanation is satisfactory or not.

3. While the EAT has no duty to correct mistakes, the delay which is relevant to the exercise of the discretion is the delay between the time when the EAT tells the appellant of her mistake and when she corrects it.’ The grounds of appeal in this court

58. Ms Mulumba drafted her grounds of appeal. It seems to me that, on analysis, she relied on two grounds.

1. Appeal 2 was properly instituted.

2. The ET did not consider all her circumstances in the round (such as her mental health, the balance of prejudice, the lateness of the Respondents’ letter opposing her application in the EAT, and in relation to appeal 1, the fact that 29 November 2021 was the first day of the ET hearing.)

59. After she was given permission to appeal, Ms Mulumba provided an up-dated skeleton argument. In that document, she argued that the deadline for appeal 2 was 6 weeks after the ET sent the written reasons for judgment 3 to the parties, that is, the same as the deadline for submitting appeal 3. The deadline was not 15 February 2022. She also developed the first ground I have described in the previous paragraph, referring to the contemporaneous explanations she had given for not attaching all the necessary documents to her notice of appeal (see paragraphs 13 and 14, above). She also added some points to the second ground I have described in the previous paragraph. In a skeleton argument, in November 2025, she added a further argument, not raised in the notice of appeal, based on the amendment to the Rules on 30 September 2023 (that is, the addition of rule 37(5)) (see paragraph 52, above). She pointed out that the effect of the decision in this court in Melki is that rule 37(5) applies to appeals lodged before date when that amendment took effect.

60. In their skeleton argument, the Respondents extracted three grounds of appeal from the documents. Ms Banton seems to have accepted that analysis in her skeleton argument served just before the hearing of this appeal.

1. Appeal 2 was in time because it was lodged within six weeks of 24 January 2022.

2. If not, appeal 2 was properly instituted on 15 February 2022.

3. The Judge was wrong not to extend time for appeal 1 and appeal 2 because, in short, he did not take all the relevant circumstances into account. Ms Mulumba’s submissions on this appeal

61. In her skeleton argument Ms Banton submitted that ground 1 raised an important point. The headings of judgments 2 and 3 referred to the same hearing dates (the dates for the hearing of the entire claim). Procedures in the ET were intended to be simple so that the parties could represent themselves. The ‘waters are clearly muddied and conflated’ by the ET’s decision, recorded in paragraph 1 of judgment 3, to give Ms Mulumba reasons for its decision on her application to amend her claim, even though she had not asked for them. This complexity was contrary to the overriding objective in rule 2A of the Rules. The date from which time ran for lodging appeal 2 was objectively unclear, so the later date (for lodging appeal 3) ‘should prevail’.

62. If that was not right, it was, in any event, a reason for exercising the discretion to extend time. The balance of prejudice favoured the exercise of that discretion. The delay was short, whereas the delay in Ridley was 142 days.

63. Appeal 2 was properly instituted as Ms Mulumba had explained with the appeal why she had not submitted all the documents. She submitted them ‘a little over’ two days later. She had difficulties with IT and mental health difficulties. The delay was less than in Ridley . A rigid approach should not be taken. ‘The fact that she was able to submit them just over 2 days later supports the fact that it was difficult for her to comply’. Ms Mulumba should also be able to rely on rule 37(5). In her oral submissions, Ms Banton tended to suggest that the factors relevant to exercise of the discretion conferred by rule 37(5) were also relevant to the question whether the error in question was ‘minor’.

64. Ms Banton repeated the points about discretion which were made by Ms Mulumba to the Registrar, to the EAT, and in her grounds of appeal to this court. Discussion

65. I consider that the Judge was right to hold that judgment 2 and judgment 3 were separate decisions and that, as a matter of law, the deadlines for appealing against them were different. As I put to Ms Banton in argument, the difficulty with ground 1 (at least in so far as it might influence any relevant discretion), is that there is no evidence to support the view that, when she lodged appeal 2, Ms Mulumba was in any way confused about the deadline for appealing against judgment 2. The Judge was entitled, and right, to draw the inference, as I consider that he did, that Ms Mulumba knew that the deadline for appeal 2 was 15 February 2022. That is why she had tried to lodge appeal 2 on that date.

66. There are two answers to ground 2, as the Judge rightly held.

67. First, in a case like appeal 2 where the judgment and the written reasons for the judgment are in the same document, the Rules require the judgment to be lodged with the appeal. The Rules do not permit an appellant not to lodge the judgment and to provide, instead, an explanation for not lodging it. I acknowledge, as did the Judge, that EAT Form 1 gives the wrong impression that an explanation can also be given for a failure to attach the ET’s judgment to the notice of appeal. On appropriate facts, that misleading impression might be relevant to the exercise of the EAT’s discretion; but this is not such a case, because of other ways in which Ms Mulumba failed to comply with rule 3(1). The EAT might wish to consider whether it should modify EAT Form 1 so that it accurately reflects the Rules in this respect.

68. Second, and in any event, following Richardson , which I consider was rightly decided, any contemporaneous explanation for not lodging documents with a notice of appeal must be a good explanation. The Judge was entitled to hold, for the reasons which he gave, that Ms Mulumba had not given a good explanation. In essence, she had managed to surmount all the supposed difficulties in lodging the documents within a couple of days, and had not explained how what had been impossible shortly beforehand had suddenly become possible, after all.

69. There are two points of principle in relation to ground 3. The first is whether Ridley is relevant. The second is whether Ms Mulumba can rely on rule 37(5). Neither side suggested that it was appropriate for this court to consider the relationship between Ridley and rule 37(5) and I say no more about that issue.

70. Ridley does not apply unless Ms Mulumba complied substantially with rule 3(1) within the time limit. Ridley is not relevant to appeal 1, because Ms Mulumba did not lodge anything within the time limit. In appeal 2, the most that she can be said to have lodged within the time limit was EAT Form 1, and, giving her the benefit of the relevant doubt, her grounds of appeal. She failed to lodge the judgment and the written reasons for the judgment, or the pleadings. In my judgment, she did not substantially comply with rule 3(1). That means that Ridley is not relevant to appeal 2, either.

71. Whether Ms Mulumba can rely successfully on rule 37(5) in appeal 2 depends on whether she made a ‘minor error’ in complying with rule 3(1). I reject Ms Banton’s suggestion that the factors which are relevant to the exercise of the discretion conferred by rule 37(5) can shed any light on the question whether the relevant error is a ‘minor’ error. I agree with Mr Craig’s submission that this is a threshold question to which those factors are not relevant.

72. I also accept Mr Craig’s submission that Ms Mulumba did not make any error in failing to comply with rule 3(1). She knew that she was not complying with rule 3(1) when she lodged EAT Form 1. Instead of trying to comply with rule 3(1), she gave an explanation why she had not complied with it. In any event, were I to suppose in her favour that she did make an ‘error’ in complying with rule 37(5), any such error was not, on any view, a ‘minor error’ for the reasons given by the Judge. As he held, in this case, where the written reasons and the judgment were in the same document, the failure to lodge the judgment was not a ‘minor error’ in complying with rule 3(1). There is no error of law in the Judge’s approach to this issue; indeed I consider that it was plainly right.

73. The other questions in relation to ground 3 concern the way in which the Judge took into account and evaluated the various explanations on which Ms Mulumba relied in appeal 1 and in appeal 2. Those were all matters for his assessment on the facts. He took into account all the factors which were pressed on him by Ms Mulumba. The weight which he gave to those factors in the exercise of the discretion conferred by rule 37(1) was for him. There is no error of law in his approach to this part of the case, either. Conclusion

74. For those reasons I would dismiss this appeal. Lord Justice Baker

75. I agree that the appeal should dismissed for the reasons given by Elisabeth Laing LJ. I also agree with the observations made by Lewison LJ in the judgment below. Lord Justice Lewison

76. I agree, although with some reluctance. Had this been an application for permission to appeal to this court, a delay of one or two days might well have been forgiven. But as Elisabeth Laing LJ has demonstrated, the EAT takes a much harder line. There have been opportunities for this court to modify the strictness of that approach. Most notably in Green v Mears Ltd [2018] EWCA Civ 751 , [2019] ICR 771 this court was urged to adopt the modified approach to extensions of time in the tax tribunal adopted by this court in BPP Holdings Ltd v Revenue and Customs Comrs [2016] EWCA Civ 121 ; [2016] 1 WLR 1915 (which decided that the Denton principles should be applied by that tribunal despite there having been no change in the relevant tribunal rules). But this court rejected that invitation. We are undoubtedly bound by Green v Mears ; and there the law stands.

77. I agree with Elisabeth Laing LJ, for the reasons that she gives, that the appeals in this case fall outside the safety valves identified in Ridley and in rule 37(5).

78. I agree also that form EAT 1 is potentially misleading and ought to be revised so as to bring it into conformity with the rules.