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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davies v BMW (UK) Manufacturing Ltd [2025] EWCA Civ 356 (28 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/356.html Cite as: [2025] EWCA Civ 356

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ Tucker
EA-2021-001290-OO

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 March 2025

This judgment was handed down remotely at 11.05 am on 28 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lady Justice Elisabeth Laing:

Introduction

1. The Appellant, Mrs Davies, appealed to the Employment Appeal Tribunal ('the EAT') from a decision of the Employment Tribunal ('the ET'). She was told that her appeal had been lodged late, and that she needed an extension of time for appealing. The Registrar of the EAT refused her application for an extension of time. She appealed to a judge of the EAT. Her appeal was heard by HHJ Tucker ('the Judge'). The Judge dismissed her appeal. She now appeals to this court from the order dismissing that appeal. I gave permission to appeal, in the light of a recent decision of this court in Ridley v HB Kirtley t/a Queen's Court Business Centre [2024] EWCA Civ 884; [2024] IRLR 845 ('Ridley').
2. The Respondent was aware of the appeal, of the grant of permission to appeal, and of the hearing date of the appeal, but chose not to attend the hearing. The Respondent relied on a skeleton argument settled by Ms Grennan of counsel, which I have read. The Respondent provided a full and fair review of the relevant authorities, and accepted that Ridley is relevant to this appeal.
3. Mrs Davies represented herself. She prepared grounds of appeal, a skeleton argument, and a comprehensive bundle of authorities. I thank her for preparing so thoroughly for the appeal. There was some correspondence between her and the Court of Appeal Office before the hearing of the appeal. The Office made it clear to her that, on the appeal, this court did not have power either, to hear her appeal from the ET to the EAT, or to hear her ET claim. In the course of that correspondence the Respondent set out its arguments about the consequences of any decision to allow Mrs Davies's appeal. I have taken that position into account.
4. At the end of the hearing, the court told Mrs Davies that her appeal had succeeded and that this court would substitute, for the decision of the EAT, a decision to extend the time for her appeal to the EAT. The court also told Mrs Davies that the reasons for that decision would be provided in due course. This judgment explains what those reasons are.

The facts which are relevant to this appeal

5. I have taken the facts from the Judge's judgment. The ET dismissed Mrs Davies's claims in a judgment sent to the parties on 13 July 2021 ('the judgment'). She asked for the ET's written reasons for its decision. At the hearing in the EAT (judgment, paragraph 4), the parties were said to have agreed that the written reasons were sent to them on 23 September 2021. HHJ Tucker recorded that they and the Registrar had earlier assumed that the written reasons were sent on 21 September 2021. The EAT held that the appeal should therefore have been brought by 2 November 2021 (judgment, paragraph 5). I accept the Respondent's explanation, in its skeleton argument for this appeal, that, before the EAT, there was some confusion about the date. There was a typing error in the Respondent's skeleton argument for the EAT hearing: '23' had been substituted in error for '21' September. The parties in fact agreed at the hearing that the correct date was 21 September.
6. Mrs Davies lodged an appeal with the EAT on 2 November 2021. She did not include the ET's judgment with her notice of appeal, but did include the written reasons. On 22 March 2022, the EAT told Mrs Davies that she had not included the ET's judgment with her notice of appeal. She promptly sent it to the EAT. The appeal was properly instituted that day, 'some 140 days out of time' (judgment, paragraph 6).
7. The explanation which Mrs Davies gave for her mistake was that the known deficiencies of the EAT's server meant that she had to attach the necessary documents to separate emails and that, in doing so, she duplicated one document and failed to attach the judgment (judgment, paragraph 14). She also relied on a letter from her GP dated 24 January 2020, saying that she was receiving treatment for anxiety and depression. She was studying at university and documents from the university showed that, at the relevant time, she was getting extra support with some tasks (judgment, paragraph 17).
8. In her grounds of appeal to this court, Mrs Davies relied on the ineffectiveness of the EAT's server, which meant that she had to send several separate emails to lodge her appeal, and on the reasoning in Fincham v Alpha Grove Community Trust UKEATPA/0993/18/RN ('Fincham'), a decision of Judge Auerbach. She submitted that the judgment is not a crucial document, as it was evident from the fact that she had appealed that she had lost in the ET. She argued that her appeal was properly instituted, and she was only told that the judgment was missing on 22 March 2022. She also relied on her mental ill health and the fact that she had been receiving support from her university. That was plainly a relevant consideration for the EAT. She also relied on the merits of her claim in the ET.

The law

9. I refer to the judgment of this court in Ridley for a reasonably full account of the relevant law. In paragraphs 10-30, below, I summarise the main points from that account and from the court's decision in that case which are relevant to this appeal.

The Rules

10. In short, the EAT's procedures are governed by rules 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)). The rules made under section 30(1) are the Employment Appeal Tribunal Rules 1993 (1993 SI No 2854) ('the Rules').
11. Rule 3 is headed 'Institution of Appeal'. Rule 3(1) lists the documents which must be served on the EAT in order to institute an appeal. At the relevant time, those documents included 'a copy of the written record of the judgment' of the ET. As explained in paragraph 14 of Ridley, rule 3(1) was amended with effect from 30 September 2023.
12. Rule 3(3) of the Rules provides for a 42-day time limit from the date when written reasons for the ET's decision are sent to the parties. Rule 3(3) confers no power to extend that time limit. 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).

The relevant authorities

13. As is also explained in Ridley, the EAT and this court have considered the scope of the discretion conferred by rule 37(1) many times (paragraphs 23-97).
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 (see paragraph 16, above).
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 EAT's judgment in this case

31. The EAT accepted that A's explanation was full and honest. She had made a 'simple, straightforward, human error which led to two pages not being attached to her appeal'. She had not checked the attachments and had not read the relevant guidance (judgment, paragraphs 18 and 22).
32. The EAT held that Mrs Davies could have avoided her mistake by reading the guidance and by checking the documents which she had sent to the EAT. If an exception were to be made, it would be made in relation to a document with less significance than the judgment. The judgment is a key document (judgment, paragraph 24). The EAT, having seen Mrs Davies's exam timetable, could see why she had left lodging the appeal until the date she did. But having left it that late, she should have read the guidance and have checked the documents (judgment paragraph 25). The circumstances were not exceptional.

The Respondent's submissions

33. The Respondent submitted that the Judge took into account all the relevant factors. Nor did she treat any factor as decisive. In substance, the Judge had applied the approach in Ridley. She had considered, in effect, how substantially Mrs Davies had complied with the rules. None of her findings in paragraph 24 is inconsistent with Ridley.

1. Mrs Davies left it until the last day to lodge her appeal (paragraph 5).

2. She took no steps to follow the EAT's guidance about the limitations of the EAT's sever (paragraphs 7 and 8).

3. She took no steps to check that she had correctly attached the necessary documents (paragraph 8).

4. Her health was not a causal factor. It was a case of simple human error and a failure to check after sending the emails (paragraphs 18-26).

5. The whole of the judgment was missing and this is a crucial document. It is the document against which the appeal lies. It cannot be equated with a missing page, or with the grounds of resistance.

34. In the circumstances, the Judge was entitled, and, indeed, correct, to refuse to extend time.

Discussion

35. The EAT erred in law the exercise of its discretion in five respects.

1. It did not expressly recognise the legally relevant distinction between a case in which an appellant lodges an appeal within the time limit and a document or part of a document is missing, and a case in which an appellant misses the deadline altogether.

2. It treated the relevant delay as the gap between the date when the deadline expired and the date when Mrs Davies lodged the missing document (the ET's judgment). The relevant delay is the delay between the time when the EAT told Mrs Davies of her mistake and when she corrected it. The EAT does not have a duty to correct the mistakes of appellants: but if, as in some of the cases, the EAT had told Mrs Davies of her mistake on 2 or 3 November, her appeal would have been properly instituted in time, or would have been one day late.

3. It treated the making of a mistake, which, per Underhill J in Jurkowska, was a 'venial' mistake (when made by professional employment solicitors who should have known better) as a reason for not extending time.

4. It failed to recognise that this case is a fortiori J v K because it was Mrs Davies's awareness of the limitations of the EAT's server which led her to attach the relevant documents to separate emails, and thus to duplicate one relevant document, and to leave out the ET's judgment.

5. It failed to recognise that, on the facts, Mrs Davies had very substantially complied with the Rules; I accept her submission that, given that she was appealing, it was obvious that she had lost in the ET. That fact, coupled with the inclusion of the ET's reasons, reduced the importance of the judgment to the institution of the appeal.

36. I therefore consider that the EAT's exercise of its discretion was wrong in principle. I also consider that those errors were material to the exercise of the discretion to extend time. Had the EAT not made them, it might, at the very least, have extended the time for bringing the appeal. I do not criticise the EAT for all of these errors, as it made its decision before the decision in Ridley, and Mrs Davies was not represented. The Respondent appears to have brought the relevant authorities to the EAT's attention.

Conclusion

37. I would therefore allow the appeal.

The consequence of that conclusion

38. We agreed on the outcome at the hearing of the appeal. We told Mrs Davies that we would allow the appeal and extend the time for bringing her appeal to the EAT. I have already said that, on the facts, this is a case in which the EAT could have exercised the discretion to extend time in favour of Mrs Davies. It may well, indeed, be a case in which the combination of those factors meant that the EAT had no option but to extend time (cf Sud v Ealing Borough Council [2011] EWCA Civ 995).
39. I do not need to go that far, for two linked reasons. First, as I have said, the EAT's errors of law mean that the exercise of its discretion was wrong in principle. Second, when it allows an appeal, this court has the powers of the court below (CPR52.20(1)). I note the Respondent's objection to the exercise by this court of the EAT's power to extend time. As the Respondent rightly pointed out, this court remitted the three appeals in Ridley to the EAT for the EAT to consider whether or not to extend time. However, I consider that this is a case in which we should exercise that discretion, in order to save the parties' and judicial resources, and because there have already been significant delays in this case.
40. It is clear to me that, consistently with the approach in the authorities to which I have referred above, in particular Ridley, it is appropriate to extend the time for bringing this appeal on these facts. The principal factors that lead me to this conclusion are reflected in the errors of law I have described in paragraph 35 above. They require, as "a matter of justice", that this court give Mrs Davies an extension of time. This court now, therefore, will exercise the EAT's power by giving Mrs Davies the necessary extension of time.

Lord Justice Phillips

41. I agree.

Lord Justice Moylan

42. I also agree.