Parker v West Midlands Trains: Court of Appeal clarifies "minor error" rule in EAT appeal time limits

The Court of Appeal has allowed an appeal in Parker v West Midlands Trains Limited [2026] EWCA Civ 357, granting Lloyd Parker — a litigant in person — an extension of time to pursue his disability discrimination claim before the Employment Appeal Tribunal. The judgement, handed down on 25 March 2026, applies the principles established in Melki v Bouygues E&S Contracting UK Ltd [2025] EWCA Civ 585 and provides further guidance on the discretionary exercise under Rule 37(5) of the EAT Rules 1993 (as amended).

Parker was employed by West Midlands Trains as a duty station manager until his dismissal in September 2021. His disability discrimination claims were dismissed at a preliminary hearing in August 2022. He lodged a notice of appeal with the EAT in December 2022, within the 42-day time limit, but omitted the particulars of claim originally attached to his ET1 — sending instead a document headed "Further and Better Particulars", prepared in response to a request from the respondent.

Following a letter from the EAT in December 2022 identifying the deficiency, Parker supplied the wrong document. A further EAT letter on 11 January 2023 stated that "our preliminary checks indicate that this appeal has been lodged properly instituted" — a formulation the Court of Appeal found to be clearly misleading. Parker took no further action until March 2023, when the EAT wrote again to advise that the correct particulars remained outstanding. He provided them within three hours.

The appeal was ultimately deemed 91 days out of time. The EAT Registrar refused an extension, and that refusal was upheld on appeal by HHJ Beard in March 2025.

Rule 37(5), inserted into the EAT Rules with effect from 30 September 2023, provides that where an appellant makes a minor error in complying with Rule 3(1) and rectifies it, time may be extended if just to do so having regard to all the circumstances. The Court of Appeal in Melki had confirmed that Rule 37(5) applies to appeals instituted before the amendment, and that the test of whether an error is "minor" is assessed by reference to the degree of compliance with Rule 3(1) — not by the importance of the missing document to the substance of the appeal.

The respondent conceded at the hearing that Parker's error constituted a minor error under the Melki analysis, confining its argument to the second, discretionary limb of Rule 37(5).

Bean LJ, delivering the leading judgement with which Elisabeth Laing and Dove LJJ agreed, held that the three-month gap between the December 2022 letter and the submission of the correct document in March 2023 could not fairly be attributed to Parker's inaction. The January 2023 letter — stating the appeal appeared properly instituted — would have led any reasonable reader to conclude that the December deficiency had been remedied and the appeal was proceeding. Judge Beard had himself accepted that Parker took the January letter to mean his appeal was properly constituted.

The court noted the striking proportionality of Parker's responses when on notice of a genuine problem: eight days to respond to the December letter, three hours to respond to the March letter. The three-year delay in the litigation was "very unfortunate — indeed ironic", but could not be laid at his door.

Critically, the court declined to remit the extension of time question for further EAT consideration. It substituted an order granting the extension directly, noting that the respondent accepted remission was unnecessary. Parker's appeal may now proceed to the EAT on its merits.

The judgement illustrates the interaction between the misleading conduct of a tribunal and the exercise of discretion under Rule 37(5). Where an appellant acts promptly when genuinely on notice of a defect, and inaction in the interim is attributable to a reasonable reliance on reassuring correspondence from the tribunal itself, delay is unlikely to weigh heavily against a grant of extension. The case also confirms that the discretionary exercise under Rule 37(5), once the "minor error" threshold is crossed, requires a rounded assessment of all circumstances — including prejudice, delay, and the conduct of the proceedings — rather than a formulaic application of the Abdelghafar principles.

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