The ET dismissed the Claimant's claim and he then sought to appeal to the EAT from the ET's judgment. Time for appealing expired on 24 May 2022. He emailed his notice of appeal and various attachments to the EAT on 22 May 2022. His notice of appeal was deemed to have been received by the EAT on 23 May 2022. A lay person might therefore think that the appeal was lodged in time. Rule 3 of the Rules, however, requires now, and then required, other documents to be included with the notice of appeal. Mr Melki included the ET1 (that is the claim form) and the ET3 (that is, the form on which the Respondent replied to his claim). He failed also to include, however, the grounds of resistance which had been attached to the ET3, and which had been amended in the course of the ET proceedings. He included all the other documents required by rule 3. The Claimant accepted at the EAT that his appeal was not properly instituted. His case was that he did not realise that he had to include the grounds of resistance with his notice of appeal. He rang the EAT 6 days after the deadline, was told that he had to send in the grounds of resistance, and did so immediately. The EAT explained that there were three versions of the grounds of resistance. The Claimant sent two of those to the EAT. At the EAT, the Respondent accepted that the Claimant had lodged the missing document with the EAT on 30 May 2022, some 6 days late. On 10 August 2023, the Registrar of the EAT refused to give the Claimant an extension of time for appealing. He then appealed to a judge of the EAT against that decision. The judge dismissed that appeal after an oral hearing. The Claimant appealed to this court against the order of the EAT dismissing his appeal from the Registrar's refusal to give him an extension of time for appealing to the EAT.

The Court of Appeal allowed the appeal on two of the Claimant's three grounds. The EAT had to consider Rule 37(5) of the Employment Appeal Tribunal (Amendment) Rules 2023 (2023 SI No 967) which 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.'

and had to decide of the Claimant's error was minor or not. They decided it was not a minor error and therefore the EJ could not therefore exercise the power conferred by rule 37(5).Without the grounds of resistance, the EAT could not fully understand the appeal. The EAT had to assess the Claimant's grounds of appeal that the ET was unfairly biased against him in accepting the Respondent's case. The EAT needed the ET's reasons to do that, but also an understanding of the Respondent's case in the grounds of resistance, one section of which explained the detailed background to the claim, and the Respondent's defences to the Claimant's claims of direct race discrimination and harassment 'which is important context'. The Court of Appeal considered that the EJ's interpretation was wrong for three reasons: First, it ignores that criterion for testing whether the error is 'minor'. The relevant error is a minor error in complying with rule 3(1), not a 'minor error' in doing something else, or a free-floating 'minor error'. Second, it adds a gloss, which comes from the cases on the unamended Rules, that the document or part of the document which is the subject of the 'minor error' should have been irrelevant, or have no importance, to the 'proper progress of the appeal'. There is no support for that gloss in the words of rule 37(5). Third, an evident purpose of rule 37(5) is to confer a broad discretion on the EAT (in cases of a minor relevant error which has been rectified) to decide whether to give an extension of time having regard to all the circumstances. The scope for the exercise of that discretion is greatly reduced if the threshold condition for its exercise is interpreted too narrowly.