Employment appeal tribunal

It is not uncommon for significant rulings to be made before trial where a party’s case or a part of their case is adversely impacted – for example, a decision as to whether a Claimant has a disability for the purposes of the Equality Act.

A challenge to a decision may be undertaken either by:

1. Requesting that the presiding Employment Judge reconsider their decision; and/or

2. Lodging an appeal with the Employment Appeal Tribunal (EAT).

Reconsidering an ET decision

Some decisions made by the ET are challengeable by way of an application to have the decision reconsidered by the Employment Judge who made it.  Many, but not all, decisions can be challenged in this way.

Two notable exclusions are:

• ET case management orders, typically requiring a party to do something by a certain date in preparation for trial; and (b) decisions made by the ET allowing or disallowing a party to amend their case.

The deadline for making an application to reconsider a decision is tight, typically within just 14 days of the decision being made or communicated.

The guiding principle for the ET in deciding whether to entertain an application to reconsider a decision is “where it is necessary in the interests of justice to do so”.

Although no longer directly applicable, some now defunct ET rules gave useful examples of what that meant in practice, for example, where an administrative error resulted in the wrong decision, or new evidence was available but not taken into account.

If the ET accepts the application, it will often invite the parties to a separate hearing to allow them to make representations.

Whatever the outcome of the application to reconsider a decision, the dissatisfied party is also entitled to (a) make a separate appeal to the EAT and (b) appeal the Employment Judge’s final decision on the application to reconsider the original decision.

Practical issues

Parties often lodge an EAT appeal without knowing the outcome of the reconsideration application owing to the short deadline for making appeals to the EAT.  This is because it is not uncommon for the ET’s reconsideration decision to take more than the 42 days within which a party must lodge an EAT appeal (detailed further below).

A party is not compelled to apply for a decision to be reconsidered before they are entitled to lodge an EAT appeal. However, there is a risk that the EAT may take a dim view of a party who has not attempted to use that avenue first.  This is despite the often-held view, rightly or wrongly, that an Employment Judge is unlikely to change their mind, regardless.

The EAT is a separate and higher judicial body to the ET.  Its purpose is to examine the appeal and where the grounds are appealable and have merit, and to correct particular and specific errors in the decision made by an ET.  Therefore, an appeal to the EAT cannot be based purely on the fact that the dissatisfied party does not like the ETs decision (more of which below).

Similar to the ET, decisions at the EAT are reviewed by a panel consisting of the Judge and two lay representatives.

Bringing an appeal

The dissatisfied party in an ET case will first examine the written reasons given for a decision.  The decision is often the final Judgment deciding the claim, but it may also be a decision made before trial. This is often done in consultation with a Barrister.

To lodge an appeal, the dissatisfied party appealing the ET’s decision (the ‘Appellant’) must submit a Notice of Appeal to the EAT within a specified and very strict time frame, typically 42 days from the date the ET decision was made. The Appeal Notice outlines the grounds for the appeal and the issues in dispute.

Specifically, grounds of appeal must only be based on either: (a) the ET’s misunderstanding of the relevant law underpinning the decision; or (b) that the findings of fact made by the ET leading to the decision were perverse. Simply disagreeing with the decision does not pass either test.

Grounds of factual perversity are difficult to prove because the EAT gives the ET a wide margin of discretion to decide the facts of any case.  The Appellant must objectively show that no other Judge looking at the same evidence could reasonably have reached the same decision. This is a high threshold to meet.

It is not uncommon for an ET decision in a complex case to be a mix of some success and failure for each party. For example, a Claimant might win the unfair dismissal element of their claim but lose the discrimination element.  In such circumstances, both parties may simultaneously appeal the parts of the ET’s judgment with which they are dissatisfied.

Employment Appeal Tribunal rules

The EAT operates under its own set of rules that govern the procedure and conduct of appeals. Parties involved in the appeal must adhere strictly to these rules, for example, the date by which the Notice of Appeal with all the required accompanying documents must be lodged.  A failure to comply could be, and often is, fatal to the success of the appeal.

The preliminary assessment

After the Notice of Appeal has been submitted, the matter will be preliminarily assessed to ensure that it has been submitted on time, that all the required accompanying documents were included with the Notice of Appeal and that the grounds of appeal have sufficient merit.

If the EAT assess that the Appellant has not met those requirements, a short hearing may be offered to the Appellant to explain to an EAT Judge why the appeal should be allowed to proceed to a full hearing.

The Appeal Hearing

If the Notice of Appeal is accepted, then the matter will proceed to a full hearing in front of the EAT panel of a Judge and two lay representatives, who will review the grounds of appeal, consider the evidence presented, and make a decision based on the merits of the case.

During the hearing, both parties have the opportunity to present their arguments and evidence. The EAT panel may ask questions to clarify points and may request additional information if necessary.

If the Appellant is successful in their appeal, the EAT may (among other things):

1. Remit the case to the ET: This means sending the case back to the ET for rehearing.

2. Substitute a decision: The EAT may make a new decision on the matter, effectively replacing the decision of the ET.

3. Remit the case for further reasons: The EAT can stay an appeal and remit the case to the ET for clarification or more detail on its reasoning.

While a successful appeal may not technically be the end the case if it is remitted, the parties will inevitably assess the impact the appeal has had on merits of their case, and consider the the human and financial costs imposed by the process.

If there has already been a long and challenging path to the appeal, the parties (or one or other of them) may not be enjoying the prospect of having to go through a retrial.

It is often at this moment, if the conditions are right, that well-pitched offers to settle may be accepted by exhausted litigants.

If the Appellant is unsuccessful in their appeal, the decision of the ET stands. However, in some cases, the Appellant may be able to seek permission to appeal to a higher court, such as the Court of Appeal or in rarer cases of very significant legal importance, the Supreme Court. This is not an automatic right, and permission is granted only in exceptional circumstances.

If this all sounds complicated, it’s because it is! The case reports are littered with failed appeals of those who have failed to understand and prosecute a compliant appeal, including some lawyers.

At Peacock & Co we have an intimate understanding of the EAT’s rules to guide you through each step the process. Whether you are making an appeal or defending one, we can help. Contact Us for more information.