If you are unhappy with the outcome of an employment tribunal you are not alone. Tens of thousands of employment tribunal decisions each year result in one or more of the involved parties feeling dissatisfied. As Cambridge employment solicitors, we can help.
Tribunal decisions may be appealed to the Employment Appeal Tribunal (EAT). Further appeals may be made to the Court of Appeal and from there to the Supreme Court.
Not everyone can be successful. The nature of disputes is very likely to leave a number of Claimants and Respondents disappointed. Despite this, the difficulties involved in bringing successful appeals and the limited grounds for appealing result in only a few hundred appeals a year even reaching a hearing. A successful appeal does not arise simply because one party is unhappy with the decision or does not agree with the employment judge’s interpretation of facts. A great deal more is required.
EAT judges and the judges of the senior courts are very clever and represent an elite within the legal profession. Success in the EAT requires a higher level of skill than offered by the average lawyer. We offer a complete service for appealing judgments including written and oral advocacy at competitive fees. If you wish to appeal a tribunal decision, we shall be happy to:
- assess your prospects of appealing successfully
- draft your appeal
- represent you at the hearing
Reconsiderations (before appeal)
If you can show that it is in the interests of justice to change the tribunal’s decision you can ask for a ”reconsideration” by the employment tribunal. Effectively, this is a process where the employment judge reconsiders his or her own decision. You will not be successful in changing the decision unless you have a strong ground. Success is possible where you can show that, for example, new evidence has become available whose existence could not reasonably have been known or foreseen at the time of the hearing which would have an important influence on the outcome; that the employment tribunal made a mathematical error in calculating compensation; or that the decision was made in the absence of the party who did not receive notification of the hearing or who was absent for another very good reason.
To obtain a reconsideration you must either request it at the time of the hearing or in writing by stating the grounds in full within 14 days of the judgment being sent to you. Time limits are strict and you must act quickly.
Whether or not the decision was reconsidered, you may wish to appeal. The clock is running from the date of the judgment so do not be mistaken in believing that you can afford to wait for the outcome of a reconsideration before appealing.
The Employment Appeal Tribunal (EAT)
As the government website at http://www.justice.gov.uk/tribunals/employment-appeals confirms, the main function of the EAT is to hear appeals on points of law from decisions made by employment tribunals.
The EAT has its own rules of procedure. They must be followed strictly if an appeal is to have any chance of success. The latest Practice Direction and the latest version of Employment Appeal Tribunal Rules will apply. There have been a number of amendments to the rules which were originally known as the Employment Appeal Tribunal Rules 1993. A copy of the latest rules and the latest Practice Direction are available on the web:
http://www.justice.gov.uk/tribunals/employment-appeals/rules-and-legislation
Grounds for appeal
The mere fact that you do not like an employment tribunal outcome will not alone provide an acceptable ground for appeal. Justice is imperfect and sometimes parties have to live with decisions even though they seem unfair. The necessary ingredient for making an appeal is that the employment tribunal erred on a question of law. Precisely what amounts to an error of law is not always obvious. The main distinction is between questions of fact and questions of law.
An Employment Tribunal does not make an error of law, giving a basis for appeal to the EAT, by:
- making a finding of fact that you disagree with;
- rejecting some or all of your evidence;
- preferring the evidence of another party;
- exercising discretion against you;
- merely making a decision that you think should have been made differently.
Employment tribunals determine factual issues. The EAT, in contrast, focuses on matters of law. For that reason, it is unusual for witnesses to appear in the EAT. It is very unusual for the EAT to question findings of fact made by employment tribunals. When it comes to the application of the law to factual situations, this is very much within the domain of the EAT, particularly if arguments can be made that the employment tribunal did not apply the law correctly.
Raising appeals on certain issues is unlikely to be successful. The following have been treated by the Court of Appeal and EAT as questions of fact and not law:
- whether or not there has been a direct dismissal;
- whether there has been a constructive dismissal;
- whether a person is employed or is an independent contractor;
- whether a person has taken part in industrial action;
- whether an employee has resigned;
- whether there has been a transfer of an undertaking for the purposes of the TUPE provisions;
- the assessment of contributory fault.
Perversity is a ground on which the EAT will interfere with a finding of fact because a perverse finding of fact amounts to an error of law. This is a difficult ground on which to succeed as it is necessary to show that no reasonable tribunal could have drawn the inference or exercised discretion in the way that the employment tribunal did.
Bias as a ground of appeal is even less popular with the judiciary. Judges are only human with their own subjective experiences and preferences. They are not infallible. However, using this ground of appeal requires very good and compelling evidence. It is not to be used lightly. Any appeal alleging bias or procedural impropriety must include what is known as a “Statement of Truth”, using the correct form of words. The Statement of Truth specifies that the person making the statement understands that proceedings for contempt of court can be brought against anyone making a false statement without an honest belief in its truth.
Inadequate reasoning in a judgment is a ground on which the EAT can decide that there has been an error of law. An employment tribunal’s decision must contain sufficient factual findings and reasoning to allow the parties to understand why they have won or lost.
Delay may also be a ground for intervention by the EAT where an employment tribunal has taken excessive time before giving its decision.
The EAT appeal procedure
The grounds for appeal must be set out in a Notice of Appeal which is one of the documents to be submitted within a 42 day deadline mentioned below. Full particulars of the ground of appeal should be set out. It is important to obtain advice from an employment lawyer in completing a Notice of Appeal.
Once the appeal has been lodged in time, the EAT operates the “sift”. This is the process where appeals that have no chance of succeeding are rejected.
As part of the sift it is common for a preliminary hearing lasting about an hour to be held. Preliminary hearings are used to decide whether or not an appeal has reasonable prospects of success.
If the appeal survives the sift, the opposing party is given 14 days within which to serve a reply or cross appeal.
If your appeal is rejected without a hearing, there is still hope. You might have a right to request an oral hearing. A case that looks hopeless after a quick read of the documents may seem very different after argument. However, appeals that have been judged to be wholly without merit are not given the right to an oral hearing.
With few exceptions, skeleton arguments must be provided in all hearings before the EAT. We can draft these for you.
Time limits
Time limits in all courts and tribunals are important. In the EAT they are extremely strict. Failure to follow the rules and directions meticulously can be fatal.
Appeals must be received by the EAT within 42 days from the date when the written reasons for the decision appealed were sent to the parties or, where the appeal is against an order of the tribunal, within 42 days from the date of the order. Look at the end of the written reasons to find the date. The last day for presenting an appeal is the same day of the week six weeks later and before 4pm, the time when the EAT closes. For example, if the written reasons are dated Thursday 28 September 2023, the appeal must be received before 4pm on Thursday 9 November 2023.
The strictness of the time limits also applies to delivering all the required documents. Merely submitting an appeal is not enough: if a single page of a required document is missing, the appeal will be rejected. You should take advice on what is required. Typically, your appeal should include a Notice of Appeal, the judgment of the employment tribunal, written reasons for the decision of the employment tribunal, the ET1 and the ET3. If you also applied to the employment tribunal for a reconsideration, a copy of the reconsideration application and any outcome from the employment tribunal must also be included.
We can prepare your appeal and represent you in any court or tribunal. Alternatively, we can instruct specialist counsel.
One significant Cambridge Legal Practice appeal that is quoted in books on employment law is the case of Underwood v Wincanton PLC on the public interest test in whistleblowing to the EAT. Here’s the link to the EAT case report:
http://www.bailii.org/uk/cases/UKEAT/2015/0163_15_2708.html
If you are looking for specialist employment solicitors based in Cambridge, choose Cambridge Legal Practice. To discuss employment appeals, contact us on 01223 776200 or email enquiries@cambridgelegal.co.uk