A Guide to appealing an Employment Tribunal decision

Appeal or reconsideration?

If you have lost your Employment Tribunal case and are unsatisfied with the result, you have two options moving forward: to appeal to the Employment Appeal Tribunal (EAT) or to apply for reconsideration. My general advice is that if you are considering appealing you should not apply for reconsideration, for two reasons. Firstly, the two processes are very different and a reconsideration application is not designed to correct errors of law; it is designed to correct relatively minor errors or oversights. Secondly, if you are considering appealing, an application for reconsideration will provide the employment tribunal with an opportunity to fill gaps in their decision, which could weaken your subsequent appeal.

42 Days to Appeal

You have 42 days (six weeks) from the date that the written reasons were sent to you to appeal to the EAT. If the employment tribunal delivered its judgment orally at the hearing, then you will have to apply for written reasons (if you did not ask for them at the time). You have 14 days from the date of the oral decision to apply in writing for written reasons. If you apply for written reasons, they will be published on the employment tribunal database of decisions and will be publicly available. Missing the 42 day deadline can jeopardise your appeal, so keep a close eye on that date. The date that the decision was sent to you can, generally, be found on the last page of the decision, where there is a sentence telling you when the decision was sent to the parties.

The Employment Appeal Tribunal Practice Direction

If you are going to appeal, you must read the EAT’s Practice Direction. The Practice Direction was introduced in September 2023 and applies to all appeals moving forward from that date. Whilst the Practice Direction is a relatively long document, it is written in plain English and is an extremely useful, if not essential, document to become acquainted with if you are going to submit an appeal.

Submitting an appeal

To submit an appeal to the EAT, you will need to complete a Notice of Appeal in accordance with Form 1 in the Schedule to the EAT Rules. You can download the form here. Confusingly, it is called Form T444 on the gov.uk website. Within Form 1, you will have to set out your Grounds of Appeal, dealt with below and in the EAT Practice Direction. Together with your Notice of Appeal & Grounds of Appeal, you will need to submit the Judgment & Reasons, which are often two separate documents. The Judgment will say who has won. The Reasons will explain why. You should generally submit your appeal through the EAT’s electronic filing system: E-Filing service. The EAT has provided a useful Guidance Note on E-Filing, which can be found here.

Grounds for Appeal

The most important point to grasp right from the outset is that you cannot simply re-argue your case on appeal. If you attempt to do so, your appeal will be rejected by the EAT. You can only appeal where the ET has arguably made an error of law. Errors of law fall into different categories, which I have tried to set below. If, however, you find yourself wanting to appeal because the ET got particular facts in their decision wrong, then generally you will face an uphill struggle to convince the EAT that you are not re-arguing your case. Classically, an error of law occurss where a tribunal misunderstands or misapplies the law. Imagine, for example, that the tribunal misunderstood which party bore the burden of proof in an unfair dismissal case, that would be an error of law. It is also important to keep in mind, that the error of law must have made a difference to the outcome of the case. A good example of a case where a tribunal was found to have misapplied the law can be found in the EAT case of Gahir v Blackbay Ventures Ltd T/A Chemistree, [2014] IRLR 416 which I appeared in. A summary can be found here.

Perversity

The most tempting ground of appeal for the uninitiated is a perversity challenge, that is to argue that no reasonable tribunal could have arrived at the decision that the tribunal arrived at. Mostly, when someone loses, what they really what to say is that the tribunal were wrong and “perversity” appears, on the face of it, to sound a lot like the argument that the tribunal arrived at the wrong conclusion. In practice, practitioners tend to avoid perversity challenges because it is very difficult to properly say that the decision arrived at was one that no reasonable tribunal could have arrived at. An example of a perverse conclusion can be found in the Court of Appeal case of Phipps v Priory Education Services Ltd [2023] ICR 1043 that I appeared in. A summary can be found here.

Bias or the Appearance of Bias

After perversity, this is perhaps the most common ground of appeal for litigants in person. It is incredibly difficult to establish the appearance of bias, let alone bias. The test is taken from the case of Porter v Magill [2002] 2 AC 357 and it is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. What is very difficult to appreciate when you are a litigant in person is that judges will often interrupt you if they think that you are asking irrelevant questions or do not fully appreciate the issues in the case. When they repeatedly interrupt you, that will often feel personal, like they have someting against you, and so the feeling that the interrupting judge is “bias” against you is quite natural. Similarly, judges will often arrive at a preliminary view about a case. There is nothing wrong with them doing so, so long as you are given a fair hearing. But the expression of those views can, to the uninitiated, feel like the judge has already decided the matter. Whilst interrupting can get out of hand and can, very occasionally, lend itself to an appeal, generally the feeling that the judge has taken against you, unfortunately a not-uncommon feeling, is not itself evidence of bias or appearance of bias.

Unaddressed Central Arguments

You have the right to appeal if the Employment Tribunal fails to address an argument which is central to your case. This, on the face of it, sounds like a relatively easy ground of appeal to succeed on; however, in practice it can be quite tricky to establish. The starting point is that there is no expectation or obligation on an employment tribunal to address every argument that a party raises. In many cases, parties will raise tens, if not hundreds, of arguments during a long trial. A tribunal is not expected to record and address every one of them. You can only succeed on such appeals if the argument was really central to your case, meaning in practice that your case was likely to stand or fall on the point. Even then, proper scrutiny will usually show that, more often than not, the argument was not as important as you thought it was at the time. If, however, you really did have a killer point that the ET failed to address, then you can appeal on that basis to the EAT. Ultimately, this is a challenge of procedural fairness.

Meek Compliance

Parties are entitled to understand why they have won or lost, so if you find yourself losing and not being able to understand why you lost, then you may be able to challenge the ET Reasons on that basis. We call that type of ground of appeal a Meek appeal/challenge, named after the case of Meek v City of Birmingham District Council [1987] IRLR 250. Generally, a Meek appeal is not a particularly attractive ground of appeal, probably because it does not suggest any intrinsic defect in the reasoning - rather its focus is on the lack of reasoning. Often, the ET’s reasons for arriving at a particular decision can be found in disparate parts of the Reasons, so it is particularly important to read the decision as a whole when considering whether you can properly say that you cannot understand why you lost.

Permission to appeal & the sift

Once you have submitted your appeal, an EAT judge will decide whether your appeal has any arguable grounds of appeal “on the papers” , i.e. the documents you submitted to the EAT. If the sift judge thinks that you have an arguable appeal, the EAT will write to the parties informing them that you have been given permission to appeal. The respondent to the appeal will then have to respond to the appeal, in the form of a Respondent’s Answer. The sift judge will generally explain on what basis it is that you have been given permission to appeal. If, however, the sift judge does not consider that your appeal raised any arguable errors of law, then you will be refused permission to appeal. You then have 14 days to apply for a “permission hearing”/“rule 3(10) hearing”, that is an oral hearing where you can argue why it is that you should be granted permission to appeal. The EAT Practice Direction requires that you submit a form (Annex 1, which can be found at page 77 of the PD) when applying for a rule 3(10) hearing. You will need to explain why it is that the sift judge was wrong to reject your appeal.

What happens at a rule 3(10)/permission hearing

Once you have applied for a permission hearing under rule 3(10), the EAT will list your appeal for an oral hearing before the EAT. That hearing is usually listed for an hour. It is a short hearing where you are given an opportunity to explain why your grounds of appeal are arguable. In anticipation of the hearing, you will have to provide a bundle, skeleton argument and bundle of authorities. At the hearing, you do not need to convince the judge that you will win your appeal, merely that you have arguable grounds of appeal. This is also the last stage where you can sensibly apply to amend your appeal. Ideally, you should do that in writing, in anticipation of the permission hearing; however, often the EAT will allow you to amend your grounds of appeal at the hearing as your arguments are developed before the judge. If that happens, and you are represented, then your advocate will usually have a few days to submit a written Amended Grounds of Appeal, reflecting which grounds of appeal were granted permission to appeal.

Responding to an Appeal

Once permission to appeal is granted by the EAT, the Notice of Appeal and Grounds of Appeal will be sent to the respondent to the appeal. The first thing to focus on when defending an appeal is whether the purported error made a difference. If the error did not make a difference, then the appeal will fail. Similarly, when you are responding to an appeal, you should try and take yourself back to the mindset that you had at the employment tribunal to try and remember how the case was argued. Often grounds of appeal can, usually inadvertently, subtly change the emphasis of points that were argued below, so it is important to get a handle on what was argued below and how it was argued. Another way to defend an appeal is to seek to establish that the appellant is merely rearguing their case. As I explained above, if that is what they are trying to do, they are bound to fail. You should generally submit your Respondent’s Answer through the EAT’s electronic filing system: E-Filing service. The EAT has provided a useful Guidance Note on E-Filing, which can be found here.

The EAT bundle

The EAT Bundle generally does not contain many documents. It contains the ET1, Particulars of Claim, ET3, Grounds of Resistance, the Judgment & Reasons being appealed and any other documents that are essential to dispose of the appeal. Owing to the fact that you cannot reargue your case before the EAT, you will generally not put many of the documents that were in the employment tribunal bundle into the EAT Bundle. One of the consequences of putting too many documents into the EAT Bundle is that the importance of certain documents may be missed by a busy EAT judge, so do not overload the EAT Bundle. You usually only put documents from the tribunal bundle in to the EAT Bundle if you are trying to evidence that a point or argument was made before the ET or if you are arguing perversity. Be judicious about adding documents to the EAT Bundle. The EAT Bundle must be submitted 28 days before your hearing, whether that is a permission hearing, preliminary hearing, or final hearing.

Skeleton Argument

You have to lodge your Skeleton Argument with the EAT 14 days before any hearing. In your Skeleton Argument, you should expand on your Grounds of Appeal. You should set out: the facts that you wish you highlight; the law; the passages in the ET Reasons that you say demonstrate the errors of law, and; the application of the law to those facts.

Appeal Specialist

Appealing an Employment Tribunal decision is difficult. Many employment & discrimination law specialists struggle with appeals because they require a different type of thinking and skill to employment tribunal cases. To maximise your chances of success, seek guidance from an employment law specialist with significant experience of employment tribunal appeals to the Employment Appeal Tribunal. They can help you navigate the complexities of the process and, hopefully, draft persuasive grounds of appeal on your behalf.

Remember, timing is critical in the appeals process, so act promptly if you would like to challenge an Employment Tribunal’s decision.

17 November 2023