Appealing an Employment Tribunal Decision: A Specialist Guide to EAT Appeals
Written by Rad Kohanzad, Employment Law Barrister
Specialist in appeals to the Employment Appeal Tribunal
Updated 29 August 2025
When the Tribunal Gets It Wrong
You have received your Employment Tribunal judgment and it is wrong. Perhaps the tribunal misunderstood a critical piece of evidence, applied the law incorrectly, or failed to address the central argument in your case. The sense of injustice is acute—but what you do next matters enormously.
Appealing an Employment Tribunal decision is not a second chance to reargue your case. It is a distinct legal process, governed by strict rules and demanding a fundamentally different approach. Many appeals fail not because the original decision was correct, but because the appeal itself was misconceived, poorly drafted, or filed too late.
This guide explains exactly what is required to mount a successful appeal to the Employment Appeal Tribunal. Whether you are a claimant who lost a discrimination claim or an employer facing an unfair dismissal finding, the principles are the same: you must identify an error of law, articulate it precisely, and act within an unforgiving time limit.
What Is the Employment Appeal Tribunal?
The Employment Appeal Tribunal is the appellate court for decisions of Employment Tribunals in England, Wales, and Scotland. It is presided over by High Court judges (or their Scottish equivalents) and, in some cases, sits with lay members who have industrial experience.
The EAT exists to correct legal errors. It does not retry cases. It does not re-weigh evidence. It does not substitute its own view of the facts for that of the tribunal below. Understanding this distinction is essential: the EAT's jurisdiction is confined to appeals on a point of law.
This means that even if you are convinced the tribunal reached the wrong conclusion, you cannot appeal simply because you disagree with the outcome. You must demonstrate that the tribunal erred in law—and that the error made a material difference to the result.
(See our detailed guide on what constitutes an error of law)
The Strict Time Limit: 42 Days
The deadline for lodging an appeal is 42 days from the date on which the written reasons were sent to the parties. This is not 42 days from when you received them, nor from when you read them. The relevant date appears on the final page of the judgment, typically in a sentence stating when the decision was sent.
This time limit is rigorously enforced. The EAT has very limited discretion to extend it, and extensions are granted only in exceptional circumstances. In practice, appeals lodged even one day late are routinely rejected.
If the tribunal delivered judgment orally at the hearing and you did not request written reasons at the time, you have 14 days from the oral judgment to apply for written reasons. The 42-day period then runs from when those written reasons are sent. Failing to request written reasons in time can extinguish your right to appeal altogether.
The message is clear: calculate your deadline immediately upon receiving judgment, and treat it as immovable.
(Read more about EAT time limits and how to calculate them)
What Counts as an Error of Law?
Appeals to the Employment Appeal Tribunal succeed or fail on whether an error of law can be established. The following categories represent the principal grounds on which appeals are brought.
Misdirection in Law
The most straightforward error occurs where the tribunal has misunderstood or misapplied a legal principle. For example, applying the wrong test for constructive dismissal, misallocating the burden of proof in a discrimination claim, or misinterpreting the statutory definition of a protected disclosure. If the tribunal has stated the law incorrectly, or has applied the wrong legal framework to the facts it found, that is a misdirection in law.
Perversity
A perversity challenge asserts that no reasonable tribunal, properly directing itself, could have reached the conclusion under appeal. This is an exceptionally high threshold. It is not enough that the decision was harsh, surprising, or one with which other tribunals might have disagreed. The appellant must show that the conclusion was irrational—that the evidence so overwhelmingly pointed one way that any other conclusion was not reasonably open.
Perversity appeals rarely succeed. They are frequently attempted by litigants who are, in substance, seeking to reargue the facts. The EAT is astute to this and will reject such appeals at the earliest opportunity.
Procedural Unfairness
Parties are entitled to a fair hearing. Procedural unfairness can take many forms: being denied a reasonable opportunity to present evidence or argument; the tribunal relying on matters not put to a party; unequal treatment of the parties during the hearing; or the tribunal deciding the case on a basis that was never argued. Where the process itself was unfair, the resulting decision may be set aside even if the tribunal's legal analysis was otherwise sound.
Failure to Give Adequate Reasons
A tribunal must explain its decision sufficiently to enable the parties to understand why they won or lost. This principle derives from the Court of Appeal's decision in Meek v City of Birmingham District Council [1987] IRLR 250. A "Meek challenge" does not allege that the tribunal's reasoning was wrong, but that it was absent or inadequate—leaving the losing party unable to understand the basis for the decision. This ground is often combined with others, particularly where gaps in reasoning suggest that the tribunal failed to address a material issue.
Failure to Address a Central Argument
While tribunals are not required to deal expressly with every submission made, they must address arguments that are central to the case. If a party advanced a critical contention—one on which the outcome might depend—and the tribunal failed to engage with it at all, that failure may amount to an error of law. In practice, this ground succeeds less often than appellants hope, because what seemed central at trial often proves, on analysis, to have been peripheral.
(Explore our detailed breakdown of grounds of appeal)
Common Misconceptions About EAT Appeals
Many people approach the appeal process with fundamental misunderstandings. Correcting these early can save considerable time, expense, and disappointment.
"The tribunal was unfair, so I can appeal"
Feeling that a decision was unfair is not, without more, a ground of appeal. The EAT cannot intervene simply because the outcome seems harsh or the tribunal appeared unsympathetic. An appeal requires identification of a specific legal error—not a generalised sense of injustice.
"The tribunal got the facts wrong"
Findings of fact are almost entirely immune from challenge on appeal. The tribunal heard the witnesses; the EAT did not. Unless a factual finding was perverse (in the strict legal sense), or was made without any evidential foundation, it will not be disturbed.
"The judge was biased against me"
Allegations of bias are serious and rarely succeed. The legal test, derived from Porter v Magill [2002] 2 AC 357, asks whether a fair-minded and informed observer would conclude there was a real possibility of bias. Judicial interventions, robust case management, or findings against you do not establish bias. Judges are entitled—indeed required—to control proceedings and to form provisional views. Discomfort with a judge's manner is not evidence of partiality.
"I can submit new evidence on appeal"
The EAT is not a forum for introducing evidence that was not before the tribunal. Save in the most exceptional circumstances, you are confined to the evidence that was in the original hearing. If you failed to call a witness or produce a document, that is not correctable on appeal.
When It Is Not Worth Appealing
Not every adverse judgment should be appealed. Before embarking on the process, consider honestly whether an appeal has realistic prospects.
An appeal is unlikely to succeed if your complaint is, in substance, that the tribunal believed the other side's witnesses rather than yours; that the tribunal placed less weight on certain evidence than you think it deserved; or that the tribunal's reasoning, while not what you hoped for, is internally coherent and legally sound.
An appeal is also unlikely to succeed if the only ground is perversity and the tribunal's conclusions were within the range of reasonable responses to the evidence—even if that range is wide.
Acting for both claimants and respondents, I am frequently instructed to advise on the merits of a proposed appeal. Honest advice at this stage can save a client from pursuing a hopeless case at considerable cost, or can confirm that an appeal is well-founded and should proceed. If you are uncertain whether your case has merit, that assessment should come before drafting begins.
What Happens After an Appeal Is Lodged
Understanding the procedural stages helps manage expectations and ensures compliance with the EAT's requirements.
The Paper Sift
Once your Notice of Appeal and Grounds of Appeal are lodged, an EAT judge will review them "on the papers"—that is, without an oral hearing. The judge will determine whether your grounds disclose an arguable error of law. If so, permission to appeal is granted and the case proceeds. If not, the appeal is rejected.
The Rule 3(10) Hearing
If your appeal is rejected at the sift, you may apply within 14 days for an oral hearing under Rule 3(10) of the EAT Rules. This is a short hearing—typically listed for one hour—at which you can argue that your grounds are indeed arguable. This is your final opportunity to persuade the EAT that the appeal should proceed. It is also the last realistic opportunity to amend your grounds if they were inadequately drafted.
Respondent's Answer
If permission is granted, the appeal is served on the respondent (the other party to the original tribunal proceedings). The respondent then files an Answer, setting out their case in response. Often, the respondent will argue that any error made no material difference, or that the appellant is simply attempting to reargue facts decided against them.
The Full Hearing
If the appeal proceeds, it will be listed for a full hearing before the EAT. Both parties will lodge skeleton arguments and an appeal bundle. The hearing itself involves legal argument; witnesses are not called and evidence is not re-heard. The EAT will determine whether an error of law occurred and, if so, whether the matter should be remitted to the tribunal for rehearing or whether the EAT can substitute its own decision.
(Read our guide to EAT procedure and what to expect at a hearing)
Why Many Appeals Fail
A substantial proportion of EAT appeals are rejected at the sift stage or dismissed at a full hearing. Understanding why this happens is instructive.
The grounds do not identify an error of law. The most common failing. Many appellants describe their dissatisfaction with the decision, rehearse the facts of their case, or assert in general terms that the tribunal was wrong—without pinpointing the specific legal error. The EAT requires precision: which paragraph of the judgment contains the error, what was the correct legal test, and how did the tribunal depart from it?
The appeal is a factual disagreement dressed up as law. Phrases like "the tribunal failed to take into account" or "the tribunal ignored" often signal an attempt to reargue facts. Unless the failure amounts to a procedural unfairness or the conclusion was perverse, such challenges will not succeed.
The grounds are poorly drafted. An appeal that is unclear, prolix, or unfocused will struggle at the sift. EAT judges deal with high volumes of appeals; grounds that do not immediately convey an arguable error are likely to be rejected.
The error made no difference. Even where an error of law is established, the appeal will fail if the error was immaterial to the outcome. If the tribunal would inevitably have reached the same decision applying the law correctly, the EAT will not intervene.
Delay without good reason. Failure to comply with the 42-day time limit, or with subsequent procedural deadlines, can result in an appeal being struck out. The EAT expects strict adherence to its Practice Direction.
Why EAT Appeals Require Specialist Advocacy
Employment Appeal Tribunal work is a distinct discipline. Many solicitors and barristers who are highly competent at tribunal level are not experienced appellate advocates. The skills required are different: the ability to analyse a judgment forensically, to identify errors that are genuinely of law rather than merely of outcome, and to present argument in the compressed and structured form the EAT requires.
Drafting grounds of appeal is a precise art. The grounds must be legally accurate, clearly expressed, and supported by proper citation of authority. Poorly drafted grounds damage not only the individual appeal but the client's prospects at any subsequent stage.
If you are considering an appeal, you should instruct counsel with genuine experience of EAT work—not simply a generalist employment lawyer willing to "have a go." The EAT Practice Direction itself acknowledges the importance of specialist assistance, and the statistics on appeal success rates speak for themselves.
Who This Service Is For
I act for both claimants and respondents in appeals to the Employment Appeal Tribunal. My practice includes:
Employees and former employees who believe their discrimination, unfair dismissal, whistleblowing, or other employment claims were wrongly dismissed and wish to challenge the tribunal's decision on appeal.
Employers and respondents who have received an adverse tribunal judgment and require advice on whether it discloses appealable errors, or who are defending an appeal brought against them.
Solicitors and in-house legal teams seeking specialist counsel to advise on appeal merits, draft grounds of appeal, or conduct advocacy at the EAT.
Litigants in person who recognise that appellate proceedings require specialist assistance and wish to instruct experienced counsel.
I understand that receiving an adverse tribunal judgment is stressful, particularly when you are convinced the decision was wrong. My role is to provide clear, honest advice about whether an appeal is viable, and if so, to pursue it with rigour and precision.
Discuss Your Appeal With a Specialist EAT Barrister
If you have received an Employment Tribunal judgment and are considering an appeal, time is critical. The 42-day deadline cannot be extended except in exceptional circumstances, and proper advice at the outset can determine whether your appeal succeeds or fails.
I offer an initial assessment of your case to determine whether arguable grounds of appeal exist. If they do, I can advise on strategy, draft the Notice of Appeal and Grounds, and represent you through the appellate process.
To discuss your case:
Telephone: 0777 639 4000
Email: kohanzad@oldsquare.co.uk
Chambers: Old Square Chambers, 11 Bedford Row, London WC1R 4BU
I aim to respond to all enquiries within 24 hours.
FAQ
-
Description text goes here
-
Description text goes here
-
Description text goes here
Discuss your appeal
Contact Rad on 077
Low-cost review to decide if you should appeal or not
Written by Rad Kohanzad, Employment Law Barrister
Specialist in appeals to the Employment Appeal Tribunal
When the Tribunal Gets It Wrong
You have received your Employment Tribunal judgment and it is wrong. Perhaps the tribunal misunderstood a critical piece of evidence, applied the law incorrectly, or failed to address the central argument in your case. The sense of injustice is acute—but what you do next matters enormously.
Appealing an Employment Tribunal decision is not a second chance to reargue your case. It is a distinct legal process, governed by strict rules and demanding a fundamentally different approach. Many appeals fail not because the original decision was correct, but because the appeal itself was misconceived, poorly drafted, or filed too late.
This guide explains exactly what is required to mount a successful appeal to the Employment Appeal Tribunal. Whether you are a claimant who lost a discrimination claim or an employer facing an unfair dismissal finding, the principles are the same: you must identify an error of law, articulate it precisely, and act within an unforgiving time limit.
What Is the Employment Appeal Tribunal?
The Employment Appeal Tribunal is the appellate court for decisions of Employment Tribunals in England, Wales, and Scotland. It is presided over by High Court judges (or their Scottish equivalents) and, in some cases, sits with lay members who have industrial experience.
The EAT exists to correct legal errors. It does not retry cases. It does not re-weigh evidence. It does not substitute its own view of the facts for that of the tribunal below. Understanding this distinction is essential: the EAT's jurisdiction is confined to appeals on a point of law.
This means that even if you are convinced the tribunal reached the wrong conclusion, you cannot appeal simply because you disagree with the outcome. You must demonstrate that the tribunal erred in law—and that the error made a material difference to the result.
(See our detailed guide on what constitutes an error of law)
The Strict Time Limit: 42 Days
The deadline for lodging an appeal is 42 days from the date on which the written reasons were sent to the parties. This is not 42 days from when you received them, nor from when you read them. The relevant date appears on the final page of the judgment, typically in a sentence stating when the decision was sent.
This time limit is rigorously enforced. The EAT has very limited discretion to extend it, and extensions are granted only in exceptional circumstances. In practice, appeals lodged even one day late are routinely rejected.
If the tribunal delivered judgment orally at the hearing and you did not request written reasons at the time, you have 14 days from the oral judgment to apply for written reasons. The 42-day period then runs from when those written reasons are sent. Failing to request written reasons in time can extinguish your right to appeal altogether.
The message is clear: calculate your deadline immediately upon receiving judgment, and treat it as immovable.
(Read more about EAT time limits and how to calculate them)
What Counts as an Error of Law?
Appeals to the Employment Appeal Tribunal succeed or fail on whether an error of law can be established. The following categories represent the principal grounds on which appeals are brought.
Misdirection in Law
The most straightforward error occurs where the tribunal has misunderstood or misapplied a legal principle. For example, applying the wrong test for constructive dismissal, misallocating the burden of proof in a discrimination claim, or misinterpreting the statutory definition of a protected disclosure. If the tribunal has stated the law incorrectly, or has applied the wrong legal framework to the facts it found, that is a misdirection in law.
Perversity
A perversity challenge asserts that no reasonable tribunal, properly directing itself, could have reached the conclusion under appeal. This is an exceptionally high threshold. It is not enough that the decision was harsh, surprising, or one with which other tribunals might have disagreed. The appellant must show that the conclusion was irrational—that the evidence so overwhelmingly pointed one way that any other conclusion was not reasonably open.
Perversity appeals rarely succeed. They are frequently attempted by litigants who are, in substance, seeking to reargue the facts. The EAT is astute to this and will reject such appeals at the earliest opportunity.
Procedural Unfairness
Parties are entitled to a fair hearing. Procedural unfairness can take many forms: being denied a reasonable opportunity to present evidence or argument; the tribunal relying on matters not put to a party; unequal treatment of the parties during the hearing; or the tribunal deciding the case on a basis that was never argued. Where the process itself was unfair, the resulting decision may be set aside even if the tribunal's legal analysis was otherwise sound.
Failure to Give Adequate Reasons
A tribunal must explain its decision sufficiently to enable the parties to understand why they won or lost. This principle derives from the Court of Appeal's decision in Meek v City of Birmingham District Council [1987] IRLR 250. A "Meek challenge" does not allege that the tribunal's reasoning was wrong, but that it was absent or inadequate—leaving the losing party unable to understand the basis for the decision. This ground is often combined with others, particularly where gaps in reasoning suggest that the tribunal failed to address a material issue.
Failure to Address a Central Argument
While tribunals are not required to deal expressly with every submission made, they must address arguments that are central to the case. If a party advanced a critical contention—one on which the outcome might depend—and the tribunal failed to engage with it at all, that failure may amount to an error of law. In practice, this ground succeeds less often than appellants hope, because what seemed central at trial often proves, on analysis, to have been peripheral.
(Explore our detailed breakdown of grounds of appeal)
Common Misconceptions About EAT Appeals
Many people approach the appeal process with fundamental misunderstandings. Correcting these early can save considerable time, expense, and disappointment.
"The tribunal was unfair, so I can appeal"
Feeling that a decision was unfair is not, without more, a ground of appeal. The EAT cannot intervene simply because the outcome seems harsh or the tribunal appeared unsympathetic. An appeal requires identification of a specific legal error—not a generalised sense of injustice.
"The tribunal got the facts wrong"
Findings of fact are almost entirely immune from challenge on appeal. The tribunal heard the witnesses; the EAT did not. Unless a factual finding was perverse (in the strict legal sense), or was made without any evidential foundation, it will not be disturbed.
"The judge was biased against me"
Allegations of bias are serious and rarely succeed. The legal test, derived from Porter v Magill [2002] 2 AC 357, asks whether a fair-minded and informed observer would conclude there was a real possibility of bias. Judicial interventions, robust case management, or findings against you do not establish bias. Judges are entitled—indeed required—to control proceedings and to form provisional views. Discomfort with a judge's manner is not evidence of partiality.
"I can submit new evidence on appeal"
The EAT is not a forum for introducing evidence that was not before the tribunal. Save in the most exceptional circumstances, you are confined to the evidence that was in the original hearing. If you failed to call a witness or produce a document, that is not correctable on appeal.
When It Is Not Worth Appealing
Not every adverse judgment should be appealed. Before embarking on the process, consider honestly whether an appeal has realistic prospects.
An appeal is unlikely to succeed if your complaint is, in substance, that the tribunal believed the other side's witnesses rather than yours; that the tribunal placed less weight on certain evidence than you think it deserved; or that the tribunal's reasoning, while not what you hoped for, is internally coherent and legally sound.
An appeal is also unlikely to succeed if the only ground is perversity and the tribunal's conclusions were within the range of reasonable responses to the evidence—even if that range is wide.
Acting for both claimants and respondents, I am frequently instructed to advise on the merits of a proposed appeal. Honest advice at this stage can save a client from pursuing a hopeless case at considerable cost, or can confirm that an appeal is well-founded and should proceed. If you are uncertain whether your case has merit, that assessment should come before drafting begins.
What Happens After an Appeal Is Lodged
Understanding the procedural stages helps manage expectations and ensures compliance with the EAT's requirements.
The Paper Sift
Once your Notice of Appeal and Grounds of Appeal are lodged, an EAT judge will review them "on the papers"—that is, without an oral hearing. The judge will determine whether your grounds disclose an arguable error of law. If so, permission to appeal is granted and the case proceeds. If not, the appeal is rejected.
The Rule 3(10) Hearing
If your appeal is rejected at the sift, you may apply within 14 days for an oral hearing under Rule 3(10) of the EAT Rules. This is a short hearing—typically listed for one hour—at which you can argue that your grounds are indeed arguable. This is your final opportunity to persuade the EAT that the appeal should proceed. It is also the last realistic opportunity to amend your grounds if they were inadequately drafted.
Respondent's Answer
If permission is granted, the appeal is served on the respondent (the other party to the original tribunal proceedings). The respondent then files an Answer, setting out their case in response. Often, the respondent will argue that any error made no material difference, or that the appellant is simply attempting to reargue facts decided against them.
The Full Hearing
If the appeal proceeds, it will be listed for a full hearing before the EAT. Both parties will lodge skeleton arguments and an appeal bundle. The hearing itself involves legal argument; witnesses are not called and evidence is not re-heard. The EAT will determine whether an error of law occurred and, if so, whether the matter should be remitted to the tribunal for rehearing or whether the EAT can substitute its own decision.
(Read our guide to EAT procedure and what to expect at a hearing)
Why Many Appeals Fail
A substantial proportion of EAT appeals are rejected at the sift stage or dismissed at a full hearing. Understanding why this happens is instructive.
The grounds do not identify an error of law. The most common failing. Many appellants describe their dissatisfaction with the decision, rehearse the facts of their case, or assert in general terms that the tribunal was wrong—without pinpointing the specific legal error. The EAT requires precision: which paragraph of the judgment contains the error, what was the correct legal test, and how did the tribunal depart from it?
The appeal is a factual disagreement dressed up as law. Phrases like "the tribunal failed to take into account" or "the tribunal ignored" often signal an attempt to reargue facts. Unless the failure amounts to a procedural unfairness or the conclusion was perverse, such challenges will not succeed.
The grounds are poorly drafted. An appeal that is unclear, prolix, or unfocused will struggle at the sift. EAT judges deal with high volumes of appeals; grounds that do not immediately convey an arguable error are likely to be rejected.
The error made no difference. Even where an error of law is established, the appeal will fail if the error was immaterial to the outcome. If the tribunal would inevitably have reached the same decision applying the law correctly, the EAT will not intervene.
Delay without good reason. Failure to comply with the 42-day time limit, or with subsequent procedural deadlines, can result in an appeal being struck out. The EAT expects strict adherence to its Practice Direction.
Why EAT Appeals Require Specialist Advocacy
Employment Appeal Tribunal work is a distinct discipline. Many solicitors and barristers who are highly competent at tribunal level are not experienced appellate advocates. The skills required are different: the ability to analyse a judgment forensically, to identify errors that are genuinely of law rather than merely of outcome, and to present argument in the compressed and structured form the EAT requires.
Drafting grounds of appeal is a precise art. The grounds must be legally accurate, clearly expressed, and supported by proper citation of authority. Poorly drafted grounds damage not only the individual appeal but the client's prospects at any subsequent stage.
If you are considering an appeal, you should instruct counsel with genuine experience of EAT work—not simply a generalist employment lawyer willing to "have a go." The EAT Practice Direction itself acknowledges the importance of specialist assistance, and the statistics on appeal success rates speak for themselves.
Who This Service Is For
I act for both claimants and respondents in appeals to the Employment Appeal Tribunal. My practice includes:
Employees and former employees who believe their discrimination, unfair dismissal, whistleblowing, or other employment claims were wrongly dismissed and wish to challenge the tribunal's decision on appeal.
Employers and respondents who have received an adverse tribunal judgment and require advice on whether it discloses appealable errors, or who are defending an appeal brought against them.
Solicitors and in-house legal teams seeking specialist counsel to advise on appeal merits, draft grounds of appeal, or conduct advocacy at the EAT.
Litigants in person who recognise that appellate proceedings require specialist assistance and wish to instruct experienced counsel.
I understand that receiving an adverse tribunal judgment is stressful, particularly when you are convinced the decision was wrong. My role is to provide clear, honest advice about whether an appeal is viable, and if so, to pursue it with rigour and precision.
Discuss Your Appeal With a Specialist EAT Barrister
If you have received an Employment Tribunal judgment and are considering an appeal, time is critical. The 42-day deadline cannot be extended except in exceptional circumstances, and proper advice at the outset can determine whether your appeal succeeds or fails.
I offer an initial assessment of your case to determine whether arguable grounds of appeal exist. If they do, I can advise on strategy, draft the Notice of Appeal and Grounds, and represent you through the appellate process.
To discuss your case:
Telephone: 0777 639 4000
Email: kohanzad@oldsquare.co.uk
Chambers: Old Square Chambers, 11 Bedford Row, London WC1R 4BU
I aim to respond to all enquiries within 24 hours.
FAQ
-
You have 42 days from the date the written reasons were sent to the parties. This deadline is strictly enforced and extensions are granted only in exceptional circumstances.
-
No. The Employment Appeal Tribunal only hears appeals on points of law. Disagreement with the tribunal's findings of fact or assessment of evidence is not, without more, a ground of appeal.
-
An application for reconsideration asks the original Employment Tribunal to review its own decision, typically where there has been an administrative error or new evidence has emerged. An appeal to the EAT challenges the legal correctness of the decision and is heard by a different court entirely.
-
You are not legally required to have representation, but EAT appeals are technical proceedings where specialist advocacy significantly improves prospects of success. Many appeals fail because the grounds are poorly drafted or the legal arguments are inadequately presented.
-
You may apply within 14 days for an oral hearing under Rule 3(10), where you can argue that your grounds are arguable and should proceed. This is your final opportunity to persuade the EAT to hear your appeal.
-
Generally, no. The EAT decides appeals on the basis of the evidence that was before the Employment Tribunal. New evidence is admitted only in exceptional circumstances.
-
Costs vary depending on the complexity of the case and the stages reached. I am happy to discuss fees at an initial consultation and can provide an estimate once I have reviewed the papers.
This guide is for general information only and does not constitute legal advice. Every case turns on its own facts, and you should seek specific advice about your circumstances.
Written by Rad Kohanzad, Employment Law Barrister
Specialist in appeals to the Employment Appeal Tribunal
The Critical First Choice: 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.
The Strict 42-day Deadline
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 Grounds for a Successful Appeal
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.
A Walk-Through of the Entire Process
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.
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.
Practical Advice
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.
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.
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.
Updated 29 August 2025
