Appeal FAQ

Appealing to the EAT is inherently difficult and requires permission to appeal from the EAT. Although you can attempt to appeal without first taking advice, I would suggest that you have a specialist in appeals review the ET decision first. There may or may not be good grounds of appeal and it would be a waste of time and money to appeal where you do not have reasonable prospects of success.

You have 42 days from the date that the Judgment & Reasons were sent to you to submit your appeal to the Employment Appeal Tribunal.

Generally speaking, reconsideration in the employment tribunal is used to deal with clerical errors. If you think the employment tribunal has made an error, it is better to appeal. Applying for reconsideration where a tribunal has found against is unlikley to lead to a change in outcome and could result in the tribunal making more findings against you.

Within 42 days of the ET’s written reasons or decision being sent to you, you must lodge the relevant documents (see the EAT practice direction) with the EAT. Generally, that is the ET1 & Particulars of Claim, the ET3 & Grounds of Resistance, and the Judgment & Reasons that you are appealing.

Yes. When your employment tribunal case is decided, the ET will either tell you orally what decision they have arrived at or post the written reasons to you. If they tell you their decision orally, you will need to request written reasons from the tribunal within 14 days of the oral decision.

You cannot simply appeal because you disagree with the decision of the employment tribunal. You can only appeal on the grounds that the employment tribunal has made an error of law. An error of law is either where the employment tribunal has misunderstood the law, wrongly applied the law or where a particular conclusion is one that no reasonable tribunal could arrive at, i.e. perverse.

A perverse finding of fact is one that no reasonable tribunal can arrive at. It is very hard to argue that any finding of a tribunal is perverse because even if you think that a tribunal have got their decision wrong, a tribunal will usually have some evidence upon which they have based their conclusion.

A decision on permission to appeal can typically take four or five months. If you are given permission on the papers, then you will usually have a listing within the next six months. If you are not given permission on the papers and are given permission at a permission hearing under rule 3(10), then that could add another four to six months to the process. These estimates will change depending upon how busy the EAT is.

To appeal to the EAT, you must be granted permission to appeal by the EAT. The EAT may grant you permission “on the papers”, i.e. on reviewing your Grounds of Appeal or, if they refuse you permission to appeal on the papers, at an oral hearing.

Becuase the EAT only deals with errors of law, generally it does not hear evidence and so the hearings are much shorter. The hearings tend to focus on what the correct law is and whether the employment tribunal properly applied the law.

Becuase appeals to the EAT focus on errors of law, generally speaking the EAT does not review the documents that were before the employment tribunal. In certain cases, such as perversity appeals, the EAT may be more willing to consider the documents that were before the employment tribunal but even then it will be relatively limited. An appeal to the EAT is not an opportunity for a party to have a second bite of the cherry.

New evidence can only be introduced under the principles set out by the Court of Appeal in LaddvMarshall 1954 3 All ER 745.

A party seeking to introduce new evidence must show that:

(i) the evidence could not with reasonable diligence have been obtained for use before the tribunal

(ii) the evidence would probably have had an important influence on the result of the case; and

the evidence is apparently credible, though it need not be incontrovertible.

No. The EAT is concerned with errors of law and will not re-hear the case. EAT appeals focus on how the employment tribunal got their decision wrong and, generally, no live evidence is heard. The hearing will only involve legal argument.

You can represent yourself in the Employment Appeal Tribunal but, becuase appeals are limited to points of law, it is usually worth having a specialist employment lawer to represent you.

A successful appeal can lead to the overturning or quashing of the employment tribunal’s decision in your favor. Sometimes the EAT can decide the matter themselves if you are successful but usually the matter will have to be remitted to the same or different employment tribunal.

Generally parites bear their own costs in the Employment Appeal Tribunal. If you are the appellant, it is very unusual to have a costs award against you in the EAT because by the time the respondent to the appeal is usually involved in the appeal a judge will have already concluded that you have reasonable grounds for appeal.

If you lose your appeal from the employment tribunal to the Employment Appeal Tribunal, you may be able to appeal to the Court of Appeal. Whilst the test for appealing to the Court of Appeal is notionally similar to that of the EAT, in practice it is much more difficult.