Respondent's submissions at a Rule 3(10) hearing
Rad Kohanzad appeared for the Appellant, Mrs M G Harkins, in Harkins v Marks & Spencer Plc [2026] EAT 70, a decision concerning when a respondent may make submissions at a Rule 3(10) hearing in the Employment Appeal Tribunal (EAT). His Honour Judge James Tayler explained that these hearings are intended to assess briefly whether proposed grounds of appeal should proceed, not to provide an early opportunity to argue the full appeal. The judgment confirms that respondents should not ordinarily seek to make submissions, save in exceptional circumstances, and considers the limited circumstances in which a written skeleton argument may assist.
Background and procedural history
An appeal to the EAT is initially considered on the papers, a process commonly known as the sift. Under Rule 3(7) of the Employment Appeal Tribunal Rules 1993, as amended, an EAT judge considers whether there are reasonable grounds for bringing the appeal.
Where a judge considers that a ground should not proceed, the reasons are generally set out in a Rule 3(7) letter. The prospective appellant may challenge that opinion by applying for a hearing under Rule 3(10).
The purpose of a Rule 3(10) hearing is to determine whether the grounds that have been rejected at the sift stage should be allowed to proceed. As Judge Tayler explained, these hearings are intended to involve a brief assessment based on clear and concise submissions from the appellant. They are generally listed for one hour.
In this case, Marks & Spencer Plc, the Respondent, submitted a skeleton argument commenting on several grounds of appeal. It also challenged ground 9, which alleged that a finding of fact was unsupported by evidence. The Respondent provided an extract from counsel's note indicating that the matter had been addressed in evidence.
After reading the skeleton argument, Mrs Harkins's counsel withdrew ground 9. The Respondent's counsel attended the Rule 3(10) hearing, but Judge Tayler did not consider it necessary to invite her to make further submissions. The other grounds were permitted to proceed to a full hearing.
When can a respondent make submissions at a Rule 3(10) hearing?
The central issue was the extent to which a respondent may participate in a Rule 3(10) hearing, including whether the respondent should make submissions or file a skeleton argument opposing the proposed grounds of appeal.
Section 5.4.2 of the EAT Practice Direction provides that the other party will not usually be able to speak at a Rule 3(10) hearing, although they may attend to observe. A judge may allow brief submissions on a particular issue where doing so is consistent with the overriding objective.
Judge Tayler explained that this provision allows a judge to seek assistance from the respondent on a specific issue. It does not give the respondent a general right to make submissions.
The distinction matters because the hearing is not intended to become a preliminary rehearsal of the substantive appeal. Its purpose is to assess whether the proposed grounds are sufficiently arguable to proceed, rather than to determine the appeal itself.
The EAT's reasoning and decision
Judge Tayler emphasised that respondents who attend a Rule 3(10) hearing intending to make detailed observations on the grounds of appeal are unlikely to be given that opportunity. The judge will rarely need to hear from the respondent, and a respondent who attempts to argue the substance of the dispute may inadvertently reinforce the appellant's contention that the appeal is arguable.
The judgment nevertheless recognises a narrow exception. A respondent may, in very limited circumstances, ask to be heard on a point demonstrating that a ground is unarguable. An example is a fundamental error in a ground of appeal that can be established without examining detailed documentation or seeking further information from the Employment Tribunal.
The circumstances of Mrs Harkins's appeal also illustrate why advance written submissions may occasionally be useful. The Respondent's skeleton argument identified a problem with ground 9 by referring to evidence showing that the relevant matter had been addressed. Mrs Harkins subsequently withdrew that ground.
Judge Tayler acknowledged that the advance identification of this issue had benefited both the Appellant and the EAT. However, he stressed that this was a rare occurrence. The fact that the skeleton argument had assisted in relation to one ground did not justify inviting the Respondent to address the remaining grounds.
The judge's conclusion was explicit: save in exceptional circumstances, a respondent should not seek to make submissions in respect of a Rule 3(10) application.
The judgment also explains the alternative procedure where the EAT considers that the respondent's involvement would assist at an early stage. A preliminary hearing may be listed, allowing the respondent to submit a brief written argument directed at demonstrating that some or all of the grounds have no reasonable basis. Oral submissions by a respondent at such a preliminary hearing remain exceptional and would be provided for in the order listing it.
Key principles from Harkins v Marks & Spencer Plc
The judgment provides practical guidance on the scope of respondent participation in Rule 3(10) hearings:
A respondent has no general right to make submissions. The EAT Practice Direction permits a judge to invite brief submissions on a specific issue where appropriate; it does not entitle the respondent to address the hearing as of right.
A Rule 3(10) hearing is not a rehearsal for the full appeal. Respondents should not ordinarily use it to contest the substance of the proposed grounds in detail.
A narrow, dispositive objection may exceptionally justify intervention. A respondent may ask to be heard on a fundamental error demonstrating that a ground is unarguable, provided the point can be established without detailed factual or documentary investigation.
A respondent's skeleton argument will rarely be appropriate. It may exceptionally assist by identifying a clear problem with a particular ground, as happened with ground 9 in this case, but that does not create a general entitlement to file written submissions.
These principles should be understood as guidance on EAT procedure. The judgment does not establish that every respondent's skeleton argument is inadmissible, nor does it determine the substantive merits of Mrs Harkins's underlying employment claim.
What does this decision mean for someone considering an EAT appeal?
For someone who has received an unfavourable Employment Tribunal decision, Harkins is relevant to the early procedural stage of an appeal, particularly where the EAT has indicated that one or more proposed grounds should not proceed.
A Rule 3(10) hearing is an opportunity to persuade the EAT that a rejected ground is sufficiently arguable to be considered further. The judgment reinforces the importance of presenting clear, concise submissions focused on the alleged errors of law and why the grounds should be allowed to proceed.
It also illustrates why the precise formulation and evidential basis of each ground matter. In this case, a ground alleging that a factual finding was unsupported by evidence was withdrawn after the Respondent identified material indicating that the issue had been addressed in evidence.
That does not mean that a disagreement about the evidence, or a concern about the Employment Tribunal's reasoning, automatically establishes an arguable appeal. The potential ground must be assessed against the judgment, the relevant legal principles and the applicable procedural requirements.
Nor did Harkins determine the ultimate merits of Mrs Harkins's employment claim. The decision concerned the procedure for deciding whether grounds should proceed beyond the initial sift stage. The other grounds were permitted to proceed to a full hearing; that was not a determination that those grounds would ultimately succeed.
Anyone considering an appeal should therefore distinguish between identifying a possible error in an Employment Tribunal judgment and establishing a properly arguable ground of appeal.
Advice on appealing an Employment Tribunal decision
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Case details
Case: Mrs M G Harkins v Marks & Spencer Plc
Neutral citation: [2026] EAT 70
EAT case number: EA-2023-000761-JOJ
Judgment date: 7 May 2026
Judge: His Honour Judge James Tayler
Hearing: Rule 3(10) hearing
Appellant's counsel: Rad Kohanzad, instructed by Lawson West Solicitors Limited
Respondent's counsel: Grace Holden
Outcome: Ground 9 was withdrawn following the Respondent's skeleton argument. The other grounds were permitted to proceed to a full hearing.
Official judgment: Read the full EAT judgment (PDF)
