Can I Appeal an Employment Tribunal Decision to the Employment Appeal Tribunal?

Yes. A party to Employment Tribunal proceedings may appeal the decision to the Employment Appeal Tribunal, provided the appeal is based on an error of law. The right of appeal is conferred by section 21 of the Employment Tribunals Act 1996. You cannot appeal simply because you disagree with the outcome or believe the Employment Tribunal reached the wrong conclusion on the facts. The Employment Appeal Tribunal does not rehear the case or reconsider the evidence. Its jurisdiction is limited to correcting errors of law, which include misapplication or misunderstanding of the legal test, procedural unfairness, perversity, and failure to give adequate reasons.

An appeal must be lodged within 42 days of the date on which the Employment Tribunal's written reasons were sent to the parties. The appeal is initiated by completing a Notice of Appeal and drafting Grounds of Appeal that identify, with precision, the error of law relied upon. Permission to proceed is determined at a preliminary sift stage by an Employment Appeal Tribunal judge.

Legal Framework

The Statutory Right of Appeal

Section 21(1) of the Employment Tribunals Act 1996 provides that an appeal lies to the Employment Appeal Tribunal on any question of law arising from a decision of, or arising in proceedings before, an Employment Tribunal. This statutory gateway is narrow by design. The Employment Appeal Tribunal exists to correct legal errors, not to provide a second hearing on the merits.

The scope of appeal is further governed by the Employment Appeal Tribunal Rules 1993 (as amended) and the EAT Practice Direction. Together, these instruments prescribe the form and content of the Notice of Appeal, the documents that must accompany it, and the procedural steps that follow.

What Constitutes an Error of Law

An error of law encompasses several distinct categories. The Employment Tribunal may have misunderstood the relevant legal principles, for example by applying the wrong statutory test or by misdirecting itself on the burden of proof. It may have failed to take into account a relevant consideration, or taken into account an irrelevant one. It may have reached a conclusion that no reasonable tribunal, properly directing itself, could have reached — the ground of perversity, which carries an exceptionally high threshold as explained in Yeboah v Crofton [2002] IRLR 634.

Procedural unfairness is also an error of law. This includes failure to allow a party a fair opportunity to present their case, apparent bias, and failure to give adequate reasons for the decision. The requirement for adequate reasons was considered in Meek v City of Birmingham District Council [1987] IRLR 250, which established that the parties are entitled to know why they have won or lost.

Who May Appeal

Either the claimant or the respondent may appeal. There is no restriction on which party may bring the appeal. A respondent who has successfully defended the claim at the Employment Tribunal may also appeal if, for example, the tribunal made findings of fact or law that the respondent considers erroneous and which may have implications in related proceedings.

Common Errors and Misconceptions

The most common misconception is that the Employment Appeal Tribunal will reconsider the evidence and substitute its own findings. It will not. The Employment Appeal Tribunal is not a rehearing. It does not see the witnesses and does not make its own assessment of the facts. Where a party's real complaint is that the Employment Tribunal preferred the other side's evidence, that is not an error of law and the appeal will fail.

A related error is the belief that if the Employment Tribunal's decision seems wrong, there must be an appealable error. A decision can be wrong on the facts without involving any error of law. The tribunal is entitled to reach conclusions on the evidence that one party disagrees with, provided it has correctly directed itself on the law and given adequate reasons.

Many litigants in person confuse disagreement with the weight given to particular evidence with a failure to consider that evidence. The Employment Appeal Tribunal will not interfere with findings of fact unless the conclusion was one that no reasonable tribunal could have reached. The threshold for perversity is deliberately high: it is not enough that the Employment Appeal Tribunal would have reached a different conclusion.

Another frequent misconception is that reconsideration in the Employment Tribunal is a prerequisite to an appeal. It is not. In most cases, applying for reconsideration before appealing is inadvisable, as it gives the tribunal an opportunity to supplement its reasons, potentially making the appeal harder to sustain.

Practical Application

The first step in considering an appeal is to read the Employment Tribunal's written reasons with care and identify the specific legal error. Grounds of appeal must be precisely framed. The sift judge will reject grounds that amount to a generalised expression of dissatisfaction with the outcome.

In practice, the most fertile grounds of appeal arise where the Employment Tribunal has visibly misdirected itself on the legal test, for example by applying the wrong burden of proof in a discrimination case or by failing to apply the correct statutory framework. Grounds based on inadequacy of reasons are also common, particularly where the tribunal has failed to resolve key factual disputes or explain why certain evidence was preferred.

Strategic considerations are important. Not every error of law will result in the appeal being allowed. The Employment Appeal Tribunal may decline to interfere if the error was immaterial — that is, if correcting the error would not have altered the outcome. When drafting grounds, it is essential to connect the error of law to the ultimate result.

The sift stage acts as a filter. The sift judge reads the Notice of Appeal and the Employment Tribunal's judgment and reasons and decides whether any ground of appeal has a reasonable prospect of success. Grounds that are poorly drafted or that fail to identify a proper error of law are rejected at this stage. This is why precision in drafting is critical.

Process and Timing

The appeal must be lodged within 42 days of the date on which the written reasons were sent to the parties. This is a strict time limit. Extensions are granted only in exceptional circumstances, and the Employment Appeal Tribunal applies a rigorous test when considering late applications.

If the Employment Tribunal delivered its judgment orally at the hearing, a party must apply in writing for written reasons within 14 days of the oral decision. The 42-day time limit for the appeal then runs from the date the written reasons are sent.

The Notice of Appeal must be completed in accordance with Form 1 in the Schedule to the EAT Rules. The Grounds of Appeal must be set out within that form or attached. The following documents must accompany the appeal: the ET1 and response (ET3), and the judgment and written reasons being appealed.

Once lodged, the appeal is considered at the sift stage. The sift judge decides on the papers whether to allow the appeal to proceed. If the appeal is rejected at sift, the appellant may request an oral hearing under Rule 3(10) of the EAT Rules. If permission is granted, the appeal proceeds to a full hearing.

When to Seek Specialist Counsel

Appellate advocacy is a distinct discipline from Employment Tribunal advocacy. The skill set required to draft effective grounds of appeal, to identify genuine errors of law, and to present legal argument before the Employment Appeal Tribunal is materially different from that required to conduct a first-instance hearing.

Poorly drafted grounds of appeal are the single most common reason for failure at the sift stage. Grounds that merely re-argue the facts, that fail to identify the specific error of law, or that are drafted in vague or conclusory terms will be rejected. The consequence of this is that a potentially meritorious appeal can fail because the grounds were not properly articulated.

Early advice from a specialist in Employment Appeal Tribunal work can make the difference between an appeal that passes sift and one that does not. A specialist can also provide a realistic assessment of the prospects of success, which informs the decision on whether to appeal at all.

Frequently Asked Questions