How Do Appeals from the Employment Appeal Tribunal to the Court of Appeal Work?

An appeal from the Employment Appeal Tribunal to the Court of Appeal lies on a point of law, with permission. Permission may be granted by the Employment Appeal Tribunal itself or, if refused, by the Court of Appeal. The right of appeal is conferred by section 37 of the Employment Tribunals Act 1996. The test for permission is whether the appeal has a real prospect of success or whether there is some other compelling reason for the appeal to be heard.

Appeals to the Court of Appeal from the Employment Appeal Tribunal are relatively uncommon and are reserved for cases that raise important points of law, where the Employment Appeal Tribunal's decision is arguably wrong, or where the case has broader significance. The Court of Appeal does not rehear the case or reconsider the facts. Its jurisdiction is confined to questions of law, and it reviews the Employment Appeal Tribunal's decision rather than the Employment Tribunal's decision directly.

Legal Framework

The Statutory Right of Appeal

Section 37(1) of the Employment Tribunals Act 1996 provides that an appeal on a question of law lies from the Employment Appeal Tribunal to the Court of Appeal. The appeal requires permission, which may be granted by the Employment Appeal Tribunal or by the Court of Appeal.

The requirement for permission is a significant filter. The Court of Appeal will not grant permission unless satisfied that the appeal has a real prospect of success or that there is some other compelling reason why the appeal should be heard. This test, derived from CPR 52.6, is applied to ensure that the Court of Appeal's limited resources are directed to cases that warrant its attention.

Permission to Appeal

Permission should first be sought from the Employment Appeal Tribunal at the conclusion of its judgment or within a short period thereafter. If the Employment Appeal Tribunal refuses permission, an application for permission may then be made to the Court of Appeal. The application to the Court of Appeal is made on paper in the first instance. If refused on paper, the applicant may request an oral hearing.

The time limit for filing an Appellant's Notice at the Court of Appeal is 21 days from the date of the Employment Appeal Tribunal's decision. This is a strict time limit and is shorter than the 42-day period for appeals from the Employment Tribunal to the EAT. Extensions are granted only in exceptional circumstances.

The application for permission must identify the point of law on which the appeal is brought and explain why the appeal has a real prospect of success. A skeleton argument should accompany the application, setting out the legal argument concisely.

Grounds for Appeal

An appeal to the Court of Appeal from the Employment Appeal Tribunal may be brought on the ground that the EAT erred in law. This includes: misdirection of law by the EAT, failure by the EAT to apply a binding authority, and a decision by the EAT that was perverse (applying the same high threshold as perversity in the Employment Tribunal context). The Court of Appeal may also entertain appeals on points of law of general public importance or where the EAT's decision creates uncertainty in the law.

The scope of the Court of Appeal's review is the Employment Appeal Tribunal's decision, not the Employment Tribunal's decision. If the appellant's complaint is with the Employment Tribunal's findings and the EAT correctly dismissed the appeal, the Court of Appeal will not intervene. The focus is on whether the EAT itself erred in its assessment of the appeal.

Common Errors and Misconceptions

The most common misconception is that a further appeal to the Court of Appeal provides a third opportunity to argue the case on the facts. It does not. The Court of Appeal's jurisdiction is confined to questions of law, and its review is of the Employment Appeal Tribunal's decision, not the Employment Tribunal's. An appeal that is, in substance, an attempt to revisit the factual findings will not succeed.

Another error is to underestimate the difficulty of obtaining permission. The Court of Appeal grants permission sparingly and only where the appeal raises a genuine point of law of some substance. A mere disagreement with the Employment Appeal Tribunal's assessment of the appeal is unlikely to attract permission.

Some parties assume that a second appeal is a routine step in the process. It is not. The Employment Tribunal and Employment Appeal Tribunal are designed to resolve employment disputes finally. The Court of Appeal's involvement is reserved for cases of genuine legal importance. Most employment disputes are concluded at the EAT stage.

A further misconception is that the 42-day time limit applies to appeals to the Court of Appeal. It does not. The time limit for filing the Appellant's Notice at the Court of Appeal is 21 days from the Employment Appeal Tribunal's decision. Missing this deadline is extremely difficult to remedy.

Parties sometimes seek to appeal to the Court of Appeal when the real issue is with the Employment Tribunal's decision, not the EAT's. If the EAT correctly dismissed the appeal because there was no error of law in the Employment Tribunal's decision, the Court of Appeal will not grant permission merely because the party remains dissatisfied with the original outcome.

Practical Application

The decision to seek permission to appeal to the Court of Appeal should be informed by a realistic assessment of whether the Employment Appeal Tribunal's decision was itself wrong in law. The question is not whether the party disagrees with the outcome but whether the EAT made a legal error in reaching its decision.

Applications for permission that raise points of general public importance or that seek to resolve a conflict in the case law are more likely to attract the Court of Appeal's attention than applications that raise case-specific points. Where the Employment Appeal Tribunal's decision turns on the application of well-established principles to the facts of the case, the prospect of permission being granted is low.

The costs implications of a Court of Appeal appeal are significantly greater than those at the EAT stage. The Court of Appeal routinely makes costs orders against unsuccessful parties, and the scale of costs is typically larger. A realistic assessment of the costs exposure should inform the decision to seek permission.

Where the Employment Appeal Tribunal has refused permission, the application to the Court of Appeal is made on paper. A compelling skeleton argument is essential. The Court of Appeal judge considers the application on the papers and will refuse permission if the proposed appeal has no real prospect of success. If permission is refused on paper, the applicant may request an oral hearing, but this should only be pursued where there are genuine grounds for believing that the paper refusal was wrong.

The preparation of a Court of Appeal appeal is significantly more demanding than an Employment Appeal Tribunal appeal. The Court of Appeal expects comprehensive skeleton arguments with full references to the authorities, a properly prepared bundle, and a clear chronology of events. The standard of advocacy is high, and the Court of Appeal's expectations of precision and focus exceed those of the EAT.

Where the appeal concerns a point of general importance, the party should consider whether to draw the attention of relevant third parties to the case. The Equality and Human Rights Commission, trade unions, and professional bodies may have an interest in intervening. Third-party intervention can strengthen the appeal by providing a broader perspective on the significance of the point of law.

Process and Timing

Permission should first be sought from the Employment Appeal Tribunal at the conclusion of its judgment. If the EAT refuses permission, the Appellant's Notice must be filed at the Court of Appeal within 21 days of the EAT's decision. The Appellant's Notice must be accompanied by a skeleton argument and the relevant documents from the proceedings below.

If permission is granted, the appeal is listed for a full hearing before a panel of three Court of Appeal judges. The full hearing involves oral argument on the point of law. The Court of Appeal may allow the appeal and substitute its own decision, remit the case to the Employment Appeal Tribunal or the Employment Tribunal, or dismiss the appeal.

The total timeline for a Court of Appeal appeal, from the EAT's decision to the Court of Appeal's judgment, can be twelve to eighteen months or longer, depending on the listing capacity of the Court of Appeal.

When to Seek Specialist Counsel

An appeal to the Court of Appeal requires a high level of legal expertise. The points of law involved are typically complex, and the Court of Appeal expects structured, authoritative legal argument. Specialist counsel with experience of employment law appeals in the Court of Appeal is essential.

A specialist can assess whether the Employment Appeal Tribunal's decision contains a genuine error of law, whether the appeal has a real prospect of success, and whether the point is of sufficient importance to attract the Court of Appeal's attention. This assessment can save significant costs where the prospects are poor.

Frequently Asked Questions