How Should Grounds of Appeal Be Drafted to Survive the Employment Appeal Tribunal Sift Stage?

Grounds of appeal must identify a specific error of law with precision to survive the sift stage at the Employment Appeal Tribunal. The sift judge, acting under Rule 3(7) of the EAT Rules 1993, reviews the Notice of Appeal and the Employment Tribunal's judgment and reasons on the papers and determines whether the grounds disclose a reasonable prospect of success on a point of law. Grounds that re-argue the facts, express generalised dissatisfaction, or fail to identify a discrete legal error will be rejected.

Effective grounds of appeal share common characteristics: they are individually numbered, clearly structured, and tightly focused on specific errors of law. Each ground identifies the relevant paragraph or paragraphs of the Employment Tribunal's written reasons, states the correct legal principle, explains how the tribunal departed from it, and demonstrates why the departure was material to the outcome. This disciplined approach enables the sift judge to assess each ground quickly and to grant permission where it is warranted.

Legal Framework

The Sift Standard

The sift judge applies the standard of whether the grounds of appeal disclose a reasonable prospect of success on a point of law. This is an assessment on the papers. The judge reads only the Notice of Appeal, the Grounds of Appeal, and the Employment Tribunal's judgment and written reasons. No additional submissions, skeleton arguments, or evidence are considered at this stage.

The standard is not demanding in principle — it requires only a reasonable prospect, not a certainty. But in practice, the sift operates as a rigorous filter because the majority of appeals fail to articulate a genuine error of law. The quality of the drafting is therefore the single most important factor in whether an appeal survives the sift.

Form and Content Requirements

The Grounds of Appeal must be set out within or attached to the Notice of Appeal (Form 1). The EAT Practice Direction provides guidance on the content and format. The grounds must identify the point of law on which the appeal is brought. They should not recite the factual background at length — the sift judge has the tribunal's judgment for that purpose.

The Employment Appeal Tribunal has repeatedly emphasised that grounds should be concise and focused. Prolix grounds that bury the legal point in narrative are less effective than short, targeted grounds that isolate the error. Each ground should be capable of being understood as a self-contained legal argument.

The Structure of an Effective Ground

An effective ground of appeal typically follows a four-part structure. First, it identifies the legal issue and the correct legal test by reference to the relevant statute or authority. Second, it identifies the specific paragraph or paragraphs of the Employment Tribunal's written reasons that are challenged. Third, it explains how the tribunal's approach departed from the correct legal test. Fourth, it explains why the departure was material to the outcome — that is, why the tribunal might have reached a different conclusion had it applied the correct test.

This structure works because it addresses the three things the sift judge needs to know: what the law requires, what the tribunal did, and why the difference matters. Grounds that omit any of these elements are materially weaker.

Common Errors and Misconceptions

The most common drafting error is to re-argue the facts under the guise of an appeal. Grounds that recite the appellant's version of events and then assert that the Employment Tribunal was wrong to prefer the other side's account are factual challenges, not legal ones. The sift judge will identify this immediately and reject the grounds.

A second common error is vagueness. Grounds that assert, in general terms, that the tribunal 'failed to apply the law correctly' or 'erred in law' without specifying the error are insufficient. The sift judge cannot assess a ground that does not identify the specific legal error relied upon.

A third error is prolixity. Some appellants include extensive factual background in the grounds, believing that the sift judge needs to understand the full context. The sift judge has the Employment Tribunal's judgment and reasons, which provide the factual context. The grounds should add the legal analysis, not repeat the facts.

A fourth error is to include too many grounds, some of which are weak. A scatter-gun approach dilutes the impact of the strong grounds and may suggest to the sift judge that the appellant is casting about for an error rather than having identified one. It is generally better to advance a smaller number of well-focused grounds than a large number of varying quality.

A fifth error is to fail to address materiality. Even where an error of law is identified, the sift judge will consider whether it affected the outcome. Grounds that identify an error but do not explain why it mattered are less likely to pass sift than grounds that connect the error to the result.

Practical Application

The drafting process should begin with a close reading of the Employment Tribunal's written reasons, identifying every potential error of law. These should then be assessed for strength and materiality. Weak grounds should be discarded. The remaining grounds should be drafted in the four-part structure described above.

Each ground should be individually numbered. Where there are multiple grounds, they should be presented in order of strength, with the strongest ground first. This ensures that the sift judge engages with the best point immediately.

Cross-references to specific paragraphs of the Employment Tribunal's written reasons are essential. A ground that states 'at paragraph 47, the tribunal applied the wrong test for constructive dismissal' is immediately verifiable by the sift judge. A ground that states 'the tribunal applied the wrong test for constructive dismissal' without a paragraph reference requires the sift judge to search for the relevant passage, which is less effective.

The tone of the grounds matters. Grounds should be analytical and measured. Emotional language, personal attacks on the Employment Judge, or expressions of outrage are counterproductive. The sift judge is assessing whether there is a legal error, not whether the appellant feels aggrieved.

Where the appeal is based on perversity, the grounds must go further than simply asserting that the finding was perverse. They must identify the specific finding, the evidence that renders it perverse, and an explanation of why no reasonable tribunal could have reached that conclusion. A bare assertion of perversity will be rejected at sift.

Process and Timing

The grounds must be lodged within the 42-day time limit. Drafting effective grounds takes time, and this should be factored into the timetable. It is preferable to lodge well-drafted grounds within the deadline than to rush the drafting in order to lodge early.

If the deadline is approaching and the grounds are not yet ready, the Notice of Appeal should nonetheless be lodged within time to preserve the right of appeal. An application to amend the grounds can then be made subsequently, although it is far better to lodge final grounds from the outset.

The EAT Practice Direction should be consulted for the current requirements on the form and content of the Notice of Appeal and the accompanying documents. Failure to comply with the procedural requirements can result in the appeal being rejected on administrative grounds before it reaches the sift.

Where amended grounds are lodged following the initial filing, the sift judge will consider the amended version. However, the need to amend can itself create delay and may suggest that insufficient care was taken in the original drafting. The best practice is to use the full 42-day period to draft comprehensive and well-focused grounds, have them reviewed by specialist counsel where possible, and lodge them in final form.

Grounds that are lodged close to the deadline without the benefit of specialist review are more likely to exhibit the common drafting errors described above. Where time is limited, it is better to lodge a smaller number of well-drafted grounds than to rush a larger number. A focused set of grounds that clearly identifies one or two genuine errors of law is more effective than a hastily assembled set that attempts to cover every possible complaint.

When to Seek Specialist Counsel

The drafting of the grounds of appeal is the single most important stage in the appellate process. An appeal that is supported by a genuine error of law can fail at sift because the grounds were not adequately drafted. Conversely, a borderline point can survive the sift if it is clearly and precisely articulated.

A specialist in Employment Appeal Tribunal work will draft grounds that are focused, structured, and directed at genuine errors of law. The specialist will discard weak grounds, frame strong grounds in the most effective way, and ensure that materiality is addressed. This expertise is the most effective investment a party can make in the prospects of their appeal.

Frequently Asked Questions