What Are the Most Common Drafting Errors in Employment Appeal Tribunal Appeals?

The most common drafting errors in Employment Appeal Tribunal appeals fall into identifiable categories: re-arguing the facts rather than identifying an error of law, failing to specify the error with precision, failing to address materiality, prolixity, relying on perversity as a disguised factual challenge, omitting reference to the relevant paragraphs of the Employment Tribunal's judgment, and including weak grounds alongside strong ones. Each of these errors significantly reduces the prospects of the appeal surviving the sift stage under Rule 3(7) of the EAT Rules 1993.

These errors are not confined to litigants in person. Grounds drafted by solicitors without appellate experience frequently exhibit the same deficiencies. The common thread is a failure to appreciate that the Employment Appeal Tribunal's jurisdiction is limited to errors of law, and that the Grounds of Appeal must be directed specifically at a legal error rather than at the factual outcome.

Legal Framework

The Appellate Jurisdiction

The Employment Appeal Tribunal's jurisdiction under section 21 of the Employment Tribunals Act 1996 is confined to questions of law. Grounds of appeal must identify a question of law. This is the foundational requirement that drives all aspects of effective drafting. A ground that does not engage a question of law, however well it is written, will fail.

The EAT Practice Direction reinforces this requirement by specifying that the grounds must identify the point of law on which the appeal is brought. The Practice Direction should be consulted as part of the drafting process to ensure compliance with both form and substance.

The Sift as Quality Control

The sift stage exists precisely to filter out appeals that do not engage the Employment Appeal Tribunal's jurisdiction. The sift judge reads the Grounds of Appeal with an experienced eye and can quickly distinguish between grounds that raise a genuine point of law and those that amount to a restatement of the losing party's case. The drafting errors described below are the primary reasons for rejection at sift.

Common Errors and Misconceptions

The errors set out below are presented in order of frequency. Understanding them is essential to avoiding them.

Error 1: Re-Arguing the Facts

This is the single most common drafting error. The grounds recite the appellant's version of the facts and argue that the Employment Tribunal should have reached a different factual conclusion. This is not an appeal on a point of law. The Employment Appeal Tribunal does not rehear the evidence, does not reassess credibility, and does not substitute its own findings of fact. Grounds that amount to a re-argument will be rejected at sift regardless of how strongly the appellant disagrees with the tribunal's findings.

The hallmarks of a re-argument are: extensive recitation of the evidence, assertions that the tribunal 'should have found' particular facts, and criticism of the tribunal's assessment of specific witnesses. These are factual complaints, not legal ones.

Error 2: Vagueness and Lack of Specificity

Grounds that assert in general terms that the tribunal 'erred in law', 'failed to apply the correct test', or 'acted unfairly' without identifying the specific error are insufficient. The sift judge cannot assess a ground that does not identify what the error was, where in the judgment it occurred, and what the correct legal position should have been. Specificity is the hallmark of effective appellate drafting.

Error 3: Failure to Address Materiality

Even where an error of law is identified, the Employment Appeal Tribunal will consider whether the error was material — that is, whether correcting it would or might have led to a different outcome. Grounds that identify an error but do not explain its impact on the result are incomplete. The sift judge may reject a ground where it is apparent that the error, even if established, could not have affected the outcome.

Error 4: Prolixity

Lengthy, discursive grounds are less effective than concise, focused ones. Sift judges deal with a high volume of appeals and appreciate clarity. Grounds that run to many pages of narrative, that include extensive factual background, or that make the same point repeatedly in different ways are harder to assess and less persuasive. A strong legal point is most effective when stated concisely.

Error 5: Perversity as Disguised Re-Argument

Many appellants use the ground of perversity as a vehicle for challenging findings of fact. They assert that the tribunal's findings were 'perverse' when the real complaint is that the tribunal preferred the other side's evidence. The sift judge will look through the label to the substance of the ground. Grounds that are, in substance, a re-argument dressed up as perversity will be rejected. Genuine perversity grounds must identify the specific finding, the specific evidence that renders it perverse, and an explanation of why the finding was outside the permissible range.

Error 6: Omitting Paragraph References

Grounds that do not reference specific paragraphs of the Employment Tribunal's written reasons are less effective. The sift judge needs to be able to verify the alleged error by reference to the judgment. A ground that asserts an error without identifying where in the judgment it appears places an unnecessary burden on the sift judge and may result in the ground being rejected.

Error 7: Including Weak Grounds

Including weak grounds alongside strong ones is a strategic error. The presence of weak grounds can create the impression of a scatter-gun approach, undermining the credibility of the appeal as a whole. It is far more effective to advance a smaller number of strong grounds than to pad the appeal with grounds that have little prospect of success. Weak grounds do not improve the overall prospects; they dilute the impact of the strong ones.

Practical Application

Avoiding these errors requires a disciplined approach to drafting. The first step is to read the Employment Tribunal's written reasons with a legal rather than a factual focus. The question is not 'where did the tribunal get the facts wrong?' but 'where did the tribunal's legal approach or reasoning go wrong?'

Once potential errors of law are identified, each should be assessed for strength and materiality before being included in the grounds. Weak points should be discarded. The remaining grounds should be drafted concisely, with paragraph references, in the four-part structure: correct legal principle, specific departure, relevant paragraph, and materiality.

A useful self-test is to read each ground and ask: 'does this ground identify a specific error of law, or is it a complaint about the outcome?' If the answer is the latter, the ground should be reframed or discarded.

Another useful discipline is to draft the grounds and then reduce them to the shortest possible version that retains the legal point. If a ground can be stated in two paragraphs, it should not be stated in five. Brevity forces precision, and precision is what the sift judge is looking for.

Where the appeal is drafted by a litigant in person, it may be helpful to have the grounds reviewed by a specialist before lodging, even if the specialist is not instructed for the full appeal. A short review can identify and correct common drafting errors that would otherwise result in rejection at sift.

Process and Timing

The 42-day time limit creates pressure to lodge the appeal quickly, but rushing the drafting increases the risk of the errors described above. It is better to use the available time to draft carefully and accurately. Where time is short, the Notice of Appeal should be lodged with the best available grounds, and an application to amend can be made subsequently if necessary.

The EAT Practice Direction should be consulted for current requirements. Failure to comply with procedural requirements — such as failing to include the correct accompanying documents — can result in the appeal being returned before it reaches the sift, adding delay.

When to Seek Specialist Counsel

The errors described above are the primary reason for failure at sift. A specialist in Employment Appeal Tribunal work will avoid every one of them. The specialist will identify genuine errors of law, draft grounds that are focused and effective, discard weak points, address materiality, and present the appeal in a form that the sift judge can assess quickly and favourably.

For litigants in person who wish to draft their own grounds, even a short consultation with a specialist to review draft grounds before lodging can significantly improve the prospects of survival at sift.

Frequently Asked Questions