What Counts as an "Error of Law" in the Employment Appeal Tribunal?

An error of law is the sole basis upon which an appeal to the Employment Appeal Tribunal may succeed. Under section 21 of the Employment Tribunals Act 1996, the Employment Appeal Tribunal's jurisdiction is confined to questions of law. The principal categories of error of law are: misdirection on the legal test, misapplication of the law to the facts, failure to take into account a relevant consideration or taking into account an irrelevant one, procedural unfairness, inadequacy of reasons, and perversity.

An error of law does not include mere disagreement with the Employment Tribunal's findings of fact, the weight it attached to particular evidence, or the conclusions it drew from the evidence where it correctly directed itself on the law. Understanding the distinction between a factual error and a legal error is fundamental to any appeal to the Employment Appeal Tribunal.

Legal Framework

Misdirection on the Legal Test

The clearest category of error of law arises where the Employment Tribunal has stated or applied the wrong legal test. For example, in a claim of direct discrimination under section 13 of the Equality Act 2010, the tribunal must ask whether the claimant received less favourable treatment because of a protected characteristic. If the tribunal instead asked whether the treatment was unreasonable, it has misdirected itself on the law.

Misdirection also occurs where the Employment Tribunal correctly states the test but then fails to apply it. This is sometimes described as 'paying lip service' to the test. It is not enough for the tribunal to recite the statutory language if its reasoning shows that it approached the question in a different way.

Failure to Consider Relevant Matters

An Employment Tribunal must take into account all matters that are legally relevant to the determination of the issues before it. Failure to do so amounts to an error of law. Conversely, taking into account a matter that is legally irrelevant is also an error. This category frequently arises where the tribunal fails to engage with a significant piece of evidence or a submission that was central to a party's case.

The distinction between failing to mention evidence and failing to consider it is important. A tribunal is not required to refer to every piece of evidence in its reasons. But where evidence goes to the heart of a contested issue, a failure to deal with it may give rise to an inference that it was not considered.

Inadequacy of Reasons

The standard for adequate reasons was set out in Meek v City of Birmingham District Council [1987] IRLR 250. The Employment Tribunal's reasons must be sufficient to enable the parties to understand why they have won or lost. The reasons need not be elaborate, but they must deal with the principal issues in the case and explain the tribunal's conclusions on those issues.

Inadequacy of reasons is one of the most commonly argued grounds of appeal. It arises where the tribunal has failed to make findings on a disputed factual issue that was necessary to resolve the claim, where the reasoning is internally inconsistent, or where the conclusion does not follow from the findings. In DPP Law Ltd v Greenberg [2021] IRLR 1016, the Court of Appeal emphasised that reasons should be read generously and not subjected to hypercritical analysis.

Procedural Unfairness

A party is entitled to a fair hearing. Procedural unfairness is an error of law and may take many forms: refusal to allow a party to call relevant evidence, failure to allow adequate cross-examination, raising a point that was not put to the parties for submissions, apparent bias, or conducting the hearing in a manner that prevented a party from presenting their case effectively.

The test for apparent bias was restated in Porter v Magill [2002] 2 AC 357: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. This is an objective test.

Perversity

Perversity is often misunderstood. A finding is perverse only if it is one that no reasonable tribunal, properly directing itself on the law, could have reached. The threshold is exceptionally high. As the Court of Appeal stated in Yeboah v Crofton [2002] IRLR 634, an appeal on the ground of perversity ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.

The Employment Appeal Tribunal will not substitute its own view of the facts. That a different tribunal might have reached a different conclusion is irrelevant. Perversity requires something more: that the conclusion was outside the range of permissible conclusions open to the tribunal on the material before it.

Common Errors and Misconceptions

The most pervasive misconception is that 'the tribunal got it wrong' equates to an error of law. In the overwhelming majority of cases where a party is dissatisfied with the outcome, the real complaint is with the findings of fact, not with the law. The Employment Appeal Tribunal cannot and will not interfere with findings of fact unless those findings are perverse.

Another common error is to conflate the weight given to evidence with a failure to consider it. A tribunal may refer to a document or a piece of testimony and then attach little weight to it. That is a matter of evaluation, not law. The Employment Appeal Tribunal will not second-guess the tribunal's assessment of the evidence provided it was open to the tribunal to reach the conclusion it did.

Litigants in person frequently argue perversity as a route to rearguing the facts. The Employment Appeal Tribunal is well aware of this tendency and scrutinises perversity grounds with particular care. Grounds of appeal that are, in substance, an attempt to relitigate the factual merits will be rejected at the sift stage.

A further misconception is that a single error in the judgment, however minor, will result in the appeal being allowed. The Employment Appeal Tribunal considers materiality. If the error would not have affected the outcome, the appeal will be dismissed even if the error is established.

Practical Application

When reviewing an Employment Tribunal's written reasons for potential errors of law, the analysis should be methodical. The first question is whether the tribunal correctly identified and stated the legal test. The second is whether the tribunal applied that test to the facts as found. The third is whether the findings of fact were adequately reasoned and supported by evidence. The fourth is whether the procedure was fair.

In discrimination cases, errors of law commonly arise from the burden of proof provisions under section 136 of the Equality Act 2010. The two-stage test set out in Igen Ltd v Wong [2005] ICR 931 and refined in Madarassy v Nomura International plc [2007] ICR 867 requires the tribunal first to determine whether the claimant has established facts from which discrimination could be inferred, and then to consider whether the respondent has proved a non-discriminatory explanation. Errors in the application of this framework are a frequent source of successful appeals.

In unfair dismissal cases, errors commonly arise from the application of the range of reasonable responses test. The tribunal must not substitute its own view for that of the employer but must ask whether the decision to dismiss fell within the range of reasonable responses open to a reasonable employer. Failure to apply this test correctly is an error of law.

Grounds of appeal must connect the identified error of law to the outcome. The Employment Appeal Tribunal will not allow an appeal on a point of law that, even if established, would not have affected the result. This requires careful analysis of the tribunal's reasoning to show that the error was material.

Process and Timing

The 42-day time limit applies from the date the written reasons were sent. Grounds of appeal must identify the specific error of law with precision. General complaints about the outcome are insufficient. The sift judge will scrutinise the Grounds of Appeal and reject those that do not disclose an arguable error of law.

If the appeal passes the sift, the respondent to the appeal files a Respondent's Answer and the case is listed for a full hearing. At the full hearing, the Employment Appeal Tribunal considers the legal arguments and determines whether the Employment Tribunal erred in law. If it did, the Employment Appeal Tribunal may allow the appeal and either remit the case to the Employment Tribunal for rehearing or, in rare cases, substitute its own decision.

When to Seek Specialist Counsel

Identifying an error of law requires a particular skill. It is not enough to be dissatisfied with the outcome. The ability to read an Employment Tribunal's judgment and reasons analytically, to distinguish between findings of fact and legal conclusions, and to identify where the tribunal's reasoning departs from the correct legal framework — these are the core competencies of appellate advocacy.

A specialist in Employment Appeal Tribunal work will provide a clear and honest assessment of whether an error of law exists and, if so, whether it is material. This assessment can save significant time and cost where no arguable ground exists, and can maximise the prospects of success where a genuine error has been made.

Frequently Asked Questions