What Happens at the Sift Stage in the Employment Appeal Tribunal?

The sift stage is the preliminary filtering process through which every appeal to the Employment Appeal Tribunal must pass. Under Rule 3(7) of the Employment Appeal Tribunal Rules 1993, a judge or the Registrar reviews the Notice of Appeal on the papers — without an oral hearing — and determines whether the Grounds of Appeal disclose a reasonable prospect of success on a point of law.

If the sift judge considers that any ground has a reasonable prospect, the appeal proceeds. If the sift judge considers that no ground is reasonably arguable, the appeal is rejected. An appellant whose appeal is rejected at sift may apply for an oral hearing under Rule 3(10) to argue that the appeal should be permitted to proceed. The sift stage is the most critical point in the appellate process. The majority of Employment Appeal Tribunal appeals do not progress beyond it.

Legal Framework

Rule 3(7): The Paper Sift

Rule 3(7) of the EAT Rules provides that where the Employment Appeal Tribunal considers that the Notice of Appeal discloses no reasonable grounds for bringing the appeal, it shall notify the appellant accordingly. This is commonly referred to as 'the sift'. The sift is conducted on the papers, meaning the judge reads the Notice of Appeal and the Employment Tribunal's judgment and reasons without hearing oral argument.

The standard applied at sift is whether the grounds of appeal have a reasonable prospect of success. This is not a high threshold in principle, but in practice it operates as an effective filter because the majority of appeals fail to identify a genuine and arguable error of law.

What the Sift Judge Considers

The sift judge reads the Grounds of Appeal and the Employment Tribunal's judgment and written reasons. The judge does not consider evidence that was before the Employment Tribunal, skeleton arguments, or additional submissions. The assessment is based solely on whether, taking the grounds at their highest, there is an arguable point of law.

The sift judge is looking for specificity. Grounds that identify a particular paragraph or passage in the tribunal's reasons and explain why it discloses an error of law are far more likely to pass sift than grounds that make generalised complaints about the outcome.

Partial Permission

The sift judge may allow the appeal to proceed on some grounds but not others. This is common where the Notice of Appeal contains multiple grounds of varying quality. Grounds that are clearly arguable will be permitted to proceed, while grounds that disclose no error of law will be rejected. The appellant then proceeds to a full hearing on the permitted grounds only.

Where partial permission is granted, the appellant may apply for an oral hearing under Rule 3(10) in respect of the grounds that were rejected. This enables the appellant to argue that the rejected grounds should also be permitted to proceed. The decision on whether to pursue a Rule 3(10) hearing in respect of rejected grounds should be informed by a realistic assessment of whether the grounds are genuinely arguable or whether the sift judge's rejection was correct.

Common Errors and Misconceptions

The most common reason for failure at sift is that the Grounds of Appeal do not identify an error of law. Grounds that re-argue the facts, that express dissatisfaction with the outcome without identifying a legal error, or that use vague and conclusory language will not pass sift.

A frequent mistake is to draft grounds that are too long and discursive. Sift judges deal with a high volume of appeals. Grounds that are clear, concise, and focused on the specific error are more effective than lengthy narratives that bury the legal point in factual detail.

Another error is to assume that the sift is a formality. It is not. The sift is a substantive assessment of whether the grounds disclose an arguable error of law. A significant proportion of appeals — including some with genuine merit — fail at sift because the grounds are not adequately drafted.

Some appellants include extensive factual background in the Grounds of Appeal. This is generally unhelpful. The sift judge has the Employment Tribunal's judgment and reasons, which set out the factual background. The Grounds of Appeal should focus on the legal error, not on restating the facts.

A further error is to use the Grounds of Appeal as a vehicle for personal grievances against the Employment Tribunal judge. Allegations of bias should only be included where there is objective evidence that a fair-minded and informed observer would consider gave rise to a real possibility of bias. Unfounded allegations of bias damage credibility and distract from any genuine legal point.

Practical Application

Drafting grounds that will pass the sift requires a disciplined approach. Each ground should identify the specific error of law, reference the relevant paragraph or paragraphs of the Employment Tribunal's reasons, explain why the tribunal's approach was legally wrong, and indicate why the error was material to the outcome.

Grounds should be individually numbered and separately articulated. Where there are multiple errors, each should be stated as a discrete ground rather than rolled together into a single narrative. This enables the sift judge to assess each ground on its merits and to grant partial permission where appropriate.

The interaction with the sift is an important strategic consideration when deciding how many grounds to include. Including weak grounds alongside strong ones does not improve the overall prospects and may detract from the strong grounds by suggesting a 'scatter-gun' approach. It is generally better to advance fewer, well-articulated grounds than a larger number of poorly focused ones.

Where the appeal is based on perversity, the grounds must identify the specific finding challenged, the evidence that renders the finding perverse, and an explanation of why the conclusion was outside the range of permissible conclusions. A bare assertion of perversity will not pass sift.

Another important consideration is the tone and presentation of the grounds. The sift judge reads a high volume of appeals, many of which are poorly drafted. Grounds that are professionally presented, logically structured, and that demonstrate a clear understanding of the distinction between fact and law make a favourable impression. Grounds that are emotional, discursive, or that contain personal attacks on the Employment Tribunal judge are less effective.

It is also important to ensure that the grounds are self-contained. The sift judge considers the grounds together with the Employment Tribunal's judgment and reasons. The grounds should not require the sift judge to consult other documents to understand the legal point. Where a ground depends on a specific finding in the judgment, the relevant paragraph should be identified by number.

Process and Timing

After the Notice of Appeal is lodged, it is reviewed by the Registrar for compliance with the procedural requirements. Once the appeal is registered, it is allocated to a sift judge. The sift decision typically takes between four and five months from the date the appeal is lodged, although this can vary depending on the volume of appeals.

If the appeal passes sift, the Employment Appeal Tribunal issues directions for the full hearing, including a timetable for the Respondent's Answer and skeleton arguments. If the appeal is rejected at sift, the appellant receives written reasons for the rejection and has 28 days to apply for an oral hearing under Rule 3(10).

The sift judge's reasons for rejecting an appeal should be read carefully. They often indicate the specific deficiency in the grounds and may assist in deciding whether to pursue a Rule 3(10) hearing. Where the rejection is based on the quality of the drafting rather than the absence of any arguable point, amended grounds may improve the position.

When to Seek Specialist Counsel

The sift stage is where the quality of the Grounds of Appeal matters most. An appeal drafted by a specialist in Employment Appeal Tribunal work is materially more likely to pass sift than one drafted by a litigant in person or a solicitor without appellate experience. The specialist will frame the grounds in a way that is focused, precise, and directed at a genuine error of law.

If an appeal has been rejected at sift, specialist advice is critical before deciding whether to pursue a Rule 3(10) hearing. A specialist can assess whether the grounds can be improved, whether the sift judge's rejection was correct, and whether the hearing is likely to succeed. Pursuing a Rule 3(10) hearing without realistic prospects can lead to a costs order.

Frequently Asked Questions