What Happens if My Employment Appeal Tribunal Appeal Is Rejected at Sift?

If an appeal to the Employment Appeal Tribunal is rejected at sift under Rule 3(7) of the EAT Rules 1993, the appellant has the right to apply for an oral hearing before a judge under Rule 3(10). This is not an automatic right of appeal but an opportunity to persuade the judge, at a short hearing, that the Grounds of Appeal do disclose a reasonably arguable point of law that should be permitted to proceed to a full hearing.

The Rule 3(10) hearing must be requested within 28 days of the date the sift rejection notice is sent. If the appellant does not apply within this period, the appeal is dismissed. At the Rule 3(10) hearing, the appellant appears before a judge (the respondent is not usually required to attend) and makes oral submissions as to why the appeal should proceed. The judge may allow the appeal to proceed on all grounds, on some grounds, or may dismiss the application entirely.

Legal Framework

Rule 3(10): The Oral Renewal

Rule 3(10) of the Employment Appeal Tribunal Rules 1993 provides that where the Registrar or a judge has notified the appellant under Rule 3(7) that the appeal does not disclose reasonable grounds, the appellant may serve a fresh Notice of Appeal or apply for a hearing before a judge. This hearing is commonly referred to as a 'Rule 3(10) hearing' or an 'oral renewal'.

The application must be made within 28 days of the date of the Rule 3(7) notification. The Employment Appeal Tribunal may extend this time limit in exceptional circumstances, but late applications are disfavoured.

The Rule 3(10) hearing is an important safeguard in the appellate process. It ensures that an appeal is not finally dismissed solely on the basis of one judge's assessment on the papers. The opportunity for oral argument can be valuable, particularly where the written grounds did not fully convey the significance of the legal point.

The Standard at a Rule 3(10) Hearing

The standard remains the same as at the paper sift: whether the Grounds of Appeal disclose a reasonable prospect of success on a point of law. The difference is that the appellant has the opportunity to supplement the written grounds with oral argument. This can be particularly valuable where the written grounds were unclear or where the significance of the legal point requires further explanation.

The hearing is typically listed for 20 to 30 minutes. It is conducted before a single judge. The respondent to the appeal is not usually required to attend, although the Employment Appeal Tribunal may direct the respondent to attend in appropriate cases.

Fresh Notice of Appeal

Rule 3(10) permits the appellant to serve a fresh Notice of Appeal as an alternative to requesting an oral hearing. This option is available where the original Grounds of Appeal were poorly drafted and the appellant wishes to submit improved grounds. The fresh grounds will be considered at sift in the usual way. This option is particularly relevant where the original grounds were drafted without specialist assistance and the appellant has since obtained specialist advice.

Common Errors and Misconceptions

A common mistake is to treat the Rule 3(10) hearing as an opportunity simply to repeat the written grounds. The sift judge has already considered and rejected those grounds on the papers. The oral hearing is an opportunity to add to or clarify the argument, not merely to re-read the grounds aloud.

Another error is to assume that the Rule 3(10) hearing will be sympathetic simply because the appellant has the opportunity to make oral submissions. The judge at the Rule 3(10) hearing applies the same standard as the sift judge. If the grounds do not disclose an arguable error of law, the hearing will fail regardless of the quality of the oral presentation.

Some appellants attempt to introduce entirely new grounds at the Rule 3(10) hearing without having served a fresh Notice of Appeal. This is not permitted. If the appellant wishes to rely on new or amended grounds, the proper course is either to serve a fresh Notice of Appeal under Rule 3(10) or to apply for permission to amend.

A further misconception is that there is nothing to lose by pursuing a Rule 3(10) hearing. This is not always the case. If the respondent was required to attend and the application fails, the appellant may be exposed to a costs order. Even where the respondent does not attend, the time and expense of preparing for and attending the hearing should be weighed against the realistic prospects of success.

Practical Application

The decision to pursue a Rule 3(10) hearing should be informed by a careful analysis of the sift judge's reasons for rejection. The sift judge is required to give reasons, and these will indicate whether the rejection was based on the absence of any arguable error of law or on deficiencies in how the grounds were presented.

Where the sift rejection indicates that the grounds amounted to a factual disagreement with the Employment Tribunal's findings, a Rule 3(10) hearing is unlikely to succeed unless the appellant can reframe the grounds to identify a genuine error of law. Where the rejection indicates that the legal point was unclear or insufficiently developed, oral argument may assist in clarifying the point.

Preparation for a Rule 3(10) hearing should be focused and concise. A short skeleton argument highlighting the arguable error of law and responding to the sift judge's reasons is standard practice. The oral submissions should address the sift judge's reasons directly and explain why, despite those reasons, the grounds disclose an arguable point of law.

If the Rule 3(10) hearing fails, the appeal is at an end, subject to any further appeal to the Court of Appeal on a point of law. The route to the Court of Appeal is extremely narrow and permission is rarely granted in these circumstances.

An alternative to the Rule 3(10) hearing that is sometimes overlooked is the option to serve a fresh Notice of Appeal with improved grounds. Where the original grounds were drafted by a litigant in person without specialist assistance and were rejected for deficiencies in drafting rather than the absence of any arguable point, a fresh Notice of Appeal drafted by a specialist may succeed where the original did not. This option should be discussed with specialist counsel before deciding between a fresh Notice and an oral hearing.

The costs implications of the Rule 3(10) process should also be considered. While the hearing itself is relatively short, preparing for it requires time and expense. A skeleton argument should be drafted, the sift judge's reasons should be carefully addressed, and the legal argument should be developed. If the hearing fails, these costs are irrecoverable. A realistic assessment of the prospects at the Rule 3(10) stage is therefore essential.

Process and Timing

The application for a Rule 3(10) hearing must be made within 28 days of the date the sift rejection notice was sent. The hearing is typically listed within three to four months of the application. The hearing itself is short — usually 20 to 30 minutes. A written skeleton argument should be lodged in advance.

If permission is granted at the Rule 3(10) hearing, the appeal then proceeds in the usual way, with directions for the Respondent's Answer and listing for a full hearing. The overall effect of a successful Rule 3(10) hearing is to add several months to the total timeline of the appeal.

When to Seek Specialist Counsel

If an appeal has been rejected at sift and the original grounds were drafted without specialist assistance, obtaining specialist advice before pursuing a Rule 3(10) hearing is strongly recommended. A specialist can assess whether the sift judge's rejection was correct, whether the grounds can be reframed to identify a genuine error of law, and whether the hearing is realistically likely to succeed.

Where the original grounds were drafted by a specialist and have been rejected, a different view or fresh analysis may still be valuable. In some cases, the better course is to serve a fresh Notice of Appeal with improved grounds rather than to argue the original grounds at an oral hearing.

Frequently Asked Questions