When Can an Employment Appeal Tribunal Case Reach the Supreme Court?

A case originating in the Employment Tribunal can reach the Supreme Court only after passing through the Employment Appeal Tribunal and the Court of Appeal. The Supreme Court hears appeals from the Court of Appeal (or, in exceptional cases, directly from the Employment Appeal Tribunal under the 'leapfrog' procedure) on points of law of general public importance. Permission to appeal to the Supreme Court is granted only where the case raises a point of law of general public importance which ought to be considered by the Supreme Court.

Employment cases that reach the Supreme Court are rare. The Supreme Court typically hears only cases that raise novel or unresolved points of law, cases where the Court of Appeal's decision conflicts with the decision of another appellate court, or cases where the law requires authoritative clarification. The Supreme Court does not rehear the facts. Its jurisdiction is confined to questions of law, and its decisions are binding on all lower courts and tribunals.

Legal Framework

The Standard Route

The standard route to the Supreme Court from an employment case is: Employment Tribunal to Employment Appeal Tribunal to Court of Appeal to Supreme Court. At each stage, permission is required. An appeal lies from the Court of Appeal to the Supreme Court under section 40 of the Constitutional Reform Act 2005. Permission may be granted by the Court of Appeal or by the Supreme Court.

The test for permission to appeal to the Supreme Court is whether the case raises a point of law of general public importance which ought to be considered by the Supreme Court at that time. This is a substantially higher threshold than the test for permission to appeal to the Court of Appeal. The Supreme Court selects cases for their broader significance, not because the parties have been treated unjustly in the individual case.

The Leapfrog Procedure

In exceptional cases, an appeal may proceed directly from the Employment Appeal Tribunal to the Supreme Court, bypassing the Court of Appeal, under the 'leapfrog' procedure provided by Part II of the Administration of Justice Act 1969 as applied by section 37 of the Employment Tribunals Act 1996. This procedure is available where the Employment Appeal Tribunal certifies that the case involves a point of law of general public importance and the conditions for a leapfrog appeal are met.

The conditions include that the point of law is one in respect of which the Employment Appeal Tribunal is bound by a decision of the Court of Appeal or the Supreme Court, and that sufficient grounds exist for departing from the binding authority. In practice, the leapfrog procedure is rarely used because the conditions are stringent and the Court of Appeal's involvement is usually considered beneficial in developing the law.

Employment Cases in the Supreme Court

The Supreme Court has considered a number of significant employment law cases that have shaped the legal landscape. Examples include: R (UNISON) v Lord Chancellor [2017] UKSC 51, which struck down Employment Tribunal and Employment Appeal Tribunal fees; Uber BV v Aslam [2021] UKSC 5, which concerned worker status; and Efobi v Royal Mail Group Ltd [2021] ICR 1263, which clarified the burden of proof in discrimination cases under section 136 of the Equality Act 2010.

These cases illustrate the type of issue that attracts the Supreme Court's attention: fundamental questions about access to justice, the scope of employment protection, and the correct interpretation of key statutory provisions. The Supreme Court does not typically grant permission in cases that raise narrow or fact-specific issues.

The Role of Supreme Court Decisions

Supreme Court decisions are binding on all courts and tribunals below, including the Employment Appeal Tribunal, the Court of Appeal, and the Employment Tribunal. A Supreme Court decision that overturns a Court of Appeal authority changes the law for all future cases. This is the principal significance of a Supreme Court appeal: it settles the law authoritatively on the point in question.

For this reason, Supreme Court appeals are sometimes supported or opposed by third-party interveners, including government departments, trade unions, employer organisations, and equality bodies. The broader significance of the case attracts interest beyond the immediate parties.

Common Errors and Misconceptions

The most common misconception is that any case can reach the Supreme Court if pursued with sufficient determination. This is not the case. The Supreme Court grants permission in only a small number of cases, and the vast majority of employment disputes are resolved long before the Supreme Court stage. The Supreme Court selects cases for their legal significance, not for the strength of the parties' grievances.

Another error is to assume that a further appeal will correct what the party perceives as an injustice in the individual case. The Supreme Court's role is to develop the law, not to correct individual errors. A case that was correctly decided on its facts but which raises no point of general importance will not attract the Supreme Court's attention.

Some parties pursue appeals through multiple levels in the hope that a higher court will eventually agree with them. This incremental approach is extremely costly and is rarely justified unless a genuine point of law of general public importance has been identified. The costs of Supreme Court proceedings are substantial, and the risk of an adverse costs order is significant.

A further misconception is that the Supreme Court will reconsider the facts. Like the Employment Appeal Tribunal and the Court of Appeal, the Supreme Court's jurisdiction is confined to questions of law. It does not hear evidence, make its own findings of fact, or reassess the credibility of witnesses. The Employment Tribunal's findings of fact are, for all practical purposes, final.

Practical Application

The decision to seek permission to appeal to the Supreme Court should be made only after careful consideration of whether the case raises a point of law of genuine general public importance. The fact that the party disagrees with the Court of Appeal's decision, or that the financial stakes are high, is not sufficient. The point of law must be one that requires authoritative clarification by the highest court.

The costs of Supreme Court proceedings are significantly greater than at any lower level. Both sides typically instruct leading counsel, and the preparation involves extensive skeleton arguments, bundles of authorities, and oral hearings that may last several days. The costs exposure for an unsuccessful party is substantial.

Where the case raises a point of genuine importance, the party should consider whether to seek third-party support. Equality bodies, trade unions, and professional organisations may have an interest in the outcome and may be willing to intervene or provide funding. The Equality and Human Rights Commission, for example, has intervened in a number of Supreme Court employment cases.

The prospects of a Supreme Court appeal should be assessed by counsel with experience at that level. The Supreme Court Bar is a specialist practice, and the advice of counsel who regularly appears before the Supreme Court is invaluable in assessing whether the case is likely to attract permission.

Process and Timing

Permission to appeal to the Supreme Court may be sought from the Court of Appeal or from the Supreme Court itself. The application must be made within 42 days of the Court of Appeal's order (or within 28 days of the Court of Appeal's refusal of permission, if permission is sought from the Supreme Court directly). The application is supported by a written statement of the facts and issues, a succinct statement of the reasons why permission should be granted, and the relevant documents.

If permission is granted, the appeal is listed for an oral hearing before a panel of five Justices. The hearing involves detailed oral argument and the court may reserve judgment. Reserved judgments are typically handed down within several months of the hearing.

The total timeline from the Employment Tribunal's original decision to the Supreme Court's judgment can be several years. This extended timeline should be factored into the decision on whether to pursue the case to the highest level.

When to Seek Specialist Counsel

A Supreme Court appeal requires the highest level of legal expertise. Specialist counsel with experience of Supreme Court practice is essential. The legal argument must be of the highest quality, the point of law must be precisely articulated, and the broader implications of the case must be clearly presented.

A specialist can assess whether the case raises a point of law of genuine general public importance, whether the Court of Appeal's decision is arguably wrong, and whether the Supreme Court is likely to grant permission. This assessment prevents the waste of significant resources on an application that has no realistic prospect of success.

Frequently Asked Questions