Employment Appeals Tribunal — overview

The Employment Appeal Tribunal exists and derives its substantive powers from statute. It is a superior court of record and therefore of equivalent status to the High Court.

The EAT's central office is in London. Generally, hearings take place in London and Edinburgh.

Types of appeal

There are a few types of case where claims are made directly to the EAT but, in the vast majority of cases, the EAT is an appeal tribunal. Most appeals to the EAT are from decisions of employment tribunals, although some appeals are from decisions of the Central Arbitration Committee or the Certification Officer.

Generally, the EAT will only entertain an appeal on a point of law rather than an issue of fact. A point of law is where:

• the employment tribunal misdirected itself in law, or

• there was no evidence to support a particular finding of fact made by the tribunal, or

• the tribunal's decision was perverse in some other way

The scope for successfully appealing an employment tribunal's judgment is very limited. Appeals challenging a tribunal's findings of fact very rarely succeed.

Time limits

The time limit for serving a Notice of Appeal is:

• 42 days from the date on which the written reasons were sent to the parties, where written reasons were requested or reserved

• 42 days from the date on which the written record of the judgment was sent to the parties, where written reasons were not requested or reserved

The day of the event triggering the start of the 42 day period does not count as part of the period. The time limit expires at 4pm at the end of the period: the whole of the Notice of Appeal and accompanying documentation must be received by the EAT by that time. Thus, a fax transmission that starts before 4pm on the last day but finishes after 4pm will not comply with the time limit.

The EAT may grant an extension of time but the time limits are strictly enforced and an extension will ordinarily only be granted if the appellant is able to show a good reason for the delay.

Making an appeal

An appeal to the EAT is begun by serving a Notice of Appeal on the EAT. The Notice of Appeal must:

• be in, or substantially in, accordance with one of a number of specified forms

• clearly identify the points of law which form the grounds of appeal

• state the order which the appellant wishes the EAT to make

• be served with certain documents, such as the original claim and response and the tribunal's judgment and reasons

Preliminary sift and track allocation

When a Notice of Appeal is received by the EAT, it is subject to a preliminary stage referred to as a 'sift'. The preliminary sift is performed by a judge or the Registrar; its aim is to determine how the appeal may most effectively be managed and to allocate the appeal to one of four tracks:

• cases in which Rule 3(7) of the EAT Rules applies — generally, no further action would be taken in relation to the appeal (ie where the appeal discloses no reasonable grounds for bringing the appeal or is an abuse of process or otherwise likely to obstruct the just disposal of the proceedings)

• cases in which a preliminary hearing is appropriate — a preliminary hearing would be held to determine whether the appeal should be allowed to proceed to a full hearing and, if a case is allocated to this track, directions would be given

• cases which should proceed directly to a full hearing — directions would usually be given at the same time as track allocation to progress the appeal to a full hearing

• no further action would be taken in relation to the appeal — normally cases proceed to a full hearing in the order they are received by the EAT but appeals are expedited (eg where the outcome of the appeal will affect other pending applications to the employment tribunal or the EAT or the civil courts)

Responding to an appeal

After a decision has been made to permit an appeal to go forward to a full hearing (whether at the preliminary sift stage or at a preliminary hearing), the EAT will send the Notice of Appeal to all parties who are respondents to the appeal.

Within 14 days of the seal date of the order (unless otherwise directed), respondents must lodge an Answer at the EAT and serve it on the other parties. The respondent's Answer must be in, or substantially in, accordance with a specified form and must contain the grounds on which the respondent relies.

If a respondent wishes to cross-appeal, it must include the grounds of the cross-appeal in the Answer which must be served, together with written submissions, within 14 days of service of the Notice of Appeal. The cross-appeal will then be subject to the preliminary sift and track allocation process as outlined above.

Case management

The EAT may give directions to any party as to any steps to be taken by him in relation to an appeal. The EAT's power to make directions is wide. Directions may be made either on application by one of the parties or of the EAT's own motion. They may be made at any stage of the proceedings, even before the Notice of Appeal has been registered.

Case management directions are usually given by the EAT at the preliminary sift and track allocation stage. Any application for further case management directions is usually dealt with on paper by a judge, or by the Registrar with a right of appeal to a judge. Where appropriate (either on application or of its own motion), the EAT may hold a hearing for directions.

Typical case management directions include directions about:

• amending any Notice of Appeal, respondent's Answer or other document

• reference of matters back to the employment tribunal for further clarification and/or amplification

• admitting facts or documents

• admitting into evidence any documents

• the mode in which evidence is to be given at the hearing of the appeal

• consolidation of the appeal with any other pending appeals

• production of the notes of evidence of the Employment Judge of the employment tribunal

• witness orders

• restricted reporting orders

• the place and date of the appeal hearing

A special procedure applies where allegations are raised of bias or misconduct on the part of the employment tribunal.

Preparing for the main hearing

Most appeal hearings are given a fixed date by the EAT Listing Officer. However, some cases may be entered on a 'Warned List', which normally contains short cases or expedited cases and is intended to allow them to be heard sooner than would otherwise be possible.

The parties are responsible for producing a core bundle of documents in advance of the main hearing of an appeal. Certain specified documents are required to be included in the bundle, which must be itemised, paginated and indexed in a prescribed manner. The core bundle must be limited to 100 pages unless permission for a larger bundle has been obtained.

The parties must also prepare skeleton arguments in advance of the main hearing which are intended to set out, in a clear but concise way, the points of law relied on and the legal arguments to be advanced. The appellant should also prepare a chronology of relevant events which should be agreed with the respondent(s), if possible.

The parties must also provide the EAT with copies of any authorities on which they intend to rely.

The times at which the various steps outlined above are to take place may be set out in the directions given by the EAT. If not, the default time limits are set out in the EAT Practice Direction 2008.

The EAT will not normally allow new points or fresh evidence to be raised (ie those either abandoned or never raised in the employment tribunal).

Procedure at the main hearing

A party may represent himself at an EAT hearing or may be represented by any other person of his choosing (whether or not a lawyer).

The main hearing of an appeal is usually held in public before a division of the EAT consisting of three members: a judge and two lay members. One lay member is selected from the employers' panel and the other from the workers' panel. In certain circumstances, however, the hearing may be in private and/or may be heard by a judge and one member, or a judge alone.

The EAT will usually have read the documents in the core bundle (or, at least, those on any essential reading list) and the parties' skeleton arguments before any hearing. The hearing itself usually consists solely of legal argument, with the appellant making submissions first.

Judgment may be given orally at the end of the hearing or may be reserved to be handed down at a later date.

Settlement, withdrawal and consent orders

Where an appellant wishes to abandon or withdraw an appeal, perhaps following a settlement, he must notify the EAT and all other parties as soon as possible, and write to the EAT asking for permission to withdraw the appeal and for a consent order to be made.

If any of the other parties does not agree to the proposed order, it should inform the EAT. Outstanding issue may be dealt with on paper, or the EAT may fix an oral hearing.

Where the parties agree to allow the appeal, the appeal will usually need to go before a judge to decide whether the consent order proposed by the parties should be made. This process can sometimes be done on paper, but may require a hearing.

Where applications to withdraw an appeal are made shortly before the main hearing, the EAT may require the appellant to attend to explain the reasons.

Orders on outcome of an appeal

Where a case proceeds to a main hearing, the EAT may (as appropriate, depending on the specific facts and issues in each case):

• dismiss the appeal

• allow the appeal and remit the case either to the same employment tribunal or a fresh tribunal

• allow the appeal and substitute a different decision

Costs

As in the employment tribunal, an award of costs is not made as a matter of course in favour of the successful party. Costs awards are very much the exception rather than the rule. However, the EAT does have power to make awards of costs where:

• any proceedings brought were unnecessary, improper, vexatious or misconceived

• there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings

The EAT also has power to make wasted costs orders and to make awards of costs in favour of litigants in person.

A party is entitled to make an application for costs at any time during the appeal proceedings or in writing to the Registrar within 14 days of the date on which the EAT order finally disposing of the appeal was sent to the parties.

The Practice Direction states that costs applications must be made either during or at the end of a relevant hearing, or in writing to the Registrar within 14 days of the seal date of the relevant order of the EAT, or in the case of a reserved judgment, on the occasion when the judgment is handed down.

Interest

Where the amount of any monetary award is varied on appeal by the EAT, the varied amount is subject to interest as from 42 days after the date of the original employment tribunal judgment. The rate is that which applied at that time under the Judgments Act 1838. The current rate is 8%.

Enforcement of awards

Any judgment or award of the EAT on an appeal has the same effect, and may be enforced in the same manner, as a judgment or award of the employment tribunal from whom the appeal was brought.

Review of EAT decisions

The EAT may, either on application or of its own motion, review any order made by it although the circumstances are rare in which this power may validly be invoked. An application for a review must be made within 14 days of the date of the order to be reviewed. On such a review, the EAT may revoke or vary an order on the grounds that:

• the order was wrongly made as the result of an error on the part of the EAT or its staff, or

• a party did not receive proper notice of the proceedings that led to the order, or

• the interests of justice require such a review

Appeals to the Court of Appeal

Any further appeal from the EAT is to the Court of Appeal, and may only be made:

• on a point of law, and

• with permission either from the EAT or the Court of Appeal

Any application for permission to appeal should be made to the EAT at the hearing or, where judgment is reserved, when judgment is handed down. If an application for permission is not made then, or is made but refused, an application must be made to the Court of Appeal within 21 days of the date of the sealed EAT order (unless the EAT orders otherwise).