Employment Appeal Tribunal: Appealing Employment Tribunal Decisions

Unhappy with an employment tribunal decision? You may be able to appeal to the Employment Appeal Tribunal (EAT). Here's what you need to know.

What Is the EAT?

Role

The Employment Appeal Tribunal:

• Hears appeals from employment tribunals
• Only deals with points of law
• Doesn't rehear evidence
• Can confirm, vary, or overturn decisions
• Can remit cases back to tribunal

Location

• Sits in London (main) and Edinburgh
• Most hearings now remote or hybrid
• Some cases determined on paper

Judges

Presided over by:

• High Court judge (or equivalent)
• Sometimes with lay members
• Some cases heard by judge alone

Grounds for Appeal

Must Be Point of Law

You can only appeal if the tribunal:

1. Made an error of law
2. Acted unfairly procedurally
3. Made a perverse decision
4. Gave inadequate reasons

Cannot appeal because:

• You disagree with factual findings
• You think decision was unfair
• New evidence has emerged

Error of Law

Tribunal misunderstood or misapplied legal principles:

• Wrong legal test applied
• Misinterpreted statute
• Failed to follow binding authority
• Wrong burden of proof applied

Procedural Unfairness

Tribunal conducted hearing unfairly:

• Didn't allow you to present case
• Bias or appearance of bias
• Ignored relevant evidence
• Considered irrelevant matters
• Didn't give adequate opportunity to respond

Perversity

Decision no reasonable tribunal could reach:

• Very high threshold
• Rarely succeeds
• Not just "wrong" but "overwhelmingly wrong"
• Facts don't support conclusion

Inadequate Reasons

Judgment doesn't explain:

• Findings on disputed facts
• Legal principles applied
• How conclusion was reached
• Why certain evidence preferred

Time Limits

42 Days

Appeal must be lodged within 42 days of the date:

• Written judgment sent to parties
• Check the date on the judgment

Strict Deadline

The EAT is very strict:

• Extensions rarely granted
• Need exceptional circumstances
• Apply for extension before deadline if possible

Calculating the Deadline

• Start from date judgment sent (not received)
• Count 42 calendar days
• If deadline falls on weekend/bank holiday, next working day

The Appeal Process

Step 1: Notice of Appeal

Submit to EAT:

• Form 1 (Notice of Appeal)
• Copy of tribunal judgment
• Copy of written reasons
• Any relevant orders

Step 2: Sift

EAT judge reviews on paper:

• Full hearing: Arguable grounds proceed
• Preliminary hearing: Borderline cases
• No further action: No arguable point of law

Step 3: If Ruled Out at Sift

Can request:

• Oral hearing before judge
• "Rule 3(10) hearing"
• Last chance to persuade

Step 4: If Proceeds

• Directions issued
• Exchange skeleton arguments
• Bundle prepared
• Full hearing scheduled

Step 5: Full Hearing

• Both parties present arguments
• EAT may ask questions
• Usually half day to full day
• Judgment (sometimes reserved)

Preparing Your Appeal

Identify the Error

Be specific about:

• What the error was
• Where in the judgment
• What law was misapplied
• How it affected outcome

Draft Grounds of Appeal

Structure clearly:

• Each ground separately
• Reference to judgment paragraphs
• Relevant legal authorities
• Explain why it's an error of law

Common Mistakes

Avoid:

• Repeating original arguments
• Attacking factual findings
• Emotional language
• Kitchen-sink approach (too many grounds)

Better:

• Focused legal arguments
• Clear identification of errors
• Supported by authority
• Explain impact on outcome

Skeleton Arguments

What to Include

• Summary of case
• Issues on appeal
• Chronology of relevant events
• Detailed legal argument
• Authorities relied upon
• Conclusion sought

Length

• Typically 10-25 pages
• Concise and focused
• EAT discourages excessive length

When Due

• Usually 14 days before hearing
• Check EAT directions

The Hearing

Format

• Usually 2-3 hours
• Judge may have read papers
• Appellant presents first
• Respondent replies
• Questions from judge
• Appellant may briefly reply

What to Expect

Judge may:

• Indicate preliminary views
• Ask pointed questions
• Focus on key issues
• Give judgment immediately or reserve

Representation

Can be:

• Self-represented (litigant in person)
• Solicitor
• Barrister
• Trade union representative
• Employment consultant

Consider: EAT is technical - legal representation often advisable.

Possible Outcomes

Appeal Allowed

EAT agrees there was error of law.

Then may:

• Substitute decision: EAT makes own decision
• Remit to tribunal: Send back for rehearing (same or different tribunal)

Appeal Dismissed

EAT finds no error of law:

• Original decision stands
• May appeal to Court of Appeal

Partly Allowed

Some grounds succeed, others fail:

• Partial remission
• Varied judgment

Costs

General Rule

EAT doesn't usually award costs.

When Costs Awarded

May order costs if:

• Unreasonable conduct
• Case hopeless from start
• Frivolous appeal
• Non-compliance with orders

Amounts

• Can be substantial
• Usually assessed or agreed
• Consider costs risk before appealing

Cross-Appeals

What Is a Cross-Appeal?

If other side appeals, you can cross-appeal on different grounds.

Purpose

Challenge parts of judgment you lost on, in case main appeal succeeds.

Timing

Must be lodged within:

• 42 days of judgment, OR
• 28 days of receiving Notice of Appeal (whichever later)

After the EAT

Further Appeal

From EAT to Court of Appeal:

• Need permission
• Apply to EAT first
• Then to Court of Appeal if refused
• Only if important point of law or compelling reason

Court of Appeal Process

• More formal
• Higher costs
• Longer timeframes
• Legal representation expected

Practical Considerations

Should You Appeal?

Consider:

• Is there genuine point of law?
• What are chances of success?
• Cost of appeal
• Time and stress
• Potential outcome if successful

Costs-Benefit Analysis

Even if successful:

• May be remitted for rehearing
• Could lose again on facts
• Prolonged uncertainty
• Ongoing legal costs

Settlement

Often sensible to:

• Negotiate during appeal
• Agree compromise
• Avoid further litigation costs

Checklist

Before Appealing

• Identify specific error of law
• Check 42-day deadline
• Obtain judgment and reasons
• Consider legal advice
• Assess chances realistically
• Consider costs risk

Submitting Appeal

• Complete Form 1 correctly
• Attach all required documents
• Clear grounds of appeal
• Submit within deadline
• Keep copy of everything
• Note submission date

Preparing for Hearing

• Skeleton argument on time
• Bundle agreed
• Authorities gathered
• Presentation prepared
• Logistics sorted (travel, tech)