Employment Tribunal Appeal

Caragh Bailey
07/12/2020
Employment Tribunal Appeal advice from Employment Law Friend

It can be difficult to lose your tribunal case, especially if it has been a long and expensive journey to get this far. You may be able to ask the tribunal to reconsider their judgement, or you can ask for an employment tribunal appeal. However, this must be with good reason, not simply because you are unhappy that you have lost.
In this article we'll explain what you can do next, and when you can do it. As well as giving a few examples of employment appeal tribunal decisions.

What happens if you lose an employment tribunal?

If you have received an unsatisfactory outcome at the employment tribunal, you may be able to ask the tribunal to reconsider the judgement. You must have a good reason for them to do so. For example, you missed the hearing, or have new evidence.
If you have lost fair and square you may be asked to repay your employer's costs.

Write to the employment tribunal office that dealt with your case within 14 days of receiving their decision, explaining your reasons for requesting that they reconsider.

Can an employment tribunal decision be appealed?

Very few cases are subject to appeal, and of those which can be appealed, very few cases win. If you have a legal representative, they will be able to advise you on whether it is wise, or possible, to appeal. For an employment tribunal appeal to be heard, there must be a problem with a point of law, for example:

  • The tribunal got the law wrong
  • The tribunal applied the law incorrectly
  • The tribunal applied the wrong law for the case
  • The tribunals decision was the result of their failure to follow correct procedure
  • The tribunal arrived at it's decision without evidence
  • The tribunal was unfairly biased towards the other party

Employment Tribunal Appeal: How to


Time Limits
You must appeal within 42 days of the decision.

    1
    If the employment tribunal did not send you the reasons for their decision, ask for them now. You have 42 days to appeal once you receive them.
    3
    Fill in the notice of appeal form and send it to the employment appeal tribunal office with any supporting documents. It must arrive by 4pm on the last day of the 42 day limit.

If you send your appeal by email it must be no larger than 10MB

In England and Wales:
In Scotland:
londoneat@justice.gov.uk
Employment Appeal Tribunal (EAT)
5th Floor
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
edinburgheat@justice.gov.uk
Employment Appeal Tribunal (EAT)
George House
126 George Street
Edinburgh
EH2 4HH

What is EAT tribunal?

EAT stands for Employment Appeal Tribunal. It is similar to the employment tribunal but they specifically hear legal appeals against the decision of the employment tribunal.

The employment appeal tribunal decides whether your appeal can go ahead.

If not: They will write to you explaining why, and whether you can appeal further.

Going To Employment Tribunal Appeal

If your appeal can go ahead: You may be asked to attend a hearing, where you will be asked to present your case. The respondent will present theirs and the tribunal may ask either, or both of you, questions about the dispute.

You will be given at least 14 days notice, except for in exceptional circumstances.
(You'll be told what documents to provide to EAT and to the other party)

It may be advisable to hire a legal representative to make your case in your employment tribunal appeal, as winning at EAT often relies on a specialist knowledge of employment law. Click here to read about the services we offer.

You will receive the decision either at your employment tribunal appeal hearing, or in writing shortly afterwards.

What happens if you lose your appeal?

If you lose your employment tribunal appeal, you must accept the decision of the EAT. However, if you believe there was a legal problem with the EAT's decision, you can appeal to the higher court. You must ask permission first, from the EAT or from the higher court directly, giving your grounds for appeal and the legal problem with the current decision.

EAT
You must ask for permission to appeal to the higher court within seven days of finding out that you've lost your employment tribunal appeal.
Or; within 42 days if the decision you are appealing was made in Scotland.

If the EAT refuse you permission, you can ask the higher court instead.

Higher Court (Court of Appeal)
You must ask for permission to appeal to the higher court within 21 days of finding out that you've lost your employment tribunal appeal.
Or; Within 21 days of being refused permission by the EAT.
If the decision was made in Scotland, ask the Court of Session for permission.

Once you have received permission to appeal, you can use these click through links to appeal to the Court of Appeal, or to the Court of Session in Scotland.

Employment Appeal Tribunal Decisions
Ms. Kaler brought a claim of automatically unfair dismissal for whistleblowing, disability discrimination and breach of contract to the employment tribunal. The employment tribunal decided, against the claimants wishes, that it would deal with the question of disability first. Ms. Kaler was waiting for a diagnoses of autism, and had been told that she would not need medical evidence as neither party had legal representation. The employment tribunal found that she had not met the definition of disability. Ms. Kaler requested that the hearing on the other issues was postponed. The employment tribunal granted this.

Ms. Kaler appealed to the employment appeal tribunal relying on new evidence in the form of a clinical psychologist's report which confirmed that Ms. Kaler had since been diagnosed with Autism Spectrum Disorder. The EAT concluded that Ms. Kaler did meet the definition of disability.

Read the notes from the case: September 2020: Ms. Kaler v Insights ESC LTD.
Mrs. Cole brought a claim to the employment tribunal of direct discrimination and harassment. The employment judge refused to hear her complaint because she had reached a settlement agreement with the respondent through Acas Early Conciliation, for which a COT3 was presented. Mrs. Cole claimed that the respondent had misinformed and misled her, making her COT3 invalid. This allegation relied on evidence of without prejudice communications. The employment judge ruled that the employment tribunal had no jurisdiction to go beneath the COT3 or to consider the without prejudice communications.

Mrs. Cole appealed to the employment tribunal appeal on the following grounds:
  • The employment judge erred in the law by deciding that the COT3 was valid. The respondent's misrepresentations make the COT3 invalid
  • The employment judge erred in the law by failing to grant Mrs. Cole's request that he look at the without prejudice material before deciding whether the COT3 was valid
  • Mrs. Cole had asked the employment tribunal to give full written reasons for their decision. Initially the employment judge provided insubstantial reasons. After an order from the EAT the judge provided full written reasons over a year after the initial hearing, which have several faults, and were suspected to have been reconstructed after the fact. The written reasons are impermissible and unsafe due to delay
The employment appeal tribunal found that the law required that the without prejudice material be considered. They concluded that the respondent was indeed guilty of misrepresentation. The case was handed back to the employment tribunal to be reheard, with new evidence. The EAT required that the hearing be resided over by a different judge to the original hearing.

Read the notes from the case: November 2020: Mrs. Cole v Elders' Voice

Would you like legal support with your employment tribunal appeal?
Contesting finer points of employment law isn't easy. Get in contact with us for a free case review and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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