Posted on 9th September 2015

If you have had a case heard by an employment tribunal and are unhappy with the outcome, then you may want to appeal (to the Employment Appeal Tribunal (EAT), your complaint may be about the result (whether you have won or lost) or it may be about only a particular aspect of the decision (the amount of any compensation awarded). However, whatever the reasoning behind your sense of grievance, you need to be able to show that the Tribunal has committed an error of law or has acted perversely.

You may feel that you were treated badly by the judge (or the members) in the way that you (or your witnesses) were spoken to during the course of the hearing, you may also feel that the tribunal adopted a preference for the other side’s evidence or that the tribunal started to hear the case with a pre-determined view- generally, these feelings, whilst being subjectively reasonable will not enable you to start an appeal.

Furthermore, if the challenge is based on what you believe to be the obviously unreasonable basis for the (perverse) decision then there is a very high legal hurdle that needs to be overcome. Legitimate challenges based upon the misapplication of statutory provisions (the legal parameters which Parliament has imposed) are probably easier scented out by lawyers so it is sensible to take advice at an early stage- you may find the language of the decision difficult to follow and as judgments are prone to being heavy in factual detail, the obvious basis of the appeal can be difficult to see.

There are a number of obstacles, which might prevent the non lawyer from launching a successful appeal (not least the fact that there is no automatic right of appeal) and whilst the rules which relate to appeals before the EAT are set out in a Practice Direction which is publicly accessible  (the  Practice Direction (Employment Appeal Tribunal – Procedure) 2013), there is quite a lot of detail to be absorbed; even something as apparently straight forward as time limits has the capacity to cause confusion (and to lose an appeal before it has started).

The legal arguments which are relied upon need to be set out succinctly and must identify the point of law which is in play. The importance of the Notice of Appeal should not be understated-  on purely reading this document (at a sift) the EAT can decide that there is no merit in the appeal but the rejection at this stage can be challenged orally (Rule 3(10).

There is the possibility of the need to have a preliminary hearing where only the party appealing attends but where the other party makes written representations. There may also be the need to ask for the judge’s written notes of the employment tribunal hearing  or to argue that some new evidence should be allowed to be heard. In short, getting to a final hearing can be a lengthy and procedurally complicated process and competent advice may represent money well spent, in deciding how best to proceed.

Although the risks of a costs award being made (by the EAT) is not significant, it may not be easy to see when a case is (legally) hopeless- this is when it is useful to have your case considered independently.

Employment judges can and do get things wrong and that is why a statutory appeal process has been developed but the reality is that, most often, employment judges get it right and given that the cost of appeal can run in to tens of thousands of pounds, an assessment of the chances of success made at an early stage is sensible.

The numbers can be said to speak for themselves,  in 2013/2014, there were 1,721 appeals lodged and of those less than one fifth were successful to some degree.

It is a significant decision to decide to appeal and this decision has to be taken quickly (within 42 days of the date on which the judgment is sent to the parties) and it is wise, therefore, not to delay before taking advice; this need not be costly, some lawyers will act pro bono or offer to work for a  fixed fee and there are advice centres run by lawyers who are still in training, in addition to the excellent service offered by some Citizen Advice Bureaux.

Whilst there is no single piece of advice which will ensure success in an appeal before the EAT if you do nothing at all, then just remember to lodge your notice of appeal in time.

Written by Nigel Brockley, Employment Barrister at No5 Chambers.

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