Weekly dilemma: Appealing a tribunal decision

My company recently lost a tribunal claim. The result doesn’t seem fair. Can we appeal the decision, and, if so, how do we go about it?

It’s one thing to receive a judgment against you but wholly another to feel that justice has not been done. You can appeal to the Employment Appeal Tribunal (EAT), but time is tight, so you need to begin now. You only have 42 days from the date of the order or decision of the tribunal, or from the date on which the written reasons for the judgment were sent to the parties. This deadline is applied strictly.

When you lodge your notice of appeal at the EAT, you must attach copies of the claim and response forms and a copy of the judgment, decision or order against which you are appealing, plus the tribunal’s full written reasons for making it (or an explanation for the absence of reasons). If these documents are not attached, the notice of appeal will not be validly lodged and will be rejected by the EAT.

An appeal from a tribunal can only be made on a “question of law.” Generally, you can’t argue that the tribunal misunderstood or misapplied the facts. It is important that you understand the difference between what is a question of law and what is a question of fact. To appeal on an error of law, you must be able to show that the tribunal:

  • either misdirected itself on the law, misapplied the law or misunderstood the law applicable to the proceedings before it;
  • failed to give adequate reasons for its decision;
  • breached the rules of natural justice; or
  • delayed excessively in giving its decision.

The only circumstances in which facts can be challenged are where you can argue that the tribunal’s treatment of the facts amounted to an error of law, where:

  • there was no evidence to support a particular finding of fact by the tribunal;
  • the tribunal’s decision was perverse; or
  • the tribunal exercised its discretion wrongly.

Once a notice of appeal is received at the EAT, and has been checked and accepted, it will be put through the EAT’s “sift”. The sift gives directions for case management and deals with cases quickly and in the most effective way. Each respondent to the appeal is notified and must lodge a respondent’s answer within 14 days of the sealed date of the EAT’s order that serves the appeal.

Hearings of the EAT at which any proceedings are finally disposed of generally take place in public, and judgments are either delivered on the day of the hearing or are reserved and handed down later.

If the EAT dismisses your appeal, this has the effect of confirming the tribunal’s decision. However, if the EAT allows your appeal, it may substitute its own decision, remit the case to the employment tribunal or judge from whom the appeal was brought, or remit the case to a differently constituted tribunal. Good luck!

Kim Abbott, solicitor, Weightmans LLP

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