12. REVIEWS AND APPEALS

Where the tribunal has made a substantive decision (that is a decision which directly affected whether you won or lost the case) you can apply for a review — this is basically an invitation to the tribunal to think again. Under rule 34(1) of Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 a tribunal’s decision can be reviewed where:

• the decision was wrongly made as a result of an administrative error;

• a party did not receive notice of the proceedings leading to the decision;

• the decision was made in the absence of a party;

• new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

• the interests of justice require such a review.

Alternatively, either side can appeal a judgment or case management order to the Employment Appeal Tribunal (EAT), but only if there has been an error of law or the decision was perverse (meaning that no reasonable tribunal could have come to that decision).

If the conduct of the hearing is such that a party was deprived of the right to a fair trial (for example, because the tribunal showed bias or there was an unreasonable delay in coming to its decision), this will amount to an error of law (Bangs v Connex South Eastern [2005] EWCA Civ 14 ([2005] IRLR 389)).

Appeals from employment tribunals go to the EAT in England, Wales and Scotland (which has a separate EAT); in Northern Ireland, appeals from industrial tribunals go to the Court of Appeal.

The appeal must be lodged within 42 days of the tribunal sending out its decision, not the date when you received it (Gdynia American Shipping Lines v Chelminski [2004] EWCA Civ 871 [2004] IRLR 725).

The EAT has discretion to extend the time limit but this is exercised only in rare and exceptional cases (Aziz v Bethnal Green City Challenge [2000] IRLR 111 and O’Cathnail v Transport for London [2012] EWCA Civ 1004). If you have submitted an appeal and not had it acknowledged it is important to check that it has been received. You should contact the EAT office to make sure.

EAT procedure is governed by the Employment Appeal Tribunal Rules 1993 (as amended) and the Employment Appeal Tribunal Practice Direction 2004. It is not the function of the EAT to conduct a re-hearing of the facts. New evidence and new points of law cannot be raised on appeal if they were not raised at the tribunal hearing, unless there are exceptional circumstances.

The EAT can order costs (called expenses in Scotland) against a party if its appeal proceedings were unnecessary, improper, vexatious or misconceived, or if there is unreasonable conduct. It can also order costs for a failure to comply with an order. It is recommended that you get legal advice before contemplating an appeal.

The government is proposing that judges sit alone in the EAT without lay members. Once the Enterprise and Regulatory Reform Bill is enacted, the default position will be that judges sit alone unless they direct lay members to attend.