Appealing to the Employment Appeal Tribunal

Employment tribunals hear evidence from both sides and then make their decision as to the facts of the case. It is almost impossible to overturn a tribunal’s decision as to the facts. Appeals are available to the Employment Appeal Tribunal (EAT), but only on questions of law not fact, unless the tribunal’s decision can be said to be “perverse”, i.e. that no reasonable tribunal could have reached the conclusion that it did, based on the evidence that it heard.

The main reason why it is so hard to challenge tribunals’ conclusions as to the facts of the case is that tribunals listen to the witnesses giving evidence and hear that evidence being tested through cross-examination. By contrast, appeal courts do not conduct a rehearing of the facts. This means that they do not hear witnesses, so they do not get to assess first hand whether a witness is telling the truth.

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.

Appeals 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 it is received (Gdynia American Shipping Lines v Chelminski [2004] IRLR 725). This is a strict deadline. Extensions are exceptionally rare (see, for example, O’Cathail v Transport for London [2012] EWCA Civ 1004).

EAT procedure is governed by the Employment Appeal Tribunal Procedure Practice Direction 2013, published in July 2013 and the Employment Appeal Tribunal Rules 1993, as amended by the Employment Appeal Tribunal (Amendment) Rules 2013.

The EAT can order costs (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.

Since 29 July 2013, there are fees for an appeal to the EAT — an issue fee of £400 and a full hearing fee of £1,200.