![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201705.jpg)
Appealing to the Employment Appeal Tribunal
[ch 13: pages 507-508]Appeals are from the employment tribunal to the Employment Appeal Tribunal (EAT).
As explained above, employment tribunals hear witness evidence from both sides and then make their decision. They decide what happened i.e. they make a ruling as to the facts of the case. It is almost impossible to overturn a tribunal’s decision as to what happened in any particular case. Only questions of law can be appealed, not questions of fact. The only exception is where a tribunal’s ruling as to the facts is “perverse” , in other words where it is so obviously wrong that no reasonable tribunal could have reached that conclusion after hearing the same evidence. Appeals on this basis rarely succeed.
The reason why it is so hard to challenge tribunals’ conclusions as to the facts of a case is that tribunals listen to the witnesses giving their evidence and being tested through cross-examination. Appeal courts do not hear the witnesses give their evidence, so they are not able to assess first-hand whether a witness is telling the truth.
For the same reason, new evidence and new points of law cannot be raised on appeal if they were not raised at the tribunal hearing, except in 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.
Any 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.
Great care must be taken to ensure that the appeal court rules are followed scrupulously. Breaking the rules can have very serious consequences. Here is a recent example:
A claimant’s adviser broke the court rules on electronic service by sending the court a hyperlink to their client’s appeal documents in a “Dropbox” file. But the EAT rules of procedure state that providing a hyperlink is not valid service. All documents lodged electronically with the EAT must be sent as attachments to emails. Since there was no time to correct the mistake, the claimant lost her chance to appeal.
Majekodunmi v City Facilities Management UK Limited [2016] UKEATPA/0157/15/DA
EAT procedure is governed by the Employment Appeal Tribunal Procedure Practice Direction 2013 and the Employment Appeal Tribunal Rules 1993, 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. Anyone contemplating an appeal to the EAT should get legal advice as soon as possible.
There are fees for an appeal to the EAT — an issue fee of £400 and a full hearing fee of £1,200.