Appeals from the Employment Tribunal to the Employment Appeal Tribunal (EAT) can only be brought on a point of law. Appeals to the EAT are not for the fainthearted and involve lengthy and complex procedural and administrative steps and a trip to London if the matter comes to a hearing. Notice of an appeal must be received by the EAT within 42 days from the date when written reasons for the ET decision were set to the parties.
What is a “point of law”? This issue has given rise to a mass of decided cases.
The general principles would seem to be as follows:
That the ET misdirected itself in law, misunderstood or misapplied the law; or
The ET misunderstood or misapplied the facts; or
The ET decision was “perverse”, that is, plainly wrong; or
The ET did not follow correct procedure; or
The ET hearing was improperly conducted.
It is fair to say that it is extremely difficult for an unrepresented person to carry out a successful appeal to the EAT.
Time limits for appeal
Haydar v Pennine Acute NHS Trust (2018). H brought proceedings against P. The ET upheld his claim for unfair dismissal, with a 50% deduction for contributory conduct, and dismissed his claims of discrimination. H wished to appeal the judgment.
He had until 27 May 2014 to appeal. He lodged a valid notice of appeal on 12 May 2014 but there was no record of the appeal being received by the EAT, and H received no acknowledgment. Five weeks later H realised he had heard nothing. He telephoned the EAT, and was told they had not received the appeal paperwork. H resent the appeal paperwork, and it arrived on 7 July 2014. This was out of time and H applied for an extension.
This was refused and H appealed to the EAT. The appeal was dismissed and H was referred to a booklet called ‘The Judgment’ available online. This explains the appeal process, and the strict time limits. The booklet states as follows:
‘If you have not received an acknowledgment from the EAT within seven days of posting the notice of appeal, you should contact the EAT to confirm they have received your appeal.’
H appealed to the Court of Appeal. The appeal was dismissed.
H had not sought to obtain a copy of the booklet. He had made several appeals previously to the EAT, and was conversant with the process. The loss of the paperwork was a good reason for an initial delay, but there came a point where the onus was on the litigant to take the initiative and check that the package had been received.