The EAT has produced a new practice direction. This replaces the previous (2004) practice direction from the 22nd May 2008.

There is no radical change. Cases before the EAT will be dealt with in substantially the same way as before. But it is important to be aware of the changes, particularly those relating to time-limits.

As well as minor alterations of wording and cross-references, the following changes have been made:

3.7. Applications to extend time

Jurkowska v HI Mad [2008] EWCA Civ 321 has added to the list of cases that the EAT will have regard to when considering an application to extend time.

6.1. Retention of hearing papers

The EAT will not retain bundles used at one hearing for later use. This expands on the previous rule that the EAT would not retain bundles used at a preliminary hearing for a full hearing.

6.6. Deadlines for bundles

The time-limit for providing hearing bundles for full-hearings has been reduced from 35 days from the seal date of the order to 28 days.

9.18. Case Categories

The EAT separates cases into groups according to their complexity and legal importance. The four categories have been reduced to three.

P: Cases that should be heard in the President’s list.
A: Complex cases or those raising legal points of public importance.
B: Any other cases.

There was previously a category C, which appears to have been subsumed by B.

9.21. Fast Track Cases

Category B cases that should take 2 hours or less are now eligible to be assigned to the Fast Track. This reflects the removal of category C.

13.9.2. Deadlines for skeleton arguments

Skeletons arguments for full-hearings must now be provided 14 days before the hearing, down from 21 days.

14.6. Copies of authorities

Authorities in preliminary hearings; appeals against orders by the Registrar and 3(10) hearings must be provided at least 10 days before the hearing. Previously these could be provided on the day of the hearing.

18.1. Costs Applications

The rule that, if judgment was reserved, a party wishing to make an application for costs should inform the EAT 48 hours before judgment being handed down has been removed.

This has left the proper timing of such an application rather obscure. Rule 18 refers to rule 19, which refers back to rule 18.3, which doesn’t deal with time limits.

Guidance is given elsewhere. s34(4) of the Employment Appeal Tribunal Rules 1993 requires that applications for costs be made within 14 days of the order determining the appeal being sent to the parties.

The more sensible course, however, will generally be to make the application in advance as before. As well as eliminating the time-limit issue, this will avoid delay, since a judge will be available then to hear it when the judgment is handed down.

The exception to this rule is when you want to see the judgment before deciding whether to apply for costs. For example, if your application will be on the basis that the other-side’s appeal was misconceived it will be fruitless if the judgment begins “This was a difficult case, with strong arguments being made by both sides.”

20.1. Applications for review

The 14 day time-limit on applying for a review, previously found only in the rules, is now explicitly stated in the practice direction.

21.1. Appeals from the EAT

Permission to appeal to the Court of Appeal should now be sought from the EAT within 7 days of their judgment or from the Court of Appeal itself within 21 days.

This has the effect of shorting the time to apply to the EAT while increasing the time to apply to the Court of Appeal. Previously the time-limit for both was 14 days. This brings the practice direction into line with the Civil Procedure Rules..

22. Conciliation

A new section on conciliation has been added, requiring the parties to consider conciliation by ACAS if directed to do so by a judge and to report on the steps taken to achieve conciliation.

Or more specifically, what you ask for.

A previous post advised that a request for reinstatement or re-engagement can be a powerful negotiating lever, because as a rule employers really hate the idea of taking a dismissed employee back. This is true, but you do also need to have thought through the possible consequences if your former does offer to re-employ you.

Obviously if this is what you really wanted, that’s fine. But if you were bluffing in the hope that an application for re-employment would scare your former employer into increasing its settlement offer, and the truth is you can’t think of anything you’d hate worse than going back to work for them, you’ve painted yourself into a bit of a corner. If you change your mind now and say ‘on second thoughts I just want compensation,’ your employer will point out that it was open to you to mitigate your loss 100% from whenever they offered you your job back, and the likelihood is that you won’t get a penny in compensation for future loss.

If you want the other side to do something (e.g. disclose some documents to you), always see if they will do it voluntarily before you apply for a tribunal order requiring them to do it. The reason for this is that it gives you two bites at the cherry. Sometimes respondents will disclose documents on request that the tribunal wouldn’t order them to disclose – if you go straight to the tribunal to ask for an order, you miss the opportunity to benefit from this. One thing is certain: once the tribunal has refused you an order, they won’t say ‘Oh well, we’re feeling generous – have it anyway.’

Don’t skip the first stage just because time is short. If there isn’t time to give them a reasonable period to comply before you apply for an order, ask them to let you know by return whether they are willing to comply so that you can make your application promptly if they are not. If you don’t get an answer, you can always ring them up and ask them what they plan to do. If they say they haven’t decided yet, then you may have to say something to the effect ‘In that case I’ll have to ask the tribunal for an order now because time is short, but of course if you comply with my request meanwhile I will withdraw the application.’

This is a particular instance of the more general rule that – whatever you’re after – it’s better try charm first, and resort to aggression or compulsion, if appropriate, only after charm has failed. You can’t credibly backtrack from aggression to charm, but you can always escalate from charm to aggression if you have to.

If you are bringing a claim against your employer for dismissing you, you will almost certainly be claiming compensation for lost earnings. Sometimes this will be very small – for example if you managed to find a better-paid job only a few weeks after you were dismissed. But sometimes there will be good reason to think that you have lost more than that. You may even think that the dismissal has done permanent damage to your career. You should tell the tribunal about the whole of your future loss: for more detail on this, see Push your luck.

Mothers of young children will often suffer the greatest losses. If you have lost a responsible and demanding job soon after having your first child, you may have real difficulty getting or keeping another job at the same level. This is because it is one thing winning the respect of an employer in a pressured environment as a single twenty-something who is able to work all hours, go drinking with colleagues in the evening, and be back at your desk at 7.30 am the next day. It is quite another pulling off the same trick through morning sickness, ante-natal appointments, maternity leave, unreliable child-minders, school hours, homework, childhood illnesses, and general parental knackeredness. If you have lost your job at this critical time of your life, you may find that you have been pushed onto a ‘mummy track’ that can affect the rest of your career.

The same may be true, of course (barring morning sickness), if you are the father of a young child – if you really do act, when push comes to shove, as if your child is as much your responsibility as its mother’s.

Compare two contrasting approaches to a practical request:

(1) Why do you never pay any attention to anyone’s needs but your own? I’m sitting here watching the scum form on my tea while you spread marmalade all over the paper – which by the way it doesn’t seem to have occurred to you that anyone else might ever want to read – and shovel toast into your face and the milk’s sitting by your elbow but you can’t be bothered to wonder if I might need it, oh no, number 1 has been taken care of and that’s all that matters isn’t it? Really you are the most selfish person I have ever met!

(2) Could you pass me the milk, please?

Obviously, (2) is much more likely to get you the milk than (1), because in (1) your immediate practical need is largely drowned out by a lot of noise about your larger dissatisfaction with the behaviour of your spouse or house-mate.

Much the same goes for letters and requests to the other side or the tribunal in the course of litigation: just saying simply and civilly what you want them to do and why is much more effective than launching into a long tirade about the respondent’s shortcomings. The latter introduces ‘noise’ into your correspondence that will tend to obscure what you are really trying to communicate and make it less likely that you get what you’re after. It also wastes everyone’s time and energy.

Long letters from the other side are a pretty reliable sign that they are making this mistake: it is rare that there is any practical need to write a letter in the course of litigation that extends beyond about a page and a half.

Don’t be drawn in. If you get a long quarrelsome letter from the other side, pick up a highlighter and highlight those bits that actually ask you to do something. Decide whether or not you are prepared to do whatever you are being asked to do, and write a short letter back telling them that, and explaining briefly why.

Ignore the rest of the letter.

See also I don’t object!