Changing decisions

There are basically 3 ways of getting an employment tribunal decision changed. Which one applies depends partly on what kind of decision you want to change, and partly on what you say is wrong with it.

Ask it to think again

The tribunal has broad powers to make such case management decisions as it thinks fit, and that includes the power to change or revoke previous decisions: see rule 10(2)(n) of the ET procedure rules. So if there’s something the tribunal’s done that you don’t like, the simplest course will often just be to write a letter explaining why, and asking it to think again. (See glossary for the meaning of case management.)

Apply for review

For substantive decisions – that is, decisions that directly affect whether you win or lose the case, like whether your claim was presented in time, whether you were an employee, or whether you were unfairly dismissed, whether your employer discriminated against you – you can apply to the tribunal for a ‘review.’ That is in effect a slightly more formal and restricted way of asking the tribunal to think again. Applications for review are governed by rule 34. Rule 34(1) describes the kinds of decisions that can be reviewed, and rule 34(4) specifies the grounds on which a decision may be reviewed.

[D]ecisions may be reviewed on the following grounds only-
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) 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
(e) the interests of justice require such a review.

Appeal

Both substantive judgments and case management orders can be appealed to the Employment Appeal Tribunal. But the EAT will only hear an appeal ‘on a point of law.’ That means that you will have to show that there’s an error of law in the original decision if you are to succeed. You can succeed on an application for review, or an application to the tribunal to vary or revoke an order under rule 10(2)(n), just by persuading the tribunal to think again – though in the case of a review, only on the stated grounds.

Timing

Often you will want to try asking the tribunal to think again, but appeal if that doesn’t work. In some circumstances, the EAT will even take the view that you ought not to appeal without first trying for a review. If you do this, though, you must be careful not to let the review or rule 10(2)(n) application distract you while your time for appealing slips past. The 6 week time limit for appealing to the EAT is very strictly observed, and ‘I was waiting for the outcome of my review application’ certainly won’t be accepted as an excuse for a late notice of appeal.