Errors of law – a bestiary

If you want to appeal an employment tribunal’s decision to the Employment Appeal Tribunal, you need to identify one or more errors of law in the first instance decision. If the tribunal misunderstood the facts or believed the wrong witnesses, that’s disappointing and frustrating – but it’s not an error of law. The EAT rejects lots of appeals at an early stage because they don’t raise a complaint about an error of law.

This means it’s worth making it really clear in your notice of appeal what kind(s) of error of law you’re alleging. There aren’t that many different kinds – so if you can’t identify each thing you say is wrong with the ET’s decision as one  the following short list of types, it’s probably not an error of law you’re looking at.

Here’s the list:

• application of the wrong legal test
• inadequate reasons
• no evidence
• perversity
• bias/ apparent bias

Wrong legal test

This is when the ET has misunderstood the legislation or the case-law. So, for example, if they’ve said in an unfair dismissal case ‘having found that the Claimant was guilty of gross misconduct, we have no option but to uphold the dismissal as fair’ – that would be wrong, because the ET’s job is to decide whether the employer acted fairly in dismissing, not whether it thinks the employee was guilty of gross misconduct.

Inadequate reasons

In Meek v Birminingham District Council [1987] IRLR 25o (one of the EAT’s familiar authorities), the Court said that an ET judgment:

must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost.

If you say it doesn’t, that’s an allegation of a failure to give adequate reasons; it might be referred to as a ‘Meek’ appeal.

No evidence

If you say that the ET made a significant finding of fact for which there was no evidence at all, your ground of appeal falls under this heading.

So, for example: you lost your race discrimination complaint that you were passed over for promotion to Assistant Manager in favour of a white colleague, and the tribunal finds that the successful candidate got the job because he had acted up to the position of Assistant Manager for 6 months before the job was advertised, and you had only been a Team Leader. This is a finding for which there was no evidence: in fact – as your employer’s witness statements had made clear – the successful candidate had been acting up to a Team Leader post for 6 months before his promotion. In contrast, you had already been a substantive Team Leader for 2 years.

Bias/ appearance of bias

If you’re saying that you didn’t get a fair hearing because the ET was against you from the start – or took against you for some arbitrary reason – that’s a bias appeal. If you’re saying that even if the tribunal wasn’t actually biased against you, there were grounds on which you could reasonably fear that it might be – suppose, for example, the EJ was your employer’s father-in-law, or one of the wing members was a shareholder – then your error of law is apparent bias.

Perversity

A decision is ‘perverse’ so as to involve an error of law if the tribunal has reached a decision that no reasonable tribunal, on a proper appreciation of the evidence and the law, could have reached. It is difficult to formulate with any clarity what that means: the various expressions that have been used in the cases were collected by Mummery LJ Stewart v Cleveland Guest (Engineering) Ltd

”This Tribunal should only interfere with the decision of the [employment] tribunal where the conclusion of that tribunal on the evidence before it is “irrational”, “offends reason”, “is certainly wrong” or “is very clearly wrong” or “must be wrong” or “is plainly wrong” or “is not a permissible option” or “is fundamentally wrong” or “is outrageous” or “makes absolutely no sense” or “flies in the face of properly informed logic”.”

The trouble with all these expressions is that parties who have lost very often think the decision against them ‘irrational’ or ‘offends reason,’ etc. The appellate courts have emphasised again and again that perversity appeals should only succeed where an ‘overwhelming case’ is made out.

Why not label?

You may want to explain your grounds of appeal in several paragraphs each, but you should be able to start by setting out each alleged error of law in a single sentence. So for instance, your grounds might start:

The tribunal erred in law in that:
(1) It wrongly treated a finding of gross misconduct as necessarily leading to a finding of fair dismissal.
(2) The employment judge is a shareholder in the Respondent’s parent company.
(3) It failed to reach any finding on the key factual issue of whether the Respondent’s dismissal letter was written before the beginning of the disciplinary hearing.

Those grounds are pretty clearly expressed. But why not make it as easy as possible for the EAT to understand your appeal at a glance? So I suggest that this would be even better:

The tribunal erred in law in that:
(1) It wrongly treated a finding of gross misconduct as necessarily leading to a finding of fair dismissal (wrong legal test).
(2) The employment judge is a shareholder in the Respondent’s parent company (apparent bias).
(3) It failed to reach any finding on the key factual issue of whether the Respondent’s dismissal letter was written before the beginning of the disciplinary hearing (inadequate reasons).

Finally, a note of caution: bias and perversity appeals are notoriously difficult to win. If you want to challenge the ET’s decision, you have a much better chance if you can put forward grounds of appeal of one of the first 3 kinds.