Tagged: appeal

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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.

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Do I feel lucky? Well, do ya, punk?

As previously noted it is vital that appeals to the EAT are lodged on time and properly constituted (legal jargon for having all the necessary documents present and correct).

An easy way of getting this wrong is to miss pages out of a document accidentally. A document with a missing page is incomplete and will make the appeal invalid until the omission is fixed. If this happens after the deadline the appeal will be out of time.

There are any number of ways of accidentally missing out a document. Photocopiers are often to blame, particularly those with automated feeder trays that can all too easily swallow two pages instead of one. Sometimes the problem is a mistaken attempt at brevity – leaving out a blank page on the basis that it is unnecessary.

To labour the point: when filing a notice of appeal it is important to be very careful that all the required documents are included and complete. And it is sensible to do this at least a week in advance of the deadline, so you have time to correct any mistake that slips through.

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Notification of an appeal

If an appeal is made to the EAT, they will notify the other side. This, however, is likely to take a little time, because the appeal will have to be processed by the staff there.

It is common to send a copy of their appeal to the other side at the same time at lodging it with the EAT. There is no requirement to do this, but it’s normally a good idea, since scrupulous good manners do no harm.

There are, however, circumstances when you might want to hold off. For example, if there is a chance that the Respondent will pay an existing award before learning of your appeal to increase it, but will become reluctant once they realise that an appeal is being made, you might want to put off the point at which they will learn of it. This is a tad ruthless, but perfectly within the rules.

The flip side of this is that, if you’re making decisions post-tribunal, you shouldn’t assume that the other side hasn’t appealed, just from their silence. If its important to you, ring the EAT who will be able to tell you whether an appeal has been received.

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New evidence after tribunal

Sometimes, after the tribunal hearing, you learn of something that, if you’d know about it at the time, you would have wanted to present to the tribunal. The fresh evidence might be a document, an expert’s report or a new witness.

If you won without the evidence, this won’t matter. But if you lost all or part of your case, you are likely to want to do something to change the judgment.

To use new evidence to challenge a tribunal decision, you will need to show that it satisfies the test set out in Ladd v Marshall. This is that:

  1. The new evidence could not have been obtained with reasonable diligence for use at the original hearing,
  2. The new evidence would probably have an important influence on the result of the case, and
  3. The new evidence must be apparently credible, though it need not be incontrovertible.

This is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

But if you decide that the new evidence does pass the test, what are the mechanics of getting it considered – do you appeal, or ask for a review?

In the recent case of Adegbuji v Meteor Parking Ltd, the Employment Appeal Tribunal has said that the appropriate course is to apply for review, and that the EAT may not have the jurisdiction to deal with new evidence appeals.

These are two slightly different points. The President of the EAT, Underhill J, says review is more sensible than appeal, because the tribunal is best placed to decide how significant new evidence is and whether it is credible. So parties should apply for a review, and any appeal based on the same point, will normally be stayed until the review is completed.

This reasoning is hard to argue with, and since the President is in charge of the EAT, his approach is likely to be followed. In general, therefore, new evidence challenges should be made by review, rather than appeal.

There is probably no advantage, in these circumstances in applying for both a review and an appeal. In theory, this might give you two attempts at the issue, once on review, and then again on appeal if the review is rejected. But in practice, the EAT is unlikely hear an appeal when the same issues have already been dealt with on review. They would only do so if the tribunal had made an error of law during the review – but in that case the review decision itself can be appealed, so you can safely wait until you have that decision before deciding whether or not to appeal.

But there could be circumstances in which you’d want to appeal instead. For example, if you are appealing on a number of other grounds as well, it may seem more sensible to appeal, and have the whole case dealt with by the EAT – rather than applying for an appeal and a review. Generally I suspect that this approach is unlikely to find favour with the EAT, but it might work in the right case.

But the second point is that the President suggests that the EAT may not be able to deal with new evidence cases at all. The EAT’s powers to deal with appeals is set out at s21 of the Employment Tribunals Act 1996. This says that ‘An appeal lies to the Appeal Tribunal on any question of law arising from any decision of … an employment tribunal’. In Adegbuji, the President expresses doubt that new evidence can amount to a ‘question of law.’ If he’s right, then the EAT cannot deal with such points at all.

Adegbuji does not resolve this point, so at the moment there is no binding authority to prevent you arguing that ‘a question of law’ can cover an appeal on the basis of new evidence and the EAT has jurisdiction. There are a few problems with this: how can new evidence have anything to do with questions of law and how can the tribunal err in law, if it has decided the case correctly on the information available to it? Nonetheless, the issue is not clear cut and arguments could certainly be made the other way.

The key point is that it would be most unwise to rely solely on an appeal. If the EAT lacks jurisdiction, your appeal would be dismissed. By the time that this had happened the time-limit for review would have long passed. While new evidence is often a good reason for extending time – after all, if the evidence is genuinely new, how could you have applied earlier? – this justification falls away once you have the evidence. If you could apply to appeal, the tribunal may say, why could you not apply for a review?

The safest thing to do, therefore, is to apply for a review and an appeal, but ask for the review to be stayed pending the outcome of the appeal. Do not be surprised, however, if the tribunal and EAT prefer for the review to be dealt with first, regardless of your wishes.

Adegbuji v Meteor Parking Ltd

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Slingsby v Griffith Smith Solicitors

The EAT has concluded that the strict time-limits on starting an appeal apply equally to cross-appeals.

This provides an excellent opportunity to reiterate that the EAT’s approach to time-limits in relation to appeals is rigourous and that anyone who wants to appeal must make sure that they meet them. Trying to get an appeal in late is extremely difficult, verging on impossible.

This advise now applies equally to cross-appeals. If you are late, you are likely to be in the frustrating position of watching the other side’s appeal proceed, while yours is knocked out before it gets off the ground.

Slingsby v Griffith Smith Solicitors

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Woodhouse School v Webster

The Court of Appeal has issued a sharp reminder of the limits of the Burns / Barke procedure.

The Burns / Barke processes (named from the cases of Burns v. Royal Mail Group plc and Barke v. SEETEC Business Technology Centre Ltd) is the system by which the Employment Appeal Tribunal may ask an Employment Tribunal questions to clarifying their reasoning.

The Court of Appeal makes two points.

Firstly, it is important for the EAT to focus its questions and clearly identify where the ET’s reasoning may be inadequate. It is not appropriate to ask a general question or to ask the ET to supplement its decision if it has already adequately explained its reasoning.

Secondly, the ET must be careful to limit itself to answering the questions asked by the EAT. It must be careful not to act as an advocate for its own decision. In this case, the ET provided notes of evidence and commented directly on the notice of appeal. This, the Court of Appeal, concluded went beyond the scope of the Burns / Barke process.

What does this mean for those appearing in the EAT when are Burns / Barke procedure is followed?

At the point at which questions are being formulated it is appropriate to make submissions on the wording of the question. This should, as the Court of Appeal says, narrowly worded and focused on the ET’s reasoning.

If the ET does go beyond the scope of the Burns / Barke rule, you should make submissions that this additional material cannot be used to correct a flawed decision. The purpose of the Burns / Barke process is to allow the tribunal to clarify their existing decision; not to allow them to write a new one.

Woodhouse School v Webster

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Tombstone Ltd v Raja & Heals

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.

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Haritaki v South East England Development Agency

This is case about a notice to appeal that was rejected on the sift. The appellant then applied for an oral hearing, where the appeal was again rejected.

The facts and issues in this case are of limited general interest, but the judgment is significant because it sets out how the EAT Judges see the application to appeal process.

The EAT sets out the appeal process in detail, but briefly:

An appellant has a right of appeal to the EAT. Unlike the Court of Appeal, it is not necessary to apply for permission to appeal. If a properly constituted appeal is received within the 42 days time limit it is then put through “the sift”. This means that a Judge considers the papers and decides whether the appeal contains reasonable ground for bringing the appeal. If he decides it does, it will be listed for a full hearing. If not it will be notified that their appeal contains no arguable point.

At that point the litigant has three options: they may accept that decision by doing nothing; they may put in a new notice of appeal, or they may apply for an oral hearing. These oral hearings are often called 3(10) hearings, by reference to the relevant part of the EAT rules.

This judgment makes a number of points:

  • An oral hearing is a fresh consideration of the appeal. It is not an appeal from the original decision on paper. This means in practice, it is fruitless to criticise the approach take by the first judge. The point is to show that the appeal has merit in and of itself.
  • The choice between serving a new notice of appeal and requesting an oral hearing is not mutually exclusive. You may put in a new notice and have that considered. If it is rejected, you may then apply for an oral hearing.
  • You cannot, however, submit a third notice of appeal if the second is rejected.
  • Where a new notice of appeal is lodged it will normally be considered by the same judge who ruled on the initial appeal.
  • Where there is an oral hearing it will normally be heard by a different judge.
  • The 42 days time limit is a long and generous one. This is something that seems self-evident to Judges, but not necessarily to litigants. This is because Judges are aware of other similar time limits, which are much shorter.

Judge McMullen also indulges in a brief rant against the use of latin. He notes that:

Lord Woolf directed lawyers and judges to avoid Latin. … Latin should not be used in court unless English is deficient, because it creates distance and mystery to non-lawyers.

This is sound advice (especially if you are appearing before Judge McMullen). This case is a good example of the potential pitfalls, since the EAT found that the appellant had a. chosen the wrong Latin maxim to express his complaint and b. spelt it wrong. These problems are much easier to avoid if you stick to English.

Haritaki v South England Development Agency

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Less is more

It is a good general rule (probably in life, but certainly in litigation) to make your best points and then stop. It will be very rare indeed that there are more than half a dozen or so really good points in any case. Good points get rarer on appeal: if you find yourself drafting a notice of appeal that runs to more than 4 or 5 separate grounds, the chances are that your appeal is a weak one.

There are exceptions of course. Occasionally there is an employment tribunal decision so bad that there is an almost infinite number of ways of describing what’s wrong with it. If you’re faced with one of those, your task is quite hard: drafting grounds of appeal will feel a bit like performing an autopsy on a frog that’s been through a liquidiser. It’s clearly not a functioning frog any more – it’s frog puree – but how to put a finger on what precisely is wrong with it? But even in that kind of case, you will do better to make your 3 or 4 best points – you only need to win the case once, after all.