In general, any good ground of appeal is capable of being summarised in a single sentence.

It is useful to do this. It acts as a check that you have identified a proper error of law. With very rare exceptions, errors of law do come down to a simple mistake that can be briefly stated. If you cannot produce a few brief sentences that summarise your complaint then something is wrong. It is likely that either you have not identified a real error of law, or that you have the beginnings of an idea, but have not properly defined the error yet.

A simply stated error of law also assists the appeal court, and increases your chances of success. If the judge can immediately understand what it is you complain of, he will find it much easier to follow your argument.

Some examples, taken from recent EAT cases:

• The tribunal treated a failure to consider reasonable adjustments as a failure to make reasonable adjustments.
• When considering whether it was not reasonably practicable to bring the claim in time, the tribunal failed to take account of what knowledge the claimant would have had if he had made reasonable investigations
• The tribunal failed to make relevant findings of fact to support its conclusion that the claimant was redundant

Of course, all these appeals would need far more explanation and justification to succeed, but the starting point is a single sentence summarising the point of appeal.

Mushett v London Borough of Hounslow gives valuable guidance on when the EAT will extend the deadline for lodging an appeal.

The EAT laid out a series of principles that it would apply. In summary these are:

• It is in the parties and the publics interest that the result of litigation should final and certain. This means that the approach to time limits should be stricter on appeal that at first instance.
• An extension of time will only be granted if the EAT is satisfied that there is a full honest and acceptable explanation for the delay
• The 42 day time limit will only be relaxed in rare and exceptional cases. There is no excuse, even for an unrepresented party, for ignorance of the time limit
• The EAT will consider the length of the delay and be aware of the possibility of procedural abuse or intentional default
• The EAT will look at the whole period during which the appeal could have been lodged. This means that time will not be automatically extended if the appellant can show that it was impossible to present the appeal during the last week. The EAT might conclude that the appeal should have been presented during the first five weeks of the period. The decision will depend on the facts of each case.

The judgment also sets out the facts of the joined cases. It is worth noting that three of the four appeals were rejected. This underlines the key point to take from this case: make absolutely certain that any appeal is lodged well within time. The EAT’s approach to the deadline to appeal is strict and it will normally be impossible to persuade them to allow a late appeal.

Even if you are encountering problems, for example, in formulating the legal argument or obtaining legal advice, it is much better to put in a mediocre appeal, than to risk missing the deadline. It will be easier to improve a rushed appeal – even to the extent of putting in new grounds – than it would be to get permission for a late appeal.

One final note, always remember that an appeal has only been validly lodged if it contains all the documents required by s3 Employment Appeal Rules. The easiest way to make sure of this is to use the appeal form provided by the EAT, which contains a checklist of the required documents. An appeal without the correct documents attached will not be valid and, unless the mistake can be corrected within the normal time limit, will be considered late.

Mushett v London Borough of Hounslow

In Secretary of State for Health & ors v Rance & ors [2007] IRLR 665, HHJ McMullen reviews the authorities on when the EAT will be prepared to entertain a new point of law or permit a concession to be withdrawn, and sets out at paragraph 50 of his judgment the principles that he draws from them, as well as finding 3 new relevant factors in Rance itself.

Unfortunately, there is no attempt in the judgment to reconcile the sometimes contradictory principles listed. The true rule would still seem to be that the EAT will allow new points of law to be argued if it feels like it.

Occasionally, it will be useful to know whether the tribunal were taken to a particular document in the bundle. This may become important if, on appeal or review, there is doubt about whether evidence was put before them.

It is worth developing a habit of putting a cross in the top right-hand corner of every document the tribunal is referred to. That way, you can easily record what has been placed in evidence.

In some cases, more advanced systems may be useful. If it is important to make sure that certain witnesses are all taken through certain documents, you might mark each document with the witness’s initials as you cross-examine on it.

Except in discrimination cases, interest on tribunal awards runs from 42 days after the decision is made.¹ Sometimes, however, the award is altered after the decision is made, following a review or appeal.

In that case, for the purposes of calculating interest the date of the decision remains the date that the original date was made.

Note, however, that this only applies where a sum of money was awarded in the first instance.

Andrew wins his deduction from wages claim on 14th May 2007 and is awarded £5,000. He disputes the calculation. At a review hearing on the 6th August he succeeds in obtaining a judgment for £5,500. Interest is calculated from 25th June, 42 days after the original decision on 14th May.

Barbara also has a deduction from wages claim on the 14th May, but she is unsuccessful. She appeals and on 2nd July the EAT awards her £10,000. Interest will not begin to run until 13th August; 42 days after the decision on appeal.

1. In discrimination cases interest runs from the moment of the discriminatory act.