Many appeal cases are not finally resolved by Employment Appeal Tribunal. So when running an appeal case, you need to consider the possibility of it returning to the tribunal. Lawyers describe this as a case being remitted.
The best way of deciding whether the EAT will remit a case is to consider what decisions they are in a position to make.
If the only decisions are legal ones, about what the applicable law is, the appeal court will be able to make these decisions and issue a final judgment. If there will be need to be further findings of fact, the EAT is unlikely to be able to reach useful conclusions. They did not hear the original evidence and will generally not hear evidence during the appeal hearing. They are simply not able to make sensible decisions about which witnesses to believe or whose testimony to accept.
If a case is likely to be remitted, it is important to remember that what matters is the final outcome of the case, not just the outcome of the appeal.
This means that some appeals should not be started, even where the tribunal has erred in law, because the chances of victory in the remitted hearing are remote. It is not sensible to go through the stress of continuing the litigation if, after the appeal and a rehearing, you are going to be left exactly where you started.
It also means that you should give some thought to what will happen once you get back to the tribunal. In some cases it will matter very much which ground of appeal you win on, because one ground is more likely to give you victory in the tribunal than another.
You should also consider whether the EAT will send the case back to the same tribunal or to a different one – and what you want them to do. This needs to be done carefully. Appellants will normally want a new tribunal. After all, the old one decided against them. The EAT, on the other hand, will be reluctant to restart a case from scratch without a good reason.
Finally, bear in in mind that a successful appeal is often a decision point on settlement. People often do not want to return to the tribunal. And appeals often clarify the issues to the point that settlement becomes possible. It is worth being ready to respond to an offer from the other side or to make one yourself, once you have the decision.