Tagged: appeal

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Preparing to return to the tribunal

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.

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Late claim for unfair dismissal

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

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The one (maybe two) sentence rule

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.

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Mushett v London Borough of Hounslow

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

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EAT: withdrawing concessions and arguing new points

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.

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‘Tagging’ the bundle

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.

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Reviews, appeals and interest

Except in discrimination cases, interest on tribunal awards runs from 42 days after the decision is made. ((In discrimination cases interest runs from the moment of the discriminatory act.)) 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.