The President of the EAT has now put out a Practice Statement dealing in a bit more detail with the points made in News From the EAT.

It can be downloaded here.

In my last post, I mentioned that the EAT likes the relevant passages of authorities to be highlighted or sidelined.

Highlighting is fairly obvious. You take a yellow highlighter and highlight the relevant parts of the judgment.

Sidelining is similar. You take a pen and draw a vertical line to the left of the relevant passage. Unless you have a very steady hand, it’s best to use a ruler.

Coincidentally, the quotes on this site are sidelined.

Personally, I prefer sidelining, because I think it looks neater. But this is really a matter of personal preference.

How much to highlight / sideline is a matter of judgment. In general it should be done sparingly. The idea is to mark a few key passages which contain the heart of the judgment, and which you are likely to refer to in the hearing. If you’re highlighting much more than that, you’re probably doing too much.

You should also try to agree the relevant passages with the other side. The normal way of doing this is to send a brief email or note making your suggestions in the form: Jones v Smith — para 8, 9-10 ….

Yesterday, I was at the Employment Appeal Tribunal User Group. The members were asked to pass a couple of messages outwards to the wider community.

Fresh Evidence Appeals

The President Mr Justice Langstaff reiterated the message put out by his predecessor, Mr Justice Underhill, that, in general, challenges by way of fresh evidence should be made by review rather than appeal. Fresh evidence challenges are where new evidence appears after the hearing and you want to say that this means the decision should be changed.

Basically, the EAT’s view is that the tribunals are best placed to decide whether new evidence should be considered and what affect it should have. After all, they are the ones who heard the rest of the evidence and are familiar with the case. Also, appeals on new evidence tend to waste time, since, if they are successful, they have to be sent back down to the tribunal anyway. So it makes more sense to go direct to the tribunal in the first place.

We wrote about this a few years ago in: New evidence after tribunal. The general advice there still holds good (although subsequent cases have concluded that the EAT does have jurisdiction to consider fresh evidence appeals, so that particular hare is no longer running).

Citation of authorities

These points were aimed at professional representatives who have easy access to law reports. If you are a litigant in person, it’s worth complying if you can, but don’t worry if it isn’t practical.

First, in general, lawyers in the EAT should follow the rules set out for the courts. Coincidently, there has just been a new Practice Direction on the Citation of Authorities.

Second, lawyers should use proper reported cases whenever they are available. Photocopies of the hard-copy reports or electronic versions are both fine, provided they contain the full text of the report, with headnote etc.

Third, the authorities bundles should be arranged in chronological order.

Fourth, you should only cite cases which set out a point of legal principle, rather than those that give examples of the principle being applied.

Fifth, the relevant passages of each judgment should be sidelined or highlighted in the bundle.

Six, the EAT appreciates bundles of authorities being provided in binders and with tabs separating them.

I recently had a mildly unsettling experience at the Employment Appeal Tribunal.

When the clerk called me in he mentioned that HHJ McMullen QC followed the old tradition of a relaxed dress code in hearings during August, so if I wanted to take my jacket off I could. (This tradition is new to me, but I assume it stems from the fact that, in The Good Old Days, courts used to shut down in August.)

This might not sound particularly disturbing news, but minutes before a hearing is due to start, it’s the sort of thing that can grab a larger share of your attention than it deserves. “Is it really appropriate to take my jacket off? Will it look too informal? But if I don’t will the Judge think I’m a prat?”

I decided that the room was rather warm; that the clerk was in his shirt-sleeves and that I could hardly get in real trouble for following a suggestion made by the Judge.

So I took my jacket off. The judge was also without a jacket. So far as I can tell, it made no difference whatsoever to the hearing or the result.

The point of this post is two-fold.

First, if you have a hearing in the EAT in August in front of HHJ McMullen, be warned that you too may have to resolve the perplexing jacket dilemma.

Second, I think it’s worth saying that almost everyone suffers these weird social wobbles from time to time. High stress, unfamiliar or hierarchical environments are particularly likely to push us off balance. It almost never matters and other people hardly ever notice – with the clarity of hindsight I can see that HHJ McMullen couldn’t possibly have cared less whether I was wearing a jacket or not.

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.

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.

I posted a few days ago about the benefit of making it easy for people to do things you want them to do. The EAT in one of its standard letters sets a nearly perfect example of how not to make it easy:

Your attention is drawn to Employment Appeal Practice Direction 2008 paragraphs 6, 13 and 14 concerning the filing of bundles, skeleton arguments and authorities for the forthcoming hearing. Failure to file the documents in accordance with the directions may result in you being required to appear before the President or another Judge of the EAT to explain your non compliance.

There are a lot of detailed instructions in the Practice Direction about what has to go in bundles, skeletons and lists of authorities and how they are to be presented, but the important and urgent thing you have to know – so you can put it in your diary – is what the deadlines are for getting these documents in. Clearly the EAT feels quite strongly about parties doing these things at the proper times, or the instructions wouldn’t be backed by such a blood-curdling threat. But it would be much more likely to get what it wanted if its standard letter said instead something like:

Four copies of your agreed bundle of documents for the hearing must be lodged with the EAT by [date]; 4 copies each of the skeleton arguments are due by [date]; and 4 copies of an agreed authorities bundle must be lodged by [date]. You will find detailed instructions about these things at paragraphs 6, 13 and 14 of the Practice Direction (copy enclosed).

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

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

Sometimes neither side is satisfied with the employment tribunal’s decision, and both sides want to appeal. A cross-appeal is basically just an appeal by whichever side puts its appeal in second. As long as you meet the relevant deadlines, there’s no need to race: if both sides are going to appeal anyway, it won’t matter in the slightest who starts the ball rolling.

In some situations you could quite sensibly decide not to appeal, even though you’re not completely happy with the result, but look again at that decision once you see that the other side has appealed. You may feel that now you’re going to have to go through an EAT hearing anyway, you might as well throw your appeal in too.

A cross-appeal can be either ‘conditional’ or ‘unconditional.’ If your appeal simply doesn’t arise unless the other side wins its appeal, it is conditional. If your appeal is still relevant even if the other side loses, it is unconditional.

This will be clearer with a couple of examples:

Example 1: conditional cross-appeal

Suppose your original complaint was of constructive dismissal. You say that your employer committed a fundamental breach of contract by reducing your bonus, and then committed a further fundamental breach in the manner in which it handled your grievance. The tribunal finds that the reduction of your bonus was not a breach of your contract, and anyway that you had delayed too long in resigning in response to that breach; but that the manner in which they handled your grievance about the matter was a fundamental breach, and your resignation in response to that therefore amounted to constructive dismissal.

There’s no reason for you to appeal this decision: you’ve won your case. But the situation changes if your employer appeals, saying that there’s an error of law in the tribunal’s conclusion that the grievance gave rise to a fundamental breach. If they win that and you haven’t challenged the first finding, you will be left with nothing. So once you see your employer’s appeal, you will be looking closely at the conclusion on the bonus reduction to see if you can find grounds to appeal that.

This is a conditional cross-appeal: it’s an argument makes no practical difference to anything unless the respondent wins its appeal.

Example 2: unconditional cross-appeal

Suppose you were dismissed, and you complained that the dismissal was both unfair and an act of race discrimination. The tribunal finds that the dismissal was unfair, but there was no discrimination, and your employer is ordered to pay you a basic award and compensation for your lost earnings. You think the decision on discrimination is wrong and there is a fairly clear error of law in it, but – because your financial loss flowing from the dismissal is less than the maximum award for unfair dismissal – the only difference a finding in your favour on discrimination would make is an award for injury to feelings.

In these circumstances, you might well decide not to appeal: you’ve got most of what you were after, and the additional benefit of an award for injury to feelings is just not worth the hassle (and expense, if you’re paying for representation) of an appeal and maybe a re-hearing.

Again, the situation changes if your employer appeals the unfair dismissal finding: if you think there’s an error of law in the discrimination decision, it’s not going to be much more trouble to put in a cross-appeal and argue that, now you know you’re going to have to defend the unfair dismissal decision in the EAT anyway. Here, even if the employer’s appeal fails, it will still be worth something to you if the EAT upholds your appeal on discrimination and directs a further hearing to assess how much your injury to feelings award should be. So you probably want to make your appeal unconditional.