Tagged: EAT

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Cross-appeals and conditional cross-appeals

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.

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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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Exchanging skeletons

If both parties are going to give the tribunal a skeleton argument or written submissions, the usual thing is to exchange them simultaneously. The idea is that neither side gets to write their document having the unfair advantage of a preview of their opponent’s. This is broadly sensible and fair, but not something to get desperately worked up about: after all, you’re probably going to get the chance to say your piece orally anyway, and if not, you can always send in a supplementary document if you think there’s material in the other side’s that you haven’t dealt with and you must answer.

One exception to the usual rule is if there is an appeal to the EAT and a cross-appeal (see glossary), and a preliminary hearing at which the EAT proposes to decide whether either the appeal or the cross-appeal should have a full hearing. In that situation, strictly speaking you’re only there (whether you’re the original appellant, or the respondent to the appeal who is also cross-appealing) to argue that your own appeal merits a full hearing. So don’t be astonished if your opponent refuses to exchange skeletons with you: they may say you’re not entitled to it, because you’re not there to argue about their appeal at all, only your own.

This is probably technically right, if a bit arsey, so there’s not much point jumping up and down about it if is the line your opponent insists on taking. But the more sensible and co-operative course is to exchange skeletons so that if the judge wants to ask you about your opponent’s appeal (or vice versa), you have some idea what you’re talking about.

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New EAT Practice Direction

The EAT has produced a new practice direction. This replaces the previous (2004) practice direction from the 22nd May 2008.

There is no radical change. Cases before the EAT will be dealt with in substantially the same way as before. But it is important to be aware of the changes, particularly those relating to time-limits.

As well as minor alterations of wording and cross-references, the following changes have been made:

3.7. Applications to extend time

Jurkowska v HI Mad [2008] EWCA Civ 321 has added to the list of cases that the EAT will have regard to when considering an application to extend time.

6.1. Retention of hearing papers

The EAT will not retain bundles used at one hearing for later use. This expands on the previous rule that the EAT would not retain bundles used at a preliminary hearing for a full hearing.

6.6. Deadlines for bundles

The time-limit for providing hearing bundles for full-hearings has been reduced from 35 days from the seal date of the order to 28 days.

9.18. Case Categories

The EAT separates cases into groups according to their complexity and legal importance. The four categories have been reduced to three.

P: Cases that should be heard in the President’s list.
A: Complex cases or those raising legal points of public importance.
B: Any other cases.

There was previously a category C, which appears to have been subsumed by B.

9.21. Fast Track Cases

Category B cases that should take 2 hours or less are now eligible to be assigned to the Fast Track. This reflects the removal of category C.

13.9.2. Deadlines for skeleton arguments

Skeletons arguments for full-hearings must now be provided 14 days before the hearing, down from 21 days.

14.6. Copies of authorities

Authorities in preliminary hearings; appeals against orders by the Registrar and 3(10) hearings must be provided at least 10 days before the hearing. Previously these could be provided on the day of the hearing.

18.1. Costs Applications

The rule that, if judgment was reserved, a party wishing to make an application for costs should inform the EAT 48 hours before judgment being handed down has been removed.

This has left the proper timing of such an application rather obscure. Rule 18 refers to rule 19, which refers back to rule 18.3, which doesn’t deal with time limits.

Guidance is given elsewhere. s34(4) of the Employment Appeal Tribunal Rules 1993 requires that applications for costs be made within 14 days of the order determining the appeal being sent to the parties.

The more sensible course, however, will generally be to make the application in advance as before. As well as eliminating the time-limit issue, this will avoid delay, since a judge will be available then to hear it when the judgment is handed down.

The exception to this rule is when you want to see the judgment before deciding whether to apply for costs. For example, if your application will be on the basis that the other-side’s appeal was misconceived it will be fruitless if the judgment begins “This was a difficult case, with strong arguments being made by both sides.”

20.1. Applications for review

The 14 day time-limit on applying for a review, previously found only in the rules, is now explicitly stated in the practice direction.

21.1. Appeals from the EAT

Permission to appeal to the Court of Appeal should now be sought from the EAT within 7 days of their judgment or from the Court of Appeal itself within 21 days.

This has the effect of shorting the time to apply to the EAT while increasing the time to apply to the Court of Appeal. Previously the time-limit for both was 14 days. This brings the practice direction into line with the Civil Procedure Rules..

22. Conciliation

A new section on conciliation has been added, requiring the parties to consider conciliation by ACAS if directed to do so by a judge and to report on the steps taken to achieve conciliation.

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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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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.