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.