News from the EAT

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.