Practice Direction (Employment Appeal Tribunal: Procedure)

Contents

1. Introduction

2. Deciding whether to appeal a decision of an employment tribunal

3. Submitting an appeal against a decision of an employment tribunal

4. The “sift”

5. Rule 3(10) hearings

6. Preliminary hearings

7. Applications, case management and directions

8. Specific types of applications and directions

9. Responding to an appeal and submitting a cross-appeal

10. Replying to a cross-appeal

11. Full hearings

12. Costs (expenses in Scotland)

13. Appeals from the EAT

14. National security

15. Other appeals to the EAT

16. Applications that are made direct to the EAT

Annex 1—Form for application for a rule 3(10) or rule 6(16) hearing

Annex 2—Form for application for direction or order

1.1.1 The Employment Appeal Tribunal (“EAT”) decides appeals from decisions of employment tribunals sitting in England, Wales and Scotland.

1.1.2 Special rules apply to national security appeals: see section 14.

1.1.3 The EAT has some other functions: see sections 15 and 16.

1.2.1 This practice direction applies to all appeals commenced on or after 1 February 2025; and to appeals commenced before that date for steps that take place on or after it. This practice direction applies to England, Wales and Scotland. It amends and replaces Practice Direction (Employment Appeal Tribunal: Procedure)[2023] ICR1322.

1.3.1 This practice direction explains the procedures of the EAT. It sets out procedural requirements with which parties are expected to comply. In order to assist parties, including litigants in person, the practice direction is intended to deal comprehensively with essential procedural requirements.

1.3.2 The EAT is established by the Employment Tribunals Act 1996 (“ETA”) and operates under the Employment Appeal Tribunal Rules 1993 (“EAT Rules”). If any conflict should arise between the ETA and/or EAT Rules and this practice direction the ETA and/or EAT Rules take precedence.

1.3.3 The EAT may have regard to the Civil Procedure Rules, which apply to civil proceedings in England and Wales, and to the Rules of the Court of Session, which apply in Scotland, where appropriate.

1.3.4 Further guidance is provided in other practice directions and guidance available on the EAT section of the Courts and Tribunals Judiciary website.

1.3.5 A judge or registrar may make an order that varies the usual procedures in this practice direction where appropriate for a particular appeal.

1.4.1If you are thinking about submitting an appeal to the EAT you must read and carefully consider sections 1 to 3 before doing so. If you represent a person who is considering appealing to the EAT you should ensure that your client does so.

1.4.2 If you submit or respond to an appeal you must read and comply with the sections of this practice direction relevant to each step you take. You must also comply with the overriding objective and communicate with the EAT and any other party or parties in a respectful and appropriate manner.

1.4.3 This practice direction applies to all parties (including litigants in person) and representatives in EAT appeals.

1.5.1 Most decisions of the EAT are made by the judges of the EAT (together with members of the EAT where a panel makes the decision).

1.5.2 The most senior judge of the EAT is the President. The other judges of the EAT are High Court judges, judges of the Court of Session, deputy judges of the High Court, senior circuit judges, circuit judges, other visiting judges and certain retired judges. A list of current judges is available on the EAT section of the Courts and Tribunals Judiciary website.

1.5.3 All of the judges of the EAT make independent judicial decisions. If you do not like a decision made by one judge you are not entitled to have the decision made again by a different judge. For example, you do not have the right to ask for a decision to be referred to the President. If you think a judge has made an error of law you may consider seeking permission to appeal to the Court of Appeal (or Court of Session in Scotland).

1.5.4 Some decisions are made by the registrar, or a person authorised to act on behalf of the registrar. An appeal against a decision of the registrar may be made to a judge within five working days of the date when the registrar’s decision was sent to the parties. The way you calculate the time limit is set out at section 3.4. Please use the form at Annex 2.

1.6.1 The role of the EAT is to deal with appeals justly. This is called the overriding objective. Dealing with an appeal justly includes, so far as is practicable:

a. ensuring that the parties are on an equal footing (have a fair chance to bring or respond to an appeal)

b. dealing with the appeal in ways which are proportionate to the importance and complexity of the issues

c. ensuring that the appeal is dealt with expeditiously (reasonably quickly) and fairly

d. saving expense

e. giving a fair share of the EAT’s resources to each appeal, while taking into account the need to provide resources for other appeals

f. enforcing compliance with the EAT Rules, practice direction, orders and case management directions.

1.6.2 The EAT will apply the overriding objective when it interprets any rule and/or exercises its powers.

1.6.3 The overriding objective also applies to parties and their representatives. This means that you must co-operate with the other party or parties to the appeal and with the EAT to ensure that the overriding objective is achieved. You must communicate with the other party or parties to the appeal and the EAT in a respectful and appropriate manner. It should be remembered that if the interests of justice so require, a party’s appeal or response may be struck out.

1.7.1 Some people who bring or resist appeals in the EAT do so without legal representation. They are called litigants in person (England and Wales) or party litigants (Scotland) (for convenience, the term “litigants in person” is generally used in this practice direction). The judges of the EAT are used to dealing with appeals brought, or resisted, by litigants in person.

1.7.2 The judge will use plain language wherever possible and will explain the procedure of the EAT. If you do not understand something, please ask. The judge will take account of the challenges that face a litigant in person. However, the judge must act fairly to all parties to an appeal and cannot act as a legal or tactical advisor to a litigant in person. If the judge cannot answer a question because doing so would involve offering legal or tactical advice the judge will say so.

1.7.3 A party to the appeal may be represented by a lawyer. The lawyer should also use plain language. The lawyer can explain the procedure of the EAT. The lawyer may ask to discuss things with you when preparing for a hearing and before going in front of a judge. The lawyer may try to clarify and narrow the issues in the appeal.

1.7.4 Remember that a lawyer has a professional duty to their own client. They are obliged to present their client’s case and to follow their client’s instructions.

1.7.5 Remember also that the EAT is required to ensure that every case receives its fair share of resources; it has to ensure that other appeals receive their fair share.

1.8.1 If you are a litigant in person you are expected to co-operate with the EAT and the other party or parties to the appeal. This practice direction applies to litigants in person as well as to parties who have legal representation.

1.8.2 Bringing or defending an appeal can be stressful, but that is not an excuse for failing to co-operate with the other party or parties to the appeal.

1.9.1 The majority of parties in the EAT communicate with each other and the EAT in a respectful and appropriate manner. Unfortunately, a minority do not, and in some cases have engaged in highly offensive and abusive communication.

1.9.2 Offensive and abusive communication is not acceptable, however strongly a party feels about the appeal. If you engage in abusive communication:

a. your appeal or response could be struck out, or other proportionate action could be taken

b. if you communicate inappropriately in a telephone call a member of the EAT staff may terminate the call and require you to raise any further matters in written correspondence

c. if you engage in excessive or abusive e-mail correspondence, you could be told that you can only correspond with the EAT by post and that EAT staff will no longer open or read your e-mails, but will file or delete them.

1.10.1 The EAT encourages alternative dispute resolution. You should consider the possibility of resolving your dispute before continuing with litigation. The registrar or a judge may order the parties to consider alternative dispute resolution and to report on the steps taken to seek a settlement (without saying what you have been discussing). You may be able to obtain assistance from an Acas officer.

2.1.1 Employment tribunals decide most employment law disputes. Employment judges and members are independent and have experience in employment law and practice.

2.1.2 The...