EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke
1. Section 21 of the Employment Tribunals Act 1996 gives jurisdiction to the Employment Appeal Tribunal to entertain appeals from a ‘decision’ of the Employment Tribunal.
2. A useful working definition of the term ‘decision’ which is not defined in the Act, is that to be found in Rule 1(3) of the Employment Tribunal Rules of Procedure 2013 which defines ‘judgment’ as:
‘ . . a decision, made at any stage of the proceedings . . which finally determines –
(i) a claim, or part of a claim, as regards liability, remedy or costs . .
(ii) any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so . . ‘
3. Appeals to the Employment Appeal Tribunal are against decisions, not against findings of fact; the Employment Appeal Tribunal has no jurisdiction to entertain appeals by successful parties against findings that do not finally determine any claim, part of a claim or issue. There is no jurisdiction to entertain appeals by a successful party against immaterial findings of no general significance
4. Where a would be Appellant believes that there has been a material omission on the part of an Employment Tribunal to deal with a significant issue or to give adequate reasons in respect of a significant finding, the proper course is not to lodge a Notice of Appeal but to go straight back to the Employment Tribunal and ask that the omission be repaired. If reasons are given orally, this should be done as soon as practicable after completion of the judgment and if Written Reasons are later handed down, as soon as practicable after the Judgment is received. It is the duty of advocates to adopt this course
5. A failure to bring failures to deal with issues or give adequate reasons back to the Employment Tribunal before lodging a Notice of Appeal may in certain circumstances have cost consequences.
6. The Employment Appeal Tribunal reminded practitioners that EAT Practice Direction provides that: ‘10.6. If a respondent intends to contend at the [Full Hearing] that the appellant has raised a point which was not argued below, the respondent shall say so:
11.5.1. if a [Preliminary Hearing] has been ordered, in writing to the EAT and all parties, within 14 days of receiving the Notice of Appeal;
11.5.2. if the case is listed for a [Full Hearing] without a [Preliminary Hearing], in a respondent’s Answer.’
This Practice Direction must be complied with.
Serota QC HHJ
 UKEAT 0065 – 14 – 0904
England and Wales
Updated: 10 November 2021; Ref: scu.545176