The loser in a case before an employment tribunal is often very tempted to appeal simply because they lost. A recent case is a salutary reminder of the important point that that is generally not enough – an appeal can only be made on a point of law.
As most employment tribunal cases turn on questions of fact and as the decision of the tribunal is final on matters of fact (save in those few cases where the decision was “perverse” or was so defective that justice requires the matter to be remitted back for rehearing), it follows that in most cases there is no point in appealing against an employment tribunal’s decision. Of course, if pressed to do so, those acting for the losing party will try to find a point of law on which to hang an appeal. Advisers are generally well aware that a “perversity” argument is unlikely to succeed (except in the most extreme cases) so they may attempt a more sophisticated approach – for example in discrimination cases it is not uncommon for an appeal to be presented on the basis that the employment tribunal wrongly applied the rules relating to the burden of proof as this can sometimes be a way of getting around the difficulty. In general if arguments of this sort are really no more than dressing up a point of fact as a point of law the appeal will be dismissed without a full hearing – it will get no further than the preliminary “sift” stage at the appeal tribunal.
Nevertheless some litigants persist. It has to be said that the appeal tribunal generally leans over backwards to give them a fair hearing but at the end of the day it must apply the law. And that says the Employment Appeal Tribunal has jurisdiction to hear appeals only on points of law (Employment Tribunals Act 1996 s.21).
In the recent case noted above an agency worker, Ms Arrowsmith, was interviewed for a post at Nottingham Trent University, where she worked. She did not get the job. She brought a sex discrimination claim against the University saying she was rejected because two members of the panel which interviewed her knew that she was pregnant. The critical question in the case was whether those two members of the panel (or either of them) knew that the she was pregnant at that time. Clearly this was a question of fact. After a four-day hearing, the Nottingham Employment Tribunal, faced with a straight conflict of evidence between the the two sides (claiming and denying knowledge of her pregnancy on the panel members’ part) found in the University’s favour.
Ms Arrowsmith went on to use all avenues available to her to contest that decision. Including the original hearing her case eventually had no less than seven judicial hearings, five of them at the Employment Appeal Tribunal. However no point of law was involved. The question of whether any of the interview panel members knew that the she was pregnant was simply a matter of fact for decision by the original tribunal. The EAT judge concluded by adopting words used by a judge in the Court of Appeal in a different case, saying “I feel that like many highly intelligent non-lawyers, the applicant puts a great deal of faith in detail and in complexity. This is actually a quite simple case.”
While only indirectly relevant, given that an appeal can only be on a point of law, it is worth noting the slight oddity that the Employment Appeal Tribunal normally consists of two non-lawyer members as well as a legally qualified judge. Indeed, perhaps even odder, it is theoretically possible for the two lay members to overrule the judge – indeed this actually happened in a case called Moores v Bude-Stratton Town Council EAT  ICR 271.
The moral is clear: employees who are dissatisfied with the judgment of an employment tribunal, even those who have so far dispensed with the services of a professional advocate, should be careful to take and heed proper legal advice before deciding to mount an appeal. Otherwise they may face an expensive, time consuming and stressful experience which turns out to be completely pointless.
Coincidentally, shortly after the note above was written, a new Court of Appeal judgment became available on line, stressing the point that an appeal from an employment tribunal cannot be made against a finding of fact (Clarke v Zurich UK General Services Ltd  EWCA Civ 1333 on 26th November 2010).