Challenging tribunal decisions

1. Decisions of the Employment Tribunal may be challenged either by way of:

• an application for review of the decision by the Tribunal itself; or
• an appeal to the High Court.

Review

2. Rules 34 to 36 of the Employment Tribunals Rules of Procedure 2004 allow for the review of a Tribunal decision on an application being made within 14 days of the date on which the decision was sent to the parties. The application must be in writing and state the grounds for review in full. The only grounds for review are:

The Tribunal may review a decision on its own initiative on the same grounds.

• the decision was wrongly made as a result of an administrative error;
• a party did not receive notice of the proceedings leading to the decision;
• the decision was made in the absence of a party;
• new evidence has become available since the hearing, provided that its existence could not have been reasonably known of or foreseen; or
• the interests of justice require such a review. However, an application for review under Rules 34 to 36 should not be made where an appeal to the High Court would be more appropriate (see below).

3. On review, the Tribunal may confirm, vary or revoke the original decision. If a decision that was made at a hearing is revoked, a new hearing must be held.

Appeal

4. If either party is dissatisfied on a point of law with the decision of the Tribunal, it may appeal the decision to the High Court.  Appeals must be made to the Administrative Court of the High Court within 42 days of the date of the decision; notice of the appeal must be served on the secretary of the Tribunal².

5. If the Tribunal decision is "perverse" then there is a point of law on which to appeal. However, it may be difficult to show that a Tribunal decision is so unreasonable as to be wrong in law. The test to be applied is similar to that which the Tribunal should apply to the notice:

• has the Tribunal taken into account irrelevant considerations; or
• failed to make finding of fact on relevant evidence; or
• applied the wrong test by submitting their own judgments.

6. Where there was some evidence to support a finding of fact it is likely to be upheld by the High Court, unless the approach of the Tribunal was so unreasonable as to be perverse. The overall approach is for the Court to ask itself whether a finding was a permissible option and whether any findings of fact were supported by the evidence. If the findings were a permissible option and supported by evidence, and the Court has believed the decision to be wrong, it should re-examine its view³.

7. If you consider that a Tribunal decision should be reviewed or appealed, or if you are notified that a dutyholder proposes to apply for a review or appeal, you should immediately forward details (including a copy of any Notice of Appeal received) to Legal Adviser's Office via your legal liaison point.

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Footnotes

1. Section 11(1) Tribunals and Inquiries Act 1992
2. Civil Procedure Rules 1998, Rule 52.19; Practice Direction on Part 52 (Appeals), Section II (General provisions about statutory appeals and appeals by way of case stated), para 22.6E.
3. Neil v. Hereford and Worcester County Council [1986] ICR 471 and Picket Brothers & Co Ltd v. Jackson and others [1992] ICR 85 CA.