Notice
Stage 6: Respond to an appeal

If a notice of appeal form from an Employment Tribunal is received:

• record receipt of appeal
• promptly check that they have a copy of the notice
• discuss all aspects with line manager as early as possible
• inform the Tribunal if the appeal relates to an immediate prohibition notice and full compliance (including remedial measures) has been achieved
• inform the Tribunal if a decision has been made (or is almost certain to be made) to prosecute the appellant in relation to the circumstances that led to the notice
• where a prosecution is underway, consider with line manager whether it would be in HSE's interest to request the Tribunal to put the appeal of the notice on hold pending the outcome of the prosecution
• where the grounds for appeal are not sufficiently clear on the notice of appeal, promptly contact the appellant to request further information to clarify their reasons for appealing and copy the request and the subsequent reply to the Tribunal
• if the reply from the dutyholder is not satisfactory, apply to the Tribunal for an order to be made for release of the information
• decide in conjunction with line manager whether a solicitor agent in England and Wales, or HSE's legal advisers in Scotland, should be engaged to handle the appeal - contact the appropriate legal liaison point in cases of doubt

If a solicitor agent/legal adviser is not handling the appeal: 

follow step 6.2 below

Prepare for a Tribunal hearing as follows:

• consider the notice of appeal information and decide which witnesses will be required to support the notice
• after taking into account witness availability, agree the date of the hearing with the Tribunal and then inform witnesses

• if a required witness does not wish to attend voluntarily, apply to the Tribunal for an order and serve it under the Tribunal's direction
• follow the Tribunal's direction for the mutual exchange of witness statements (each containing a statement of truth) and other documents
• consider with line manager the submitting of a response to the appeal as a 'written representation' to the Tribunal not less than 7 days before the hearing and send copies to all other parties
• seek to agree with the appellant a document bundle for submission to the Tribunal preferably at least a week in advance. Prepare the bundle in 2 indexed files, the first containing all statements and the second other documents. Make 7 sets for the hearing
• calculate the costs (expenses in Scotland) that are to be submitted to the Tribunal using form HSE A/Cs 509 amended to refer to a Tribunal appeal
• prepare an opening statement that includes the main reasons for issuing the notice, the legal requirements relating to the circumstances, which witnesses and documents will be presented to the Tribunal and why
• prepare witness questions

The inspector who served the notice should attend the Employment Tribunal hearing:

• prepared to make an opening statement
• to give evidence on the known facts at the time the notice was issued and the justification for the decision to issue it
• to call witnesses
• to cross examine any witnesses called by the other party
• to address the Tribunal

At the end of the case:

• the calculation of witnesses’ costs/expenses should be handed to the Tribunal and the appellant

When the Employment Tribunal has reached a decision, take the following action depending on the circumstances:

If the Tribunal confirms the notice but wishes to modify the date:

• provide the Tribunal with an opinion in relation to the risk
• record the outcome

• return to step 5.1

If the Tribunal decides to cancel the notice and HSE decides not to appeal:

• record the outcome 

If the Tribunal decides to cancel the notice and HSE considers an appeal:

• full details must be sent immediately to the appropriate legal liaison point and copied to Legal Adviser’s Office
• an appeal on a point of law must be made within 3 months of the Tribunal's decision being made to the parties
• record the judgement and that an appeal is under consideration

If the Tribunal confirms the notice and the dutyholder decides to appeal:

• full details must be sent to the appropriate legal liaison point and copied to Legal Adviser's Office
• record the judgement and that a notice of appeal has been made 

If HSE applies for a review of a Tribunal decision

• an application should be made within 14 days of the entry of the decision on the register and be triggered by some procedural or other error relating to the hearing, or new evidence becoming available
• make the application in writing and state the grounds in full but do not include points which would rightly form the subject matter for an appeal
• record HSE's action