Challenging tribunal decisions
1. Decisions of the Employment Tribunal may be challenged either by way of:
- an application for a formal reconsideration of the decision by the Tribunal itself; or
- an appeal to the High Court.
Reconsideration of Tribunal judgments
2. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again.
3. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.
4. An Employment Judge shall consider any application made for reconsideration. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.
5. If the application has not been refused by the Employment Judge because it appears to have no reasonable prospects of success then the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any views provided that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.
6. Where a Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered as if an application had been made and not refused.
Appeal
7. 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 High Court within 21 days of the date of the decision unless the Tribunal has directed a different time period within which to appeal.
8. 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.
9. 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 view.
10. 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.